Freedom of Navigation Operations in the South China Sea Aren’t Enough

International tensions are rising over the shipping lanes and land formations in the South China Sea. Last week, the People’s Liberation Army Air Force scrambled fighter jets in response to a U.S. Navy ship sailing near the disputed Fiery Cross Reef. Sometime very soon, possibly this month, the United Nations is expected to resolve South China Sea claims by the Philippines, where the President-elect, Rodrigo Duterte, is making offers to broker peace in the region. How much has the status quo changed and what will it mean for the counties involved? —The ChinaFile Editors

Julian G. Ku, Professor of Law, Hofstra University:

Like the two other recent U.S. freedom of navigation operations (FONOP) in the South China Sea, the most recent U.S. FONOP was designed to avoid any conflict with China’s sovereignty claims. Instead, by conducting the operations under the rules of “innocent passage,” the U.S. Navy assumed China might have sovereign rights, but simply challenged China’s domestic law requirement that foreign warships give prior notification before entering what China claims is its territorial sea.

Despite this very limited challenge, China’s reaction to the U.S. FONOP has also been largely the same. Fighter jets were scrambled, and naval assets were deployed to shadow the U.S. ship during its passage. But two new aspects to China’s rhetorical response are worth noting. The shift in China’s rhetoric also reveals the limits of the U.S. reliance on FONOPs as a tool to deter Chinese expansionism in the region.

First, the Chinese defense ministry has begun to suggest that the continuation of U.S. FONOPs justifies its construction of “defensive facilities” in the South China Sea. Since the most recent round of U.S. FONOPs in the region began in October 2015 (after a four-year hiatus) and the Chinese land reclamation has been going on for almost two full years, this post-hoc justification for Chinese militarization of the region is hard to swallow.

Second, the Chinese foreign ministry has started directly engaging with the narrower U.S. legal argument against a prior notification requirement for warships. In fact, it tried to isolate the U.S. legal position. Drawing a distinction between commercial and military vessels, the Chinese foreign ministry spokesman stated that “no country, except the United States believes in military vessels sailing wherever they want, which is against international law.” The spokesman went on to say the U.N. Convention on the Law of the Sea (UNCLOS) “allows innocent passage by foreign vessels through others’ territorial waters, but there is no specific term stating that military vessels have such a right.” China then pointed out that several other countries agree with China on this interpretation of UNCLOS.

The Chinese government is correct that some countries have continued to argue that the rights of innocent passage guaranteed by Article 19 of UNCLOS does not apply to warships. The plain language of Article 19 (“ships of all States”) suggests otherwise since the Convention specifies “warships” in other contexts when naval vessels have special treatment. But the disagreement has persisted over the years.

China’s shift from complaining about U.S. violations of its sovereignty to dueling interpretations of UNCLOS reflects a possible shift in its rhetorical and diplomatic strategy. While complaining about U.S. threats to sovereignty would only highlight the aggressiveness of China’s territorial claims, complaining about expansive U.S. naval operations is an issue with which other nations can find common ground with China. Indeed, China’s diplomatic corps has been working overtime to line up sympathetic nations to its non-acceptance of the pending UNCLOS arbitral tribunal case brought by the Philippines. Shifting focus toward arcane interpretations of international law is better and more solid ground for China.

The United States has the better and more persuasive interpretation of UNCLOS. But if China is able to drag the United States into the technical arguments over UNCLOS, some of the political force of the U.S. FONOPs will inevitably erode. While it should not abandon FONOPs, the United States needs to come up with different ways to challenge China’s land reclamations and expansionism. FONOPs are not going to be enough.

M. Taylor Fravel, Associate Professor of Political Science, MIT:

I agree with Julian about the limits of FONOPs for deterring China in the South China Sea, but for a different reason.

Put simply, FONOPs were never intended to be used as a tool in territorial or maritime jurisdictional disputes involving third parties. The purpose of the program is limited to asserting navigational freedoms that “excessive claims” to maritime jurisdiction by other states would restrict or constrict in ways that are inconsistent with “high seas freedoms” in UNCLOS. They are operational assertions using military vessels to reinforce U.S. declaratory policy on freedom of navigation, not actions to deter how states pursue their claims in maritime disputes. By definition, FONOPs are usually a reaction to claims already made by third parties, to demonstrate that the United States does not recognize them.

