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FONOP: A Sheer Paradox

Jun 29 , 2016
  • Fan Gaoyue

    Guest Professor at Sichuan University, Former Chief Specialist at PLA Academy of Military Science

Since October 2015, the US Navy has successively conducted three Freedom of Navigation Operations (FONOPs) in the South China Sea. These operations transited inside of 12 nautical miles of China’s islands and reefs in the SCS without prior notification, which has intensified the situation in the SCS and undermined the peace and stability in the Asia-Pacific Region. Why does the US Navy conduct these operations? The US Department of Defense declares that “the US Navy, Air Force and Coast Guard conduct FONOPs … to protect the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all nations in international law by challenging the full range of excessive maritime claims asserted by some coastal States in the region.” However, an analysis of the operations has only found that they represent a sheer paradox.

FONOP challenges UNCLOS other than abiding by it

The US flaunts itself as follower and defender of international norms and operates consistent with the United Nations Convention on the Law of the Sea. As we know, UNCLOS opened to signature in 1982, began to be in force in 1994 and now has 166 member States. The convention allows a member State to include formal declarations and statements when ratifying it. Until now the US has not signed UNCLOS yet in fear that it would restrict its freedom of navigation in the world. China signed UNCLOS in 1982 and ratified it in 1996. When ratifying it, China listed five declarations, including China’s sovereign rights and jurisdiction over its EEZ and the continental shelf, and its sovereignty over all the islands it had claimed in its 1992 Law on the Territorial Sea and the Contiguous Zone. Nearly 30 countries including Vietnam and Malaysia have made similar statements. All these declarations made by China and other countries constitute an integral part of UNCLOS and should be effective and respected. Though not a signee, the US should also respect  abide by UNCLOS. However, instead of respecting and abiding by UNCLOS, the US challenges it by conducting “Freedom of Navigation operations to challenge so-called “excessive maritime claims”. What are “excessive maritime claims”? There is no such a term in UNCLOS. It is a term created and defined by the US as “improperly drawn straight baselines, improper restrictions on the right of warships to conduct innocent passage through the territorial seas of other States, and the freedom to conduct military activities within the EEZs of other States”. Obviously this term regards other countries’ reasonable maritime claims as “excessive maritime claims” and is inconsistent with UNCLOS. Therefore the US operations to challenge the so-called “excessive maritime claims” are actually to challenge UNCLOS.

FONOP is military operations other than innocent passage

From October 2015 to May 2016, guided-missile destroyers USS Lassen, USS Curtis Wilbur and USS William P. Lawrence, successively conducted operations in the South China Sea to exercise “innocent passage” through China’s territorial sea. Are these really “innocent passage”? Article 19 of UNCLOS stipulates “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State …Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations…(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State… (f) the launching, landing or taking on board of any military device… (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State…” According to this definition, the US operations are not “innocent passage” but military operations because: (1) FONOP is military operations planned by the US Department of Defense and executed by the US Navy, Air Force and Coast Guard; (2) FONOP is threat or use of force against China’s sovereignty and territorial integrity; (3) FONOP aims at collecting information to the prejudice of China’s defense and security; (4) the FONOP propaganda aims at affecting China’s defense and security; (5) the US Navy guided-missile destroyers take all kinds of military devices on board; (6) FONOP aims at interfering with China’s communication systems, facilities and installations on the islands in the SCS. Thus a FONOP is by no means innocent passage but military operations to show the US muscles.

FONOP intensifies situation other than furthering peace and stability

The US asserts that the US Navy conducts FONOPs in the South China Sea to ensure freedom of navigation and further peace and stability. In fact there has never been a problem of freedom of navigation and the sea had remained peaceful and stable before the US “rebalance” to Asia. Just opposite to what the US asserts, FONOPs intensify the situation and cause instability. First, the operations transited inside of the 12 nautical miles of China’s territorial water and the PLA had to send fighter jets or worships to defend China’s maritime territory, which intensifies the atmosphere and might give rise to unexpected incidents. Second, the operations have encouraged the Philippines to consolidate the illegally occupied islands and reefs by violating the Declaration on the Conduct of Parties in the South China Sea (DOC) and UNCLOS to unilaterally initiate the arbitration of the South China Sea, which complicates China’s maritime territorial dispute with the Philippines and makes it even more difficult to solve. Third, the sensationalization of “freedom of navigation” operations into China’s territorial water by the US media has drawn world’s attention to the South China Sea and disgraced China, which instigates Chinese nationalism and forces the Chinese Government to respond accordingly.

In addition to the guided-missile destroyers, the US also sent RC-135 reconnaissance planes, P-8 anti-submarine warfare planes and B-52 bombers to conduct operations in the South China Sea, which further intensified the situation. As a self-labeled world leader, the US should sign and abide by UNVCLOS wholly and thoroughly instead of citing a few isolated words and phrases to serve its purpose.

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