Freedom of Navigation in the South China Sea Is Business as Usual

By all appearances, the U.S. Navy is poised to begin Freedom of Navigation exercises in the South China Sea. Rumors first emerged in May 2015 that the Pentagon was contemplating military operations around China’s new artificial islands among the Spratly Islands. Through such exercises, the United States would aim to demonstrate that it does not recognize spurious Chinese claims to water and airspace around the islands. So far, the Department of Defense has declined to make moves near China’s so-called Great Wall of Sand. The administration has, however, consistently stated that there are U.S. national interests in freedom of navigation and overflight in this vital waterway, where $5 trillion of global trade passes each year. With the presidential summit between U.S. President Barack Obama and Chinese President Xi Jinping now complete, operations seem imminent.

At the very least, the public debate about South China Sea Freedom of Navigation Operations (FONOPS) has already begun. Already, two myths about their role in U.S. foreign policy have emerged. The first is that they are a strict alternative to diplomacy with China. According to a Politico article, this narrative holds that there are some “military leaders who want to exercise their freedom of navigation” while diplomats are demurring in the interest of continued diplomacy with China. The second misconception is that they would challenge China’s claims to territory in the Spratly Islands. Even the best reporting on these exercises suggests, as did a recent Wall Street Journal article, that the purpose of FONOPS is to “directly contest Chinese territorial claims.”

Combined, these two misconceptions suggest that U.S. FONOPS would be a serious escalation by Washington in the South China Sea. As the history of the Freedom of Navigation Program and its relationship to international law make clear, however, such operations would complement U.S. diplomacy and, although they would contest China’s claims to water and airspace under the UN Convention on the Law of the Sea (UNCLOS), they would not contest its claims to territory. If the Obama administration decides to begin these exercises in the coming days, there are a few ways for it to signal that FONOPS are simply business as usual.

REPUTATION FOR FON

Freedom of navigation operations have long been a part of U.S. foreign policy. In 1801–1805, an embryonic U.S. Navy saw its first action protecting American overseas commercial interests in the Barbary Wars, when pirates demanded that the Jefferson administration pay tribute so that merchant ships could pass through the Mediterranean Sea. It was not until 1979, however, under U.S. President Jimmy Carter, that the mission was formalized into a freedom of navigation program. The U.S. FON program was developed in conjunction with UNCLOS and was officially established a year later. Although Washington is not a signatory to UNCLOS, the goal of the FON program has always been to promote international adherence to it. The FON program does so by challenging “excessive claims” to maritime and air space that do not conform with the convention.

The Department of State and Department of Defense jointly oversee the FON program, which has three major components. The State Department files diplomatic protests of excessive claims; State and Defense consult with their international counterparts on claims’ consistency with international law and work with the through military-to-military engagements; and Defense conducts what it calls “operational assertions,” through which it demonstrates physically the United States’ nonrecognition of excessive claims.

But diplomacy and FONOPS are complementary tools, not stark alternatives, and a decision to begin FONOPS should not be seen as a victory for military over civilian leaders, or as a sign that diplomatic efforts have been exhausted.Although there is no open source repository of data on the exact frequency and location of the Pentagon’s FONOPS, available figures indicate that the United States uses the tool quite frequently, particularly in Asia. The Department of Defense challenged 19 excessive claims worldwide in 2013 and 35 claims in 2014. Of those 35, 19 were located in the U.S. Pacific Command’s geographic region of responsibility. And they were equal opportunity challenges; in2013–2014, the Department conducted FONOPS of various forms against China, Malaysia, the Philippines, Taiwan, and Vietnam—each of the countries that occupies territory in the South China Sea.

Despite these facts, the debate in Washington has persisted in the idea that FONOPS are extraordinary measures above and beyond diplomacy. Reports have suggested that U.S. military commanders support South China Sea FONOPS, whereas the White House and the Pentagon have been hesitant to pursue them. Others have argued that the Obama administration has preferred the State Department’s “creative diplomacy” to the use of FONOPS, suggesting that there is room for only one agency or approach to engaging China’s island building in the South China Sea. But diplomacy and FONOPS are complementary tools, not stark alternatives, and a decision to begin FONOPS should not be seen as a victory for military over civilian leaders, or as a sign that diplomatic efforts have been exhausted.