Confusion over Japan’s sea transit in the South China Sea

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The Japanese press has claims that Japan has been conducting “freedom of navigation operations” in the South China Sea. Word has got around about this assertion around the world. However, it is not true in the common understanding of the term. Worse, it has created potentially dangerous confusion and can give Southeast Asian countries and China the wrong impression.

According to English-language press reports, the Yomiuri Shimbun quoted unnamed government sources as saying that Maritime Self-Defense Force (MSDF) warships had “sailed through waters near China-claimed artificial islands and reefs in the South China Sea.” This is true. But the word “near” is crucial. They did not enter China’s claimed 12-nautical-mile territorial seas.

Yomiuri also quoted a senior Defense Ministry official as saying, “The operations were intended to warn China, which distorts international law to protect freedom of navigation and law and order at sea.” Perhaps something was lost in translation, but that’s not true in English.

These Japanese naval transports were not “freedom of navigation operations” as initiated and conducted by the US. Unlike US FONOPs, they did not question China’s requirement for earlier warships to make peaceful passage in its territorial sea, nor its claim to sovereignty over features like the Mischief Reef at low tide.

These so-called operations “were conducted while traveling to or from joint exercises with other navies or a Middle East deployment.” They were an exercise of freedom on the high seas, which China does not oppose.

Furthermore, the articles and experts make too much of these transits. Adding to the confusion was experts like Alessio Palatano of King’s College London, who said, “This is a step up that brings Japanese behavior much closer to other major naval powers. It is a clear political signal….”

These transits presented no legal challenge to China, and their political importance is exaggerated. Joint military exercises between Japan’s MSDF with the US and others have far greater political significance.

More importantly, Japan does not want to emulate the US in this regard. US FONOPs claim to demonstrate and protect the freedom of navigation and resist claims that violate that principle. This is a red herring. China has never tried to interfere with commercial freedom of navigation.

The US disingenuously conflates the freedom of commercial shipping with the “freedom” of its military ships to intimidate and spy on other countries – in this case China.

In particular, the US abuses the concept of freedom of navigation to challenge China’s claims of sovereignty over certain features, such as the Mischief Reef, which are submerged at high tide and therefore not subject to any state’s claim of sovereignty. It also challenges China’s straight baselines enclosing the Paracels and its requirement for prior permission for warships to enter its territorial sea.

It also repeatedly violates China’s permit requirement to conduct scientific research in its 200-nautical-mile Exclusive Economic Zone (EEZ), which is backed by the United Nations Convention on the Law of the Sea (UNCLOS). The US argues that its provocative intelligence, surveillance and reconnaissance probes are military investigations – not scientific marine research – and therefore do not need such authorization.

Since the US is not a party to UNCLOS, which it often cites, China cannot bring it to mandatory arbitration on the matter. But Japan is a party and can be brought before arbitration under its auspices.

In fact, Japan’s claim to an EEZ and a continental shelf around Okinotorishima is not supported by the Convention, nor by the precedent of the international tribunal against China, which she and the US continue to urge China to comply with.

Although no country should give in to claims it deems unlawful, such non-compliance can be effectively and adequately demonstrated through oral and written diplomatic communiqués.

In fact, diplomatic protest is more consistent than gunboat diplomacy with the UN Charter, which requires “Members to settle their international disputes by peaceful means in a manner that does not endanger international peace, security and justice.”

The use of warships to challenge territorial sea regimes could be interpreted as a threat to use force against a state’s territorial integrity. Actually “the performance that states must take action that could result in violent conflict or lose their rights under international law is contrary to the most fundamental principles of international law.”

Furthermore, US FONOPs are ineffective in that they have not changed China’s policies or stopped its actions that the US declares illegal.

Japan should also consider China’s response to holding a FONOP. China sees them as a threat. Following a US FONOP in February 2019 near Mischief Reef, Chinese Foreign Ministry spokeswoman Hua Chunying said said, “The relevant actions of the US warships violated Chinese sovereignty and undermined peace, security and order in the relevant sea areas…”

Whoa said Chinese warships and planes were dispatched to “warn the US destroyers.” If Japan’s MSDF assets do indeed challenge China’s territorial sea regime in the South China Sea by entering its claimed territorial sea without permission, or its claims of sovereignty by violating the regime for peaceful passages in its claimed territorial sea, then China may well retaliate.

In addition, FONOPs from Japan would not be welcomed by many countries in the region. After a near-collision between a Chinese warship and a US warship undertaking a FONOP in October 2018, Singapore Defense Minister Ng Eng Hen said, “Some of the incidents are based on the assertion of principles, but we recognize that the cost of a physical incident is too high and unnecessary to either assert or prove your position.”

Philippine President Rodrigo Duterte said that “the threat of confrontation and problems on the waterway came from outside the region.” Then Malaysian Prime Minister Mahathir Mohamad argued that “great warships [in the South China Sea] can lead to incidents and that will create tension.”

There is currently no threat to commercial shipping by China in the South China Sea, and it is unlikely to be in peacetime. Japan should not interfere in US-like military challenges to China’s maritime claims there.

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