Foreign Relations & International Law

Water Wars: A Week of FON Fallout

Zack Bluestone
Friday, November 6, 2015, 6:03 AM

Chinese jets release flares over a PLA vessel near the Spratlys (Photo: China Daily/Reuters)

Published by The Lawfare Institute
in Cooperation With

Chinese jets release flares over a PLA vessel near the Spratlys (Photo: China Daily/Reuters)

Just days after the United States conducted freedom of navigation operations (FONOPS) near Subi Reef, the PLA released photographs of armed naval aircraft training over the disputed Spratly islands. As an added barb, the operation was reportedly based out of a newly-constructed runway on Woody Island in the Paracel archipelago. A retired Chinese general described the move as “a signal China sent to the U.S. that it is serious about its claims.”

On Monday, an unnamed American defense official told Reuters that future FON patrols would take place about twice per quarter. The official explained that this would be “the right amount to make it regular but not a constant poke in the eye.” Later in the day, U.S. National Security Advisor Ben Rhodes confirmed that additional FONOPS would occur. During a speech at Peking University on Tuesday, Admiral Harry Harris refuted the inevitably of a Sino-American clash in the South China Sea, but he also robustly defended continued U.S. FONOPS as a necessary step to “prevent the decomposition of international laws and norms.”

Throughout the week, this tit-for-tat pattern continued. In response to Admiral Harris’s remarks, Foreign Ministry Spokesperson Hua Chunying called the U.S. FON patrol a “blatant provocation.” She then underscored what China sees as irony in the American position:

The [United States] has been studying the UN Convention on the Law of the Sea (UNCLOS) for decades without making up its mind to join it. However, it keeps criticizing others with UNCLOS as the pretext. . . . The practice of manipulating international law for political and selfish gains is quintessential hypocrisy and hegemony.

Moving from rhetorical flourish to legal substance, a debate emerged over whether the U.S. had conducted an innocent-passage transit rather than normal military operations after Defense News broke new details about the U.S. FON patrol. According to an unnamed Navy source, the Lassen took steps to indicate it was making a lawful innocent passage. For example, the warship’s fire-control radars were turned off, and it flew no helicopters. Additionally, breaking with previous reports, U.S. surveillance aircraft apparently did not cross the twelve-mile limit.

Adam Klein and Mira Rapp-Hooper explain that the U.S. patrol could still have been a normal military operation (e.g., if the Lassen failed to move in a direct and expeditious manner through the zone), but they fear that the USG’s silence is allowing the perception of an innocent-passage transit to harden. Julian Ku argues that an innocent passage would strengthen China’s maritime claims, given that it implies the existence of a territorial sea (David Bosco’s post clearly explains this point). Over at The Diplomat, Sean Henseler suggests that America’s “astrategic ambiguity” has actually muddied the waters in the South China Sea, and Timothy Choi contends that the so-called FON patrol was not an FONOP after all.

Rounding out the week, disagreements over the South China Sea forced an ASEAN defense chief summit in Malaysia to abandon a traditional concluding joint statement. The PRC Ministry of Defense blamed this failure on “individual country (countries) out of the region.” The Japan Times describes the Ministry’s remark as “a pointed reference to United States and Japan,” which had both been lobbying for a mention of the ongoing disputes in the South China Sea in the statement.

In other news…

United States

After the conclusion of the ASEAN summit, Secretary of Defense Ash Carter visited the USS Theodore Roosevelt with Malaysian Defense Minister Hishammuddin Hussein for a brief cruise through the South China Sea. Mr. Carter suggested that the presence of his Malaysian counterpart “indicates the great demand . . . in this region for the American presence, because it’s been a stabilizing presence for decades.” The Secretary also cited his “concern over the extravagant claims and the militarization [in the region,] principally by China.”


An unnamed U.S. Navy source recounted that the PLA Navy vessels shadowing the USS Lassen during its FON patrol had behaved professionally, but “[t]here were Chinese merchant vessels present that were not as demure.” One ship crossed the bow of the Lassen and circled around it during the patrol. Dubbing these forces “little blue men,” Andrew Erickson and Conor Kennedy insist that that the PRC has enlisted merchant ships and fishermen as a kind of maritime militia that will “allow China to vigorously pursue objectives without risking military conflict or creating an image of gunboat diplomacy.” The duo offers additional evidence in the first of a five-part series published by the Center for International Maritime Security.

Xinhua reports that a “Chinese expert” has found Chinese religious sites on various islands in the South China Sea. China Daily followed up on the discovery with a nine-panel image detailing “historical evidence of China’s sovereignty over the South China Sea," although competing claimants continue to reject such “evidence” as either contrived or as a misinterpretation of history.


Japanese PM Shinzo Abe and Chinese Premier Li Keqiang managed to overcome strained bilateral relations on the sidelines of a trilateral meeting between the PRC, South Korea, and Japan. The leaders agreed to restart high-level talks on resource exploration in the East China Sea, which have been stalled since 2012. Building on this progress, the Japanese and Chinese defense chiefs met for the first time since 2011 several days later and pledged to accelerate negotiations on a military crisis management mechanism.

Sino-Japanese relations remain far from perfect, however. During the same trilateral meetings, Mr. Abe called for South Korean and American cooperation “to preserve the open, free and peaceful [South China] sea.” Although Defense Minister Gen Nakatani clarified that Tokyo has no plans at present to take part in U.S. FONOPS, the Prime Minister seemingly suggested some role for Japan in the simmering South China Sea disputes. Additionally, back on October 24, two PRC Coast Guard vessels sailed into Japanese-claimed territorial waters near Uotsurijima—the largest island in the disputed Senkaku/Diaoyu chain. The Chinese ships lingered for about two hours, according to the Japan’s Coast Guard. This was the 29th such incident this year, with the most recent previous incursion occurring on October 9.


