U.S. Navy Sets the Record Straight on FONOPs
Freedom Of Navigation Operations (FONOPs) have been at the forefront of tensions in the South China Sea (SCS) since the USS Lassen kicked off a long-term campaign by the U.S. Navy on October 26, 2015, at Subi reef in the Spratly Islands. The January 30 FONOP conducted by the USS Curtis Wilbur within twelve miles of Triton Island, one of the Paracel’s features, is the latest iteration of this policy.
The Triton Island operation is consistent with the U.S. interpretation of the right of innocent passage provided for in Article 17 of the Law of the Sea (UNCLOS). More importantly, it confirms the U.S. objective of building support for its broader interpretation of UNCLOS among SCS claimants. The timing of these operations is important: land reclamation efforts by China have begun a new phase with the entry into operation of several runways. Freedom of navigation operations have now expanded into different formats and participants. The Paracels and the Spratlys, the two most contentious flash points in the SCS disputes, have now been subject to FONOPs.
Mild reactions from Vietnam and Taiwan testify to the shifting forces in the region. Vietnam is a key party to the Trans Pacific Partnership (TPP), the free trade agreement between twelve of the major economies in the Pacific Rim. The agreement was released in October and officially signed in Auckland on February 4. The importance of this agreement cannot be understated. By signing a major agreement with the United States, many key countries, including Vietnam, are undergoing a momentous shift in geopolitical leanings. Economic proximity fosters geopolitical proximity.
Many of the TPP signatories are claimants in the territorial disputes and have a vested interest in refraining from denouncing the U.S. interpretation of UNCLOS. In addition, the nature of the targeted features in question also demonstrates Washington’s keen understanding of the mechanics of maritime border disputes. This new action challenges the straight baselines drawn by China from Triton Island pursuant to UNCLOS Article 7, which was not the case during the October operation.
The Triton FONOP supports the interpretation of the right of innocent passage through territorial waters without prior notification. This has been a discreet but constant tenet of U.S. foreign policy since the 1970s. From a logistical perspective, the operation mirrors that among the Spratly Islands: an armed navy ship navigating within twelve nautical miles of a disputed feature. However, the legal implications are different. Subi Reef is not regarded as an island under UNCLOS Article 13 but, rather, as a Low Tide Elevation (LTE).
Triton island, on the other hand, is unambiguously an island under UNCLOS: it is not submerged at high tide. The target has therefore shifted: from a muddled denunciation of land reclamation efforts in the Spratlys to a clear assault on contentious straight baselines in the Paracels. The latter objective requires stronger commitment. Conducting FONOPs within twelve nautical miles of recognized islands may officially target “excessive maritime claims.”
A Matter of Interpretation
The U.S. interpretation of freedom of navigation is centered on the right to navigate vessels unhindered, regardless of their type. On the other hand, China’s interpretation of UNCLOS Article 17 entails mandatory prior permission for warships entering its territorial sea. This interpretation is largely guided by China’s hostility and technological inferiority with regard to the U.S. Navy. The SCS disputes have set the stage for a “legal interpretation” showdown.
The two following factors are traditionally required to change a rule of customary international law: state practice and opinio juris sive necessitatis (opinion as to law or necessity, hereafter opinio juris). With respect to state practice, the requirement does not entail a uniform acceptance by every state but only the widespread acceptance and consistency of such practices. China is not unilaterally attempting to impose restrictions on freedom of navigation. The Chinese view on the legality of military activities in the EEZ reflects the majority view among ASEAN member states.
The list below outlines the respective positions of six ASEAN member states on freedom of navigation within the EEZ, according to the CSCAP Workshop Manila Session 2 (May 27, 2014). It demonstrates that some small and medium coastal Southeast Asian states emphasize the need to respect the rights and duties of coastal states and the need to assert sovereignty over zones adjacent to their territorial waters.
Cambodia: Control over all foreign activities on the continental shelf, irrespective of their purpose; security interests in the 24nm Contiguous Zone (CZ).