The Age of Impunity
And How to Fight It
By all appearances, the U.S. Navy is poised to begin Freedom of Navigation exercises in the South China Sea. Rumors first emerged in May 2015 that the Pentagon was contemplating military operations around China’s new artificial islands among the Spratly Islands. Through such exercises, the United States would aim to demonstrate that it does not recognize spurious Chinese claims to water and airspace around the islands. So far, the Department of Defense has declined to make moves near China’s so-called Great Wall of Sand. The administration has, however, consistently stated that there are U.S. national interests in freedom of navigation and overflight in this vital waterway, where $5 trillion of global trade passes each year. With the presidential summit between U.S. President Barack Obama and Chinese President Xi Jinping now complete, operations seem imminent.
At the very least, the public debate about South China Sea Freedom of Navigation Operations (FONOPS) has already begun. Already, two myths about their role in U.S. foreign policy have emerged. The first is that they are a strict alternative to diplomacy with China. According to a Politico article, this narrative holds that there are some “military leaders who want to exercise their freedom of navigation” while diplomats are demurring in the interest of continued diplomacy with China. The second misconception is that they would challenge China’s claims to territory in the Spratly Islands. Even the best reporting on these exercises suggests, as did a recent Wall Street Journal article, that the purpose of FONOPS is to “directly contest Chinese territorial claims.”
Combined, these two misconceptions suggest that U.S. FONOPS would be a serious escalation by Washington in the South China Sea. As the history of the Freedom of Navigation Program and its relationship to international law make clear, however, such operations would complement U.S. diplomacy and, although they would contest China’s claims to water and airspace under the UN Convention on the Law of the Sea (UNCLOS), they would not contest its claims to territory. If the Obama administration decides to begin these exercises in the coming days, there are a few ways for it to signal that FONOPS are simply business as usual.
Freedom of navigation operations have long been a part of U.S. foreign policy. In 1801–1805, an embryonic U.S. Navy saw its first action protecting American overseas commercial interests in the Barbary Wars, when pirates demanded that the Jefferson administration pay tribute so that merchant ships could pass through the Mediterranean Sea. It was not until 1979, however, under U.S. President Jimmy Carter, that the mission was formalized into a freedom of navigation program. The U.S. FON program was developed in conjunction with UNCLOS and was officially established a year later. Although Washington is not a signatory to UNCLOS, the goal of the FON program has always been to promote international adherence to it. The FON program does so by challenging “excessive claims” to maritime and air space that do not conform with the convention.
The Department of State and Department of Defense jointly oversee the FON program, which has three major components. The State Department files diplomatic protests of excessive claims; State and Defense consult with their international counterparts on claims’ consistency with international law and work with the through military-to-military engagements; and Defense conducts what it calls “operational assertions,” through which it demonstrates physically the United States’ nonrecognition of excessive claims.
But diplomacy and FONOPS are complementary tools, not stark alternatives, and a decision to begin FONOPS should not be seen as a victory for military over civilian leaders, or as a sign that diplomatic efforts have been exhausted.Although there is no open source repository of data on the exact frequency and location of the Pentagon’s FONOPS, available figures indicate that the United States uses the tool quite frequently, particularly in Asia. The Department of Defense challenged 19 excessive claims worldwide in 2013 and 35 claims in 2014. Of those 35, 19 were located in the U.S. Pacific Command’s geographic region of responsibility. And they were equal opportunity challenges; in 2013–2014, the Department conducted FONOPS of various forms against China, Malaysia, the Philippines, Taiwan, and Vietnam—each of the countries that occupies territory in the South China Sea.
Despite these facts, the debate in Washington has persisted in the idea that FONOPS are extraordinary measures above and beyond diplomacy. Reports have suggested that U.S. military commanders support South China Sea FONOPS, whereas the White House and the Pentagon have been hesitant to pursue them. Others have argued that the Obama administration has preferred the State Department’s “creative diplomacy” to the use of FONOPS, suggesting that there is room for only one agency or approach to engaging China’s island building in the South China Sea. But diplomacy and FONOPS are complementary tools, not stark alternatives, and a decision to begin FONOPS should not be seen as a victory for military over civilian leaders, or as a sign that diplomatic efforts have been exhausted.