In the South China Sea, FONOPs can be used to challenge excessive claims from the various land features under dispute. Recently, as Julian notes, FONOPs have been used only to challenge restrictions on the transit of military vessels through a 12 nautical mile territorial sea, such as prior permission or prior notification. Looking forward, they could be used to challenge claims to maritime jurisdiction from some artificial islands that China has created, at least four of which would not be entitled to even a territorial sea because they are artificial structures built upon a low-tide elevation.

The recent FONOPs in the South China Sea have been publicized extensively. Paradoxically, such publicity may limit further the effect of FONOPs in a third party’s maritime disputes. Because they are considered to be a military operation, the Department of Defense almost never reveals the details or occurrence of particular FONOPS. Instead, they usually occur out of the public eye. The target of the operation is demarched to explain the excessive claim being challenged and a military vessel then challenges with a predetermined operation. At the end of the year, the U.S. Department of Defense publishes a report listing the countries and excessive claims that are being challenged but does not release information about individual operations.

The uncommon and unusual publicity attached to the last three FONOPs in the South China Sea represents a departure from past U.S. practice. Moreover, regarding the dynamics of the disputes in the South China Sea, such publicity may backfire, for two reasons.

First, the publicity given to these operations, widely seen as designed to challenge China, invites China to respond. From Beijing’s perspective, FONOPs are viewed (incorrectly) as direct challenges to China’s sovereignty claims and as indirect challenges to China more generally. If China’s leaders do not respond, they risk being viewed domestically as weak or yielding to the United States. Although China’s responses have been measured and largely symbolic, the rhetoric contributes to the hardening of positions and escalation of disputes. Traditional FONOPs conducted out of the public eye would remove these incentives without weakening the content of the operational assertion.

Second, the publicity given to these recent FONOPs create strong incentives for China to emphasize its interpretations of the convention that Julian has described. Traditional FONOPs conducted out of the public eye would also remove these incentives without weakening the content of the operational assertion.

The United States should continue to perform FONOPs in the South China Sea — regularly but privately.

Malcolm Cook, Senior Fellow, Institute of Southeast Asian Studies-Yusof Ishak Institute:

Julian Ku is certainly right that U.S. freedom of navigation operations conducted under the rules of “innocent passage” will not be enough to challenge China’s increasingly assertive actions on and around the disputed land features in the South China Sea. And tensions could escalate soon. If reports are correct, China’s artificial island building could soon extend to Scarborough Shoal located 123 nautical miles from the main island of the Philippines, 250 nautical miles from the disputed Spratly and Paracel land features, and 530 nautical miles from China’s Hainan Island. This would be a serious escalation on China’s part that would likely sink the incoming Philippine administration’s desire to reduce bilateral tensions over this issue, and lead to more pressure on the United States from concerned states in the region to push back against China.

Yet, the biggest shortcoming of U.S. FONOPs as a Chinese behavior-changing effort has nothing to do with the United States. The biggest problem is that the United States alone is willing to conduct these operations and suffer China’s predicted and predictable backlashes. The maritime Southeast Asian states Japan and Australia arguably have more at stake in the South China Sea but are unwilling to conduct their own operations. Maritime Southeast Asian backing for the recent U.S. operations has been ambivalent at best, and offered more in private than in public or in diplomatic forums with China present.

This, more than the widely criticized decision by the Obama administration to limit their operations to innocent passage ones, undermines the strength of the FONOPs message sent to China. The lack of active or rhetorical support from other nations undermines these operations’ effectiveness in reflecting that the maritime Southeast Asian states and Japan share with the United States the conviction that China’s claims to maritime rights in the South China Sea are excessive and its artificial island building activities are destabilizing. By leaving the United States alone operationally and often publicly lacking support, it allows China to dismiss these operations as simply part of U.S. efforts to contain China.

Future U.S. FONOPs in the disputed waters of the South China Sea may benefit from relaxing the innocent passage restriction, particularly in relation to China’s recently constructed artificial islands. The pending ruling by the Arbitration Tribunal on the 2013 case filed by the Philippines under UNCLOS could rule that some or all of these artificial islands are constructed on low water features with no attendant territorial sea rights. However, the U.S. position in relation to the South China Sea disputes, and those of the maritime Southeast Asian states, Japan and Australia, would benefit more if the United States was not alone in conducting FONOPs. Or, at least, if support for U.S. FONOPs by these like-concerned states was more frequent, more public, and more convincing.

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