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By: Annie Kowalewski, Columnist
On October 21st, the United States conducted its fourth freedom of navigation operation (FONOP) in the South China Sea (SCS). The USS Decatur conducted the transit within “the vicinity of the Paracel Islands to uphold the rights and freedoms of all States under international law, as reflected in the Law of the Sea convention.”[i] In response, the Chinese government resolutely opposed this “provocative behavior,” stating that the United States is “driven by its hegemonic mentality” to “make trouble.”[ii] This strong condemnation is not unusual and reveals deep Chinese misperceptions about the purpose of US FONOPs. FONOPs thus present an opportunity for the United States to manage this misunderstanding and de-escalate potential points of friction between the United States and China in the SCS, thereby avoiding an accidental or unwanted clash.
The United States conducts routine FONOPs to “exercise and assert its navigation and overflight rights and freedoms… consistent[ly] with the balance of interests reflected in the United Nations Convention on the Law of the Seas (UNCLOS).”[iii] This right is enshrined in UNCLOS Article 17, which guarantees all ships the right of “innocent passage” through the territorial sea. “Innocent passage” includes passages that are “not prejudicial to the peace, good order or security of the coastal State.”[iv] US FONOPs are thus operations that challenge the unilateral acts of other states that restrict this freedom in order to ensure such acts do not become customary international law. The United States also conducts FONOPs in the SCS to reassure its allies of its security presence and prevent China from coercing smaller Asian countries into accepting its excessive maritime claims.[v] In its latest FONOP in the SCS, the USS Decatur sailed in the vicinity of the Paracel Islands to challenge China’s straight baselines that encompass these islands, or the straight lines joining specified points on the low-water line up to 24 nautical miles of the territorial coast.[vi]
China, however, tends to view FONOPs as part of a larger American naval “containment” strategy—particularly as US Navy ships are on course for spending 1,000 days at sea in the SCS in 2016—rather than as a commitment to international law.[vii] China tends to distrust FONOPs for three reasons.
First, China does not believe FONOPS are impartial, routine maintenance operations because the United States does not conduct FONOPs on a regular schedule. US FONOPs are intended to be regular and mundane, not reactions to specific provocations.[viii] Yet the past three SCS FONOPs have taken place sporadically to avoid certain conditions.[ix] In August 2016, a scheduled FONOP was canceled to avoid clashing with the G20 meeting in Hangzhou. Earlier in the year, the United States decided not to sail past the Scarborough Shoal during the PCA deliberations. While the United States may believe its cautious use of FONOPs will avoid antagonizing the Chinese, in reality it only fuels Chinese misperceptions about the larger strategic purposes of US FONOPs.
Another aspect of concern is uncertainty about the specific claims the United States intends to challenge with each FONOP. In the most recent FONOP, the United States stated it was challenging a baseline claim around the Paracels, but the Decatur did not sail within 12-24 nautical miles of any individual island. Under the UNCLOS definition of “territorial waters,” it is unclear which baseline the United States was contesting.[x] The uncertainty and untimely manner in which US FONOPs are conducted severely diminish the credibility and signaling value of these operations.[xi]
Lastly, China sees FONOPs as inconsistent with the international legal right of innocent passage and obligation to respect the rights of the coastal state. Unlike the United States, China has emphasized that there is no “absolute” right to innocent passage. Approximately 60 countries, China included, interpret ‘innocent passage’ as only including civil (commercial), not military, ships. In cases where military ships are used to conduct FONOPs, these countries require prior approval.[xii] The wording of UNCLOS neither affirms this distinction nor explicitly grants the right of innocent passage to military ships. As US FONOPs are conducted with Arleigh-burke guided missile destroyers equipped with surface-to-air missiles, Aegis radars, and anti-submarine rockets, China has asked the United States to either provide prior notification of its FONOPs or conduct its FONOPs with civilian ships.
Given these reasons, the Chinese misperceive US FONOPs as military operations intended to threaten China rather than maintenance operations intended to uphold international law. As a result of this insecurity, Chinese officials condemn the FONOP program, and every FONOP the US conducts further escalates tensions in the SCS. This misinterpretation and escalation risks leading the United States and China into classic security dilemma action-reaction dynamics. Therefore, it is important for the United States to understand and address these misperceptions to avoid triggering a potential conflict.
