SAM BATEMAN. Understanding American Freedom of Navigation Operation(FONOP) in the South China Sea

The recent encounter between American and Chinese warships in the South China Sea could be the fore-runner of more serious incidents unless both parties show more restraint.

In a recent incident in the South China Sea, a Chinese destroyer came close to the American guided-missile destroyer USS Decatur allegedly forcing the latter vessel to alter course. Canberra has been reported as joining Washington’s criticism of China for adopting ”aggressive tactics” and for the Chinese destroyer launching an ”unsafe” challenge to the American warship.

The Decatur was sailing within 12 nautical miles of the Gaven and Johnson Reefs in a freedom of navigation operation (FONOP). These reefs are two of the features built up by China as artificial islands. The arbitral tribunal in the case brought by the Philippines against China in the South China Sea deemed that both reefs were ‘rocks’ within the meaning  of Article 121(3) of the 1982 UN Convention on the Law of the Sea (UNCLOS) and entitled to a 12 nautical mile territorial sea. The recent operation appears to have been aimed at protesting China’s requirement for a warship to give prior notification of innocent passage through its territorial sea.

The grainy black and white photographs released of the incident purport to show the Chinese destroyer sailing ahead of the American vessel, slowing down and edging across to force the other ship to alter course. If this were the case then it suggests increased Chinese preparedness to more aggressively respond to American FONOPs in the South China Sea. Alternatively, it may have been just a ’gung-ho’ Chinese destroyer captain acting aggressively without formal orders to do so.

However, other explanations are possible. The photographs are still pictures that could equally as well show some culpability on the part of the Decatur. Rather than the Chinese warship slowing down to create the incident, it might have been the American warship on a course that involved overtaking the Chinese destroyer that was stopped ahead of her or proceeding slowly. Mix-ups like this can occur when the adrenalin starts flowing with one vessel trying to assert a right of passage and another trying to prevent it.

Whatever the explanation, the incident suggests the preparedness of both parties to engage in close encounters between their warships. This is a new and worrying development that harks back to the frequent clashes between American and Soviet ships, submarines and aircraft during the Cold War. Incidents at sea were then relatively common as the two sides engaged in close shadowing of each other’s operations, particularly in the Mediterranean and the Northwest Pacific. As a result of several ‘bumping’ incidents and near collisions, including highly dangerous ones involving submarines, the two parties agreed the 1972 Agreement on Prevention of Incidents at Sea Agreement (INCSEA) to prevent incidents from becoming more serious.

The INCSEA generally achieved its objectives although in the early 1980s, there was a marked escalation of incidents with an average of 25-30 occurring each year. In part this was due to the Freedom of Navigation (FON) program introduced by Washington in 1979. This led to the USN escalating its program of FONOPs by sending warships through Russian-claimed territorial seas despite Moscow’s requirement for these passages only to be conducted with prior notification. These FONOPs were successful in that they led to the 1989 USA-USSR Joint Statement on the Uniform Interpretation of Rules of International Law governing Innocent Passage. This agreement conceded the right of warships to conduct innocent passage through another country’s territorial sea without prior notification or authorisation. When Chinese warships sailed within 12 nautical miles of the Aleutian islands in 2015 without prior notification, Washington accepted their right to do so and lodged no protest with Beijing.

There are two agreements that theoretically should have helped prevent and manage the type of incident that occurred recently in the South China Sea. The first is the 2014 U.S.-China Memorandum of Understanding on the Rules of Behavior for the Safety of Air and Maritime Encounters (MOU-Rules) with its Annex II on Rules of Behavior for Safety of Surface-to-Surface Encounters. This Annex makes extensive reference to the other relevant agreement – the Western Pacific Naval Symposium (WPNS) Code for Unplanned Encounters at Sea (CUES) also agreed in 2014. However, there has been no report of whether or not these agreements were used during the recent encounter.

US FONOPS are inherently provocative. The leading American scholar of Southeast Asia, Don Emmerson, has questioned their value in the South China Sea on the grounds that they are ineffective and feed suspicions that American support for UNCLOS, while it is not a party to the Convention, is conditional at best and hypocritical at worst. He would prefer to see an actual US strategy for the South China Sea based more on the coinciding interests of Americans and Southeast Asians alike.

The American FONOPs in the South China Sea are making a fine legal point that is of little interest to Southeast Asian countries generally. They believe these assertions of rights to naval freedoms of navigation are destabilizing only serving to increase tensions in the region. As Malaysian Prime Minister Mahathir Mohamad has argued, “I think there should not be too many warships. Warships create tension.” The best interests of the region lie in all parties, scaling back the level of naval activity in the South China Sea, avoiding incidents, showing more restraint, and allowing the littoral states to get on with the process of cooperation to manage the sea, its resources and activities within it. After all, this cooperation is an obligation of the littoral states under UNCLOS Part IX.

Sam Bateman is a Professorial Research Fellow at the Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong. He is a former senior Australian naval officer who had several commands at sea.