Since 2017, the U.S. Navy has performed freedom of navigation operations (FONOPs) in the South China Sea routinely, on a basis of about every two months. In response to each operation, the People’s Liberation Army Navy (PLAN) customarily dispatches air and surface units to carry out verification and identification, and to warn the U.S. warships to steer away. Though now routine, these exercises continue to spark fierce debate in the academic circles and media of both countries. Chinese observers repeat official diplomatic statements, deny the legality of the operations, and overwhelmingly denounce the U.S. actions, while seldom giving voice to feasible ways of resolving the dispute. The U.S. FONOP program in the South China Sea has turned into a political battlefield with a legal façade between the two nations. It is not realistic for China to ask the United States to abandon its FONOPs, and it is just as unrealistic for the United States to ask China to simply drop its excessive maritime claims. The three policy options offered to China in this analysis, grounded in a realist perspective, could help define a path for escaping the deadlock.
1. Maintaining the status quo: if U.S. warships continue to perform FONOPs routinely, and China continues to respond in the same way, the United States will win out.
Thus far, U.S. FONOPs in the South China Sea have always occurred at times and locations decided unilaterally, giving Washington the upper hand over Beijing. By sticking to its routine, the United States asserts its right to free navigation in the South China Sea in direct opposition to the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone and the Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea, and in so doing undermines the authority of the Chinese government on its maritime rights of the South China Sea. By maintaining this course of action over time, the United States shapes international custom and consensus, strengthening international recognition of its freedom of navigation concept (which differs from that of China in regard to sovereignty, jurisdiction and historical rights).
Every time the United States engages in a FONOP, the Chinese side waits to react. Each U.S. FONOP is usually followed by representations and protests lodged repeatedly by Chinese spokespersons in the Ministry of Foreign Affairs, the Ministry of National Defense, and the Southern Theater, reiterating China’s policy of taking necessary measures to defend national sovereignty and security. However, these statements do nothing to stop the next FONOP. The Chinese side also sends warships and military aircraft, with a stated goal of verifying and warning off the U.S. warships. But according to reports from media aboard the U.S. ships, the Chinese warships and military aircraft only follow the U.S. ships and monitor them from a safe distance, calling from time to time via radio to warn them off to no effect. China has largely stuck to this course of action for more than three years and such a response has failed entirely at stopping U.S. FONOPs. It stands to reason that if China continues this style of response, further FONOPs will continue to undermine China’s national credibility.
On September 30, 2018, the USS Decatur was forced to change course during a FONOP near Nanxun Reefs (Gaven Reefs), when the PLAN destroyer Lanzhou tried to intercept the U.S. destroyer. This is probably the only actual interception made by China’s navy on a FONOP since 2015. However, neither of the subsequent statements by the Ministry of Foreign Affairs or the Ministry of National Defense said anything about the interception attempt or the forced course correction, giving up the opportunity to publicize what could be called a successful eviction. The low profile adopted by Beijing may be a clue that top Chinese officials did not approve the action, or that they are worried about its negative impact. In a Chinese military command system that emphasizes highly centralized and unified leadership, it is hard to imagine seeing another such interception by sea/air operating forces (if that was indeed the situation).
2. Responding harshly: even if China meets U.S. FONOPs with force including dangerous approaches, collisions, or even a minor conflict, it is unlikely to stop FONOPs.
If China take a tough line, will it force the United States to stop FONOPs? This ultimately comes down to a comparison between the military might of China and the United States, and whether the United States has sufficient confidence in a military confrontation with China in the South China Sea.
Based on the current U.S. military presence in the Asia-Pacific region, the United States is unlikely to make concessions to Chinese military pressure. As far as FONOPs go, the United States has always pursued an unforgiving policy backed by military strength, and has never been intimidated by an adversary into halting FONOPs. In the 1980s, during the Cold War, even though the Soviet Navy dominated in some areas, the U.S. Navy insisted on carrying out FONOPs in the Soviet Union’s territorial seas. Despite intentionally colliding with U.S. ships exercising innocent passage in the Black Sea in February 1988, the Soviet Union ultimately yielded to the U.S. position that innocent passage does not require approval from the coastal state. Considering the relative strength of Chinese and U.S. forces today, it is hard to believe that a tough response from China would be any more effective in forcing the United States to stop FONOPs.
The global and longstanding practice of FONOPs by the United States over the past three decades also makes it less likely to be deterred from operations in the South China Sea. Since 1991, the United States has challenged the excessive maritime claims of nearly 60 countries around the world, and convinced at least nine countries and areas to revise domestic legislation on innocent passage, including the Soviet Union, Bulgaria, Vietnam, Latvia, Sweden, Denmark, Indonesia, Finland, and Chinese Taiwan.
Moreover, though the two countries have agreed on avoiding incidents and conflict in the air and at sea, this does not mean that the two nuclear power are not prepared for small-scale conflicts. If China takes tough measures to intercept or collide with U.S. warships, the United States is less likely to suffer in potential air and sea small-scale conflicts because of its military superiority in the region. Even in a “tie” scenario, the heightened tensions in the South China Sea would create opportunities for the United States and its allies to reinforce their presence in the region. As a result, China would lose relative strength in the security order of the South China Sea.
3. To seek mutual compromise: China and the United States can maximize common gain by consulting on, and compromising mutually over, maritime laws relevant to freedom of navigation.
At the technical level, U.S. FONOPs in the South China Sea mainly target China’s excessive maritime claims, which include:
a) excessive straight baselines;
b) requiring warships to obtain prior approval before entering a territorial sea;
c) security control in the contiguous zone;
d) jurisdiction over foreign military activities in the exclusive economic zone, including surveillance and reconnaissance;
e) jurisdiction over the airspace above the exclusive economic zone; and
f) the artificial islands in Nansha Islands (Spratly Islands), and their claimed territorial seas.
Setting aside the last point, which China considers a matter of territorial sovereignty, the disputes stem from different understanding and interpretations of the rules of contemporary international law of the sea. These divergences are rooted in the different perceptions of ocean values between China, a traditional continental country, and the United States, a country with a longstanding connection to its two adjacent oceans. But as China’s increasing global influence, driven by projects like the Belt and Road Initiative, will benefit from coordinated development of land and sea, Beijing may realize the benefits accrued to its long-term maritime interests from the freedom of navigation concept. That may allow some room for China and the United States to negotiate on the disputes over FONOPs.
Conclusion
Compared with China’s other maritime disputes, which involve territorial sovereignty and maritime delimitation in the Yellow Sea, the East China Sea, and the South China Sea, the issue underpinning disputes over freedom of navigation is more of a theoretical debate. Rather than centering on irreconcilable claims of ownership that run against China’s core interests of national unity, territorial integrity and development, the dispute is instead one of how the sea should be utilized and how it should be governed. There is space for consultation between China and the United States here. As China’s relative strength vis-à-vis its neighbors grows in the South China Sea, maintaining stability is a top priority. Keeping a low profile and avoiding conflict between China and the United States in the South China Sea should be China’s long-term policy. Resolving divergent opinions over freedom of navigation through careful negotiation, and amending domestic laws and policies on innocent passage or military use of the EEZ, while seeming on their face to be concessions, would indeed be a path of major progress toward oceanic power for China.