For their part, Chinese officials have stated that they would interpret U.S. exercises within 12 nautical miles of the features they hold in the Spratlys as provocative challenges to Chinese sovereignty. Beijing has every reason to imply that it would respond harshly to any maneuvers. The trouble is that the same misconception about the purpose of FONOPS has been proffered in Washington as well.
In a recent Senate hearing, Senator John McCain (R-Ariz.) argued that Washington’s failure to transit within 12 nautical miles of China’s claims “grants de facto recognition” of them. A report soon followed with the headline “McCain: U.S. Should Ignore China’s Claims in South China Sea.” This was likely not the message the Senator intended to convey, but reporting has consistently suggested that FONOPS would be used to push back against China’s claims to territory. The United States, however, has a long-standing policy that it does not take a position on other countries’ sovereignty disputes. FONOPS are meant to challenge excessive claims to water and airspace; they do not challenge territorial claims.
In other words, the FONOPS reality is both considerably more nuanced and far less escalatory than the popular narrative suggests.
In the aftermath of the Obama-Xi summit and with Beijing firmly committed to its position that it will continue to build what it likes in the Spratly Islands, Washington may begin FONOPS in the area in the coming days or weeks. If it does so, the basic facts of the Freedom of Navigation Program and of UNCLOS should serve as reminders that these operations do not represent a significant change in U.S. policy in the South China Sea.
U.S. Secretary of Defense Ashton Carter declared in May that the United States would continue to “fly, sail, and operate wherever international law allows,” and the Obama administration reiterated this pledge to Xi in September.First, under UNCLOS’ principle of innocent passage, foreign navies are entitled to transit within a state’s 12-nautical-mile territorial sea, as long as that vessel does nothing that is prejudicial to peace. Put differently, even if the United States didrecognize China’s sovereignty in the Spratlys, which it does not, international law permits it to pass peacefully nearby. China exercised this right in early September, when it transited U.S. territorial waters in the Bering Sea. The International Court of Justice has affirmed that this and operations like FONOPS are consistent with the right of innocent passage.
Second, precisely because the South China Sea territories are disputed, and because Washington does not take a position on such sovereignty disputes, it need not recognize territorial seas or airspace around any of China’s artificial features—or those of any other countries. In short, territorial seas are a function of recognized state sovereignty, and where that sovereignty is disputed, vessels and aircraft may pass freely.
Third, even if China’s Spratly holdings were uncontested, the fact remains that Beijing’s seven island features are artificial. Under UNCLOS, man-made islands do not confer territorial seas or airspace. Rather, they are granted only a 500-meter safety zone. In China’s case, before its building spree, at least three of its seven artificial islands were low-tide elevations or reefs, rather than rocks or islands. Under international law, these features are not even subject to sovereignty claims—by China, or by anyone else. By this logic, even without persistent sovereignty disputes, Mischief Reef, Gaven Reef, and Subi Reef would not be entitled to water or airspace of their own, and therefore may be especially appropriate features around which to transit.
As Washington prepares to conduct FONOPS, there are two steps it can take to show that these exercises are not escalatory but are usual practice in the global commons. First, Washington should alert countries in the region about its plans and should ask for their public support where possible. Australia, India, and Japan have all recently expressed serious concern that China’s island building will threaten freedom of navigation in the South China Sea. Their public support for U.S. maneuvers would demonstrate that this is not an issue of U.S.-Chinese tit-for-tat but a matter of regional diplomacy and rule of law.
Second, whether the Pentagon decides to operate within 12 nautical miles of only those Chinese features that were previously reefs, or opts to transit near other Chinese artificial islands too, it should conduct FONOPS around other claimants’ features as well, including low-lying reefs that are controlled by the Philippines or rocks held by Malaysia or Vietnam. Given that these countries are themselves gravely concerned about freedom of navigation and have expressed a willingness to sign on to recent U.S. diplomatic proposals to halt destabilizing activities in the South China Sea, it is unlikely that they would object to inclusion in this demonstration of legal principle.
U.S. Secretary of Defense Ashton Carter declared in May that the United States would continue to “fly, sail, and operate wherever international law allows,” and the Obama administration reiterated this pledge to Xi in September. Spratly Islands FONOPS are entirely consistent with this position. By soliciting the support of other regional states and conducting exercises around the features of multiple claimants, Washington can reinforce this program’s long history and record. Freedom of navigation is just business as usual in the South China Sea.