IPP REVIEW–Differentiating between Theory and Enforcement of FONOP in the South China Sea


On
May 14, 2019, at the 6th International Maritime Security Conference,
Singapore’s Minister for Trade and Industry Chan Chun Sing said there is a need
to strengthen the
maritime
rules-based order
to provide a strong foundation for the global economy of tomorrow. Few would
disagree, but as usual, the devil is in the details. There is no universal
agreement on the interpretation of key provisions in the so-called
“Constitution of the Ocean” — the UN Convention on the Law of the Sea (UNCLOS).
Thus, there is disagreement as to what the “maritime rules-based order” is or
should be, who is and is not abiding by it, and how it should be enforced and
by whom. This concern was reinforced by Singapore’s Defense Minister Ng Eng Hen
who highlighted the problem of the
difference in
rules
adopted by countries over freedom of navigation.


Indeed,
important differences are emerging between Southeast Asian nations and the US
regarding the theory and enforcement of freedom of navigation.


The US
conflates freedom of navigation for commercial vessels with that for warships
and uses the latter to demonstrate its interpretation of the concept. It argues
that by exercising what it claims is the right of its warships to sail in
innocent passage through foreign territorial seas without prior permission, it
is defending commercial freedom of navigation.


But
its interpretation of freedom of navigation is not universally accepted. Many
nations distinguish between commercial vessels and warships, requiring the
latter to obtain prior permission to enter their territorial sea — or even
their 200 nautical mile Exclusive Economic Zone (EEZ). In Southeast Asia,
Indonesia, Taiwan and Vietnam require permission for foreign warships to enter
their territorial seas. Malaysia and US ally Thailand do not allow foreign
military activities in their EEZs without permission, let alone their
territorial seas. China is obviously not alone in its disagreement with the US
regarding the interpretation of the relevant international law and who is
violating it.


The US
argues that the requirement of prior permission for foreign warships to enter
the territorial sea is contrary to UNCLOS. The Convention supports the US
position. It stipulates that “The coastal State shall not hamper the innocent
passage of foreign ships through the territorial sea…  In particular, …the coastal State shall not:
(a) impose requirements on foreign ships which have the practical effect of
denying or impairing the right of innocent passage…”. But elsewhere it also
provides that the parties “shall refrain from any threat or use of force
against the territorial integrity or political independence of any State…”  China thinks that at least some — if not all —
US freedom of navigation operations (FONOPs) are inconsistent with this
provision.


Another
major problem is that the US, alone among the maritime powers, has not ratified
UNCLOS. The Convention was a “package deal” involving a major trade-off —
liberal freedom of navigation for maritime powers in exchange for projected
economic benefits for developing countries. China and others maintain that the US, by not ratifying the Convention, has abrogated the trade-off and is not
entitled to some of the liberal freedom of navigation provisions. Moreover,
they say the US as a non-ratifier has no legitimacy or credibility to choose
which provisions it will abide by, or to interpret them in its favor.


Also
because the US remains outside the Convention, it cannot avail itself of its
dispute settlement mechanism and thus uses the threat of use of force to back
up its position.



For
some ASEAN countries, refraining from “in your face” gunboat diplomacy in favor
of diplomatic protest is more consonant with the UN Charter.



As
evidence of Southeast Asian countries’ ambiguity on this issue, the US has for
years been pressuring — without success — others in and outside the region to
join its explicit and specific challenges (FONOPs) to what it considers China’s
excessive territorial sea regime in the Spratlys and its baselines drawn around
the Paracels. If that is too controversial for them, it urges them to carry out
their own. But US allies Australia, Japan and the Philippines have so far
declined such US requests. They all have their own reasons for doing so but a
common one is that they do not see China’s claims as a threat to commercial
traffic or their security despite US dire warnings to the contrary. The UK is
the only country that has answered the call — for obvious domestic political
reasons, and that may well have been a “one-off”.


There
is even some confusion as to what constitutes a US FONOP. The recent
quadrilateral military exercise in the South China Sea involving the US, Japan,
India and the Philippines led some to conclude that this was a
FONOP against
China
.
While some may interpret it that way politically, it was not a FONOP. Although
China has never specified the exact content of what it claims within its nine
dash line, it has never contested routine passage of warships outside its
claimed territorial sea. To imply that the joint exercise or similar exercises
of warships — or any other routine passage — was a FONOP implies that China
objects to normal passage of warships through the area. This is not so.
Moreover, it plays into the US narrative that China is a threat to commercial
navigation. China has never threatened commercial navigation and is unlikely to
do so in peacetime.


Singapore,
and some of its fellow ASEAN (Association of Southeast Asian Nations) members,
are not enthusiastic about the US use of its military to enforce its position.
To them the proximate cause of dangerous incidents between the US and China is
that the US is using its military to unilaterally enforce its interpretation of
the meaning of freedom of navigation, and China is responding in kind.


They
are particularly concerned that conflict between the US and China over freedom
of navigation for warships could threaten the very safety and security of
commercial navigation that is their economies’ existential arteries. Ng has
observed that “Maritime history teaches us that whenever and wherever there is
conflict on the seas, surrounding countries and their common folk invariable
suffer.”


So
even though some may agree with the US interpretation of the principle, they
have criticized its use of warships to enforce its interpretation of the
applicable law. Indeed, they were deeply concerned by the October 2018 near
collision between a Chinese warship and the US destroyer Decatur while it was
executing a FONOP. Shortly afterwards, Ng said, “Some of the incidents [between
China and the US] are from assertion of principles, but we recognize that the
price of any physical incident is one that is too high and unnecessary to
either assert or prove your position.” Philippines President
Rodrigo Duterte said, “…the
threat of confrontation and trouble in the waterway came from outside the
region.”
Malaysian
Prime Minister
Mahathir Mohamad observed that
“big warships [in the South China Sea] may cause incidents and that will lead
to tension.”


For
some ASEAN countries, refraining from “in your face” gunboat diplomacy in favor
of diplomatic protest is more consonant with the
UN Charter. It requires that
“[a]ll Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.” Some argue that “[T]he notion that states must take action which
may lead to a
violent
confrontation
or lose their rights under international law is inconsistent with the most
basic principles of international law.” Many ASEAN countries seem to agree with
this view. Hopefully the US will recognize that and distinguish between its
interpretation of freedom of navigation and its method of enforcing it.

About The Author

Mark J. Valencia
Mark J. Valencia

Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.

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