We’ve previously noted that
the infrequent Freedom of Navigation (FON) actions by the US Navy in the South China Sea have done more harm than good, legally, by serving
to reinforce China ’s claims of sovereignty. The
actions were carried out as “innocent passage” which is a prescribed method
(see the UNCLOS documents for the exact procedure) for warships to pass
peacefully through the waters of another country. By conducting the FON actions as innocent
passages, they served to bolster China ’s claims since innocent passage can only be applied
to another country’s territorial waters.
Thus, the US was implicitly recognizing China ’s claims. Alternatively, some FON actions were conducted
at greater than 12 miles from any disputed islands or lands which, again,
bolsters China ’s claims of sovereignty.
Had the US wanted to dispute China ’s sovereignty claims, the FON actions should have
studiously avoided following innocent passage procedures or observing the 12
mile territorial limit.
Interestingly, the Navy has
just recently executed a FON action near Mischief Reef in the Spratly Islands that explicitly ignores the innocent passage procedures.
“A U.S. destroyer
sailed within six nautical miles of a Chinese artificial island on Wednesday in
the strongest challenge of hotly debated Chinese claims in the South China
Sea , USNI News has learned.
Around 7 P.M. EST on Wednesday (7 A.M. Thursday local
time), USS Dewey (DDG-105)
passed within six nautical miles of the Chinese installation on Mischief Reef
in the Spratly Island chain, several U.S. officials confirmed to USNI News
The guided-missile destroyer operated normally and did not conduct the transit under the
rules of an innocent passage – the restrictions that allow a warship to
pass through another country’s territorial waters with no notice.
The ship was within 12 nautical miles of Mischief
Reef for about 90 minutes zig-zagging in the water near the installation. At
one point during the operation, the ship’s crew conducted a man overboard
drill, a U.S. official
told USNI News.” [emphasis added] (1)
This is good news in a
minimalist sense. At least this FON did
no further legal damage. Presumably,
this change in policy is due to the new Trump administration.
On the other hand, this kind
of FON serves no concrete purpose if the other side, the Chinese in this case,
choose to ignore it. It does not hinder
development of artificial islands or bases.
It does not blockade any Chinese actions. It does not lodge an official protest with
the UN. It does not establish a
“counter-island” developed and controlled by the US . In short, it
does nothing but offer a silent, unspoken, token, symbolic protest in the
mildest manner possible.
Previous FON actions have
clearly done nothing to dissuade China from their expansionist policies and actions in the
South and East China Seas . FON actions,
even this type, accomplish nothing but ratcheting up tensions. We need to either back out of the area and
concede the South and East China Seas as Chinese territories or begin taking concrete,
productive actions along the lines we’ve discussed in previous posts and
comments.
As a reminder,
“Unlike other Chinese artificial islands in the South China
Sea , the Mischief Reef installation isn’t subject to
overlapping territorial claims from any other country and is built on a
low-tide elevation, as determined by the 2016 Hague
tribunal ruling on Chinese claims in the South China
Sea .
Under the U.N. Law of the Sea Convention [UNCLOS], a
low-tide elevation cannot be claimed as the territory of any country and does
not command a territorial sea.”
Setting aside the myriad
political and economic actions that we could and should take, the following
actions, which cover a range of intensity, should also be considered.
- Close, high speed passes to attempt to cause
wake damage to island facilities
- Blockade of islands and bases
- Physical hindering of resupply ships
- Physical disruption of, and interference with, reclamation
vessels
- Covert disruption of island facilities (SEAL
missions)
- Electronic jamming of island communications
If we’re not going to
contest the South and East China Seas then we need to cede the area and retire from the
region, diffuse tensions, and save the wear and tear on our ships and
aircraft. Of course, if we’re going to
do all that, one can also reasonably ask why we need ships and aircraft. We can cede entire regions without the use of
our military!
Our policy of token
resistance is having no positive effect whatsoever. We need a new geopolitical and military
strategy for the region.
_____________________________
(1)USNI News website, “U.S. Warship Came Within 6 Miles of Chinese Artificial Island in Toughest Challenge Yet to Beijing South China Sea
Claims
”, Sam LaGrone, 25-May-2017 ,