Further Militarizing the South China Sea May Undermine Freedom of Navigation

The following  is an excerpt from an article that originally appeared on The Diplomat, was republished with the authors’ permission. Read it in its original form here

By Eric Gomez and Doug Bandow

In the near future the U.S. Navy (USN) reportedly will sail within 12 nautical miles of islands claimed by China in the South China Sea (SCS). This is welcome news for those who believe that Washington’s weakness in the face of China’s “blatantly illegal” island reclamation campaign has encouraged Beijing’s bad behavior. Now the question is: what comes next?

The idea that FONOPS will rein in Chinese actions in the SCS is appealing. Administration critics charge that China has been making all the right moves to bolster its territorial claims while the United States sits on its hands. However, FONOPS will not resolve SCS territorial disputes. In fact, this approach likely will complicate U.S.-Chinese relations and make a peaceful settlement of territorial disputes more difficult. 

Read the Rest Here

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Why the US Navy’s first South China Sea FONOP wasn’t a FONOP

By Timothy Choi

The eagerly-anticipated Freedom of Navigation Operation (FONOP) by the United States Navy (USN) in the South China Sea was initially viewed as a strong demonstration of the United States’ resolve that the waters surrounding China’s artificial islands and claimed reefs are high seas. China’s attempt to establish a de facto 12 nautical mile territorial sea around these features is, as most readers of CIMSEC will know, in direct contravention of the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS clearly specifies that man-made islands and underwater features like reefs are not eligible for the 12NM zone granted to more robust geographic features, such as rocks or naturally-formed islands capable of sustaining human habitation or economic life; the latter of these are also eligible for the prized 200 NM Exclusive Economic Zone.

Acknowledging implicitly that their features are not legally entitled to any kind of territorial sea, the Chinese instead have attempted to establish a normative regime aiming to make other actors treat the waters surrounding their features as though it were a territorial sea. Under customary international law, consistent behavior towards a particular issue can result in the practice becoming legally binding, either through generally agreed norms of behavior or a gradual solidification it into written law. Thus, for countries wishing to prevent the high seas around the Chinese features from becoming a territorial reality, it is crucial for interested parties to halt the norm-creation process before it can gather steam.

To do this, the USN thus carried out its first FONOP, sending the Arleigh Burke class destroyer USS Lassen within 12 NM of the Chinese build-up on Subi Reef. However, simply sailing within 12 NM is not sufficient to demonstrate American resolve that the waters are high seas.

Rather, the Lassen had to have behaved within those 12 NM in the same manner allowed on high seas. Under UNCLOS, a warship on the high seas may carry out its whole array of activities including launching helicopters, turning on fire-control radars, and carrying out arms exercises. However, these and other activities (including fishing and research) are all prohibited when sailing in another country’s 12 NM territorial waters – a condition known as “innocent passage”, detailed under UNCLOS Part II, Article 19.

USS Lassen's crew carries out a medical training exercise with an airborne MH-60R Seahawk helicopter in the South China Sea some time before the FONOP. (credit: Navy.mil) -Had this been done within 12 NM of Subi Reef, America's commitment to Freedom of Navigation would be unambiguous.
USS Lassen’s crew carries out a medical training exercise with an airborne MH-60R Seahawk helicopter in the South China Sea some time before the FONOP. (credit: Navy.mil)
-Had this been done within 12 NM of Subi Reef, America’s commitment to Freedom of Navigation would be unambiguous.

Thus, in order for the USN to send the unequivocal message that it saw the 12 NM around Subi Reef as high seas, it had to have carried out at least one of those activities. Else, its transit would have been identical in form to that of an innocent passage, which is only required for territorial waters. Carrying out such a transit would therefore legitimize, or at least be viewed as legitimizing, the Chinese claim that Subi Reef has a 12 NM territorial sea. In so doing, Lassen’s voyage, far from contesting the Chinese position, would actually reinforce it by behaving in the same way it would have to in an actual territorial sea.

So how did Lassen actually behave during its transit? It appears more and more likely that Lassen in fact behaved exactly as she would in territorial waters. Sam LaGrone’s post on USNI News quotes US defence officials and sources as stating that Lassen carried out an innocent passage, though claiming it did not mean a recognition of the Chinese position. Lassen’s transit, then, was not any more a FONOP than any regular transit through another state’s territorial waters under the articles of UNCLOS. 

