Will America Challenge China's Sweeping Sovereignty Claims?
Still, the fact that all three categories of naval operations serve the larger purpose of protecting freedom of the seas does not seem to alleviate the authors’ concerns.
“The 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,” the authors state.
They correctly identify the “confused and confusing signaling that followed the FONOP undertaken by the USS Lassen” near the Spratly Islands in 2015 as raising public doubts about “American commitment and resolve” in the South China Sea. However, that official and public confusion was not caused by the perceived “conflation” issue, but by the decision of Washington policymakers to take a minimalist approach in addressing China’s challenging behavior.
Instead of allowing the Navy to conduct a normal, unconditional FONOP in that instance and on two other occasions, the military service was instead reduced to carrying out innocent passage through the contested area, which failed to challenge China’s assertion of sovereignty.
The USS Dewey was allowed to conduct a proper FONOP. But the authors’ objections to the FONOPs program seem to go deeper. In fact, the title of their article is: “Forget the FONOPs—Just Fly, Sail and Operate Wherever International Law Allows.” They argue that a FONOP should not be done at all unless China formally states its claim—even when it seizes and occupies land features or creates artificial islands:
"FONOPs should continue in routine, low-key fashion wherever there are specific legal claims to be challenged (as in the Paracel Islands, the other disputed territories in the [South China Sea]); they should not be conducted—much less hyped up beyond proportion—in the Spratlys. Instead, the routine exercise of freedom of navigation is the most appropriate way to use the fleet in support of U.S. and allied interests."
The authors’ rationale for avoiding formal FONOPs near the Spratly Islands suggests that China’s aggressive tactics have already worked to deter U.S. Navy operations in increasing areas of the South China Sea.
In consequence, we should welcome the apparent decision not to conduct FONOPs around Scarborough Shoal—where China also never made any clear baseline or territorial sea claim. If U.S. policy makers intend to send a signal to China that construction on or around Scarborough would cross a red line, there are many better ways than a formal FONOP to send that message. One such political signal that was well sent is the deployment of Third Fleet forces from San Diego to the Western Pacific to augment the U.S. Navy’s Seventh Fleet forces resident in Asia . . . The group conducted routine operations in the South China Sea and is now conducting exercises in the Asia-Pacific with allies and partners to demonstrate American commitment and to build partner combat capabilities . . . The Chinese foreign ministry acknowledged the activity without protest. These vessels were carrying out routine naval operations to send a clear signal to regional states about U.S. capabilities and intentions. This was a clear message, clearly received.
But the capabilities of the U.S. Navy are not in question; it is the intentions of policymakers in Washington that are in question. The issue is not only where the Navy is operating in the South China Sea, but also where it is not operating, which is why Beijing does not protest that particular activity at this time.
The authors’ argument begs this question: Are any of the routine operations and exercises that are being conducted by the Third Fleet occurring within twelve nautical miles of natural or manmade land features that China claims in contravention of the UN arbitral tribunal’s decision?
If the answer is yes, but the Navy is minimizing publicity to avoid offending China, then the facts would be known to the participating allies and partners, and to China. The political cost of such a diplomatic wink-and-nod must be weighed by policymakers. All regional states need to know if the United States is standing up to—or acquiescing in—China’s increasing assertiveness.
If the answer is no, then that completely undermines the authors’ assertion that there are “better ways than a formal FONOP to send a signal to China that construction on or around Scarborough would cross a red line” or their assertion that the “consistent practice of free navigation, not the reactive FONOP, is the policy best suited to respond to Chinese assertiveness in the SCS.”
As the authors state, “routine naval operations perform a far broader set of political and strategic functions . . . [that] must be clear if their purposes are to be achieved.”
Ominously, Beijing and others could well conclude that for fear of provoking China, the U.S. Navy has put the twelve nautical miles areas around China’s claimed territories in the Spratly Islands off limits to either a formal FONOP or routine Navy freedom of navigation operations. That would be “a clear message, clearly received” but not a good one for the cause of full freedom of navigation.