The first Freedom of Navigation Operation (FONOP) under the Trump administration occurred in late May 2017, when the Arleigh Burke-class guided-missile destroyer USS Dewey made a non-innocent passage within 12 nm of Mischief Reef. This maneuver indirectly challenged China’s claim to sovereignty over the low tide feature. Of course China objected. The Chinese Foreign Ministry said the US destroyer had “trespassed” near islands over which China has “indisputable sovereignty.” But more significant for the policy community, this FONOP raised consequential policy questions as to the purpose and effectiveness of US FONOPs in the South China Sea (SCS). There are contrasting and competing answers to these questions.
What is the intended purpose of US FONOPs?
The US Department of Defense website justifies the 1979 origin of the Program 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 ... The Program includes both FON operations (i.e., operations that have the primary purpose of challenging excessive maritime claims) and other FON-related activities (i.e., operations that have some other primary purpose, but have a secondary effect of challenging excessive claims).” So the Dewey FONOP could have been either or both.
The US Navy argues that its FONOPs are demonstrations of its interpretation of international law. But others argue that they are unnecessary and that the US could protect its legal position by declaring and recording its objections in diplomatic statements and communiqués rather than resorting to what some call “gunboat diplomacy.” The diplomatic option seems to be sufficient for other maritime powers — whose rights the US claims it is protecting.
Are FONOPs only a narrow kinetic demonstration of the US interpretation of the international law of the sea, or part of a broader strategy focused on China and Southeast Asia, or both?
The answer is not clear. After the Dewey FONOP, the US Secretary of Defense James Mattis said it was part of US strategy. If so, that strategy seems confused and confusing.
Twice in February and once in March, the US Pacific Command (PACOM) had formally requested the Office of the Secretary of Defense to authorize a FONOP in the SCS. But Secretary Mattis apparently turned down all three requests because he wanted such FONOPs to be conducted in the context of a strategy which he had asked PACOM to formulate.
But after US President Donald Trump met with China’s President Xi Jinping on April 7-8 in Mar-a- Lago, it appeared that Trump had backed off criticism and actions against China in general, and in the SCS in particular — in return for China’s assistance in stopping North Korea’s nuclear weapon and missile development programs.
This confusion was confounded by the appearance that all the relevant decision makers are preoccupied with international political issues elsewhere as well as domestic concerns. This means that for China and the SCS, Pacific Commander Admiral Harry Harris has gained considerable influence regarding tactical decisions to implement “strategy” there. Harris is quite concerned about China’s behavior in the SCS and wants to take aggressive actions to deter it. He has also reportedly criticized previous US FONOPs as overly cautious and indirectly confirming China’s claim to sovereignty over some of the features. So it seems that we can expect more and more robust FONOPs as well as continued intelligence, surveillance, and reconnaissance (ISR) probes — which China views as provocative. But these actions are tactics not strategy.
So, are FONOPs, or should they be, a narrow kinetic demonstration of the US interpretation of the international Law of the Sea, or are they part of a broader strategy to “signal reassurance to the region and show US resolve to defend the rule sets that govern the world’s oceans,” or both?
Peter Dutton of the US Naval War College argues that there is a “crucial” difference between a formal FONOP and routine operations that exercise freedoms of navigation. He maintains that the “consistent practice of free navigation, not the reactive FONOPs, is the policy test suited to respond to Chinese assertiveness in the SCS.” Dutton concludes that FONOPs should be “routine, low-key wherever there are specific legal claims to be challenged … they should not be conducted — much less hyped up beyond proportion in the Spratlys.”
What is meant by “freedom of navigation” that the US FONOPs are defending/demonstrating?
There are competing narratives. The US conflates freedom of commercial navigation with freedom to undertake military ISR probes against China and others in the region. It alleges that China’s interference with probes by these military vessels and aircraft in and over China’s exclusive economic zone violates the freedom of navigation. China argues that it is not challenging freedom of navigation itself but US abuse of this right by its military. It also maintains that it has not and will not interfere with maritime trade.
Some like Jonathan Odom of PACOM’s Asia Pacific Center for Security Studies argue that China does the same to others like India, Japan, and the US. This simplistic comparison is deceiving. Yes, China does insert ISR platforms into other countries’ near-shore waters. However, it is likely that US ISR technical capability is so much greater than that of China that the comparison is ludicrous in terms of the intrusive methods used and the information obtained. To convince their peers otherwise, Odom and his colleagues need to reveal exactly what it is that the US is doing in China’s near seas so that all can evaluate it for themselves. If they cannot or will not provide equal access to facts in their possession, their argument becomes ideologically tainted and should be discounted.
What should be the US strategy for the SCS and what role should FONOPs play in it?
Some argue that FONOPs are the tip of the spear of a strategy to support the regional security architecture and to persuade China to comply with the “international rules-based order,” including the Hague arbitration decision against China’s claims in the SCS. If that is indeed the strategy, it is not working very well.
