South China Sea

Isolating China: Why the Latest U.S. Freedom of Navigation Operation May Have Already Succeeded

By Julian Ku
Monday, February 1, 2016, 12:55 PM

Over the weekend, the U.S. Navy conducted another “freedom of navigation” operation (FONOP) in the South China Sea. This time, the U.S. Navy destroyer Curtis Wilbur entered waters within 12 nautical miles of Triton Island in the Paracels. And as with the previous South China Sea FONOP, China has reacted with “resolute opposition” to the U.S. operation; stating it “drove off” the U.S. destroyer and accusing the U.S. of violating Chinese law and undermining regional peace. At first glance, this would appear to be the same old story from last October. But there are two reasons to think this operation has already been more successful than the last.

First, the U.S. government has its act together on messaging. Back in October, the details of the FONOP dribbled out in a series of somewhat confusing statements, putting its purpose and effectiveness in doubt. This time, the U.S. government — via the Office of the Secretary of Defense — was prepared with a clear message regarding both the legal basis and the purpose of this FONOP:

This operation challenged attempts by the three claimants, China, Taiwan and Vietnam, to restrict navigation rights and freedoms around the features they claim by policies that require prior permission or notification of transit within territorial seas. The excessive claims regarding Triton Island are inconsistent with international law as reflected in the Law of the Sea Convention.

In other words, the U.S. clarified that it is not challenging any country’s territorial claims, rather it is specifically challenging those countries’ requirements for “prior permission or notification” before conducting an innocent passage through territorial seas. Additionally, the Pentagon statement makes clear that this operation is not directed solely at China because two other regional claimants (Vietnam and Taiwan) have also required “prior permission or notification” for innocent passage. By clarifying the legal focus of the operation, the U.S. avoids the confusion it raised in its last operation. And since sending a message is the whole point of these FONOPs, getting the message right from the beginning is a big success.

Second, and somewhat unexpectedly, the Wilbur FONOP has also succeeded in isolating China from its fellow South China Sea claimants, Vietnam and Taiwan. All three countries have historically demanded “prior permission or notification” before any innocent passage in their territorial waters (see pp. 8-9 of this DOD report). But only China has actually protested and condemned the Wilbur passage.

Instead, Taiwan’s Ministry of Foreign Affairs issued a statement stating simply that Taiwan abides by both the U.N. Charter and UNCLOS and will not pose any “obstacle” to resolving disputes in the South China Sea. Vietnam also released a statement reiterating its sovereignty over Triton Island but also saying that “Vietnam respects the right of other countries to innocent passage in its territorial waters as per the regulations promulgated in international law.” Importantly, neither country condemned the U.S. operation for failing to obtain permission before the “innocent passage” even though both countries apparently codify that requirement in their domestic laws.

However, there is also a non-legal reason why Taiwan and Vietnam are not all that concerned by this particular FONOP — neither of those governments actually controls Triton Island. Rather, China has controlled the island since it expelled South Vietnamese forces in 1974. That said, Taiwan and Vietnam both still claim “indisputable” sovereignty over the island, so their silence here is meaningful.

The avowed legal purpose of these U.S. FONOPs is to win acquiescence for the U.S. (and majority) view of international law that innocent passage of military ships does not require prior permission. The sub silentio strategic goal of these FONOPs is to isolate China from its regional neighbors. Thus far, at least, it looks like the Wilbur FONOP has succeeded in making progress on both goals.