The U.S. Freedom of Navigation (FON) Program has recently drawn significant attention in the United States and abroad. An argument could be made that the program has received more attention in 2015 than in its preceding 35 years combined. This recent focus arose as the world witnessed China engage in reclamation (enhancement of naturally-formed areas of land) and “clamation” (construction of artificial islands on low-tide elevations and submerged features) in the Spratly Island group in the South China Sea – activities on an unprecedented scale and with questionable intent.
Senior U.S. officials, including President Barack Obama, have publicly declared that the United States “will continue to sail, fly, and operate anywhere that international law allows.” The world now watches as U.S. military vessels and aircraft conduct FON operations (FONOPs) in the South China Sea, including in the waters and airspace around the features in question. Much has been said and written recently about U.S. FONOPs – some of which is incomplete, inaccurate, or both. Below is an attempt to set the record straight on the matter, based upon this author’s prior experience with the U.S. FON Program at the operational, theater-strategic, and policy levels of the U.S. military.
The U.S. FON policy was not newly established by the Obama administration. In fact, the United States has made it a priority to preserve the freedom of the seas throughout the nation’s history. Presidents Jimmy Carter and Ronald Reagan formally established and developed the FON Program nearly four decades ago, but a number of their predecessors also emphasized the U.S. interest in preserving the freedom of the seas and highlighted the role of U.S. naval and air forces in preserving that national interest around the world. The program involves activities undertaken by multiple departments of the U.S. government – in other words, it is not purely a Department of Defense (DoD) effort nor limited solely to FONOPs.
The FON Program is firmly rooted in the rules of international law. Since the program’s inception, a fundamental guiding principle has been to “not acquiesce in unilateral acts of other states designed to restrict” the freedom of the seas. As was recently clarified in the DoD maritime security strategy, freedom of the seas means “all [emphasis added] of the rights, freedoms, and lawful uses of the sea and airspace, including for military ships and aircraft, recognized under international law.” Reaffirming the United Nations Convention on the Law of the Sea (UNCLOS), this freedom of the seas includes, among other things, the rights of innocent passage (Art. 17), transit passage (Art. 38), archipelagic sea lanes passage (Art. 53), the freedoms of navigation and overflight and “other internationally lawful uses of the sea” (Art. 58), and the freedom of the high seas (Art. 87). Thus, despite efforts by some to narrowly construe what international law guarantees to states in the oceans and airspace of the world, the phrase “freedom of the seas” legitimately includes far more than the freedom for commercial vessels.
The U.S. FON Program is guided, managed, planned, and executed in a manner that is fully consistent with international law. Before the United States decides whether to respond diplomatically or operationally to a maritime claim asserted by a coastal state, the appropriate lawyers, policy advisers, and technical experts within the U.S. government conduct coordinated analysis of that foreign maritime claim in relation to the applicable international law, and assess whether that claim is consistent with that body of law. Following international jurisprudence, the U.S. legal analysis draws primarily from the text of UNCLOS, the extensive negotiating history of that treaty, other rules of customary international law, and relevant state practice. To the extent practicable, the United States is transparent about those assessments through official publications such as the Department of State’s Limits in the Seas studies and Digest of United States Practice in International Law, and the Department of Defense’s Maritime Claims Reference Manual. Moreover, for any action that the U.S. government does decide to take against an excessive maritime claim, the appropriate lawyers, policy advisers, and technical experts within the government are also involved in drafting, planning, and carrying out those actions. In short, these official U.S. actions are deliberate and lawful.
With regard to the range of those U.S. actions, the FON Program can be broken down into two lines of effort: diplomatic and operational activities. Yet merely because there are two distinct lines of effort within the program should not be misconstrued as those efforts being conducted at cross purposes. To the contrary, these activities are effectively synchronized. Having worked closely with legal and policy colleagues at the U.S. Department of State on these matters, this author can personally attest that the two departments are almost always aligned on whether they consider a particular foreign maritime claim to be excessive under international law, and on ensuring that the U.S. government takes appropriate actions to preserve the rights, freedoms, and lawful uses of the sea covered by that foreign claim. It is the exception, not the norm, when the two departments have differences of opinion on these matters.
In the diplomatic line of effort of the program, the U.S. government engages coastal states around the world when those countries are developing or establishing maritime claims along their respective coastlines. When appropriate, legal and oceanographic experts from the U.S. government will provide constructive feedback to those coastal states on specific ways to help ensure that their prospective maritime claims are fully consistent with international law. When a coastal state asserts a maritime claim that is ambiguous, the Department of State will exchange diplomatic communications with that country and request clarification on the nature of the claim and the legal justification for it. These diplomatic communications can take the form of either a written demarché or an across-the-table conversation between the appropriate representatives of the two governments, or a combination of the two. If a coastal state enacts a maritime claim that is excessive (i.e., inconsistent with international law), then the U.S. Department of State will issue an official diplomatic protest to that country’s government in order to register a formal objection to the excessive claim. When discussing FONOPs, it is useful to be aware of this diplomatic line of effort to appreciate how the United States goes to great efforts to encourage other states to clarify their maritime claims and communicate U.S. objections to excessive ones. Often times, U.S. FONOPs are conducted only after the coastal state has repeatedly declined to clarify its questionable claim or reform its excessive nature.
In the operational line of effort of the FON Program, DoD and U.S. Coast Guard forces conduct FONOPs and what are described as “other FON-related activities.” The difference between the two is that FONOPs have the primary purpose of challenging an excessive maritime claim, while the second category has some other primary goal, such as information collection, with challenging an excessive claim being a secondary effect.
Some may wonder why the United States does not limit its challenges of excessive maritime claims to solely the diplomatic arena. The formation and development of international law, especially in the context of customary law, is about state practice. Such practice is demonstrated by both the official words and official actions of individual states, with each reinforcing the other. If a coastal state establishes an excessive claim and others protest it through diplomatic means only, what happens if the coastal state simply ignores those diplomatic protests or declines to reform its excessive claim? Acquiescence by others poses a risk of legitimizing the coastal state’s excessive claim – if not as a matter of law, then at least in effect. The net result could be that the coastal state has de facto changed international law to achieve its strategic ends. Thus the FON Program’s operational activities reinforce U.S. public statements and diplomatic communications, and are fully consistent with the official protest of an excessive claim. In that way, the United States is simply standing up for its freedom, and that of other states, as guaranteed in international law.
For these reasons, the U.S. FON Program, FON policy, and FONOPs are lawful and legitimate.
The views expressed are those of the author and do not necessarily reflect the positions of the U.S. Department of Defense or any of its components.
