Diplomatic finesse in the offing? Possible modifications of Freedom of Navigation Operations under Biden

Feb 19, 2021

For years the US has purposely conceptually conflated freedom of navigation for commercial vessels with its claimed freedom for its military assets to threaten and probe weaknesses in its opponents’ defences including those of China.

There are great expectations and much speculation regarding the approach of the new Biden administration and his China team to China’s policies and actions in the South China Sea. Will it be more of the Trumpian militarist same or will it differ in tone and tenor  if not fundamentals — and if so, how?

Many observers have seized upon the first Freedom of Navigation Operation (FONOP) under Biden targeting China’s claims as a tea leaf telling the future. This is premature speculation based on scant information. But this ‘first FONOP’ and the reactions do provide an opportunity to explore possible modifications of FONOPs.

On 5 February, the US destroyer John S. McCain undertook a FONOP challenging China’s straight baselines enclosing the Paracel islands. It also challenged the regime of prior permission for the innocent passage of warships in the territorial sea. As usual, China viewed the warship’s penetration of its claimed waters as threatening and sent its own warships and planes to demand that the vessel leave its waters.

At first glance, it does seem like more of the same. This may well be, given that the McCain had just purposely provoked China by transiting the sensitive Taiwan Strait in a demonstration of “the US commitment to a free and open Indo-Pacific”. The US also deployed two aircraft carrier strike groups to the South China Sea to “ensure freedom of the seas”. These actions disappointed many Southeast Asian countries because they send a signal that stability in the South China Sea is not likely in the foreseeable future.

But in a possible hint of a more transparent approach, the US Navy press release explaining the FONOP said:

“Unlawful and sweeping maritime claims in the South China Sea pose a serious threat to the freedom of the sea, including freedoms of navigation and overflight [and] free trade and unimpeded commerce.”

This is a refreshing official differentiation of “freedoms of navigation and overflight” from  “free trade and unimpeded commerce”. Perhaps this nuance is due to naiveté rather than a new sense of honesty and transparency — but it does offer a wisp of hope for change.

Another possible sign for optimism is that the statement justified the FONOP as challenging the regime requiring prior notification or permission for the innocent passage of warships from any of the claimants including Vietnam and Taiwan, in addition to China.

But Vietnam and Taiwan do not claim baselines enclosing the entire group. So the FONOP must have been purposely designed to penetrate and challenge not only the Chinese baselines but also the regime in the 12 nautical mile territorial sea around high tide features. This means it was aimed at all three and not just China and perhaps was trying to demonstrate that the FONOP was about upholding principle and not just targeting China — like most of those under Trump.

Biden’s Indo-Pacific policy coordinator Kurt Campbell offered some hope of a change and these are small rays of hope that it may be in the works. Shortly before his appointment, he wrote in Foreign Affairs regarding the US-China conundrum that “the present situation could be reversed” but that it “will be challenging and require diplomatic finesse, commercial innovation, and institutional creativity [and] serious re-engagement”.

However, the destabilizing fundamental contradictions remain. China’s declared closing baselines around the Paracel features violate the UN Convention on the Law of the Sea (UNCLOS) which China — unlike the US — has ratified. US FONOPs use Navy vessels to demonstrate opposition to China’s failure to abide by the Convention. But the US is not itself a party to the Convention but nevertheless claims to support most of its provisions.  However, with its implied threat of use of force against the claimed territorial integrity of another state, it is violating the Convention and the UN Charter. Thus the basic hypocrisy of the approach has not changed.

US naval FONOPs challenge excessive maritime claims. But a major problem is that the US has purposely for years conceptually conflated freedom of navigation for commercial vessels with its claimed freedom for its military assets to threaten and to delineate and probe weaknesses in its opponents’ defences including those of China.  These probes have nothing to do with commercial freedom of navigation which the U.S. claims to be defending for all. This is why the possible purposeful differentiation of the two “freedoms” by the US Navy statement is so important. It opens the possibility of serious negotiations on the legality and management of the two “freedoms”.

Moreover, refraining from ‘in your face’ use of warships in favour of diplomatic protest is more consonant with the UN Charter. It requires that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The notion that a state must use the threat of force to protect their legal rights is inconsistent with international law. Replacing threat of use of force with Campbell’s proposed “diplomatic finesse” would be a significant change welcomed by the region.

Another approach ripe for change is the repeat challenging of the same claims. It is not legally necessary to undertake repeat FONOPs to demonstrate the same position. Once the protest is made, the main reason for repeating the kinetic challenge is to intimidate China into dropping its claim. But all this accomplishes is to raise the risk of confrontation and confrontation without enhancing the US legal position. This practice should be abandoned.

At the least, the decision-making on timing and design of FONOPs should be returned to the White House rather than remain should in the hands of the military where Trump placed it. This brings us to the real purpose of FONOPs. According to a US Navy spokesperson, the Navy FONOPs are not “about any one country, nor are they about making political statements”. But to the contrary, it appears to China and many observers that the raison d’etre of US FONOPs against China is political. Indeed, some say the FONOPs are designed to intimidate China and to “reassure America’s allies and partners in the region of America’s commitment”. To China, US FONOPs are unnecessary threats — especially redundant ones. It and the world gets that the US opposes China’s claims.

There is still hope that Campbell and his penchant for “diplomatic finesse” will prevail.

This article first appeared in Asia Times. Original here.

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