Water Wars

Water Wars: U.S. Navy Back for FON in the South China Sea

By Lawfare Staff
Friday, February 5, 2016, 10:25 AM

On Saturday, the United States Navy conducted its second freedom of navigation operation (FONOP) in recent months. This time, the destroyer USS Curtiss Wilbur transited within twelve nautical miles of Triton Island—a PRC-held feature in the Paracels also claimed by Vietnam and Taiwan. Unlike Subi Reef, which was the focus of the USS Lassen’s FON patrol last October, Triton Island is not one of China’s artificial islands. Another difference from the previous U.S. FONOP was, in the words of Julian Ku, that “the U.S. government has its act together on messaging,” both as to the purpose of and the legal basis for this operation.

A statement released by the Office of the Secretary of Defense explained that the “innocent passage” transit was designed to “challenge[] attempts by the three claimants . . . to restrict navigation rights and freedoms around the features they claim by policies that require prior permission or notification of transit within territorial seas.” The right of innocent passage derives from Article 19 of the UN Convention on the Law of Sea (UNCLOS), which allows warships to pass through another nation’s territorial waters, “so long as it is not prejudicial to the peace, good order or security of the coastal state.” The conventional interpretation of this provision is that it does not require advance notice.

Senate Armed Services Committee Chairman John McCain, who has forcefully advocated for additional FON patrols in the South China Sea, welcomed the move, as did House Seapower Subcommittee Chairman Randy Forbes. However, Senator McCain made clear that such patrols must occur regularly to be effective: “I continue to hope these operations will become so routine that China and other claimants will come to accept them as normal occurrences and releasing press statements to praise them will no longer be necessary.”

Unsurprisingly, China was less than enthusiastic about the U.S. FONOP. Foreign Ministry spokeswoman Hua Chunying condemned the operation, stating that the American vessel “violated the relevant Chinese law [on innocent passage] and entered China’s territorial sea without authorization.” Her counterpart, Lu Kang, suggested that the operation was nothing more than “the pursuit of maritime hegemony . . . under the cloak of ‘freedom of navigation.’” And least charitable of all, the PRC Defense Ministry described the operation as “very unprofessional [and] irresponsible to the safety of servicemen of both sides.”

Elsewhere around the Pacific, the reaction ranged from lukewarm to positive. Taiwan responded to the patrol by simply asserting that it had never obstructed the freedom of navigation in the South China Sea. Vietnam—which controlled Triton Island until China seized it in 1974—explained that, as a state party to UNCLOS, it “respects the right of innocent passage through its territorial seas conducted in accordance with the relevant rules of the international community.” Australia applauded the FON patrol and said that the U.S. was simply upholding international law.

In other news…

United States

Reuters reports that the United States is open to the possibility of joint FON patrols with the Philippines in the South China Sea. During a media forum this week, U.S. Ambassador to the Philippines Philip Goldberg told reporters, “We do discuss that principle with the Philippines and so I am not discarding that possibility.” Manila previously called for joint patrols in response to Chinese test flights last month on Fiery Cross Reef.

Striking a more conciliatory note, U.S. Assistant Secretary of State for East Asia Daniel Russel clarified that the ASEAN summit that President Obama will host this month is “not anti-China.” The State Department official explained that the “summit is not about China. It’s about the U.S. and ASEAN.” He also maintained that “the disputes over land features and maritime entitlement in South China Sea isn’t a zero-sum game; this is not a proxy war between China and the United States.”

China

Beijing struck back against U.S. Admiral Harry Harris’s assertion last week that the United States would “clearly defend [the Senkaku/Diaoyu Islands] if they are attacked by China.” The PRC Ministry of Defense issued “a stern warning” and urged Washington to “be cautious in words and actions in regard to the Diaoyu Islands issue.”

According to the semi-official China Daily, the PRC’s maritime militia is improving is operational capacity as part of a larger effort to bolster its capabilities at sea. Andrew Erickson and Connor Kennedy provide additional details about China’s “Little Blue Men” in the second installment of their series on this important subject.

