(Analysis) The U.S. FON Program in the South China Sea
2016-07-01 08:59:55 source：Brookings
By Lynn Kuok
June 2016
"U.S. freedom of navigation (FON) operations have recently come under scrutiny with assertions near contested features in the South China Sea. While some question whether they are necessary, there are strong legal and practical imperatives supporting their conduct. FON operations help to ensure that the hard-earned compromises reached during the Third United Nations Conference on the Law of the Sea (1973-1982) are maintained both by word and deed. The Vienna Convention on the Law of Treaties states that 'subsequent practice' shall be taken into account in interpreting treaties. If the United States fails to consistently assert is maritime rights under international law, these might be lost over time. Moreover, as a practical matter, rights not used are of little real value.
FON operations are part of the broader U.S. FON Program, which proceeds on a triple track. Criticism that the United States is prioritizing physical assertions over diplomatic and multilateral efforts is unwarranted. An examination of U.S. responses to three types of excessive maritime claims that are particularly problematic in the region—the insistence on prior authorization or notification for warships to exercise innocent passage, the prohibition of military activities in the EEZ, and the drawing of straight baselines when geographic conditions for doing so are not satisfied—demonstrates that the United States has been meticulous in diplomatically protesting excessive maritime claims and in setting out its (and the majority) interpretation of international law. FON operations assert rights available to all user states and cannot validly be described as a 'use of force' or even 'militarization'. Rather, such assertions are legitimate exercises of rights vested under international law."
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