On 10 August, a US Navy warship challenged China’s implied claim to a territorial sea around Mischief Reef in the South China Sea. By lingering for six hours within 12 nautical miles of the massive island China has constructed on the reef, the USS John McCain affirmed the principle, clearly codified in the UN Convention on the Law of the Sea (UNCLOS), that no state may claim new areas of sovereign territorial sea by building artificial islands.
The principle is a bulwark against the already enormous expansion of state legal-administrative power over once communal areas of ocean since the mid-20th century. But it is not clear that the Trump Administration appreciates, let alone subscribes to, the purpose behind these freedom of navigation operations (FONOPs).
Rather, it appears that the current White House hopes to use FONOPs as a source of negotiating leverage on other issues. This is both unrealistic and counterproductive.
The latest American foray into the Spratly Islands certainly confirms the increased regularity of US patrolling flagged in recent media reports. There have now been three such operations in as many months: on 25 May, 2 July, and now 10 August. By contrast, in the first four months of the Trump Administration there were none. In fact, the US Pacific Command’s proposals to conduct such operations were knocked back on at least three occasions over that period. There are rumours the destroyer may have been accompanied by a military surveillance plane, which would be a significant strengthening of the FONOP program as it has existed thus far.
Clearly, then, there has been an abrupt change in this important aspect of Trump’s policy towards the South China Sea. But the timing of the policy shift suggests the White House regards the FONOPs as leverage in its attempt to induce Chinese concessions on the North Korean nuclear weapons issue. This is not what these patrols are designed for, and it is a purpose for which they are ill suited.
The purpose of FONOPs is to demonstrate commitment to the US reading of international maritime law, a reading which happens to be shared by a majority of the world’s governments, despite America’s failure to ratify UNCLOS. This is why the FONOPs are widely accepted or welcomed around the region and beyond. Using FONOPs as a bargaining chip sends precisely the wrong signal: that Washington is not actually committed to upholding those widely agreed international legal principles after all.
Moreover, as simple exercises of navigational rights, FONOPs are unlikely to generate much leverage for Washington. They are demonstrative acts, not coercive, and they are designed to involve minimal risk. As such, they can hardly be expected to help compel changes in an adversary’s behaviour. That is just not what they are designed for.
Indeed, there are indications that China feels it can live with these FONOPS for the time being. Beijing’s official public responses have settled into a comfortable groove, assuring domestic audiences that the PLA is successfully warding off the intruding US ships, before taking the chance to cast the US as a troublemaker, and arguing this justifies its own militarisation of the area. In response to the most recent US sail-through near Mischief Reef, the PRC Foreign Ministry and Defense Ministry both released detailed remarks on the same day, showing that authorities in Beijing were well prepared, confident to talk about the issue publicly, and reasonably well coordinated across civilian and military lines.
Although it generated the usual bombastic headlines about China 'slamming' the latest American 'provocation', Beijing's response to the latest patrol was if anything milder than those before it. For instance, while Beijing has long complained that the US patrols menace the safety of personnel and facilities on its maritime outposts, the latest statements pointedly expressed concern for 'safety of the frontline personnel from both sides'.
The Foreign Ministry’s statement on 10 August proclaimed rather gleefully that, in light of China and ASEAN’s recent agreement on a framework for negotiating the long-awaited Code of Conduct for the South China Sea, American FONOPs 'clearly manifested who does not want to see stability in the South China Sea, and who is the biggest factor in the "militarization" of the South China Sea.'
The Trump team has continued the Obama Administration’s questionable practice of allowing each FONOP to immediately become public. This may simply a function of the Trump Administration’s incapability to contain leaks. But if it is intended to maximise leverage over China, it is unlikely to help, for as already noted, Beijing appears quite comfortable discussing this issue in front of both domestic and international audiences.
Still, if just one FONOP could be kept quiet for a day or two by the US side, it could set up an interesting litmus test of Chinese Communist Party (CCP) thinking on this issue. The CCP has made prompt, prominent, public announcements of each US FONOP since their reinstatement in late 2015, but in each case this came shortly after initial Western media reporting that such an operation had taken place.
If Beijing chose to publicise a US FONOP voluntarily, this would suggest the relevant departments – including those in charge of diplomacy and propaganda – actually perceive net benefits to having the issue on the domestic public agenda. This should basically dispel any notion that the FONOPs offer a viable tool for pressuring Beijing towards cooperation on other issues.
If, on the other hand, Beijing chose to refrain from commenting following an unrevealed FONOP, this would indicate a continued preference for keeping such matters out of the public eye, and the domestic insecurities this implies.