As Singapore’s Minister of Defense Ng Eng Hen put it after the Shangri-La Dialogue, “Everyone agreed on a rules-based order but what the exact rules are, who benefits, whether its accepted by more or less and how do you accommodate … regional interests, minority interests, were all questions raised.” Unfortunately, these questions and others remain unanswered.
After the inaugural US-China Diplomatic and Security Dialogue on June 21 in Washington, DC, US Secretary of State Rex Tillerson stated that “the US position remains unchanged. We oppose changes to the status quo of the past through the militarization of outposts in the South China Sea and excessive maritime claims unsupported by international law, and we uphold the freedom of navigation and overflight.” Mattis added that the two sides were trying to work through “disconnects, where our understanding of the problem is very different from theirs.” This is “diplomatese” for fundamental disagreement. He concluded “the United States will continue to fly, sail, and operate wherever international law allows.”
Indeed, some leaders in the region see the Trump administration’s approach to the issues as “case-by-case” and “spontaneous” rather than consistent, predictable, and based on principle.
In other words, there was no progress and nothing has changed. So it seems that there is no strategy or at least no new strategy. As Fareed Zakaria warns, shows of military force without a strategy or a deeply engaged political and diplomatic process may well produce unintended consequences, including military conflict.
Don Emmerson of Stanford University thinks the US strategy is or should be to prevent the SCS from being controlled by any single power. But as prominent Australian analyst Hugh White points out, the more fundamental question is, “what if anything is the US willing to do strategically to prevent China from controlling it?”
White clearly thinks there is no strategy or if there is one it is not working. He argues “If our aim is strategic, rather than legal (i.e., if our aim is to use the SCS situation as an opportunity to push back against China’s increasingly overt challenge to the US led order in Asia) then we have to take actions which clearly demonstrate to everyone — in Beijing and elsewhere — that America (and its allies) are willing to risk a serious confrontation that would damage other areas of cooperation with China and could well escalate into a conflict in order to resist China’s provocative actions.”
I would argue that what appears to be US policy is more an ad hoc approach which fits Trump’s “let’s make a deal” approach to foreign policy. Indeed, some leaders in the region see the Trump administration’s approach to the issues as “case-by-case” and “spontaneous” rather than consistent, predictable, and based on principle. In the absence of a clearly articulated strategy, they — rightly or wrongly — see US FONOPs against China as a de facto bellwether of US resolve. In their view, the recent apparent pause of FONOPs was not encouraging.
What, if anything, should the US do regarding China’s actions in the SCS?
There is a wide range of opinions ranging from doing nothing to in-your-face confrontation. US hardliners like Ely Ratner of the Council on Foreign Relations worry that regional countries are beginning to hedge, waffle, and even tilt toward China. They prescribe various aggressive actions to combat China’s rising influence. These include confronting China where and when “necessary,” dropping the “position of neutrality” regarding China’s sovereignty claims, selling weapons to Vietnam and the Philippines that improve their “counter intervention” capabilities against the Chinese, and helping to “shape the domestic politics of countries with claims in the South China Sea”. They say the latter should take the form of an enhanced informational effort exposing China’s “nefarious” activities in the area. They also urge negotiation of new agreements with regional countries to “allow US and other friendly forces to visit, or in some cases, be permanently stationed on their bases in the South China Sea.”
This would be problematic in that China or its nationalists may see this as an invasion of sovereign Chinese territory, and legally justifying self-defense actions against an “armed attack.” To mitigate against such an adverse reaction by China, Julian Ku of Hofstra University suggests that the US should supply only “defensive” weapons and explain that any US troops on the features are “support[ing] the status quo and nothing more.” However, it is highly unlikely that China will “buy” this explanation. Instead, it will likely see the actions as more evidence of the US intent to contain and constrain it.
Others like Ralph Cossa, President of Pacific Forum CSIS, say there is little to worry about, at least for the US: “The South China Sea is not and will not be a Chinese lake and the Chinese, even with their artificial islands, cannot dominate the sea or keep the US Navy out of it.” Retired Admiral Michael McDevitt of the Center for Naval Analysis asks: “What vital US interest has been compromised? Shipping continues uninterrupted, the US continues to ignore … their requirement for prior approval [of ops in their EEZ], our MDT with Manila remains in force … [and] the Vietnamese are even more dug in on their 20 odd Spratly holdings.”
So, what can we conclude from this mixed plate?
The US needs to formulate and clearly articulate a strategy. Hugh White urges a “serious debate that plainly acknowledges the seriousness of China’s basic strategic challenge, identifies the essential US interests at stake, recognizes the costs and risks of preserving a strong role in Asia in the face of that challenge, and creates an evident, broadly-based consensus around a redefined US regional role on the basis that America can and should accept those costs and risks in order to protect those interests.” I agree. Then and only then will its FONOPs begin making sense to all in a larger context.