On October 10, 2017, the US executed yet another freedom of navigation operation (FONOP) challenging what it says are illegal Chinese claims in the South China Sea. In what has become a rather predictable “political dance,” a top of the line US warship violated Chinese claims and domestic law. China then played its part tailing the provocative probe, protesting its presence, and asking it to leave. The US legal position is quite clear. So why does the US Navy deem it necessary to keep repeating specific kinetic challenges (FONOPs) to the same specific claim?
The USS Chafee, an American Arleigh Burke-class guided missile destroyer, carried out what the Pentagon said were “normal maneuvering operations” (presumably meaning non-innocent passage) in the 12-nautical mile territorial sea projected from China’s 1996-claimed straight baselines enclosing the Paracel Islands. From available information, it is not clear whether the USS Chafee only entered China’s claimed territorial sea without prior approval or whether it also penetrated its claimed internal waters enclosed by the baselines. China’s Foreign Ministry spokesperson said ambiguously that the warship “breached China’s territorial line.” Without private or public detailed explanation from either side, we are all left to guess at the details of what actually occurred and why.
Non-innocent passage within 12 nautical miles of the claimed baseline would have challenged not only China’s territorial sea claim but the baseline itself. This might distinguish it from previous FONOPs near the Paracels. But this fine point may well have been lost on the People’s Liberation Army Navy leadership and China’s increasingly nationalistic and vocal public. The Chinese Defense Ministry called the FONOP a “provocation” and said that it was “firmly opposed to such flaunting of force and promotion of militarization.” China’s Foreign Ministry added that the US destroyer’s behavior violated Chinese law and relevant international law [and] severely harmed China’s sovereignty and security interests.” China also sent a guided-missile frigate, two jet fighters and a helicopter to observe the destroyer and requested it to leave its waters.
This was not the first US FONOP near the Paracels. On July 2, the USS Stethem entered China’s claimed 12-nautical mile territorial sea around Triton Island in the Paracels without China’s prior approval. The Stethem FONOP was essentially a repeat of the USS Curtis Wilbur FONOP of January 30, 2016. China’s Defense Ministry was particularly agitated by this repeat challenge and used rather harsh language in condemning the Stethem’s actions: “the FONOP seriously damaged the strategic mutual trust between the two sides” and undermined the “political atmosphere” surrounding the development of Sino-US military ties. It warned that the Chinese military would bolster its efforts in the waters, including “an increase in the intensity of air and sea patrols … according to the extent of the threat that its national security is facing.”
The US State Department’s Limits in the Sea 117 has made crystal clear its official legal position regarding China’s closing baselines around the Paracels. This publication states that according to the UN Convention on Law of the Sea (UNCLOS), no country would be allowed to establish straight baselines enclosing the entire Paracel Island group. The US has also repeatedly stated and kinetically challenged other Chinese claims in the South China Sea such as its other excessive straight baselines; jurisdiction over airspace above the Exclusive Economic Zone (EEZ); domestic law criminalizing survey activity by foreign entities in the EEZ; and most importantly, China’s requirement of prior permission for innocent passage of foreign warships through its territorial sea. Indeed, the US’ Limits in the Seas 112 clearly disputes the legality of any country’s requirement of prior authorization for warships to enter its territorial sea.
Despite US denials to the contrary, it appears to many that the main reason behind US FONOPS against China is political, particularly when it repeats specific FONOPs regarding specific Chinese claims.
The diplomatic option seems to be sufficient for many other nations whose rights the US claims to be protecting. Most nations use verbal or written communiqués to publicize their official positions rather than kinetic “gunboat diplomacy.” So why does the US Navy insist on repeating specific kinetic FONOPs?
Jonathan Odom, a former US Oceans Policy Advisor in the Office of the Secretary of Defense worries that non-kinetic action could be interpreted as acquiescence and that “acquiescence by others poses a risk of legitimizing the coastal state’s excessive claim — if not as a matter of law [emphasis added], then at least in effect.” For him and the Pentagon, the FONOPs are necessary to demonstrate non-acquiescence. But Odom seems to acknowledge that diplomatic protest alone may be sufficient to establish legal non-acquiescence. Certainly, refraining from “in your face” use of warships in favor of diplomatic protest is more consonant with the United Nations (UN) Charter.
The UN Charter requires that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Use of warships to challenge claims could be interpreted as a threat of use of force which is also a violation of the UN Charter. Indeed, according to William Aceves of California Western School of Law, “the notion that states must take action which may lead to a violent confrontation or lose their rights under international law is inconsistent with the most basic principles of international law.”
There are other questions regarding the necessity of US FONOPs, especially repeat FONOPs. Unlike in the Paracels, China and other claimants have not declared baselines in the Spratlys. Thus, technically there is no claim by China or any other claimant to territorial seas around the features they claim and occupy. Therefore, US FONOPs in the Spratlys are preemptive challenges to potential claims. For claims that have not yet been made, it would seem that kinetic challenges are beyond normal international practice.
In May, the Pentagon revealed a new policy of silence regarding its FONOPs. This may have been intended to refrain publicly embarrassing China. But such silence raises many questions regarding the details of particular FONOPs. For example, is the US asserting maritime rights or is it challenging excessive claims — or is there some broader political purpose of these probes? According to Lynn Kuok of Brookings, the Pentagon should publicly “explain where the operation took place, what the operation did, and what rights the US was asserting.”
Further, it is amazing how long the US has gotten away with prosecuting the particulars of a package deal agreement it has not ratified. Although it maintains it is adhering to and enforcing customary international law, it tacitly admits through its FONOPs program that dozens of countries have claims which it regards as excessive, including many friends and allies. Moreover, as the US well knows, freedom of commercial navigation has not been hindered and is unlikely to be in peacetime — only provocative US intelligence, surveillance, and reconnaissance probes in China’s near shore waters. This is one reason US allies such as Australia and the Philippines have declined its requests to join its FONOPs in the South China Sea.
Despite US denials to the contrary, it appears to many that the main reason behind US FONOPS against China is political, particularly when it repeats specific FONOPs regarding specific Chinese claims. Indeed, some argue that the FONOPs are designed to “reassure America’s allies and partners in the region of America’s commitment.” But to China, the US appears to be unnecessarily repeating these specific challenges to specific claims simply to be provocative and to publicly embarrass it. This raises the question of whether these FONOPs, particularly redundant FONOPs, are really worth the risk of confrontation and conflict? Indeed, the US may wish to reevaluate the necessity of its FONOPs program, especially redundant FONOPs, that unnecessarily provoke China. If there is any doubt, the US should err on the side of comity rather than that of hostility and antagonism — especially regarding a matter perceived as a “core interest” by a major country whose cooperation it needs to meet other US national security objectives.