If the United States wants to demonstrate its resolve on the issue, its FONOPs need to not only sail within 12 NM of a Chinese feature, but also involve activities prohibited under “innocent passage” conditions while in the area. Such activities can be as mundane as lowering a fishing lure over the side, or as visually impressive as launching a Seahawk or UAV.

As the US plans for further, more regular FONOPs in the South China Sea, America’s willingness to challenge China on the issue will manifest not in dramatic debates at the United Nations or stern press releases, but in the minute activities of the ships and sailors involved. Photographs and videos of such activities would go far to prove the United States’ unwillingness to compromise on Freedom of Navigation and gain the confidence of its regional allies. A strong and unambiguous message now can nip a problem in the bud before it can fester to point where actual violence may break out. To paraphrase Sun-Tzu, it is much better to defeat an enemy’s strategy than to defeat them in battle. Heading off the Chinese at their own norm-creation game now will decrease the opportunities for misunderstandings leading to violence in the future – but only if the message cannot be misinterpreted.

Timothy Choi is a PhD student at the University of Calgary’s Centre for Military & Strategic Studies. Interested in all areas of maritime security and naval affairs, he struggles everyday with the fact that he studies at an institution located hundreds of kilometres away from the nearest ocean. When not on Twitter (@TimmyC62), he can be found building tiny ship models and headbanging to some kind of northern European folk metal. 

Call for Articles – Russia Resurgent Week

Week Dates:  Nov 23-29 2015
Articles Due:  Nov 20 2015
Article Length: 500-1500 Words
Submit to: nextwar(at)cimsec(dot)org

Amidst headline-grabbing activities on land in Ukraine and Syria, Russia is steadily pursuing new strategies at sea. From assuring Black Sea access with the annexation of Crimea to joint Pacific exercises with China, recent Russian activities represent a level of commitment to sea power unseen since the dissolution of the Soviet Union.

During the first week of November, CIMSEC will host a series exploring the maritime implications of Russia’s strategic goals, Russia’s capacity to execute its strategy at sea, and the implications of Russian strategy and policy for its neighbors, partners and adversaries. Potential topics, in order of broadest to most focused, could include: Is Russia a natural sea power, land power, or somehow both? What ends does Russia hope to achieve through sea power? What relationships is Russia looking to enhance or destabilize through stepped-up maritime activity? What asymmetries with the maritime strategies of NATO, the U.S., China, and others does Russian strategy hope to exploit? What policies should Russia pursue in the Arctic, and why? Does Russia have the economic and industrial strength to recapitalize its seagoing fleet? How much does the Russian economy depend on seaborne trade, legal and illicit? Does Russia possess an expeditionary capability? How does the concept of hybrid war, as practiced in Ukraine, extend to the maritime sphere? What role, if any, does or should Russia have in the humanitarian crisis in the Mediterranean? And, to all of these questions, how should other countries adjust their strategies to react?

Contributions should be between 500 and 1500 words in length and submitted no later than 20 November 2015. Publication reviews will also be accepted. CIMSEC will re-post selected older entries about Russian maritime activity, as well.

Matt McLaughlin is a U.S. Navy Surface Warfare Officer. His opinions do not represent the Department of the Navy.

Should the U.S. Navy Help with the Med. Refugee Crisis?

A Modest Proposal to Help this Generation’s “Boat People”  

By John T. Kuehn

First, this article may be too late.  What do I mean?  I mean that we—as in the global community and the United States in particular—may be too far behind the power curve to do something meaningful about helping the refugees fleeing across the sea from the Syrian Civil War-Islamic Thirty Year’s War raging in the Middle East.  This is my way of saying I wish I had written this about six months ago when the problem was manifest to all.  So why write at all?  Something might be STILL done with forward deployed naval forces of the United States today, perhaps with like-minded maritime allies to help the unfortunate masses of humanity fleeing their homelands from a particularly cruel conflict.    Even if it is too late for current policy, the trend of “boat people” fleeing war to a better life elsewhere has many precedents in history, especially the last one hundred years and it will most certainly occur again.   This means that ringing the clarion now might contribute to effective humanitarian policy action in the future.  So it is worth a try.

