The China-based South China Sea Strategic Situation Probing Initiative recently published a commentary, which criticized the U.S. Department of Defense (DOD) Freedom of Navigation (FON) Report for 2019.  This commentary was authored by Ching Chang, a research fellow at the Society for Strategic Studies in Taipei. It attempts to discredit the DOD FON Report, alleging “several errors” about the U.S. FON operations (FONOPs) that challenged China’s excessive maritime claims. Upon closer review, however, this effort to discredit the U.S. FON report falls short of its intended mark.

First, Chang highlights that the 2019 FON Report refers to U.S. FONOPs challenging a law that China enacted in 2002 and that law was superseded by a 2017 law. Both of these statements are true: (1) the report does refer to operational challenges to China’s Surveying and Mapping Law, which was issued in December 2002; and (2) that 2002 law was superseded by a 2017 law. Chang opines, “If the United States would like to express its disagreement towards certain maritime claims raised by Beijing, then Washington should address the valid legal decree.” I agree: a Department-level report should not include such errors. DOD should correct this error and revise its report accordingly.

But I cannot agree with Chang’s further opinions and extrapolations. He opines, “Articles and substantial contents of the Surveying and Mapping Law of the People’s Republic of China have been dramatically revised since then.” He continues, “By challenging something already non-existed [sic], the United States acted like Don Quixote to challenge a windmill as an imaginary dragon.” Chang thereby suggests that since the FON Report cites a Chinese law that has changed, the FONOPs in question did not actually challenge an excessive maritime claim by China. But this logic is not supported by the facts.

Notwithstanding the incorrect citation, the 2019 FON Report correctly identifies an excessive maritime claim by China. The substance of that claim listed in the FON Report is: “Criminalization of survey activities by foreign entities in the exclusive economic zone.”  For years, the DoD Maritime Claims Reference Manual has identified the following excessive claim by China:

[China] claims all surveying and mapping activities in the territorial air, land and waters, as well as other sea areas under PRC jurisdiction, by foreign entities require approval. Surveying and mapping without approval is considered a criminal offense, and violators can be fined, ordered to leave the country, and/or prosecuted under PRC law. Note: PRC does not distinguish between marine scientific research and military surveys and has interfered with and protested U.S. military survey activities in its EEZ.

The United States has challenged this excessive claim, both diplomatically (e.g., 2001 and 2007) and operationally. This author has participated in countless dialogues with PRC officials and Chinese academics in which U.S. delegations have explained how this maritime claim is excessive under international law.

Of note, China criminalized survey activities by foreign entities in its exclusive economic zone (EEZ) in both the 2002 law and the 2017 law.  Article 42 of the 2002 law prohibits “surveying and mapping activity” that China’s government has not authorized. Similarly, Article 51 of the 2017 law criminalizes and imposes fines upon “[a]ny foreign organization or individual” that “engages in surveying and mapping activities without obtaining approval or without cooperating with the relevant department or unit of the People’s Republic of China.” Thus, while there might have been some changes between these two laws, the 2017 law continued to criminalize survey activities by foreign entities. Despite Chang’s extrapolation to the contrary, China’s continuing restriction is neither “imaginary” nor “non-existed.”

Second, Chang questions how U.S. FONOPs challenged China’s East China Sea Air Defense Identification Zone (ADIZ) and dismisses these FONOPs on several grounds. As a matter of definition, he argues that “establishing an Air Defense Identification Zone is not a maritime claim.” As a matter of specificity, he argues that the United States fails to “provide solid evidence that indicating which words or phrases” in China’s ADIZ announcement constitute an excessive maritime claim. Once again, such criticisms fall short of their intended target.

In the context of the U.S. FON Program, maritime claims include actions by coastal states that purportedly restrict the transit and activities of other states not only on the ocean’s surface but also in the airspace above the ocean. In 1983, President Ronald Reagan issued the U.S. Oceans Policy Statement, declaring the United States would not “acquiesce in unilateral acts of other states” that are “designed to restrict” the freedoms of “navigation and overflight.” The DoD Maritime Claims Reference Manual identifies excessive maritime claims as “claims that unlawfully impede freedom of navigation and overflight.” The DoD FON Program’s Fact Sheet describes how some states assert excessive maritime claims that “if left unchallenged, could impinge on the rights, freedoms, and uses of the sea and airspace guaranteed to all States under international law.” Chang might prefer a more narrow definition of maritime claims, but the United States has long been concerned with claims by coastal states that seek to restrict the lawful uses of both the ocean and the airspace over the ocean, and has conducted FONOPs to protect those freedoms accordingly.

More specifically, China’s East China Sea ADIZ is excessive with regard to where it imposes its requirements and restrictions. In November 2013, China declared, “Aircraft flying in the East China Sea Air Defense Identification Zone must abide by these rules.” In response, the United States has explained how this maritime claim by China is excessive. One day after China announced its ADIZ, then-U.S. secretary of state John Kerry issued a press statement, declaring, “We don’t support efforts by any State to apply its ADIZ procedures to foreign aircraft not intending to enter its national airspace.” Several months later, I spoke publicly in an official capacity as the Oceans Policy Advisor in the Office of the U.S. Secretary of Defense and explained:

Note that all of these requirements of China’s ADIZ purportedly apply to `aircraft flying in the East China Sea Air Defense Identification Zone.’ They do not distinguish between, on the one hand, aircraft intending to enter the PRC’s national airspace and, on the other hand, aircraft merely flying through international airspace located within the ADIZ without an intent to enter the PRC’s national airspace. However, a coastal State may not restrict the rights, freedoms, and uses of airspace by aircraft operating in international airspace. Thus, as a matter of international law, these purported restrictions are excessive.

Despite Chang’s argument to the contrary, these explanations provide “solid evidence” of how China’s announced ADIZ constitutes an excessive maritime claim.

In summary, while Chang correctly identified an administrative error in the 2019 FON Report that should be corrected, his alleged substantive errors about the report’s China-related content fall short of the mark. They do not, as he hopes, discredit the report or the U.S. FONOPs underlying it. Thus, all that survives is his concluding paragraph, which characterizes U.S. FONOPs as “gunboat diplomacy.”  But that is nothing but political rhetoric which has been employed so many times before by PRC officials and their proxies to distract from the real problem: China’s efforts to restrict other states’ maritime freedom and rewrite the rules of the international order to its liking.

About Jonathan G. Odom

Jonathan G. Odom is an active-duty attorney in the U.S. Navy. Currently, he serves as a Military Professor of International Law at the George C. Marshall European Center for Security Studies, located in Garmisch-Partenkirchen, Germany. Previously, he has served as the Oceans Policy Adviser in the Office of the U.S. Secretary of Defense. The views expressed are his own and do not necessarily reflect the positions of the U.S. Government, the U.S. Department of Defense or any of its components.