Latest in Freedom of Navigation Operation (FONOP)
Last Friday, on the heels of Philippine President Rodrigo Duterte declaring his “separation from the United States” during a visit to China, the USS Decatur conducted a freedom of navigation operation (FONOP) in the vicinity of the Paracel Islands in the South China Sea. Julian Ku has written about this operation here.
[This piece has been updated where noted.]
Construction on Fiery Cross Reef (Photo: Duetsche Welle)
David Ignatius of the Washington Post had a column this week purporting to describe the danger of a U.S.-China conflict in the South China Sea. But its real value is its reporting on the views of different U.S.
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.
In response to U.S. freedom of navigation operations in the South China Sea, the Chinese government has repeatedly stated that it is fully committed to respecting freedom of navigation in the region. Most have interpreted this to mean that China will respect all commercial non-military transits, and that China’s only objection is to U.S. military vessels and aircraft traversing their claimed territorial waters.
The United States has been unable to synchronize successful air and sea freedom of navigation (FON) operations in the South China Sea with an erratic diplomatic message and a legal case that is too clever by half. Our colleagues Bonnie Glaser and Peter Dutton tried to reconnect these dimensions when they wrote in the The National Interest that while the administration has not done a “stellar job of explaining its actions,” the U.S.
In yesterday’s post, we asked “What did the Navy do in the South China Sea?” That wasn’t a rhetorical question. The Department of Defense hadn’t yet clearly explained what the USS Lassen did during its recent freedom of navigation operation (FONOP) in the South China Sea. Nor has it explained the precise legal basis for the operation.
As David Bosco hinted in his insightful Lawfare post from yesterday on the US-China showdown in the South China Sea, it turns out that the much-heralded U.S. “freedom of navigation operation” (FONOP) last week in the South China Sea was conducted according to the rules of “innocent passage.” As I will explain below, this approach is the weakest type of FONOP the U.S. could have chosen.
Much of the coverage of the USS Lassen's maneuver near the Subi reef in the South China Sea presented the operation as a challenge to Chinese maritime claims and island-building operations. But in fact there are two quite distinct legal issues at play. The first is the traditional U.S. interpretation of the right of innocent passage (even by warships) through territorial waters.