01 November 2015

Insights on U.S. South China Sea FONOPS from Two Leading Maritime Law Experts

Among a growing torrent of writings on U.S. Freedom of Navigation Operations (FONOPS) in the South China Sea, here are two of the most insightful pieces. Authored by Naval War College China Maritime Studies Institute Director Prof. Peter Dutton and CDR Jonathan Odom of the Asia-Pacific Center for Security Studies—both of whom have deep knowledge of FONOPS and related maritime legal issues—they are cogently argued and factually consistent.

These analyses offer useful clarity on important data points. For example, Odom explains that as for “China’s recent transit through the U.S. territorial sea around the Aleutian Islands near Alaska…” by five PLAN warships around the American Attu Island, “China’s navy had concluded a maritime exercise with Russian forces in the days preceding the innocent passage, and China’s transiting warships had to go significantly out of their way thereafter…” to engage in such operations.

Jonathan G. Odom, “Why US FON Operations in the South China Sea Make Sense,” The Diplomat, 31 October 2015.

The U.S. Navy’s Freedom of Navigation Program is an important expression of international law.

The U.S. Freedom of Navigation (FON) Program has recently drawn significant attention in the United States and the international community. During this period of focused attention, some observers have questioned the legality of U.S. FONOPs. This author has previously outlined the legality and legitimacy of the U.S. FON Program, including FONOPs conducted as part of that program. Other observers have also questioned the appropriateness and wisdom of U.S. FONOPs, particularly in the South China Sea. A prime example would be a recent critique by Dr. Sam Bateman of Australia, in which he alleged that U.S. FONOPs in the South China Sea “don’t make sense.” This followed a similar piece that he published in June 2015. Although Dr. Bateman asks some valid questions about the ongoing South China Sea situation, he makes incorrect assumptions on several points about U.S. FONOPs and misses the mark on several others. Below is an attempt to set the record straight on the matter, based upon this author’s prior experience with the U.S. FON Program at the operational, theater, and policy levels of the U.S. military. 

Need for Clarity Does Not Start with the US

In Dr. Bateman’s analysis of the South China Sea situation, he understandably turns on a spotlight calling for clarity, but he unfortunately aims that spotlight in the wrong direction. Specifically, he complains, “It’s not clear just what the Washington is protesting in the South China Sea.” To be sure, lack of clarity is a component of this complex South China Sea problem, and this author has previously argued that greater clarity could help to improve the overall South China Sea situation. However, the need for greater clarity begins not with Washington, but with the claimant states – and particularly with Beijing.

China has never clarified the meaning of the U-shaped line. That is the official determination of the United StatesSingaporeIndonesia, and a number of other non-claimant states. It is even the assessment of Wu Shicun, the president of China’s National Institute for the South China Sea Studies, who wrote in his 2013 book that the debate on China’s U-shaped line “will continue if China remains silent and keeps its claim ambiguous.” Most recently and perhaps most importantly, that was also a finding by the Arbitral Tribunal in the Philippines-China arbitration case, who stated it is a “fact” that “China has not clarified the meaning of the nine-dash line.”

Curiously, Dr. Bateman has been able to accomplish something that those foreign governments, international tribunal, and expert observers have been unable to do. In February 2014, Dr. Bateman criticized the congressional testimony of U.S. Assistant Secretary of State Daniel Russel, saying that Russel demonstrated a “lack of understanding” of what China’s U-shaped line is. Specifically, Dr. Bateman said the U-shaped line is a “loose geographical shorthand to say we claim islands and features, it is not actually questioning other countries who have established exclusive economic zones inside the nine dash line, or indeed have maritime boundaries with their neighbor.” While this might be what Dr. Bateman presumes it to mean, there is no record of official declaration or documentation issued by China to support his interpretation. Moreover, the practice of international law does not operate by “loose geographic shorthand” for establishing territorial and maritime claims. … 


The most troubling point made by Dr. Bateman is how he attempts to minimize what is at stake when it comes to China’s excessive maritime claims. Specifically, he says, “It’s a fairly trifling issue on which to risk a dangerous incident between Chinese and American forces.” This is not a trifling matter, but a significant one. 

