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Implications of the U.S. Navy’s FONOP program

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Special To The Japan Times

On Oct. 27, the U.S. Aegis destroyer Lassen carried out a Freedom of Navigation Operation (FONOP) in the South China Sea within 12 nautical miles of China-occupied Subi Reef.

Chinese Foreign Ministry spokesperson Lu Kang stated that “The USS Lassen illegally entered waters near relevant islands and reefs of China’s Nansha Islands without the permission of the Chinese government. Relevant actions by the U.S. naval vessel threatened China’s sovereignty and security interests, put the personnel and facilities on the islands and reefs at risk and endangered regional peace and stability.” What is likely to happen next and what are the legal and political aspects?

This FONOP was rather long in materializing as its wisdom was hotly debated between the U.S. Defense Department and the White House national security team. It was purportedly intended to challenge China’s maritime claims there. But its execution was muddled and its message ambiguous. Because of geographic and legal complexities it was not clear what and whose “excessive” claim was being challenged.

U.S. Secretary of Defense Ashton Carter said in a letter to Sen. John McCain, chairman of the Senate Armed Services Committee, that “given the factual uncertainty, we conducted the FONOP in a manner that is lawful under all possible scenarios to preserve U.S. options should the factual ambiguities be resolved, disputes settled and clarity on maritime claims reached.” With that less than crystal clear explanation it is no wonder that the FONOP’s message was confused and confusing.

There is mounting domestic pressure in the U.S. to follow it up with a clearer challenge to China’s claims. But there is also mounting domestic pressure in China to respond with action to any further U.S. “provocations.”

Nearly two months passed after the Lassen incident before Carter responded to McCain’s letter requesting an explanation of the Lassen FONOP. However, Carter’s “explanation” was incomplete in that it did not answer McCain’s first and foremost question: “Under the freedom of navigation program what excessive claims was the Lassen operation intended to challenge?”

Indeed, because Vietnam occupies nearby Sandy Cay and requires prior notification for foreign warships to enter its territorial sea, the FONOP could be interpreted as having been primarily directed at Vietnam — not China. Further complicating the issue, neither China nor Vietnam have specified their claims or baselines for territorial seas in the Spratlys.

That is the legal aspect. Tactically, the FONOP may have been a means for the U.S. to measure China’s resolve and response to incursions around its claimed and occupied features.

But Carter’s tortured explanation indicates that the FONOP was meant to be less provocative than a direct challenge to a Chinese claim of sovereignty over Subi Reef — while not conceding that the originally submerged Subi Reef is entitled to a territorial sea. But it also limits the U.S. ability to signal to China that it does not and will not recognize any Chinese maritime claims to originally submerged features. Carter also stated in his letter that the operations do not “challenge any country’s claims of sovereignty over land features, as this is not the purpose or function of a FONOP.”

More FONOPs are expected — reportedly two per budgetary quarter. Shortly after the USS Lassen incident, analysts were predicting a quick followup FONOP in the vicinity of China-claimed and -occupied Mischief Reef. But that has not happened. It may — and soon, but the delay is not a surprise. The decision to do so is complicated.

Given the ambiguity surrounding the Lassen FONOP, it is likely that the next one will indeed be aimed at or at least include Mischief Reef. This feature was originally below sea level before China’s reclamation and construction activities there, but it is now one of the largest and most developed of the features that China has reclaimed in the Spratlys.

It is also claimed by the Philippines, Vietnam and Taiwan. It is politically significant because it was the first Philippine-claimed feature that China occupied, it is near Reed Bank which supposedly harbors important petroleum resources, and the U.S., is a defense treaty ally of the Philippines. Moreover, unlike Subi Reef, no other above-water features are located within 12 nautical miles of it.

A FONOP directed there would send a clearer message to China and the international community of the U.S. position and its willingness to back it up.

The U.N. Convention on the Law of the Sea provides only “innocent passage” for foreign warships in another country’s territorial sea. Innocent passage is that which is not “prejudicial to the peace, good order and security of the coastal state.”

To demonstrate to the world that it does not recognize that the feature can have a territorial sea, the U.S. needs to blatantly “violate” the innocent passage regime by having its naval assets sail close to the feature and use fire control radar, deploy helicopters, conduct maneuvers or fire their weapons. It could also fly military aircraft within 12 nautical miles of the feature. But doing either could be a bit dicey.

Although China’s response to the Lassen provocation was rather weak in terms of action, perhaps partly because it observed the restrictions of innocent passage, that may not apply to a second FONOP that blatantly violates this regime. The pregnant silence that followed the incident and China’s immediate angry verbal response may indicate that there are ongoing discussions behind the scenes between the U.S. and China to choreograph the next event and China’s response to it. Indeed, the Lassen FONOP and future patrols were presumably one of the topics discussed by PACON Commander Adm. Harry Harris in his visit to China shortly after the Lassen incident.

A FONOP in the vicinity of Mischief Reef may seem straightforward to U.S. Navy lawyers and those advocating more robust U.S. action. The U.S. claims it is not challenging any country’s sovereignty claims. So if it sends a warship (or aircraft) to purposely and publicly violate the innocent passage regime around a China-claimed and occupied feature, it is signaling that in its view the feature does not generate a territorial sea because it is not subject to a sovereignty claim by any country.

But China’s People’s Liberation Army leadership and especially its nationalist elite may not appreciate the legal nuances involved. Indeed, China’s leadership may well view a FONOP around Mischief Reef as a challenge to its sovereignty — and sovereignty is a Chinese “core interest.” More important, China’s leadership needs to “save face” domestically on this issue.

Also, the U.S. needs China’s immediate support in its attempt to expand U.N. Security Council sanctions on North Korea. Another FONOP right now could interfere with that effort. These are just some of the considerations surrounding the U.S. decision on the next FONOP and an indication of why such a decision is not so simple and straightforward.

Mark J. Valencia is adjunct senior scholar at the National Institute for South China Sea Studies in Haikou, China. A shorter version of this article appeared in the South China Morning Post on Jan. 20.