July 12, 2017

By Mark J. Valencia

US Freedom of Navigation Operations (FONOPs) in the South China Sea are controversial. Indeed, their targeting of China’s “excessive” claims there, their resumption under the administration of President Donald Trump, and China’s increasingly strident objections thereto raise important questions regarding their intent, effectiveness and necessity. Specifically, what is or should be their intent, have they been effective, and are they necessary?

The last FONOP under the Obama administration targeting China’s claims in the South China Sea occurred on October 16, 2016. The first one under the Trump administration took place on May 24, 2017 when the Arleigh Burke-class guided-missile destroyer USS Dewey made a non-innocent passage within 12 nm of China-claimed and occupied Mischief Reef in the Spratlys. This indirectly challenged China’s sovereignty over the low tide feature. China objected. The Chinese Foreign Ministry said the US destroyer had “trespassed” near islands over which China has “indisputable sovereignty.”

However, some US analysts saw it as a “challenge to Beijing’s moves in the South China Sea” and a sign that Washington “will not remain passive as Beijing seeks to expand its maritime reach.” Indeed, US Secretary of Defense James Mattis said it was part of US strategy. But what that strategy is remains unclear. Some — like US Navy War College professors Peter Dutton and Isaac Kardon — questioned whether the Dewey mission was really even a FONOP, let alone a part of US strategy — whatever that is. The official description of the operation did not explicitly state that a FONOP was conducted and according to Dutton and Kardon “the [US] messaging continues to be muddled.”

In a separate but related development, Pentagon officials stated that FONOPs will no longer be acknowledged or announced when they occur but only listed in an end of year report. Most previous FONOPs were purposely well-publicized by its Departments of Defense and State as demonstrations of US interpretations of international law.

On July 2, the USS Stethem sailed within 12 nm of China’s long claimed and occupied Triton Island in the Paracels. This FONOP was essentially a repeat of the USS Curtis Wilbur FONOP in late January 2016. This raises the question of why it was necessary to repeat a FONOP which was obviously provocative to China. Indeed, China’s Defense Ministry 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.” It would seem that the more the US pursues these FONOPs, the more China will see them as a threat and will take counter measures.

This FONOP occurred just hours before Trump called Chinese President Xi Jinping to urge China to do more to help the US with restraining North Korea. Usually one doesn’t take actions that may anger one’s counterpart just before asking a favor. Not surprisingly, Xi told Trump during the call that “negative factors” were affecting US-China relations. This FONOP may have been counterproductive given Trump’s “let’s make a deal” approach to foreign policy.

The US had no comment on China’s statement or the specifics of the Stethem FONOP. However, Matt Knight, a spokesman for the US Navy’s Pacific Fleet, declared that “FONOPs are not about any one country, nor are they about making political statements.” This statement is both confusing and misleading. Many Southeast Asian countries do see these provocative probes as political statements. Indeed, some argue that FONOPs are the tip of the spear of a strategy to support the US hub and spoke regional security architecture and to persuade China to comply with the “international rules-based order.” This includes the Hague arbitration decision against its claims in the South China Sea. Indeed, despite any attempt to downplay the political meaning of FONOPs, most Asian countries — including China — interpret them in general and this one in particular — as a signal of US resolve to remain the dominant power in the region. Indeed, according to the Global Times, China thinks US FONOPs against it are part of “a geopolitical game” in which the US is trying to “disperse China’s strategic attention.”

According to Dutton and Kardon, “conflation of routine naval operations with the narrow function of a formal FONOP needlessly politicizes this important program, blurs the message to China and other states in the region, blunts its impact on China’s conduct, and makes the program less effective in other areas of the globe.” I agree. But this begs the question of why do them at all? The US could protect its legal position by declaring it 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 many other nations — whose rights the US claims to be protecting. Indeed, refraining from “in your face” use of warships in favor of diplomatic protest is not legal “acquiescence.”

US FONOPs are aimed at other countries’ claims besides those of China. But they are less powerful and the political circumstances are quite different from the US-China dynamic. There was a nearly eight-month gap between the last FONOP under Obama and the first under Trump. This led to speculation that Trump had backed off on FONOPs in the hope that China would help it in restraining North Korea. In this context, the resumption of FONOPs sends a signal to China that the “honeymoon” is over.

A question going forward is whether or not FONOPs should be a narrow kinetic demonstration of the US interpretation of the international Law of the Sea, or 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?

Dutton and Kardon conclude 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,” where unlike the Paracels, China technically does not yet even make excessive maritime jurisdictional claims.

But this is a legal concern — not that of international relations or strategy. The narrow legalistic approach to freedom of navigation appears to be ineffective. Not only has it not worked in deterring China, and many others, from making and maintaining “excessive” claims, it is an exercise in hypocrisy and deception. The US has not ratified the very UN Convention on the Law of the Sea that it claims to be “enforcing.” Although it maintains it is adhering to and enforcing customary international law, it tacitly admits through its FONOPs program that dozens of countries have excessive claims, including many friends and allies. Customary law on these issues is in flux and reflects the practice of states over a considerable time period. In other words, customary law on this issue is not set in stone, as the US would have it. Moreover, as the US well knows, freedom of commercial navigation has not been hindered — only its provocative intelligence, surveillance and reconnaissance probes in China’s near shore waters.

Ironically, the US accuses China of bullying its fellow claimants. But in this unsettled legal situation, it is the US FONOPs that are perceived as a show or threat of use of force. Indeed, small, relatively powerless countries may well see the use of one of the world’s most advanced and lethal warships by the world’s sole superpower to make a narrow legal point as “bullying.”

The questions regarding the intent, effectiveness and necessity of FONOPs raise the more fundamental question of whether these FONOPs are worth the risk of confrontation and conflict. Alternatively, are they anachronistic, ambiguous, unnecessarily provocative, and counterproductive — and best discontinued or used only when definitely legally and politically necessary — rather than as a “matter of course”? These questions can only be answered by the relevant decision makers in the US government. But whatever they do decide — even by default — they should fully explain that decision and the reasoning behind it in a manner clear to friend and foe alike.

 

Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.

Link:

http://www.ippreview.com/index.php/Blog/single/id/503.html 

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