South China Sea

The US Conducts the First South China Sea Freedom of Navigation Operation of the Trump Era, But It Was “Off the Record”

By Julian Ku
Thursday, May 25, 2017, 7:16 AM

Has the Trump Administration authorized its first “freedom of navigation operation” (“FONOP”) in the South China Sea? Maybe.  According to news reports quoting unnamed U.S. government officials, the USS Dewey, a guided missile destroyer, sailed within 12 nautical miles of a Chinese artificial island constructed on Mischief Reef in the South China Sea. This sounds like a FONOP, but it is worth remembering that all of the details about this operation are drawn entirely from “unnamed government officials.”  Why all the mystery? Why won’t any U.S. government official go on the record to provide details about the operation? 

I asked the Pentagon for details about the operation, and specifically whether it was a “routine” non-innocent passage that would not implicitly recognize Chinese territorial claims.  Commander Gary Ross of the Office of the Secretary of Defense provided an “on the record” statement but he did not confirm or deny any of the details of the operation. 

Rather, he stated that U.S. forces operate “in the Asia-Pacific region on a daily basis, including in the South China Sea.  All operations are conducted in accordance with international law and demonstrate that the United States will fly, sail, and operate wherever international law allows.”  He noted that the U.S. has a “comprehensive Freedom of Navigation Operations” program but he did not confirm that the reported USS Dewey operation was one of those FONOPs.  He confirmed that the US is continuing “regular FONOPS,” but that “summaries of these operations will be released publicly in the annual FONOPS report, and not sooner.”

This statement means that (at least at the time this post was written) the Pentagon is not planning to provide any on the record details of the Mischief Reef operation.  So we are left to parse the details from “unnamed sources.” Since Mischief Reef is a “low tide elevation” (according to the UNCLOS arbitral tribunal award from last summer), China cannot claim a 12 nautical mile territorial sea around the artificial island it has built there.  In fact, as far as anyone knows, China has not made a legal claim of any specific kind around Mischief Reef.  So what exactly is the U.S. challenging from a legal perspective? As Graham Webster noted last fall on this site, FONOPs are defined as challenges to excessive legal claims and are intended to demonstrate U.S. views on its own legal rights.   But based on Commander Ross’s statement, the Pentagon is not going to share any of this with us (at least on the record).

This “say-nothing-specific” approach makes sense if the intended audience of a FONOP is only the other country whose legal claim you are challenging (in this case, China).  Indeed, the FONOP program was created in 1979 with little fanfare and many FONOPs are conducted every year all over the world without any public notice except by the countries involved.  But FONOPs in the South China Sea are no longer just elegant forms of state-to-state legal dialogues.  They have, for better or for worse, become the main vehicle for the U.S. government to signal its commitment to maintaining a presence in the South China Sea amidst China’s expansive land-reclamations and growing naval presence.

This brings us back to the unnamed government sources providing details of the U.S. operations to the Wall Street Journal, New York Times, and other major media organs.  Why are they doing this?  Because a FONOP no one has reported is not, for the purposes of the White House, a FONOP.  And the White House needs to show the world it is doing something. So it tells the New York Times, which dutifully reports in its lead, that the “operation… showed a new firmness by the Trump administration in its dealings with Beijing.”

This dynamic explains why those who want quiet FONOPs, with no specific details, will never succeed in getting their way.  Even if the on-the-record public relations provide no details, the White House will make sure the details of the operation are reported widely.  Perhaps this will change if FONOPs become more frequent and regular, but for now, we can expect the FONOPs-as-a-challenge-to-China narrative to continue.

Of course, there is one more unintended consequence of leaking the details of FONOPs: China now must publicly react lest it be seen as not sufficiently attentive to its own sovereignty.  So, as if on cue, China’s Ministry of National Defense denounced the USS Dewey operation as “muscle-flexing” while China’s Ministry of Foreign Affairs expressed “strong dissatisfaction” while announcing the Dewey was “expelled.”  But this sharp public reaction of the Chinese government will now lead to even more pressure on the Trump Administration to demonstrate even more firmness with even more FONOPs, lest the U.S. be seen as backing down to the Chinese.  (Rinse, wash, and repeat.)

For this reason, I think the U.S. should either describe the FONOPs “on the record” with as much detail as possible, or stop the leaking and reveal nothing about the specific FONOPs at all.  The current mixed-messaging approach doesn’t seem to make China less angry, and it only muddles the clarity of the legal/political/diplomatic message the U.S. is trying to send.

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