Not an Impasse: The United States Can Still Pass Through
However, the United States should not abandon its FONOP program or stop conducting FONOPs in the South China Sea. Instead, the United States should avoid unnecessarily escalating the situation in the SCS where it can while remaining loyal to its commitments. For example, the United States could continue conducting FONOPs with Arleigh-burke missile destroyers but address Chinese misperceptions by cleaning up its FONOP schedule, ratifying UNCLOS, and clarifying which excessive claim it is challenging with each operation.[xiii] By doing so, the United States would continue to adhere to its belief of absolute innocent passage, but would do so under the legitimacy of a routine schedule and within the clear constraints of the law of the seas. This would not diminish the effect of FONOPs or the United States’ commitment to regional allies, but it would signal that the United States wants to avoid antagonizing China and that it respects Chinese insecurities. Such a signal could be crucial to avoiding unnecessary escalation in the South China Sea.
[i] “U.S. Warship Conducts South China Sea Freedom of Navigation Operation,” USNI News, accessed November 11, 2016, https://news.usni.org/2016/10/21/u-s-warship-conducts-south-china-sea-freedom-navigation-operation.
[iii] “Maritime Security and Navigation,” US Department of State, accessed November 11, 2016, http://www.state.gov/e/oes/ocns/opa/maritimesecurity/.
[iv] United Nations Convention on the Law of the Sea 1833 UNTS 3 Part II, accessed November 11, 2016, http://www.un.org/Depts/los/convention_agreements/texts/unclos/part2.htm.
[v] “FONOPs and Deterrence: There’s No FDO in FONOPs,” USNI Blog, accessed November 11, 2016, https://blog.usni.org/2016/02/29/fonops-and-deterrence-theres-no-fdo-in-fonops.
[vi] “The Latest US FONOP Opens the Legal Door to More Aggressive US Challenges to China’s Artificial Islands,” Lawfare Blog, accessed November 11, 2016, https://www.lawfareblog.com/latest-us-freedom-navigation-operation-opens-legal-door-more-aggressive-us-challenges-chinas; United Nations Convention on the Law of the Sea 1833 UNTS 3 Art 7, accessed November 11, 2016, http://www.un.org/Depts/los/convention_agreements/texts/unclos/part2.htm.
[vii] “FONOPs and Deterrence: There’s No FDO in FONOPs,” USNI Blog, accessed November 11, 2016, https://blog.usni.org/2016/02/29/fonops-and-deterrence-theres-no-fdo-in-fonops.
[viii] “Freedom of Navigation Program Fact Sheet,” US Department of Defense, accessed November 11, 2016, http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/DoD%20FON%20Program%20–%20Fact%20Sheet%20(March%202015).pdf.
[ix] “South China Sea FONOP 2.0: A Step in the Right Direction,” CSIS Asia Maritime Transparency Initiative, accessed November 11, 2016, https://amti.csis.org/south-china-sea-fonop-2-0-a-step-in-the-right-direction/.
[x] United Nations Convention on the Law of the Sea 1833 UNTS 3 Art 3, accessed November 11, 2016, http://www.un.org/Depts/los/convention_agreements/texts/unclos/part2.htm.
[xi] “It’s Been 120 Days Since the Last South China Sea FONOP. So What?” The Diplomat, accessed November 11, 2016, http://thediplomat.com/2016/09/its-been-120-days-since-the-last-south-china-sea-fonop-so-what/.
[xii] “Freedom of Navigation Operations in the South China Sea,” ICAS Issue Primer, accessed November 11, 2016, http://chinaus-icas.org/wp-content/uploads/2016/11/FONOP-Issue-Primer-.pdf.
[xiii] “An American Warship Sails Through Disputed Waters in the South China Sea,” The Economist, accessed November 11, 2016, http://www.economist.com/news/asia/21676983-long-awaited-freedom-navigation-operation-sure-anger-china-american-navy-sails-through.