Differentiating between Theory and Enforcement of FONOP in the South China Sea
Philippine-occupied Kalayaan island in the South China Sea. (Photo: Inquirer.net)
By Mark J. Valencia

Differentiating between Theory and Enforcement of FONOP in the South China Sea

Jun. 12, 2019  |     |  0 comments

On May 14, 2019, at the 6th International Maritime Security Conference, Singapore’s Minister for Trade and Industry Chan Chun Sing said there is a need to strengthen the maritime rules-based order to provide a strong foundation for the global economy of tomorrow. Few would disagree, but as usual, the devil is in the details. There is no universal agreement on the interpretation of key provisions in the so-called “Constitution of the Ocean” — the UN Convention on the Law of the Sea (UNCLOS). Thus, there is disagreement as to what the “maritime rules-based order” is or should be, who is and is not abiding by it, and how it should be enforced and by whom. This concern was reinforced by Singapore’s Defense Minister Ng Eng Hen who highlighted the problem of the difference in rules adopted by countries over freedom of navigation.

Indeed, important differences are emerging between Southeast Asian nations and the US regarding the theory and enforcement of freedom of navigation.

The US conflates freedom of navigation for commercial vessels with that for warships and uses the latter to demonstrate its interpretation of the concept. It argues that by exercising what it claims is the right of its warships to sail in innocent passage through foreign territorial seas without prior permission, it is defending commercial freedom of navigation.

But its interpretation of freedom of navigation is not universally accepted. Many nations distinguish between commercial vessels and warships, requiring the latter to obtain prior permission to enter their territorial sea — or even their 200 nautical mile Exclusive Economic Zone (EEZ). In Southeast Asia, Indonesia, Taiwan and Vietnam require permission for foreign warships to enter their territorial seas. Malaysia and US ally Thailand do not allow foreign military activities in their EEZs without permission, let alone their territorial seas. China is obviously not alone in its disagreement with the US regarding the interpretation of the relevant international law and who is violating it.

The US argues that the requirement of prior permission for foreign warships to enter the territorial sea is contrary to UNCLOS. The Convention supports the US position. It stipulates that “The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea...  In particular, …the coastal State shall not: (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage…”. But elsewhere it also provides that the parties “shall refrain from any threat or use of force against the territorial integrity or political independence of any State...”  China thinks that at least some — if not all — US freedom of navigation operations (FONOPs) are inconsistent with this provision.

Another major problem is that the US, alone among the maritime powers, has not ratified UNCLOS. The Convention was a “package deal” involving a major trade-off — liberal freedom of navigation for maritime powers in exchange for projected economic benefits for developing countries. China and others maintain that the US, by not ratifying the Convention, has abrogated the trade-off and is not entitled to some of the liberal freedom of navigation provisions. Moreover, they say the US as a non-ratifier has no legitimacy or credibility to choose which provisions it will abide by, or to interpret them in its favor.

Also because the US remains outside the Convention, it cannot avail itself of its dispute settlement mechanism and thus uses the threat of use of force to back up its position.

For some ASEAN countries, refraining from “in your face” gunboat diplomacy in favor of diplomatic protest is more consonant with the UN Charter.

As evidence of Southeast Asian countries’ ambiguity on this issue, the US has for years been pressuring — without success — others in and outside the region to join its explicit and specific challenges (FONOPs) to what it considers China’s excessive territorial sea regime in the Spratlys and its baselines drawn around the Paracels. If that is too controversial for them, it urges them to carry out their own. But US allies Australia, Japan and the Philippines have so far declined such US requests. They all have their own reasons for doing so but a common one is that they do not see China’s claims as a threat to commercial traffic or their security despite US dire warnings to the contrary. The UK is the only country that has answered the call — for obvious domestic political reasons, and that may well have been a “one-off”.

There is even some confusion as to what constitutes a US FONOP. The recent quadrilateral military exercise in the South China Sea involving the US, Japan, India and the Philippines led some to conclude that this was a FONOP against China. While some may interpret it that way politically, it was not a FONOP. Although China has never specified the exact content of what it claims within its nine dash line, it has never contested routine passage of warships outside its claimed territorial sea. To imply that the joint exercise or similar exercises of warships — or any other routine passage — was a FONOP implies that China objects to normal passage of warships through the area. This is not so. Moreover, it plays into the US narrative that China is a threat to commercial navigation. China has never threatened commercial navigation and is unlikely to do so in peacetime.

Singapore, and some of its fellow ASEAN (Association of Southeast Asian Nations) members, are not enthusiastic about the US use of its military to enforce its position. To them the proximate cause of dangerous incidents between the US and China is that the US is using its military to unilaterally enforce its interpretation of the meaning of freedom of navigation, and China is responding in kind.

They are particularly concerned that conflict between the US and China over freedom of navigation for warships could threaten the very safety and security of commercial navigation that is their economies’ existential arteries. Ng has observed that “Maritime history teaches us that whenever and wherever there is conflict on the seas, surrounding countries and their common folk invariable suffer.”

So even though some may agree with the US interpretation of the principle, they have criticized its use of warships to enforce its interpretation of the applicable law. Indeed, they were deeply concerned by the October 2018 near collision between a Chinese warship and the US destroyer Decatur while it was executing a FONOP. Shortly afterwards, Ng said, “Some of the incidents [between China and the US] are from assertion of principles, but we recognize that the price of any physical incident is one that is too high and unnecessary to either assert or prove your position.” Philippines President Rodrigo Duterte said, “…the threat of confrontation and trouble in the waterway came from outside the region.” Malaysian Prime Minister Mahathir Mohamad observed that “big warships [in the South China Sea] may cause incidents and that will lead to tension.”

For some ASEAN countries, refraining from “in your face” gunboat diplomacy in favor of diplomatic protest is more consonant with the UN Charter. It requires that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Some argue that “[T]he 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.” Many ASEAN countries seem to agree with this view. Hopefully the US will recognize that and distinguish between its interpretation of freedom of navigation and its method of enforcing it.

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