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| Image: Flickr User - Greg Bishop |
By Jonathan G. Odom
The U.S. Navy’s Freedom of Navigation Program is an important expression of international law.
The U.S. Freedom of Navigation (FON) Program [PDF] has recently drawn significant attention in the United States and the international community. During this period of focused attention, some observers have questioned the legality of U.S. FONOPs. This author has previously outlined the legality and legitimacy of the U.S. FON Program, including FONOPs conducted as part of that program. Other observers have also questioned the appropriateness and wisdom of U.S. FONOPs, particularly in the South China Sea. A prime example would be a recent critique by Dr. Sam Bateman of Australia, in which he alleged that U.S. FONOPs in the South China Sea “don’t make sense.” This followed a similar piece that he published in June 2015. Although Dr. Bateman asks some valid questions about the ongoing South China Sea situation, he makes incorrect assumptions on several points about U.S. FONOPs and misses the mark on several others. Below is an attempt to set the record straight on the matter, based upon this author’s prior experience with the U.S. FON Program at the operational, theater, and policy levels of the U.S. military.
Need for Clarity Does Not Start with the US
In Dr. Bateman’s analysis of the South China Sea situation, he understandably turns on a spotlight calling for clarity, but he unfortunately aims that spotlight in the wrong direction. Specifically, he complains, “It’s not clear just what the Washington is protesting in the South China Sea.” To be sure, lack of clarity is a component of this complex South China Sea problem, and this author has previously argued that greater clarity could help to improve the overall South China Sea situation. However, the need for greater clarity begins not with Washington, but with the claimant states – and particularly with Beijing.
China has never clarified the meaning of the U-shaped line. That is the official determination of the United States [PDF], Singapore, Indonesia [PDF], and a number of other non-claimant states. It is even the assessment of Wu Shicun, the president of China’s National Institute for the South China Sea Studies, who wrote in his 2013 book that the debate on China’s U-shaped line “will continue if China remains silent and keeps its claim ambiguous.” Most recently and perhaps most importantly, that was also a finding by the Arbitral Tribunal in the Philippines-China arbitration case, who stated it is a “fact” that “China has not clarified the meaning of the nine-dash line.”
Curiously, Dr. Bateman has been able to accomplish something that those foreign governments, international tribunal, and expert observers have been unable to do. In February 2014, Dr. Bateman criticized the congressional testimony of U.S. Assistant Secretary of State Daniel Russel, saying that Russel demonstrated a “lack of understanding” of what China’s U-shaped line is. Specifically, Dr. Bateman said the U-shaped line is a “loose geographical shorthand to say we claim islands and features, it is not actually questioning other countries who have established exclusive economic zones inside the nine dash line, or indeed have maritime boundaries with their neighbor.” While this might be what Dr. Bateman presumes it to mean, there is no record of official declaration or documentation issued by China to support his interpretation. Moreover, the practice of international law does not operate by “loose geographic shorthand” for establishing territorial and maritime claims.
In addition, China has not clarified the specific nature of the geographic features that it is claiming in the South China Sea or the maritime zones to which China asserts those features are entitled, to include those for which it has recently undertaken reclamation (i.e., enhancement to naturally-formed areas of land) and “clamation” (i.e., construction of artificial islands on low-tide elevations and submerged features). Time and time again, China’s official representatives have said only that China has “indisputable sovereignty over the Nansha [Spratly] Islands and their adjacent waters.” But China has never clarified which South China Sea features are islands entitled to an exclusive economic zone (EEZ), which features are rocks entitled to only a territorial sea, and which features are artificial islands warranting only the maximum of a 500-meter safety zone. While China declared [PDF] in its 1992 territorial sea law that it would employ straight baselines for its entire coastline and all of its islands, it has never drawn or published baselines for any of the features in the Spratly Island group, as it would be required to under Article 16 of UNCLOS. And even after the United States conducted FONOPs this week, China remained ambiguous in the specific nature of the geographic features within the Spratlys and maritime zones around those features that it is claiming.
Washington has attempted to be clear on many of the matters involving the South China Sea situation, and might very well need to be clearer on other aspects in the future. But Dr. Bateman should also call upon Beijing to officially clarify what exactly it is claiming in the South China Sea and provide its basis under international law for making those claims.
Read the full story at The Diplomat