First, let us briefly review some relevant history on these sorts of refugee crises as they pertain to migration in unseaworthy craft in search of a better life on distant shores. Case one takes us back to 1975 and the late 1970s when the United States’ lost war in Vietnam resulted in the flight of the boat people of South Vietnam  (and Cambodia, too) from the proletarian utopias established by the new Vietnamese government in Hanoi and the Khmer Rouge. The United States was caught napping somewhat on this one, too, but before long had started making efforts with naval assets based in the Western Pacific to help with this crisis. However,   years later a particularly unfortunate incident occurred in the 1980s wherein the captain of a U.S. warship (the USS Dubuque) failed to render proper assistance to fleeing “boat people” who later survived to present evidence against him. We will return to this issue since it is a feature of the law of the sea that mariners must render aid to people in danger on the high seas.  More recently Americans saw the flight of people from both Cuba and Haiti to the United States in the 1990s, fleeing various natural and man-made disasters in the Caribbean.

Why should the United States use its assets, especially its Navy, to help these people? There are three principle reasons: moral obligation, humanitarian, and practical.    The practical value for the United States involves two factors, leadership and what, for lack of a better term, might be called “good press.” If the U.S. is to be a leader it must take the lead in areas where it claims an interest.  By getting more involved and working with other states of the region while at the same time committing actual naval forces to help, we build partnerships, lead, and help. It is a win-win-win result.

From a moral standpoint we owe it to these people.  Here is the causal logic—when the U.S.-led coalition invaded Iraq all those years ago we removed the government in power and destabilized the region.  From that context Al Qaeda in Iraq (AQI) developed.  During the final years in Iraq we estimated we had pretty much solved the problem of AQI, but instead it had simply transformed itself into the current Islamic State (ISIS).   At the same time Syria fell into civil war, a conflict not unrelated to our actions in Iraq and has been further de-stabilized, especially since 2013, by an increasingly powerful and dangerous ISIS.  The upshot is that some, not all, of these refugees can be traced to American policy choices, so there exists something of a moral obligation to help with the result of our, for lack of a better word, blundering in the Middle East.

Finally, we get back to the purely humanitarian reasons—the salvation of (mostly) innocent human life.   Obviously things are being done, but there is little reason to allow people to helplessly drown or die of exposure at sea on un-seaworthy craft.   They already think they can make it and so the arguments that they would not flee if they did not think someone would help are not only ill-informed, they are morally wrongheaded.   In fact, the United States by simply having ships in the Eastern Mediterranean is obligated to “render assistance” should it run across people in distress on the high seas. Simply stationing ships on patrol in that area will naturally result in a requirement to render assistance because we certainly do not want any more Dubuques like we had in the South China Sea after the Vietnam War had ended.

As with any use of American taxpayer-funded projects, use of U.S. Navy assets must be judicious.  Also, we must coordinate with partners and allies in the region, but rendering assistance on the high seas is part of international law and a moral imperative, more than one might think given our distance from the Eastern Mediterranean. However, if the United States is to use its Navy as the “sysadmin” of the global maritime regime, as Captain Peter Haynes discusses in his recent book on the “new maritime strategy,” then this sort of action and use of naval power is part of the responsibility that the mantle of maritime leadership confers.   Or perhaps we no longer aspire to lead in this domain?  I think not.

Dr. John T. Kuehn is the General William Stofft Chair for Historical Research at the U.S. Army Command and General Staff College CGSC).  He retired from the U.S. Navy 2004 at the rank of commander after 23 years of service as a naval flight officer flying both land-based and carrier-based aircraft.  He has taught a variety of subjects, including military history, at CGSC since 2000.  He authored Agents of Innovation (2008), A Military History of Japan:  From the Age of the Samurai to the 21st Century (2014), and co-authored Eyewitness Pacific Theater (2008) with D.M. Giangreco as well as numerous articles and editorials and was awarded a Moncado Prize from the Society for Military History in 2011.  His latest book, due out from Praeger just in time for the 200th Anniversary of the Battle of Waterloo is Napoleonic Warfare: The Operational Art of the Great Campaigns.

The views are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.

Fostering the Discussion on Securing the Seas.