Foreign Relations & International Law

We’ve Seen This Movie Before: The Latest U.S. “Innocent Passage” Freedom of Navigation Operation in the South China Sea

Julian Ku
Wednesday, May 11, 2016, 1:34 PM

Yesterday, the U.S. Navy conducted its third freedom of navigation operation (“FONOP”) in the South China Sea since October 2015.

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Yesterday, the U.S. Navy conducted its third freedom of navigation operation (“FONOP”) in the South China Sea since October 2015. Like its two previous operations, the FONOP was carried out by a destroyer that sailed within 12 nautical miles of a land feature, and it was conducted under the rules of “innocent passage.” Like the last FONOP conducted in January, the land feature targeted by this FONOP, Fiery Cross Reef, is occupied by China but claimed by other neighboring nations—in this case, the claimant nations include Vietnam, Taiwan, and the Philippines. As with previous FONOPs, the U.S. operation was limited to establishing the right of warships to enter another country’s territorial seas without first seeking prior notification. The United States did not challenge China’s sovereignty claims, nor did it challenge China’s right to build artificial islands.

Moreover, as was the case in the previous two FONOPs, China reacted by mobilizing military assets to shadow the U.S. vessel, but otherwise largely contenting itself with sharp and vehement rhetoric criticizing the United States for violating Chinese law and threatening Chinese sovereignty, regional peace and stability.

In other words, we’ve seen this movie before. The main characters in our drama, China and the United States, are playing familiar roles and they even seem to be reading from the same script. So is there any new significance to this latest installment in the “South China Sea” franchise?

Not really. This latest U.S. FONOP is probably best understood as a holding action. It signals that the U.S. has maintained its commitment to remain engaged in the South China Sea, but it will continue to avoid directly challenging China’s most controversial activities such as building artificial islands in disputed waters. In other words, it maintains the delicate status quo, but it does not move the ball one way or the other.

As I have suggested, U.S. FONOPs are a necessary, but far from sufficient, tool to deter Chinese expansionism in the South China Sea. The United States needs to find different ways to add pressure on China. One possible move is currently on President Obama’s desk: the removal of remaining restrictions on lethal arms sales to Vietnam. This is a difficult decision, but one that makes a lot of strategic sense, although there are real human rights concerns. The United States has also been working hard to build an international consensus to demand China comply with the pending UNCLOS arbitration case initiated by the Philippines. This diplomatic campaign has been fairly successful, but China has managed to fight back by gathering the support of several countries against the arbitral ruling.

Looking forward, the United States needs to seriously consider abandoning its strict policy of not challenging any sovereign claims in the region. If the United States had simply rejected the sovereignty claims of China, Taiwan, and Vietnam at Fiery Cross, it could have conducted a regular “non-innocent” passage that would have directly challenged the legitimacy of China’s artificial islands and invoked the U.S. Philippines Defense Treaty as well.

But all of this lies in a future that is not quite here. This latest FONOP doesn’t change the dynamic in the South China Sea. But this FONOP is a necessary foundation for any changed dynamic the United States can hope will emerge in the future.

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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