US and China must set ground rules for freedom of navigation patrols

Mark Valencia says after three such patrols under the Trump administration, the two sides appear to have settled into a predictable pattern of provocation and condemnation. Why not take the opportunity to agree on a modus vivendi?

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The guided-missile destroyer USS John S. McCain manoeuvres alongside the amphibious assault ship USS Bonhomme Richard (unseen) for refuelling in the Philippine Sea in June. The destroyer sailed within 12 nautical miles of the China-claimed Mischief Reef in the South China Sea on August 10. Photo: EPA / US Navy

Published: 10:43am, 16 Aug 2017Updated: 7:12pm, 16 Aug 2017

On August 10, the top-of-the-line USS destroyer John S. McCain made a “non-innocent” passage within 12 nautical miles of China-claimed and occupied Mischief Reef in the South China Sea. This “freedom of navigation operation” indirectly challenged China’s sovereignty claim to the low-tide feature.

This was the third such operation under US President Donald Trump. The controversial use of warships to press a legal point – and China’s reaction thereto – have now become somewhat “routine” and may indicate a new modus vivendi between the two rivals, at least in the South China Sea.

The US defence department describes the premise of its freedom patrols thus: “Since the founding of the nation, the United States has asserted a vital national interest in preserving the freedom of the seas and necessarily called upon its military forces to preserve that interest.”

Based on this premise – and perhaps realising it may not become a party to the UN Convention on the Law of the Sea, which enshrined freedom of navigation in international law – the US initiated in 1979 the “freedom of navigation operation” programme to contest “unilateral acts of other states designed to restrict the rights and freedom of the international community”.

China considers these US operations a violation of its national laws requiring prior permission for warships to enter its 12-nautical-mile territorial sea and views them as a threat to its security.

So the two have a legal dispute in which – according to the US – China is in the wrong.