The US is not challenging Beijing’s island claims in the South China Sea but the risk of confrontation will grow.

Chinese Navy officers wait dockside as a Chinese Navy warship escorting the arrival of the USS Curtis Wilbur arrives at Qingdao port on 13 September 2005. Photo by Getty Images.

On 30 January the US Navy carried out its second ‘freedom of navigation operation’ (FONOP) in the South China Sea in four months. The Chinese Ministry of Defence called the mission ‘intentionally provocative… irresponsible and extremely dangerous’ but that’s unlikely to deter the US. More FONOPs will follow because US maintains it is defending the ‘international rules-based order’ against efforts by China and others to rewrite the law of the sea. The missions are likely to push further into areas that China regards as sensitive and increase the risk of confrontation.

‘Innocent passage’

According to a statement from the Office of the US Secretary of Defense, the transit of the USS Curtis Wilbur was an ‘innocent passage within 12 nautical miles of Triton Island’, that is within the territorial sea of one of the Paracel Islands. The Paracels are occupied by China and claimed by Vietnam but the US was explicitly not intervening in that territorial dispute. Instead it claimed to be upholding general principles laid down in the UN Convention on the Law of the Sea (UNCLOS), which allows all ships the right of innocent passage through another country’s territorial waters. Article 19 of UNCLOS describes a passage as innocent, ‘so long as it is not prejudicial to the peace, good order or security of the coastal state’. Article 17 of the Convention makes no distinction between civilian and military vessels but several countries, including China, have argued that it does not apply to warships.

China’s 1992 Law on the Territorial Sea states that foreign military ships need Chinese government approval before entering China’s territorial sea (Article 6). China is not alone in this. At least 10 states, including Brazil, India, Malaysia and Vietnam, have domestic laws requiring foreign naval ships to either inform local authorities or seek permission before transiting either through their territorial sea (up to 12 nautical miles from shore) or Exclusive Economic Zone (up to 200 nautical miles from shore).

The US – and most other states with ocean-going navies – pointedly ignores these laws. Since 1979 the US has operated its Freedom of Navigation programme explicitly to challenge and prevent this becoming an accepted principle of international law. The Chinese Foreign Ministry’s response to the USS Curtis Wilbur’s FONOP was to call on the US to recognize Chinese maritime law – a position that the US has already rejected as incompatible with UNCLOS.

The United States has a political problem when it bases its actions upon UNCLOS, however. The US Senate has failed to ratify it. In August 2012, 34 Republican Party senators (a blocking minority) declared they would oppose ratification because UNCLOS creates the ‘International Seabed Authority’ to regulate economic activities in the deep ocean and because the Convention doesn’t explicitly grant states the right to gather intelligence at sea. Every relevant arm of the US government says these objections are spurious but that hasn’t persuaded the senators. Given their unilateralist sympathies and general disdain for the UN it’s unlikely that they will change their minds soon. The US Navy says it abides by the Convention’s provisions anyway, since they have now become part of customary international law, but its moral position would be made much stronger if 67 senators could vote in favour of it.

‘Straight baselines’

In November 2015 the Pentagon said it expects to mount at least two FONOPs in the South China Sea every quarter. In January 2016, the head of US Pacific Command, Admiral Harry Harris, told a Washington audience the missions would be ‘increasing in complexity and scope and in areas of challenge’. The US Navy is likely to challenge China over increasingly sensitive issues. One may be the question of ‘straight baselines’.

On 15 May 1996, the Chinese government declared what are called ‘straight baselines’ along its coast and around the Paracels. In the view of the United States – and many other countries – the lines are incompatible with UNCLOS. The Convention says straight baselines cannot be drawn around remote groups of islands and the Paracels are more than 260 kilometres (130 nautical miles) offshore.

How might a future United States’ FONOP challenge the straight baseline claims? One way might be for a warship to sail within 12 nautical miles of one of the Paracels in ‘innocent passage’ but then – in an area outside 12 nautical miles but within the straight baselines – carry out actions that are not ‘innocent’ such as military drills, turning on targeting radars or launching a helicopter. While the US would be perfectly entitled to do this within mainstream interpretations of UNCLOS, it’s almost certain that the Chinese military would find it provocative and might try to obstruct the FONOP with military or paramilitary forces (such as its maritime militia).

It’s worth noting that China’s position on ‘innocent passage’ is ambiguous. In September 2015, five Chinese warships sailed within 12 nautical miles of one of the US’s Aleutian Islands without seeking American approval. Around its own coasts, however, it continues to refuse this right to other countries’ naval vessels.

State of play

At the moment relations between the two navies appear to be very good. A few days before the FONOP the chiefs of the two navies, Admiral John Richardson and Admiral Wu Shengli, held a two-hour video conference discussing the situation in the South China Sea. The patrol of the USS Curtis Wilbur passed without incident. However, the US’s FONOPs will continue and China will continue to regard them as provocative. The US will claim it is acting within international law but China will claim it is violating its domestic law. Communication between the two will have to be clear and effective to avoid the possibility of confrontation.