Foreign Policy

Biden Should Maintain Difficult China on Freedom of Navigation

Few foreign-policy challenges confronting the Biden administration are more daunting than China. With recent headlines drawn toward trade wars, repression in Hong Kong, COVID-19 conspiracy theories, the intimidation of Taiwan, concentration camps in Xinjiang, and the China-India border crisis, it’s easy to forget that the South China Sea, despite being quieter than it was in the mid-2010s, remains one of the most controversial and volatile disputes in U.S.-China relations. The two countries’ differences over freedom of navigation in the vital waterway constitute the only bilateral dispute that has repeatedly produced hostile or dangerous encounters between Chinese and U.S. military platforms in close proximity with escalation risks.

Over the past decade, a series of provocative Chinese claims and actions in the South China Sea have opened a gaping geopolitical fault line with the United States, including its unlawful nine-dash line claim, its occupation of the disputed Scarborough Shoal, its creation and militarization of seven artificial islands in the Spratlys, and its use of a vast maritime militia to bully and coerce its neighbors. But it is Beijing’s attempts to restrict freedom of navigation in the South China Sea, particularly for U.S. warships, that has generated the most concern in Washington and provoked the most robust policy response.

The U.S. Freedom of Navigation operations (FONOP) program, which sees U.S. naval vessels challenge “unlawful and sweeping maritime claims that are inconsistent with customary international law,” was bought from obscurity into international headlines in the mid-2010s when China began construction of its artificial islands in the South China Sea.

After a hiatus of several years, the Obama administration began conducting FONOPs near Chinese outposts in 2015. The number of annual FONOPs in the South China Sea swelled under the Trump administration, prompting mounting anger from Chinese officials who deemed U.S. operations as “blatant navigation hegemony” and a “military provocation.”

The Biden administration is expected to continue regular FONOPs in the South China Sea, but the pace of operations and the Chinese claims challenged are up for debate. As U.S. President Joe Biden deliberates his South China Sea strategy, the administration should recall and avoid some of the stumbles that characterized the Obama administration’s early FONOP policies. Operations should be regular and routine, ideally at a pace of at least two per quarter, in addition to being depoliticized and not sensationalized. Finally, FONOPs cannot be viewed as a bartering tool to solicit Chinese cooperation in other areas: Freedom of navigation must remain nonnegotiable.

Since 1979, the U.S. Defense and State Departments have jointly run the FONOPs program, which challenges maritime claims the United States finds inconsistent with international law. China is far from the only country targeted by the program. In 2019, the U.S. government used FONOPs to challenge unlawful claims of 22 countries. However, since the construction of China’s artificial islands in the mid-2010s, U.S. FONOPs in the South China Sea have attracted greater international attention and greater Chinese ire.

Based on publicly available information, the United States conducted one FONOP directed at excessive Chinese maritime claims in 2015, three in 2016, four in 2017, six in 2018, eight in 2019, and nine in 2020, although the number of actual FONOPs may be higher than those publicly reported. In 2019, U.S. FONOPs challenged a variety of unlawful Chinese claims in the East and South China Seas, including China’s demand that foreign warships obtain prior permission from Beijing for “innocent passage” through China’s territorial sea.

China’s Ministry of Foreign Affairs claimed U.S. FONOPs have “gone beyond the scope of freedom of navigation. It is a political provocation, and the purpose is to test China’s response.” U.S. freedom of navigation “is actually deprivation of others’ freedom,” according to China Military, a publication run by the Chinese military, and an excuse “for its gunboats to run wild in other country’s territorial waters.”

In public, Chinese officials often claim Beijing would never seek to restrict freedom of navigation in the South China Sea.

In public, Chinese officials often claim Beijing would never seek to restrict freedom of navigation in the South China Sea. “When has freedom of navigation in the South China Sea ever been affected?” asked Adm. Sun Jianguo at a 2016 closed forum. “It has not, whether in the past or now, and in the future, there won’t be a problem as long as nobody plays tricks.”

However, Chinese scholars and officials, including Sun, have repeatedly revealed that when they speak of freedom of navigation, they refer only to commercial vessels, not military vessels. “China doesn’t believe the United States’ military surveillance and reconnaissance in China’s exclusive economic zone is freedom of navigation,” said an opinion reporter for China Daily. “No freedom of navigation for warships and airplanes,” added Chinese Ambassador to the Philippines Zhao Jianhua.

This is not merely a rhetorical dispute. Since the turn of the century, Chinese ships and aircraft have repeatedly harassed or intimidated U.S. military vessels operating lawfully in China’s 200-nautical-mile Exclusive Economic Zone (EEZ) and 12-nautical-mile territorial sea. International law grants China exclusive economic rights in its EEZ but not the right to regulate most foreign military activities. And although China can demand prior authorization for foreign military operations in its 12-nautical-mile territorial sea, it must respect the right of “innocent passage” for foreign warships there.

Disputes over freedom of navigation are not new to U.S.-China relations. Beijing has long objected to U.S. “close in surveillance” activities near Chinese territory despite U.S. operations adhering to international law and the United Nations Convention on the Law of the Sea (UNCLOS). (China, which helped draft UNCLOS, ratified the convention in 1994. The U.S. Senate has not ratified UNCLOS, but U.S. policy recognizes and aligns with UNCLOS’ provisions on maritime entitlements and freedom of navigation.)This rift was exacerbated by China’s construction of artificial islands in the South China Sea.

