Does the United States have the right to operate warships in the South China Sea? And can China stop them?


Images of what appeared to be US warships emerged from China last month, but they were nowhere near an ocean. In fact, they were thousands of miles away, in a desert in western China.

Military experts have said the scale models of US warships are part of a new range of targets developed by the People’s Liberation Army. The footage shows how seriously China takes repeated appearances of foreign warships in waters it claims to control – and why this is a concern for the region’s stability.

At the end of November, an American destroyer crossed the Taiwan Strait, prompting a warning from China to “stop causing trouble, cross the line and play with fire.” This followed the crossings of warships in the Strait in recent months by Canada, France and the United Kingdom.

The aircraft carrier USS Carl Vinson, meanwhile, made nine visits to the South China Sea this year, most recently in October when it conducted training exercises with a Japanese helicopter destroyer.

China was enraged by this increase in naval activity. Beijing claims the vast majority of the South China Sea and sees Taiwan as a renegade province.

In a clear demonstration of its own naval capabilities, four Navy ships of the People’s Liberation Army (PLAN) conducted military and surveillance operations just 75 km (45 miles) off the Alaskan coast in the area. economic exclusive to the United States at the end of August.

The naval operations of the two nations fuel an atmosphere of deep mistrust and suspicion. Chinese commentators accuse the United States of turning the Taiwan Strait into a flashpoint and characterize American transits in the South China Sea as provocative violations of Chinese sovereignty.

And while the passage of PLAN ships near Alaska is in accordance with international law, the United States is concerned about China’s goals of aggressively expanding its naval operations to become the dominant power in the Pacific.

While tensions are high in the Pacific, where does international law come into play? What does the Sailboat Law say in the disputed waters, and has China or the United States and its allies violated those rules?

Read more: Explanation: Why is the South China Sea such a hotly contested region?

The rule of law in the oceans

The United Nations Convention on the Law of the Sea (UNCLOS) establishes the rule of law in the oceans, as well as the rights of coastal and maritime states.

For example, coastal states have the right to control and manage the resources of their Exclusive Economic Zones (EEZs), which extend 200 nautical miles (370 km) from their coasts.

At the same time, these areas remain international waters. This means that foreign vessels have innocent right of passage. They must travel on the surface of the water and not threaten “the peace, good order or security of the coastal state”.

Coastal states can prevent foreign vessels from crossing their EEZ if they deem it “not innocent”, but the passage itself cannot be considered a threat.

UNCLOS also specifies which waters fall under the direct sovereign control of a state, otherwise known as “territorial seas”. This extends no more than 12 nautical miles (22 km) from the coast of a country.

Some of the world’s most important waterways, such as the Straits of Malacca between Indonesia and Malaysia and the Taiwan Strait, fall into this category.

Foreign ships always retain the right to cross these territorial waters, as long as they navigate “continuously and expeditiously” without stopping or anchoring. Coastal states cannot prohibit or prevent the innocent transit of a vessel.

Ambiguity exploited by China

UNCLOS is littered with undefined and ambiguous terms in an attempt to strike a balance between the competing interests of coastal and maritime states.

This ambiguity increases the risk of conflicting interpretations of the law, as well as the possibility for nations to exploit it for their own ends. China, for example, has complained that US surveillance in its EEZ is not for “peaceful purposes” – a term not defined under UNCLOS.

Read more: Explanation: What are the legal implications of the South China Sea shutdown?

UNCLOS also does not grant sovereignty over the sea in the absolute terms claimed by China. Under the convention, the sea is shared by states and no nation can claim absolute dominance over it.

In recent years, China has passed national laws that claim to supersede international law. For example, Beijing requires ships to seek clearance before embarking on innocent passage through the South China Sea, which it considers its “territorial waters”.

Chinese ships moored at Whitsun Reef in the South China Sea.
National Working Group-West Philippine Sea / PA

China also claims historic control over the South China Sea, which is also not clearly defined under UNCLOS. Historic control of the waters has been recognized by international law, but it requires that a state have exercised continuing authority over a sea, with the consent of other nations.

China’s claim to historic control of the South China Sea has been rejected by an international tribunal and vigorously protested by its neighbors, as well as other nations without claims to the waters.

United States belief in freedom of navigation

The United States maintains that its passages through the Taiwan Strait and the South China Sea are within its rights under UNCLOS, even though it is not a signatory to it. (He believes that the convention contains pre-existing customary rights, such as the freedom of navigation, which all nations have always enjoyed.)

To maintain these rights, Washington has maintained a Freedom of Navigation Operations Program (FONOPS) since the late 1970s. The purpose of these operations is to ensure that all nations retain their rights of unrestricted maritime transit, as stipulated in UNCLOS.

Read more: China doesn’t want war, at least not yet. It’s playing the long game

As such, FONOPS sends a clear message: the United States has the right to navigate its warships through the South China Sea because UNCLOS allows them to. There should be no ambiguity in the convention on this matter.

China claims that FONOPS is a mask for unwarranted aggression and regional interference. Beijing’s opposition is not surprising – the program challenges the legality of China’s maritime claims and its attempts to restrict freedom of navigation in those waters.

China has no legal basis for rejecting these international rules. However, the longer it lasts, the more tensions in the South China Sea and the Taiwan Strait are likely to escalate.

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