Foreign Relations & International Law

Possible U.S. Responses to the South China Sea Arbitration Award: The Aggressive FONOPs Option

Julian Ku
Wednesday, July 13, 2016, 9:05 AM

What will be the effect of yesterday’s blockbuster South China Sea arbitral award on the U.S. government’s policy in the region? Reportedly, an inter-agency working group in the U.S. government has been considering this question for months.

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What will be the effect of yesterday’s blockbuster South China Sea arbitral award on the U.S. government’s policy in the region? Reportedly, an inter-agency working group in the U.S. government has been considering this question for months. This post will consider the legal foundation for one obvious option: new freedom of navigation operations conducted without innocent passage within 12 nautical miles of China’s artificial islands. I hope in future posts to consider what diplomatic options the U.S. or the Philippines might employ to pressure China.

To begin with, it is worth reviewing the three components of the U.S. government’s stated policies in the region. First, the U.S. government has repeatedly stated that it will not take sides in sovereignty disputes in the South China Sea region. Second, the U.S. government has also repeatedly stated that it will “sail, fly and operate wherever international law allows.” Finally, the U.S. government has publicly stated that the pending South China Sea arbitral award is legally binding on China, and that China should comply with the award.

I think each of these policy commitments makes sense individually, but they sometimes come into tension with each other. For instance, the longstanding U.S. commitment to avoid taking sides in sovereignty disputes has led the U.S. to treat all countries as if their sovereignty claims are equally strong, even if a country like China has a much weaker claim than most others. Thus, the U.S. Navy has been careful to limit its recent “freedom of navigation operations” in the region to the rules of innocent passage, thus tacitly signaling that China might have a valid sovereign claim to an underwater land feature. Such caution is driven by the U.S. commitment to its “not taking sides” policy.

Today’s sweeping arbitral award changes this situation rather significantly. First, the arbitral tribunal has dramatically widened the scope of where “international law” allows the U.S. to sail, fly and operate. The arbitral tribunal found that none of the land features in the Spratlys satisfy the definition of an “island” under the definitions set out in UNCLOS. This means that none of the land features can generate a 200 nautical mile exclusive economic zone where China claims the right to limit U.S. military surveillance.

More importantly, the tribunal found that only a few of the land features even satisfy UNCLOS’ definition of a “rock.” This means that most of the land features, including several upon which China has built artificial islands, do not even entitle China to claim a 12 nautical mile territorial sea. Moreover, since such non-island/non-rock land features cannot generate any maritime rights, the tribunal’s award gives most of those rights to the nearest coastal state: the Philippines.

All of this brings us to the third, and newest, component of U.S. policy. The U.S. considers the award legally binding and has called upon China to comply with it. Since the U.S. considers the award legally binding on China, it would be odd for the U.S. to continue to tacitly recognize those Chinese sovereignty claims in the Spratlys that the arbitral award has found legally insupportable. For example, the U.S. no longer has any obligation to assume a 12 nautical mile territorial sea around the Chinese artificial island at Mischief Reef. That reef lies, according to the tribunal, squarely within the Philippines’ exclusive economic zone and on its continental shelf. In legal terms, there is no justification for China’s land building activities or continued presence there.

Thus, if the U.S. Navy approaches Mischief Reef, it has no obligation to invoke innocent passage and it can legally approach within 500 meters of the Chinese artificial island. Indeed, to maintain its policy of “sailing, flying and operating wherever international law allows,” the U.S. Navy would be required to not invoke innocent passage when operating near Mischief Reef.

U.S. Defense Secretary Ashton Carter has already signaled that the U.S. may adopt such an approach. In his remarks at the recent Shangri-la conference, he noted: “After all, turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit.”

This means that the U.S. is prepared to treat China’s artificial islands as “underwater rocks” without any maritime rights at all. As I have argued in prior posts, FONOPs are not a long-term answer. But I think they have served as a useful signal to other regional powers that the U.S. remains committed to staying involved and active in the region. With the arbitral award behind them, the U.S. should also have an easier time convincing its partners and allies such as Australia or Japan to conduct joint FONOPs since such operations would no longer simply constitute U.S. interpretations of what international law allows. Such operations would now reflect international law as interpreted by a neutral arbitral tribunal formed under the authority of UNCLOS.

To be sure, the U.S. Navy has no obligation to conduct freedom of navigation operations at all, much less in the provocative manner I have suggested. But the logic of existing U.S. policy commitment leads to the inexorable conclusion that any future U.S. FONOPs in the region will have to be much less deferential to potential or plausible Chinese sovereignty claims. The tribunal has now laid out the legal path for a much more aggressive and provocative (but legally sound) U.S. FONOP, if the U.S. chooses to act.

Julian Ku is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University School of Law. He is a co-founder of Opinio Juris, the leading blog on international law.

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