America's Latest South China Sea FONOP Did More Harm Than Good
Unambitious. That’s the proper adjective for USS Decatur’s “freedom of navigation” cruise near the Paracel Islands last week. Released last year, the Pentagon’s Asia-Pacific Maritime Security Strategy lists “safeguarding freedom of the seas” first among U.S. strategic priorities for the region, followed by “deterring conflict and coercion” and “promoting adherence to international law and standards.” The Maritime Security Strategy is a fine document on the whole, and there’s no quarreling with its to-do list. The document also presents observers a yardstick to judge Decatur’s exploits in the South China Sea.
The yardstick tells a sobering tale: on balance the operation advanced none of the Pentagon’s self-professed strategic aims. It challenged one minor Chinese infraction—Beijing’s demand that foreign ships request permission before transiting waters China regards as its own—while letting China’s major affronts to freedom of the seas stand. Indeed, by seeming to acquiesce in the notion that the transit was an “innocent passage” through Chinese-claimed waters, the operation may have actually vindicated Beijing’s lawlessness. That’s no way to promote adherence to international law and standards, let alone deter conflict or coercion.
Let’s review the legal dimension, then examine how misconceived operations ripple through U.S. alliances in the Indo-Pacific. Legalities first. The Aegis destroyer traversed waters that China deems part of its “territorial sea,” offshore waters subject to Chinese sovereignty. But a simple transit like Decatur’s does nothing to dispute Beijing’s assertion that it makes the rules regulating shipping in the South China Sea—including the Paracels. Indeed, the law of the sea explicitly permits foreign vessels to pass through a coastal state’s territorial sea provided that’s all they do—pass through.
That’s why the doctrine is known as innocent passage. A vessel undertaking an innocent passage must refrain from all manner of routine military activities. It may not operate aircraft from its decks, conduct underwater surveys, or do anything else that might be construed as impeaching the coastal state’s security. Decatur evidently desisted from all of these activities—and thus comported itself as though it were executing an innocent passage through China’s rightful territorial waters.
What does acting as though China’s claims are legitimate prove? Not much. The voyage did nothing to dispute Beijing’s effort to fence off the Paracels within “baselines” sketched around the archipelago’s perimeter and proclaim sovereignty—physical control backed by force—over the waters within. To reply to that claim, Decatur should have made the transit while carrying out every activity Beijing purports to forbid—sending helicopters aloft, probing the depths with sonar, and on and on. What China proscribes, in other words, friends of freedom of the sea must do.
Fail to contest excesses and you consent to them by default.
Now, it is true that Decatur’s crew didn’t request Chinese permission before making the crossing. The destroyer’s matter-of-fact approach flouted China’s demand that foreign ships request permission before transiting its territorial sea. (For that matter, China insists that skippers ask permission before essaying “any military acts” in its offshore “exclusive economic zone,” the expanded sea belt where the coastal state has exclusive rights to harvest natural resources from the water and seafloor. Apart from the right to extract resources, the coastal state has no special say-so over what happens in the EEZ. The EEZ and the waters beyond comprise the “high seas,” a “commons” that belongs to everyone and no one.)
In effect, then, USS Decatur and the U.S. Navy were quibbling over a trivial rule China wants to enforce rather than denying that China has any right to make such rules.