Recent statements suggest that the United States will soon conduct freedom of navigation (FON) operations against China’s artificial formations in the South China Sea (SCS). But there is far more handwringing going on than necessary, as demonstrated in a recent East Asia Forum article in which Mark Valencia warns that proposed FON challenges are ‘ill-advised, and even dangerous’.
There are always risks associated with conducting FON operations. But in light of recent posturing by both sides, failure to conduct a FON in the vicinity of China’s manmade islands will cause irreparable harm to US strategic maritime mobility and credibility in the Asia Pacific.
Valencia correctly notes that China claims sovereignty over all the features in the SCS. But four other nations and Taiwan reject Beijing’s claim, which is not recognised by the United States or any other nation. Establishing maritime zones is a function of sovereignty over land territory. Under international law, a state may establish a 12 nautical mile territorial sea and the sovereignty of the state extends to the territorial sea and the airspace above it. If sovereignty over a feature is not established or recognised, it follows that any maritime zone claimed (which China is yet to do) for that feature is null and void.
Until the sovereignty issue is resolved, no nation (including China) can claim maritime zones around these features. In the meantime, all nations (including the United States) can legally sail or fly within 12 nautical miles of the features.
Valencia then makes the astonishing statement that sailing a warship into the territorial sea of another country to ‘demonstrate the right of free navigation could also be construed as a threat to use force’ in violation of the UN Charter and United Nations Convention on the Law of the Sea (UNCLOS).