Possibly lost in last week’s coverage was Australia’s position on FONOPS—including, most significantly, a hint that Canberra might conduct its own such operations moving forward. In the immediate aftermath of the American patrol near Subi Reef, Australia’s Defence Ministry issued a statement that simultaneously supported U.S. actions and reaffirmed FON rights, while making clear that “Australia is not involved in the current United States activity in the South China Sea.” Further pacifying Sino-Aussie relations, Canberra followed through on a previously scheduled confidence-building exercise between the Royal Australian Navy and the PLA Navy. Nevertheless, senior Australian defense officials have confirmed that plans have been prepared for a possible sail-through and/or flyover in case the government decides to go in that direction. The PRC, for its part, has counseled its regional neighbor against conducting FON patrols, warning that “[i]t is not in Australia’s interest to become involved.”


An outpouring of Filipino support continued this week for the Permanent Court of Arbitration’s (PCA) jurisdictional ruling in the Republic of the Philippines v. China maritime case. Despite nearly uniform praise for the Award, however, the significance of this victory has been interpreted differently. Filipino liberals argue that the decision frees the Philippines to pursue “a foreign policy independent from the saber-rattling provocations of . . . the United States and Japan.” Other politicians have called for the Philippines to build new artificial reefs in the South China Sea. Striking a more neutral tone, at least with respect to broader foreign policy, Supreme Court Justice Antonio Carpio described the Award as “a total rejection of China’s two principal objections. The case is neither a sovereignty nor a sea boundary delimitation issue.” Judge Carpio also found it telling that the tribunal completely ignored China’s nine-dash claims.


Chinese President Xi Jinping arrived in Hanoi on Thursday for his first official visit to Vietnam. Experts read Mr. Xi’s trip as part of an effort to restore relations between the communist countries, which dramatically deteriorated after Beijing moved an oil rig into disputed South China Sea waters back in May 2014. PRC officials confirmed that territorial disputes would be discussed during the visit. Mr. Xi is under pressure to improve relations quickly, as President Barak Obama will be courting Vietnamese leadership during his own visit scheduled later this month. The Diplomat’s Carl Thayer suggests that the two trips will play a major role in determining whether Vietnam orients itself toward Washington or Beijing.

Also, last week, Ministry of Foreign Affairs spokesman Le Hai Binh condemned China’s recent construction of two lighthouses in the Paracel archipelago as “a severe violation of Vietnam’s sovereignty” and called on the PRC to immediately stop wrongful actions.


After his visit to Vietnam, Mr. Xi will travel to Singapore, where he will meet with Taiwanese President Ma Ying-jeou—the first such meeting between PRC and ROC leaders since the Chinese Communist Revolution in 1949. Mr. Ma has indicated that he is not yet prepared to discuss issues related to the South China Sea with Mr. Xi. However, if this historic summit leads to a further thaw in relations, it could have major ramifications on the way both countries approach their overlapping maritime claims in the region, as Shannon Tiezzi explains.

Last weekend, Taipei responded forcefully to PCA’s jurisdictional ruling in the Philippines v. China. With both the Arbitral Tribunal and the Philippines completely ignoring Taiwan thus far, the Ministry of Foreign Affairs concluded that “the arbitration does not affect the ROC in any way, and the ROC neither recognizes nor accepts related awards.” The Ministry’s statement also insisted that, under UNCLOS, Taiping Island is an island and not a rock.

Analysis, Commentary, and Additional Information

AMTI’s Tetsuo Kotani considers whether Japan can and should participate in FON patrols in the South China Sea. Elsewhere, AMTI breaks down different types of FON patrols and related issues in its primer on FONOPS in the Spratlys. And on a lighter note, John Oliver unveils what he suggests could prove to be America’s secret weapon in the South China Sea disputes.

Minimizing the importance of U.S. FONOPS, Jill Goldenziel suggests that, in the wake of the PCA’s jurisdictional ruling, international law poses the real threat to the PRC’s South China Sea claims. Over at The Diplomat, James Kraska provides a wonderful legal analysis of the Philippines v. PRC case, and Ryan Santicola contends that China is facing “diminishing returns” from its strategic ambiguity regarding its maritime claims. And Julian Ku predicts that China will continue to ignore the PCA and likely will get away with it.

Drawing an analogy to China's failure to enforce its East China Sea air defense identification zone (ADIZ), The Japan Times anticipates that the PRC will be unable to control contested waters in the South China Sea. The paper also reports on how China utilizes its coast guard to “avert international condemnation that might result if it tried to impose its territorial assertions with warships.”

Closing out this week’s post, the Council on Foreign Relations has published a substantive and visually-stunning guide to China’s maritime disputes, and GW University will host a simulated crisis in the East China Sea tomorrow (it’s not too late to register for readers in the DC area).

Zack Bluestone is a third-year student at Harvard Law School, where he is Managing Editor of the Harvard Journal of Law & Public Policy and Vice President of the National Security & Law Association. Zack has worked in all three branches of the federal government, including legal internships with the Office of the Chief Prosecutor of Military Commissions at the U.S. Department of Defense, the Office of the President Pro Tempore of the U.S. Senate, and the Administrative Office of the U.S. Federal Courts. Zack graduated summa cum laude from Georgetown University with B.S. in Foreign Service and earned his MBA from the University of Oxford.

Subscribe to Lawfare