South Korea

Two PLA aircraft briefly entered the Korea Air Defense Identification Zone (KADIZ) on Sunday, according to Korea’s Joint Chiefs of Staff. The planes reportedly flew over Ieodo, a submerged rock near Jeju Island in the East China Sea. After being challenged by the Korean military, the pilots identified themselves as Chinese and left the area. The Korean Joint Chiefs also suggested that the Chinese aircraft violated Japan’s ADIZ near Tsushima Island, but Japan’s Ministry of Defense denied the claim. The Diplomat’s Ankit Panda considers whether the PRC used the infiltration to communicate its displeasure over recent talks between Seoul and Washington about deploying Terminal High Altitude Area Defense (THAAD) systems.

Vietnam

According to the Vietnam News Agency, a panel of the International Civil Aviation Organization (ICAO) agreed to amend a map of the Sanya flight information region (FIR) in response to a Vietnamese complaint that the label of “Sansha City – China” on Fiery Cross Reef amounted to violation of its sovereignty. The objection over the map appeared to serve as diplomatic retaliation for China’s decision to land civilian aircraft on the disputed artificial island in early January. PRC Foreign Ministry spokesman Lu Kang dismissed the report as false and warned its Communists neighbor to “not politicize the matter” for the FIR map.

China’s semi-official People’s Daily reports (with some satisfaction) that Typhoon Melor ‘blew away an illegal island made by Vietnam,’ referring to the disputed Cornwallis South (Nanhua) Reef in the Spratly chain. The article includes a series of satellite photos that capture the damage.

Taiwan

The Wall Street Journal recounts Taiwan’s recent push to ensure that Taiping Island (Itu Aba)—the largest natural feature in the Spratlys—wins recognition as an island rather than “a lowly rock.” Under UNCLOS, islands are entitled to a 200-nautical-mile exclusive economic zone and a continental shelf, whereas rocks only provide a twelve-nautical-mile territorial limit. Taiwan’s Ministry of Foreign Affairs admitted to being “highly concerned” about the potential ramifications of the Philippines v. PRC maritime arbitration case on this classification. Although Manila did not explicitly contest the status of the disputed island, it did argue that none of the features in the Spratlys amount to an island under international law.

After his visit to Taiping last week, outgoing President Ma Ying-jeou released photographs of soil and water samples from the feature to demonstrate that it is capable of supporting life. Mr. Ma suggested that the well water rivaled the quality and taste of Evian. In a separate move, a nurse working at a hospital on Taiping became the first civilian resident of the island when she formally reregistered her address this week. The nurse also asserted Taiwan’s sovereignty over the disputed feature as a resident.

Japan

Emerging from a State Department disclosure related to former Secretary of State Hilary Clinton’s email scandal, it appears that then Assistant Secretary of State Kurt Campbell urged high-ranking Japanese officials to consult with Beijing before putting several of the Senkaku/Diaoyu Islands under state ownership in 2012. Later that September, Tokyo purchased three of the five main islands in the chain from a private landowner. In the words of the Nikkei Asian Review, “Japan grossly underestimated the anger it would face from China over its 2012 nationalization of disputed islands.”

Australia

The Chief of the Royal Australian Air Force (RAAF), Leo Davies, revealed that Australia has “slightly” increased the number of FON surveillance flights over the South China Sea and that “nearly all” patrols are challenged by the PLA, unlike in the past. According to figures from the Defence Department, Australia conducted a total of thirty FONOPS in the past year. Air Marshal Davies linked China’s increased aggressiveness to its artificial island scheme: “Because the Chinese have done the reclamation, there is a greater Chinese presence.”

Analysis, Commentary, and Additional Information

Providing some additional analysis on this week’s U.S. FONOP, AMTI’s Gregory Poling argues that the patrol was “a step in the right direction,” while Chatham House predicts trouble on the horizon with more controversial operations likely in the future. Elsewhere, ChinaFile hosts a five-way expert dialogue on how close this latest close call was in the South China Sea.

Voice of America details how island reclamation wreaks havoc on maritime ecosystems. Ellen Frost considers the possibility of renaming the South China Sea in the Eurasia Review. And a Stratfor report analyzes how Sino-Japanese tensions over the Senkaku/Diaoyu Islands might spill into the South China Sea.

Concluding on a sunnier note, The Diplomat’s Kailash Prasad explores how claimants might foster a multilateral approach in the South China Sea, and Hao Du Phan explains why the ruling in the Philippines v. PRC maritime case could be less of a “cause for gloom” than some analysts have predicted.

Water Wars is our weekly roundup of the latest news, analysis, and opinions related to ongoing tensions in the South and East China Seas. Please feel free to email us with breaking news or relevant documents.