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In the first instance, Beijing claims to have “expelled” the USS Barry from Chinese territorial waters. From the People’s Liberation Army (PLA) version of Tokyo Rose:
The provocative actions of the United States seriously violated relevant international law norms, seriously violated China’s sovereignty and security interests, artificially increased regional security risks, and were prone to cause unexpected incidents.
Translating from the original Propagandese, “expelling” is what happens when a US ship sails along its planned route, which in this case went both into and out of the vicinity of the Paracel Islands (or what China calls Xisha, now under its very own Chinese administrative district as part of Beijing’s ongoing SCS lawfare campaign). Presumably, the Barry would not have been “expelled” had it sailed in circles forever within the archipelago but, of course, it had other places to be.
The more insidious rhetoric–and a primary reason FONOPS exist–is the liberal PLA use of the words “provocative,” “international law norms,” and “sovereignty”:
- Provocative? US FONOPS have existed for four decades: universal, worldwide, country-agnostic. We challenge every country’s excessive claims. The only thing that has changed is the now-massive scope, scale, and audacity of Beijing’s maritime claims, especially in the SCS.
- International law under the UN Convention on the Law of the Sea (UNCLOS) is actually quite clear and important when it describes how a nation may claim territorial waters. Were the Paracel Islands to constitute an independent, archipelagic country, it would actually merit such a claim. Instead, it is an archipelago claimed and occupied by a continental state, China. Because China is not an archipelagic state, even if its claim was formally recognized, the waters around the Paracels would still not merit a territorial sea.
- Sovereignty is a term China uses liberally to describe anything it wants to own or exclusively control.
This is important because it demonstrates one way in which Beijing attempts to expand and consolidate its territory simply by making and repeatedly asserting excessive claims. The longer and more stridently it asserts these claims, it calculates, the more it will encourage the rest of the world to acquiesce.
In the case of the Paracels, China has unilaterally established “straight baselines” around the outermost islands of the entire archipelago, and says, “This is all ours–you need our permission to enter.” The USS Barry‘s FONOP challenged that claim by crossing those baselines and carrying on normal naval operations, because China’s straight-baseline claim cannot be allowed to stand simply because China says so. Were we to stop doing this, we would de facto cede the argument and establish a new norm: whatever China wants badly enough, China can have.
The USS Bunker Hill then challenged a second excessive claim by sailing within 12 nautical miles (nm) of a Chinese-occupied and -claimed feature in the Spratly archipelago further south. In this case, China has not (yet) attempted to draw straight baselines around the Spratlys, because in doing so it would immediately look impotent, unless it also occupied all of the features, which would require actually expelling the Vietnamese, Philippine, Malaysian, and Taiwanese forces which currently occupy many of those features (yes, we FONOP those too, but nobody really notices). Expelling them is China’s eventual goal, of course. After all, China asserts sovereignty over the entire SCS within its “Nine-Dashed Line.” Since it’s not ready yet for that step, however, China contents itself with aggressively building up its military presence, bullying its competitors, waging a vocal lawfare campaign, and of course vociferously protesting every passing FONOP.
The Bunker Hill’s Spratly FONOP was classified as “innocent passage,” which means that we recognize that a particular feature would merit a 12nm territorial sea for someone, though in the case of the SCS’s many claimants we don’t take a position as to which country’s sea we’re recognizing. Instead, we simply assert the right of ships to pass “innocently”–in a straight line without conducting any naval maneuvers–by sailing inside that 12nm limit.
Again, this is something we’ve done worldwide against every country’s excessive claims (yes, even those of our friends and allies) for four decades, but in China’s evolving lawfare campaign, it is important to them that we are the “provocateurs.”
Though not exercised this past week, the US also frequently challenges claims in which China has artificially built-up a feature that does not merit a territorial sea, and then claims that the resulting construction changes its nature. For example, Mischief Reef was once an ordinary low-tide elevation (meaning it was submerged at high tide). Then China built an island on top of it, complete now with its very own port and airfield. UNCLOS does not allow a country to artificially change a feature’s status, however, so when we conduct FONOPS within 12nm of Mischief Reef, we make sure we always conduct some kind of naval maneuver (i.e., not innocent passage), so as to make clear that we do not recognize any territorial sea.
Here’s the bottom line: US FONOPS will continue, both in the SCS and around the world. They must. There is no other country with such a program, and the day we stop is the day Beijing will be able to claim victory for its audacious assertions of SCS sovereignty. That is the day that, for all intents and purposes, the SCS–through which a third of global shipping transits–would effectively become a Chinese Communist Party-owned lake.
Note: The astute reader may be aware that UNCLOS was never ratified by the US Senate. Thus we are left with a perverse circumstance in which the US systematically observes and asserts UNCLOS without having ratified it, while China has ratified but systematically violates it.Published in