Most people have perhaps never heard of the term, US Freedom of Navigation Operation (FONOP), until very recently. Indeed, for the program’s past 35 years of activity, it has never come under as much scrutiny as in the past few years. The reason is that the US has been undertaking FONOP in the South China Sea, one of the testiest geopolitical hotspots in the world today.
The Obama administration operated its first FONOP in the South China Sea in October, 2015, and steadily performed them throughout his eight years. A year into the Trump administration, security experts have noticed some fundamental changes to how the United States is using FONOPs in the region. Before addressing these changes, an understanding of what a FONOP is would be helpful.
Since 1979, the US Departments of State and Defense have jointly carried out the country’s FONOP program. The utility of the program is to issue formal challenges to what the United States views as “excessive” maritime claims by other states according to international maritime law. In that sense, FONOP is traditionally designed as a legal signaling tool, and not primarily meant to send signals of commitment, deterrence, reassurance, or any other political-diplomatic indications.
China currently occupies and claims sovereignty over several entities within the infamous “nine-dash line,” many of which are considered low-tide elevations (LTEs). According to the UN Convention on the Law of Sea (UNCLOS), LTEs are not entitled, like islands, to a 12 nautical mile (nm) territorial sea zone. Of course, China has its own interpretation of UNCLOS and is requiring prior permission from foreign boats and warships for innocent passage (IP) through what it claims as its territorial sea around these Chinese-occupied LTEs.
This is where US FONOP comes in. From a legal perspective, innocent passage is a fundamentally different thing from a FONOP. A navy ship traversing a country’s territorial sea typically has to notify the “ownership” country for permission. Upon permission, they must expeditiously pass through the zone with radar turned off, weapon system deactivated, and with no exercises or maneuvers performed. FONOP, on the other hand, is what a navy ship always does at sea without any constraints, they do not ask for passage or alter their activities. In short, FONOP directly challenges the “ownership” country’s territorial sea claim, while innocent passage openly concedes it.
Essentially, by conducting FONOPs within 12 nm of these entities, the US directly challenges the legal basis of China’s claims on its occupied LTEs. Given the nature of US-China relations in the region, and the fact that the first US FONOP in the South China Sea occurred not long after controversies over China’s construction of artificial islands in 2015, there has been doubts over the wisdom of such operations.
There was a total of six FONOPs in the South China Sea under the Obama administration from 2015 to 2016, four of which were near Chinese territorial claims. The Trump administration, in contrast, has carried out four FONOPs in the past five months, ratcheting up the frequency. This is thanks to the decision by the Department of Defense to set up a regular schedule of FONOPs in the South China Sea under the authority of US Pacific Command. The increase in regularity addresses a problem with the Obama administration’s use of FONOPs. The irregularity of the administration’s FONOP operations was criticized as it made the operations appear to be a more of a diplomatic tool against China than having a legal signaling purpose.
This has not been the only change to FONOPs under the Trump administration, a change which is actually not all that unexpected. Before, US policy was to publicize information about each FONOP. In contrast, the Trump administration has reverted to past practices of summarizing all FONOPs in the Navy’s annual report. This means that detailed reports on FONOPS carried out in 2017 will not be publicized until halfway into 2018, although instances of FONOPs may leak to the press when an operation occurs.
These changes present some interesting implications as to how the Trump administration is using FONOPs differently in the South China Sea. The higher frequency and persistent regularity bolster the utility of US FONOPs’ legal signaling, but the lower profile of the operations has an opposite effect diplomatically. As mentioned, the distinction between FONOP and IP is stark from a legal standpoint, but can be blurry operationally. To clarify the nature of each operation, one needs to know whether the war ship has traversed within the 12nm area around the entity, notified any of the claimants, and shut down its weapons among other things.
Looking back to the first reported FONOP under the Obama administration undertaken by the USS Lassen, it took 56 days until then Secretary of Defense Ash Carter to come out on record and clarify the precise nature of the operation. Before that, much of what was made public about the USS Lassen operation was based on anonymously sourced leaks from within the US Department of Defense – some of which turned out to be inaccurate – and ambiguous statements by Pentagon spokespeople. Later operations under Obama fixed this problem of ambiguity with quicker, cleaner messaging.
The shift to annual reporting rather than individual publication is bringing back the same issue. Now, knowledge of the nature of an operation is speculative and based off indicators from media reports and from Chinese responses, none of which are reliable. We will have to wait till the middle of next year to know for certain. Overall, the lower profile undermines its utility as a diplomatic signal to slow down or desist China from their island build-up in the contested regions. Not only that, the ambiguity of the nature of each operation also undermines its utility as a signaling tool, at least in the short run.
There is no definite answer as to why the United States has opted for this new way of conducting FONOPs. One reason could be that US Navy now has more autonomy to conduct FONOPs thanks to the approval of a plan submitted to the White House that outlines a full-year schedule of when US navy ships will sail through contested waters in the South China Sea. However, the new autonomy acquired by the Navy with regards to FONOPs does not really explain the reasoning behind the changes in reporting.
One could point to the fact that, until today, the US has not been an effective signatory of UNCLOS. This limits the US’ ability in invoking any of the treaty’s clauses, such as the legal entitlements of the maritime features, the lawfulness of one country’s sovereignty claim, or the very distinction between a FONOP and an IP. Moreover, the lack of ratification undermines the legitimacy of country’s calls for China to abide by UNCLOS. The switch in how the United States conducts FONOPs could be a way to remedy these problems. However, this would not constitute a complete explanation because China has never attacked this point in any of its responses to US FONOPs in the past.
In the bigger scheme of things, the Trump administration’s focus on Asia has undergone a qualitative shift – from the South China Sea to North Korea and trade. With this shift in priority, the US will certainly want China’s cooperation on trade and North Korea, and hence will avoid provoking China over matters in the South China Sea. That said, it does not mean the United States is willing to completely abandon its presence in the area. The US stance in the South China Sea dispute has consistently refrained from taking sides over sovereignty claims, but has pushed for freedom of navigation and legal means for dispute settlement. In this sense, while the United States is perhaps undercutting the legal signaling utility of its FONOPs, it is still sending a signal about its commitment to stay engaged in the area to its regional partners like Vietnam and the Philippines, and, of course, to China as well.
The upside about the more frequent FONOP schedule is that it keeps China conscious that its territorial claims in the South China Sea stays challenged. China remains vociferous whenever another FONOP occurs. Continuation of regular FONOPs in the South China Sea is therefore still preferable. If the US really wants to bolster the legal power of FONOPs and avoid having them labeled as a mere diplomatic instrument against China, the country should show that it targets competing states and friends alike. Operations around features occupied by other claimants in the region, and not just singling out those of China, should be conducted. This would mean moving onto contested LTEs in the Paracel Islands. Vietnam and the Philippines will likely not have a problem with that, while China will have less of a cause to react stridently to future US FONOPS.
Overall, the question remains as to whether these operations are really legal “challenges” to China’s claim. While this cannot be ascertained until the annual report is released, it seems for now the United States is committed to making FONOPs in the South China Sea exclusively a legal signaling tool.