On October 2, the Navy destroyer Decatur narrowly avoided a collision with a Chinese People’s Liberation Army Navy (PLAN) ship in the South China Sea. The Decatur was conducting a Freedom of Navigation Operation (FONOP) adjacent to an artificial island constructed by China on the Gaven and Johnson reefs.
According to the Pentagon, the PLAN ship, a Luyang-class warship, approached within 45 yards of the bow of the Decatur and made a series of what were described as “aggressive maneuvers.” Its actions forced the Decatur to make a sudden, drastic course correction to avoid a collision. This is simply the most recent example of the PLAN responding in what the United States Navy (USN) call, an “aggressive and unprofessional maneuver.” It is also the closest that a PLAN ship has come to a Navy vessel.
The incident, which the Navy further described as “reckless harassment,” prompted U.S. Vice President Mike Pence to declare that the U.S. “will not be intimidated” and “will not stand down.” A number of intelligence analysts have suggested to this author that China’s aggressiveness indicates a change to the rules of engagement by the Central Military Commission. Chinese President Xi Jinping is the chairman of the Commission.
Other U.S. allies conducting FONOPs in the South China Sea have had similar experiences. Most recently, the U.K.’s Royal Navy’ amphibious assault ship Albion was closely shadowed by what the Admiralty called “irresponsibly close” Chinese warships and was subjected to repeated flyovers by Chinese People’s Liberation Army Air Force (PLAAF) planes.
Recently, the Department of Defense disclosed that in November 2018, the U.S. would conduct military exercises in both the South China Sea and, in a possible expansion of U.S. FONOPs, in the Taiwan Strait as well. According to several sources, the U.S. has approached the U.K., Canada, France, Australia and Japan to participate in those exercises, although none have confirmed their intent to do so.
What exactly are FONOPs? Could they lead to an armed clash between the PLAN and American Navy ships? How do they fit into the broader U.S. strategy toward China?
Freedom of Navigation Operation
Freedom of Navigation Operations were first established by the U.S. in 1979, as a way of protesting attempts by other countries to limit innocent passage through international waters. Such passage was guaranteed under the UN Convention of the Law of the Sea (UNCLOS). The right of free passage in international waters is a long-standing principle in international maritime law and was reaffirmed by UNCLOS.
The U.S. is not a signatory to UNCLOS, nor has the U.S. Senate ratified the treaty, but the U.S government has accepted UNCLOS as a codification of “customary international law.” China is a signatory to UNCLOS, but threatened to withdraw from the agreement if the Permanent Court on Arbitration in The Hague ruled in favor of the Philippines over a complaint brought by Manila on whether China’s “nine-dash line” claim was valid under UNCLOS. The court subsequently ruled against China. Beijing has ignored the ruling, but it has not withdrawn from the agreement.
In the South China Sea, the U.S. and its allies have used FONOPs as a way of underscoring the fact that they do not recognize China’s declaration of sovereignty over seven artificial islands that Beijing constructed in the South China Sea. While China has not disclosed the cost of building these artificial islands, it has been estimated as being in the tens of billions of dollars.
The islands, all of which are in the Spratly Archipelago, a region that counter-claimed by several countries, have all been militarized with the addition of airfields, military support facilities and a range of defensive, and increasingly, offensive armament. Three of the islands, built atop Fiery Cross, Subi and Mischief reefs, have 10,000 foot runways capable of handling any aircraft in the PLAAF.
There are a total of 250 islands, atolls, cays, shoals, reefs and sandbars in the South China Sea. These geographic features are mostly organized into three archipelagos, plus the Scarborough Shoal and the Macclesfield Bank. The island groups consist of: the Spratly Islands, which are contested by China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei; the Paracel Islands, disputed by China, Taiwan and Vietnam; and Pratas Island, which is disputed by China and Taiwan.
Control of the Spratly Islands is currently divided between Taiwan (Taiping Island), Malaysia (three islands on its continental shelf), Philippines (eight islands) and Brunei (Louisa Reef and adjacent islands). In addition, Indonesia claims maritime rights in the South China Sea, but does not lay claim to any of the islands in the Spratly Archipelago.
The Paracel Islands are currently occupied by China. They were seized in 1974 from South Vietnam. A subsequent attempt by South Vietnamese forces to expel the Chinese, the Battle of the Paracel Islands on January 19, 1974, failed to dislodge Chinese forces on the island. They have been under Beijing’s de facto control since then. Pratas Island is currently occupied by Taiwan.
In addition, Scarborough Shoal and the Macclesfield Bank are disputed between China, Taiwan and the Philippines. The Macclesfield Bank is completely submerged. Scarborough Shoal historically has had a few areas of rocks that can extend up to six feet above sea level. The shoal is currently under Chinese control and subject to continuous PLAN patrols. From time to time, depending on the current state of Chinese-Philippine relations, Beijing has restricted access by Filipino fisherman to the shoal.
Pursuant to UNCLOS, artificial islands are placed under the jurisdiction of the nearest coastal state within a 200-nautical mile limit. An artificial island is defined as an island that is the result man-made construction rather than the result of natural means. Such islands are not considered geographic entities for purposes of having their own territorial waters, and are not granted their own exclusive economic zones.
China’s assertion that the artificial islands also grant it sovereignty over their adjacent waters has further complicated the overlapping territorial claims made by the countries that surround the South China Sea.
U.S. FONOPs in the South China Sea began in 2015, under the Obama Administration, in response to China’s building and subsequent militarization of artificial islands in the region. There were six Navy FONOPs in the region under Obama. These operations involved Arleigh-Burke-class guided-missile destroyers from the U.S. Seventh Fleet. A complete list of all FONOPs since 1991 is available on this DOD website.
The Trump Administration has conducted a total of eight FONOPs since coming to office. The operation involving the Decatur is the most recent.
During a FONOP, Navy ships deliberately plot a course that brings them within 12 miles of a Chinese artificial island. In addition, since 2015, the U.S. Pacific Fleet has spent a combined total of more than 2,000 “ship days” in the South China Sea. This ongoing U.S. Navy presence in the region has also included Rim of the Pacific exercises (RIMAC), held biannually during even-numbered years in the months of June and July. The PLAN participated in RIMPAC in 2014 and 2016, but was disinvited from RIMPAC 2018 by the Trump Administration.
Although FONOPs are consistent with UNCLOS and are allowed under that agreement, such operations do not have any particular standing in international maritime law, beyond establishing the fact that the U.S. and other participating nations are publicly declaring that they do not recognize Chinese claims in the area.
Ultimately, the question of sovereignty in the South China Sea hinges on adjudicating existing conflicting territorial claims to the region. The building of an artificial island does not bestow sovereignty on an area. A country is free to build an artificial island in its own waters, and any country can construct an artificial island in international waters, but in either case, such actions do not convey sovereignty over an additional area.
https://www.military.com/daily-news/2018/10/23/south-china-sea-and-us-china-trade-policy-are-they-becoming-linked.html