The nations of the world, including the United States and China, devoted over a decade to negotiating UNCLOS. The United States is not a party to the Convention (but admittedly should be); however, it has long viewed the rules in the Convention as reflecting binding customary law. Moreover, the militaries of the United States and China have expressly recognized UNCLOS as the applicable rule-set, with the United States recognizing that China is a party and China recognizing that the United States “supports and observes customary international law as reflected” in UNCLOS. (Pointing out that the United States is not a party to UNCLOS is merely an attempt to score rhetorical points – but one that does not make China’s attempts to restrict maritime freedom guaranteed to all states, including the United States, any less true.)

The body of law reflected in UNCLOS is a deliberate balance of interests between coastal states and user states. It must be respected globally. It must be followed consistently. In this context, acquiescence to actions by any coastal state that are intended to impair the freedom of the seas codified in UNCLOS is not an acceptable option. Non-acquiescence is the underlying tenet of the U.S. FON Program, including FONOPs conducted under that program. Will this fundamental and universal regime of international law be allowed to unravel to suit the desires of one state? If this regime of international law is allowed to be contorted by unilateral desires of any one state, what regime of international law will be at risk next? This is no “trifling issue,” Dr. Bateman. Much is at stake.

Commander Jonathan G. Odom is a judge advocate (i.e., licensed attorney) in the U.S. Navy. Currently, he serves as a Professor of Law in the College of Security Studies at the Daniel K. Inouye Asia-Pacific Center for Security Studies in Honolulu, Hawaii, where he teaches international law, national security law, oceans policy, and maritime security. From 2012 to August 2015, he served as the Oceans Policy Advisor in the Office of the Secretary of Defense. From 2008 to 2012, he served as the Deputy Staff Judge Advocate (i.e., deputy legal advisor) to Commander, U.S. Pacific Command. Also, of note, during his first tour in the Navy eighteen years ago, he deployed to sea and provided international law advice as the ship on which he was embarked conducted three FONOPs in the South China Sea. The views expressed are his own and do not necessarily reflect the positions of the U.S. Department of Defense or any of its components. He may be contacted atjonathan.odom@usa.com.

Peter A. Dutton, “Making Waves in the South China Sea,” A ChinaFile Conversation, The Asia Society, 28 October 2015.

The U.S. Navy’s freedom of navigation operations in the South China Sea were absolutely essential and should remain so in the future, although not for the reasons many believe. Rather than a critical challenge to some excessive maritime claim by China, the recent freedom of navigation operations were necessary to assert American rights and interests in military freedoms at sea. The difference is subtle but important. China’s claims to water space rights are nebulous at best, as the State Department’s 2014 “Limits in the Seas” analysis makes clear. The Chinese remain ambiguous about just how they assert the right to exercise legal jurisdiction over the water space within the nine-dash line, but unambiguous in their assertion of such rights. Additionally, while the Chinese assert that they do not and will not hinder freedom of navigation in the South China Sea, Chinese officials have made clear since the 2001 EP-3 Incident that such freedoms do not apply to military operations. Pushing back with operational assertions against such shapeless statements was until now unnecessary. However, when the Chinese built thousands of acres of new islands on several tiny rocks and submerged features among the southern Spratly Islands this year, they also constructed the sort of military facilities designed to step up enforcement of their claimed law enforcement authorities and legally-excessive security interests there. This added a new power dimension to what previously has been a relatively manageable disagreement over law. Accordingly, American push-back was essential for two reasons: first, to make clear that America will not accept coastal state limitations to traditional freedoms of navigation that all navies enjoy; and second, to demonstrate that China’s power-play in the South China Sea will not drive American power out of this vital region.

Indeed, it is the vital nature of this region to American economic, political, and security interests that makes the U.S. Navy’s actions so important. It is American power, resident in the region and freely operating there, that protects Southeast Asia’s open, independent order. Specifically, American power prevents countries in the region from having to orient their political and economic decision-making around the increasingly strong gravitational pull of Beijing’s policies. As Indonesian policy makers have sometimes put it, they prefer to “row between two reefs.” Accordingly, as Chinese power advances in the South China Sea it is critical that the United States demonstrates it will not retreat. Yes, this establishes a new zone of competition between the U.S. and the P.R.C. The U.S. will have to accept increased friction, and even to create friction, as it protects and preserves its interests in the face of Chinese advances. This is not unexpected. As China advances to the ranks of great powers, global power dynamics are reverting to those more familiar to past generations. That does not mean great power war is inevitable. The world is very different and great power relations are very different from the past. But it does mean that competition and friction are inevitable. Freedom of navigation operations in the South China Sea are a mark of this new chapter in U.S.-P.R.C. great power relations.