In late 2013, China began dredging what would eventually be thousands of acres of sand on seven disputed rocks and low-tide elevations in the Spratly Islands, transforming the features into seven large, militarized artificial islands. However, it wasn’t until early 2015 that they were drawn into the international spotlight when the Asia Maritime Transparency Initiative published high resolution satellite images of the growing Chinese outposts.

National security experts quickly began calling for the Obama administration to conduct FONOPs within 12 nautical miles of the artificial islands, correctly predicting China would seek jurisdiction around the outposts inconsistent with international law, including attempting to restrict U.S. freedom of navigation.

Yet, Washington deliberated for months. In June 2015, Daniel Russel, the U.S. assistant secretary of state for East Asian and Pacific affairs, sent a peculiar and confusing signal by saying, “As important as [the] South China Sea is … it’s not fundamentally an issue between the U.S. and China.”

The long deliberation prompted an escalating game of diplomatic chicken with Beijing. “China will never tolerate any military provocation or infringement on sovereignty from the United States or any other country, just as the United States refused to 53 years ago [during the Cuban Missile Crisis],” according to the China Daily in 2015. “This is our backyard; we can decide what vegetables or flowers we want to grow,” said Senior Col. Li Jie of the People’s Liberation Army Navy’s Military Academy.

In September 2015, for the first time, Chinese naval vessels entered U.S. territorial waters following a naval exercise with Russia, passing through Alaska’s Aleutian Islands precisely as the state was hosting a rare visit by President Barack Obama. The following month, a senior Chinese military official told Newsweek, “There are 209 land features still unoccupied in the South China Sea, and we could seize them all.”

Eventually, the Obama administration called China’s bluff. In late October 2015, the USS Lassen conducted a FONOP near Subi Reef, one of China’s artificial islands in the Spratlys. However, even that delayed operation drew criticism. With several Chinese artificial islands and several forms of FONOPs to choose from, the administration opted for exercising innocent passage within 12 nautical miles of Subi Reef, “the weakest type of FONOP the U.S. could have chosen,” according to international law expert Julian Ku. “And to make matters worse, limiting the FONOP to innocent passage could actually strengthen China’s sketchy territorial claims in the region.” Even sympathetic experts found the FONOP to be “poorly managed” with a “lack of clarity” and potentially a “huge blunder.”

In the years to follow, FONOPs in the South China Sea became more robust and routine, but the hesitation and seeming politicization of the first operation risked feeding the impression that freedom of navigation was negotiable. Ely Ratner, former deputy national security advisor to then-Vice President Joe Biden, has argued the United States was insufficiently resolute in its response to early Chinese provocations in the South China Sea, resulting in “incremental gains” for China as a result.

The Biden administration needs to avoid these early missteps and instead, conduct a rigorous and clear program. Beginning in 2021, the Biden administration should pursue a regular schedule of FONOPs in the South China Sea at least twice per quarter, the pace established in 2019 and exceeded in 2020. On Feb. 5, the USS John McCain reportedly conducted the first South China Sea FONOP of the Biden administration, accompanied by an unusually detailed readout of the operation.

Should Chinese attempts to restrict U.S. freedom of navigation escalate, the administration should be prepared to increase the tempo and consider new flavors of FONOPs. Naval War College professor James Kraska recommends bolstering FONOPs by using not just single ships and airplanes but “squadrons, such as surface action groups and aircraft carrier and expeditionary strike groups.”

FONOPs should continue to include military maneuvers within 12 nautical miles of low-tide elevations (LTEs) subsequently transformed into artificial islands by Chinese land reclamation. International law is clear: LTEs cannot be reclassified as natural islands entitled to a territorial sea and EEZ. Any Chinese attempts to claim an undefined “military alert zone” around the outposts or restrict navigation is unlawful.

FONOPs should also be depoliticized and not sensationalized. The Obama administration was criticized for seeming to delay or downgrade FONOPs to avoid offending Beijing at a time the administration was seeking China’s cooperation on issues like climate change and North Korea’s nuclear program. Beijing will undoubtedly try to tempt the Biden administration into similarly unbalanced compromises as recent, testy exchanges over climate change showed.

At the same time, FONOPs should not be high-publicity affairs. In some ways, international fanfare can undermine the intended objective. Regular, routine operations and transits of the South China Sea are arguably just as effective at signaling U.S. nonrecognition of China’s unlawful claims. Experts Isaac Kardon and Peter Dutton believed “consistent practice of free navigation, not the reactive FONOP, is the policy best suited to respond to Chinese assertiveness in the [South China Sea]. This is especially true in areas such as the Spratly Islands where China has made no actual legal claims to challenge.”

Although U.S. allies have thus far shown little interest in conducting joint FONOPs in the South China Sea, Gregory Poling, a fellow at the Center for Strategic and International Studies, argues the U.S. government should seek to persuade like-minded partners to conduct their own FONOPs independently. The vast majority of the world’s capitals find China’s claims in the South China Sea ludicrous. It would be harder for China to sell the false narrative that the South China Sea is a bilateral dispute with the United States if other countries were more robust in their exercise of freedom of navigation in the South China Sea like Australia is.

FONOPs are no panacea for the South China Sea, but they are a uniquely effective tool for advancing the United States’ most vital interest there. In October 2019, Kurt Campbell, the Biden administration’s new “Indo-Pacific tzar,” affirmed in no uncertain terms, “I think the most important dimension of the South China Sea [dispute] is freedom of navigation.” Defending the United States’ varied interests and addressing China’s multilayered challenges in the South China Sea will require a much broader U.S. strategy. But FONOPs are a key pillar of—not a distraction from—that strategy.

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