Foreign Relations & International Law

The U.S. Government’s Continued Indecision on the South China Sea: Can We Get Past the FONOP Debate?

Julian Ku
Thursday, March 17, 2016, 7:26 AM

David Ignatius of the Washington Post had a column this week purporting to describe the danger of a U.S.-China conflict in the South China Sea. But its real value is its reporting on the views of different U.S.

Published by The Lawfare Institute
in Cooperation With

David Ignatius of the Washington Post had a column this week purporting to describe the danger of a U.S.-China conflict in the South China Sea. But its real value is its reporting on the views of different U.S. government policymakers. Ignatius describes a non-trivial disagreement between leading U.S. military decision-makers and the White House regarding how the U.S. would respond if China declared a South China Sea Air Defense Identification Zone (ADIZ):

The Pentagon argues that the United States should immediately challenge any air-defense identification zone claim by flying U.S. military planes into the area. That’s what happened in November 2013 when B-52s immediately challenged an ADIZ declared by China in the East China Sea. Because this overflight had previously been scheduled, the Pentagon didn’t have to ask White House approval; Pentagon officials fear that if such permission had been required, it would have been denied.

(Emphasis added).

This tidbit confirms what most outside observers have long suspected. The U.S. military has been advocating FONOPs and overflights to challenge China’s artificial islands and its ADIZ, and the White House is—at best—unenthusiastically allowing such actions. But the White House lack of enthusiasm is so pronounced that the Pentagon fears even such tepid support will be withdrawn going forward.

In my view, the U.S. military has the right position. China is the one changing the “facts on the ground” (or in the water, as the case may be) by building its artificial islands, beefing up land-based missile defenses, and declaring ADIZs. The U.S. military has a pre-existing policy to assert navigational and overflight rights in this region, and any hesitation to continue with this policy rewards the Chinese for taking actions that everyone in the region opposes. FONOPS should be the minimum U.S. response to Chinese activities in the region.

The real question for the White House is not whether to continue FONOPs and related overflights, but whether the U.S. can find other ways to impose leverage on China. Finding other points of leverage is difficult—as this recent Lawfare post on imposing economic sanctions on China reminds us—but luckily, Ignatius also informs us that the White House has “an intense interagency planning process underway to prepare for the looming confrontation.” Unfortunately, the one idea Ignatius reveals does not sound all that promising:

Options include an aggressive tit-for-tat strategy, in which the United States would help countries such as the Philippines and Vietnam build artificial islands of their own in disputed waters

This idea is surely being leaked to demonstrate to the Chinese that the White House is serious, but it may actually suggest the contrary. Such a competing island building policy would feed into China’s narrative that the U.S. is not concerned about artificial islands, just Chinese artificial islands. It would be expensive, would likely cause environmental damage, and create a race to build islands by other claimants as well.

Nevertheless, I am glad to hear that at least there is an “intense interagency planning process underway” to plan to coordinate U.S. government strategy for responding to China. Hopefully this signals that the debate over whether to have FONOPs is over. The question now should be how else the U.S. can pressure China as part of a larger strategy to stop and rollback China’s activities in the region. I have a few ideas of my own, which I plan to share in future posts.

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.

Subscribe to Lawfare