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Asia-Pacific

A Few Notes on FONOPS In the South China Sea

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By Scott Cheney-Peters


After months of speculation and signaling the U.S. has undertaken Freedom of Navigation Operations (FONOPS) to protest the claimed rights of Chinese-occupied “artificial islands” in the South China Sea at Subi and Mischief Reef by sending the USS Lassen within 12nm of the reefs. Several of our colleagues and members have written recently about the context, the legal aspects, the recent history, and response to the FONOPS. I recommend reading them all but wanted to offer a few additional thoughts below:

File photo of the US Navy guided-missile destroyer USS Lassen underway in the Pacific OceanThis was a necessary move to both reassure America’s allies and partners in the region of America’s commitment and to uphold common sense interpretations of the UN Convention on the Law of the Sea (UNCLOS). What many pieces of analysis gloss over is that even though UNCLOS is pretty clear that the reclamation doesn’t turn reefs into islands or give them the rights of islands, interpretations of international law – if contested – must be backed up by words and actions. Otherwise the counter-vailing view gains acceptance as customary international law.

The reported several-years’ pause in conducting these types of freedom of navigation operations (FONOPS) in the South China Sea may have been done to try and convince the Chinese to stand-down from their position. Not being privy to the internal administration deliberations I’m not sure if there was a good reason why it took so long to change course and resume FONOPS, but the delay created the risk that the resumption would create a major incident. This is why shortly before it occurred it appeared that the US was trying to prevent surprise from contributing to the risk of an incident by not only warning of the pending FONOPS but very specifically identifying which ship would conduct it and where.

While necessary for the reasons stated above, these FONOPS are unlikely to change the situation unless the Chinese overreact, something I don’t expect to happen. This doesn’t mean China will do nothing, however, and their response may consist of one or more approaches. One thing Chinese officials have long hinted at before the FONOPS occurred was that they would be used as justification for pre-planned actions, such as declaring an ADIZ over the South China Sea or the “militarization” of the reclaimed islands. Another possible action is mirroring the supposed provocation of the American FONOPS by conducting something perceived by the Chinese to be similar – such as additional transits near Alaska. Direct responses to further FONOPS will likely include shadowing of US naval vessels by Chinese naval vessels, as occurred with the LASSEN, and could include electronic or physical interference, as indicated by Chinese media – both much more dangerous and likely to escalate the situation.

Lastly, U.S. officials reportedly indicate that additional FONOPS will be conducted to protest Vietnamese and Philippines excessive claims in the coming weeks. These are not new protests, nor are FON activities in various forms limited to the region but in fact are used to protest claimed excessive maritime rights around the world, from Ecuador to India.

Scott Cheney-Peters is a surface warfare officer in the U.S. Navy Reserve and founder and Chairman of the Center for International Maritime Security (CIMSEC). He is a graduate of Georgetown University and the U.S. Naval War College, a member of the Truman National Security Project, and a CNAS Next-Generation National Security Fellow.

Strategic Outlook

Law of the S.E.A.

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With the recent statements from U.S. Secretary of Defense Panetta and the U.S. Chairman of the Joint Chiefs of Staff (CJCS) advocating the ratification of the three decade-old UN Law of the Sea Convention (UNCLOS), it is clear that U.S. policy will continue to support a cooperative approach to maritime security.  Besides Secretary Panetta’s detailed justification for UNCLOS in providing “economic jurisdiction” and a seat at the table (sans hypocrisy) for future international maritime dispute resolutions, UNCLOS supports freedom of navigation and access to the global commons (unless restricted by historical treaties such as the Montreux Convention).

Nations' Outer Continental Shelf boundaries and unilateral mining may not extend beyond "constraint lines" defined by UNCLOS.

UNCLOS ratification enshrines the principles of freedom of navigation and access, thereby strengthening the U.S. position in the pacific region and the U.S. pivot to South East Asia (S.E.A.). Ratification supports future S.E.A. diplomatic developments through its focus on the region’s most prominent domain.  Maritime territorial claims continue to inflict tension in S.E.A. and with UNCLOS as the primary legal guidance, the U.S. would be forced to stay on the diplomatic sidelines for a multilateral discussion without ratification.  Yet, U.S. accession and ratification would result in isolation and a decline in future cooperation with those remaining maritime countries that have maintained disputes over UNCLOS and chose not to accept or ratify it, namely:

Cambodia, Colombia, Democratic People’s Republic of Korea, Ecuador, El Salvador, Eritrea, Iran, Israel, Libya,  Peru, Syria, Timor-Leste, Turkey, United Arab Emirates, Venezuela [1] 

Despite the advantages Secretary Panetta and other U.S. advocates cite for the international maritime legal framework and global commons access rights (including the Arctic), the U.S. and other non-ratifying countries have long since acknowledged various negative aspects of the convention: increased non-local environmental policies, International Seabed Authority fees and taxes, international eminent domain grabs of intellectual property (to share new technology used in exploiting the economic opportunities of the expanded maritime domain), and the perception of a requirement to suspend all military-related actions while conducting innocent passage.

Claims submitted by the origina 2009 deadline.

In order to fully address the impact of UNCLOS ratification to S.E.A. regional stability, countries such as the U.S. must weigh the finer points of the treaty and second-order effects its ratification might bring.  As a new signatory, would U.S. diplomatic relations with Turkey and Israel now hinge on ignorance of Greece and Cyprus maritime boundary and Exclusive Economic Zone claims?  As U.S. businesses continue to explore deep sea beds, would the U.S. concede to limited exploitation and research of (traditionally unquestioned) U.S. bodies of water by an international consensus?  How would the U.S. discuss future fish stock trade with South American countries concerned with migratory fish locations beyond 200nm?  Perhaps the U.S. pursuance of UNCLOS to support the pivot to the Pacific truly outweighs these other non-vital diplomatic considerations, but I can’t stop wondering if by doing so, the U.S. may cause yet another pivot among its allies.