The good, bad and downright ugly aspects of US naval operations in the South China Sea

Mark Valencia says the US navy’s ‘freedom of navigation’ operations close to the disputed Spratly and Paracel islands are proving controversial, not least for China, and Washington’s allies are wary of joining in

PUBLISHED : Friday, 12 February, 2016, 2:45pm
UPDATED : Friday, 20 May, 2016, 2:07pm

The US has undertaken two recent “freedom of navigation” operations using formidable Arleigh Burke-class guided missile destroyers to challenge what it considers illegal claims in the South China Sea. One was by the USS Lassen last October 27, which sailed within 12 nautical miles of the formerly submerged Subi Reef in the Spratlys. The most recent was on January 30 by the USS Curtis Wilbur, which sailed within 12 nautical miles of Triton Island in the Paracels.

READ MORE: PLA garrison ‘warns off’ US Navy destroyer sailing close to island in disputed area of South China Sea

According to the US Department of Defence this operation “challenged attempts by the three claimants, China, Taiwan and Vietnam, to restrict navigation rights and freedoms around the features ... The excessive claims regarding Triton Island are inconsistent with international law as reflected in the Law of the Sea Convention ... No claimants were notified prior to the transit which is consistent with our normal process and international law.”

There will be more operations – indeed they may become a regular feature of the US naval presence in the region. But they are controversial. These two were verbally supported by US friends and allies – and ardently opposed by China, which claims and occupies these features. Indeed, these operations have good, bad and downright ugly aspects and implications.

Both operations challenged China’s requirement of prior permission for warships to enter its territorial sea

The good: The US argues that it is defending a universally accepted principle that is critical to trade. It says it is providing a “free good” in protecting freedom of navigation for all. Behind its lofty rhetoric, the US is clearly challenging attempts by China and others to unilaterally interpret or change international law to their benefit. These operations were supported by its allies – the Philippines, Japan, South Korea and Australia – and by Vietnam – all of which have their own maritime concerns with a militarily burgeoning China. Both operations challenged not just China’s requirement of prior permission for warships to enter its territorial sea but also the prior notification requirements of Vietnam and Taiwan, which also claim these features. The Curtis Wilbur operation also challenged China’s baselines drawn around the Paracels – a claim that has no basis in the UN Convention on the Law of the Sea (Unclos).

These operations demonstrated that the US is truly trying to uphold international law, or its interpretation thereof, rather than single out and provoke China. In one interpretation of “good”, the US is trying to dissuade China from deploying advanced weapons to the features it controls. The Curtis Wilbur operation was relatively “soft” compared to that of the USS Lassen, which may account for China’s subdued response. It is even possible that a conflict-avoidance regime is forming between the two rivals regarding these operations.

The bad: The US is really primarily concerned with freedom of navigation for its warships and planes engaged in intelligence, surveillance and reconnaissance off China’s coast. But it is conflating this concern with freedom of commercial navigation to garner support for its position and opposition to China’s attempts to constrain these probes.

The Lassen freedom of navigation operation was confused and confusing

But the Lassen freedom of navigation operation was confused and confusing. Moreover, its message was muddled. It was unclear which excessive claim by whom was being challenged. The Curtis Wilbur operation was much clearer and less provocative in that the vessel followed a major shipping route rather than going out of its way to make its point like the Lassen.

But according to the Chinese Foreign Ministry, the actions of the USS Curtis Wilbur were “unprofessional and irresponsible” and “severely violated Chinese law, sabotaged the peace, security and good order of the waters, and undermined the region’s peace and stability”. China’s argument apparently is that Unclos stipulates that “foreign ships exercising the right of innocent passage through the territorial sea shall comply with related laws and regulations the coastal state may adopt” and that ”the international order should not be unilaterally defined by any single country”.

Xinhua said in an editorial that these operations “threaten China’s sovereignty and security interests, endanger regional peace and stability and constitute a grave violation of the international law”. It also said that the latest one was a “deliberate provocation” that raised doubts about US sincerity, coming just days after US Secretary of State John Kerry’s visit to discuss both the South China Sea and North Korea. While this is basically blather, it does point out the irony – if not hypocrisy – of the US arguing that China is violating a treaty that it has not ratified itself.

While US allies and friends voiced their support for the operations, they did not join them

Of more concern is the growing rift in the Association of Southeast Asian Nations regarding US-China competition for political, and perhaps eventually military, support or “facilitation”. The operations certainly exacerbate that rift. A case in point is Vietnam’s hypocritical contortions in rationalising its support for the military operations of its former foe by stating that “it respects the right to innocent passage through its territorial waters in accordance with international law”. Vietnam has both a territorial sea baseline and a prior notification regime that have been the targets of US freedom of navigation operations in the past. Also, while US allies and friends voiced their support for the operations, they did not join them – for various reasons including caution. But these are just uncomfortable superficial implications of these operations.

The ugly: The US has not ratified Unclos and thus has no standing to have its concerns arbitrated. Moreover, it has little credibility to unilaterally interpret the convention for its benefit. Thus, it is reduced to gunboat diplomacy and the threat of use of force by having its frontline warships violate China’s claims. It could have used coastguard or auxiliary naval vessels but chose not to. This “might makes right” tactic is not a useful example of international behaviour for other nations – including China. It clearly risks increasing tension and invites a physical response from China.

Foreign Ministry spokesperson Lu Kang said of the latest operation: “It is in essence the pursuit of maritime hegemony by the US under the cloak of freedom of navigation ... [and] this flexing of military muscles and creating of tension by the US ... is the biggest cause of militarisation in the South China Sea.” While this is mostly hyperbole, there is some truth to it. It does not bode well for cooperation between China and the US on more important matters like North Korea, Iran and Russia.

READ MORE: China urged to get tough with the United States over USS Curtis Wilbur’s sail-by near Triton Island in disputed South China Sea

In the face of what it perceives as provocations and threats, China is likely to increase its defence budget – and its military presence in the South China Sea – and evolve into a significant US foe. Perhaps that is inevitable, but these operations are doing nothing to prevent that and even seem designed to increase tension. US Defence Secretary Ashton Carter said on February 2 that the Pentagon needed to spend more money on hi-tech weapons to keep China in check – especially given high tensions in the South China Sea. Perhaps the die is already cast.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China