US Navy FONOPs (freedom of navigation operations) in the South China Sea would have more legitimacy if Washington were to ratify UNCLOS. Photo: US Naval Institute

A recent piece in Foreign Policy advocated that the US should not only continue its freedom of navigation operations in the South China Sea but enhance them and even declare them non-negotiable. Already two FONOPs have been undertaken under President Joe Biden’s administration. But continuing them is a bad idea.

US FONOPs are arguably a violation of international law and a cover for freedom to spy; increase the risk of confrontation and conflict; are unwelcome by Southeast Asian states; are ineffective; and are legally unnecessary.

FONOPs targeting China’s claims to certain features and its territorial sea regime can be interpreted as a threat to use force against its claimed territorial integrity. As such they may violate the prohibitions against the use of force in the UN Charter and the UN Convention on the Law of the Sea (UNCLOS).

Moreover, the US and China have differences of interpretation regarding relevant clauses of the UNCLOS – which the US has not ratified. China and many other countries argue that the Convention is a series of package deals and that non-ratifiers are not entitled to the “benefits” of the bargains while picking and choosing which of the provisions – or their interpretations thereof – they wish to abide by.

They contend that interpretation of key terms in the Convention relevant to freedom of navigation – such as “abuse of rights,” “due regard” and “peaceful use/purpose” – are evolving rapidly through state practice and that non-ratifiers like the US do not have the legitimacy to unilaterally interpret them to their advantage.

Indeed, China claims that the United States’ FONOPs as well as its intelligence probes are violating some of these principles.

Despite US denials, its FONOPs against China have always had a political purpose – to intimidate Beijing into changing its policies. Indeed, some say the FONOPs are also designed to “reassure America’s allies and partners in the region of America’s commitment.”

The US narrative justifying FONOPs is disingenuous. Washington says they demonstrate and protect freedom of navigation and challenge claims that violate that principle. But the US is disingenuously conflating freedom of commercial navigation with freedom of military vessels to spy on countries – in this case China. China has never tried to interfere with commercial freedom of navigation, and the US well knows this.

The former US chief of naval operations, Admiral John Richardson, claimed that US FONOPs “are by design non-provocative, non-escalatory.” That may be the US intent, but Richardson well knows that China views the FONOPs as a threat of use of force and that they increase the possibility of confrontation and conflict.

Because of this risk, they are not welcome by Southeast Asian countries. Malaysian Foreign Minister Hishammuddin Hussein has said, “While international law guarantees the freedom of navigation, the presence of warships and vessels in the South China Sea has the potential to increase tensions that in turn may result in miscalculations which may affect peace, security and stability in the region.”

While some may agree with the US legal interpretation of freedom of navigation for warships, they do not support their use to enforce that interpretation.

Indeed, after the October 2018 Decatur incident, Singaporean Defense Minister Ng Eng Hen said, “Some of the incidents are from assertion of principles, but we recognize that the price of any physical incident is one that is too high and unnecessary to either assert or prove your position.” Philippine President Rodrigo Duterte said that “the threat of confrontation and trouble in the waterway came from outside the region.”

Malaysian Prime Minister Mahathir Mohamad argues that “big warships [in the South China Sea] may cause incidents and that will lead to tension.” Also, given that the claims of all littoral ASEAN members except Singapore and Brunei have been targets of US Navy FONOPs, it is safe to say that they do not approve of this gunboat diplomacy – at least against themselves.

Moreover, US FONOPs are ineffective in that they have not changed China’s policies or stopped its actions that the US declares unlawful. They are also wasteful: They result in “lost time in restoring [the US] war fighting edge.” The US Navy could better use these assets “to train up for high-end conflict.”

Despite US rhetoric to the contrary, FONOPs are not necessary to demonstrate the US legal position. Although no country should acquiesce to claims that it considers illegal, such non-acquiescence can be effectively and sufficiently demonstrated by verbal and written diplomatic communiqués. This diplomatic option seems to be sufficient for other nations including maritime powers whose rights the US claims to be protecting.

Indeed, diplomatic protest rather than “gunboat diplomacy” is more consonant with the UN Charter. It requires that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

According to William Aceves of California Western School of Law, “the notion that states must take action which may lead to a violent confrontation or lose their rights under international law is inconsistent with the most basic principles of international law.”

Moreover, given the political costs, if the US still feels the need to challenge China’s claims kinetically, why does the US Navy deem it necessary to repeat specific challenges (FONOPs) to specific claims, as it often does?

Given these problems with FONOPs, their diminution could be a bargaining chip to obtain other desired goals like a change in China’s behavior in the South China Sea. China and the US could make a partial – and probably temporary – grand bargain.

In such a bargain, China would refrain from further occupation, construction and “militarization” on its claimed features. It would also not undertake any extremely provocative action like occupying and building on Scarborough Shoal, harassing other claimants in the disputed area and declaring an air defense identification zone over the Spratlys.

The US, in turn, would decrease or cease altogether its provocative FONOPs there and its “close-in” intelligence probes. It would also refrain from belligerent threats and actions. But if FONOPs are “non-negotiable” as the author of the Foreign Policy piece suggests, then such a bargain is not possible.

In sum, maintaining – let alone enhancing – FONOPs against China in the South China Sea is a bad idea. The US Defense Department has created a China task force to review overall military relations with China and presumably recommend changes. It should come to the same conclusion.

A version of this article appeared in The National Interest

Mark Valencia is a non-resident senior research fellow at the Huayang Institute for Maritime Cooperation and Ocean Governance.