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Biden should proceed to problem China on freedom of navigation

Few foreign policy challenges for the Biden government are more daunting than China. Given the recent headlines regarding trade wars, Hong Kong suppression, COVID-19 conspiracy theories, intimidation of Taiwan, concentration camps in Xinjiang, and the border crisis between China and India, it's easy to forget that the South China Sea, despite its calm, is as of the mid-2010s remains one of the most controversial and volatile disputes in US-China relations. The differences between the two countries in terms of freedom of navigation on the vital waterway represent the only bilateral dispute that has repeatedly led to hostile or dangerous encounters between Chinese and US military platforms in the immediate vicinity of escalation risks.

Over the past decade, a number of provocative Chinese allegations and actions in the South China Sea have opened a gaping geopolitical fault line with the United States, including the unlawful nine-stroke allegation, the occupation of the controversial Scarborough Shoal, its creation and militarization of seven man-made islands in the Spratlys and use of a giant maritime militia to harass and coerce their neighbors. But it is Beijing's attempts to restrict freedom of navigation in the South China Sea, especially on US warships, that have sparked the greatest concern and the most robust political response in Washington.

The FONOP (US Freedom of Navigation Operations) program, with which US naval vessels "challenge illegal and far-reaching maritime claims that are incompatible with customary international law," made international headlines out of the dark in the mid-2010s when China joined the construction of his ships began on 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 soared under the Trump administration, fueling growing anger among Chinese officials who viewed US operations as "apparent navigational hegemony" and a "military provocation."

The Biden government is expected to continue conducting FONOPs in the South China Sea on a regular basis, but the pace of operations and the challenged Chinese demands are open to debate. As President Joe Biden ponders his strategy for the South China Sea, the administration should recall and avoid some of the stumbling blocks that marked the Obama administration's early FONOP policies. Operations should be regular and routine, ideally at a pace of at least two per quarter, and also depoliticized and not sensational. After all, FONOPs cannot be seen as an instrument of exchange to promote Chinese cooperation in other areas: Freedom of navigation must not remain negotiable.

Since 1979, the US Department of Defense and State Department have jointly run the FONOP program, which challenges maritime claims that the United States believes are contrary to international law. China is nowhere near the only country targeted by the program. In 2019, the US government used FONOPs to challenge illegal claims from 22 countries. However, since the construction of China's man-made islands in the mid-2010s, the U.S. FONOPs in the South China Sea have attracted greater international attention and Chinese anger.

Based on publicly available information, the United States conducted a FONOP in 2015 related to excessive Chinese maritime claims, three in 2016, four in 2017, six in 2018, eight in 2019 and nine in 2020, though the number of actual FONOPs may be as high as those publicly reported. In 2019, the US FONOPs challenged a number of unlawful Chinese claims in the East and South China Seas, including China's request that foreign warships first seek permission from Beijing to "innocently pass" through China's territorial seas.

The Chinese State Department alleged that the US FONOPs “went beyond the scope of free navigation. It's a political provocation and the purpose is to test China's response. "The freedom of US shipping," according to China Military, a publication by the Chinese military, is actually a deprivation of the freedom of others "and an excuse" for its gunboats to go wild in the territorial waters of other countries. "

In public, Chinese officials often claim that Beijing will never attempt to restrict free navigation in the South China Sea.

In public, Chinese officials often claim that Beijing will never attempt to restrict free navigation in the South China Sea. "When was freedom of navigation ever compromised in the South China Sea?" asked Adm. Sun Jianguo at a 2016 closed forum. "There has been no problem in the past or now and in the future as long as nobody is playing tricks."

However, Chinese scholars and officials, including Sun, have repeatedly revealed that when they talk about freedom of navigation they are referring only to merchant ships, not military ships. "China does not believe that US 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 planes," added the Chinese ambassador to the Philippines, Zhao Jianhua.

This is not just a rhetorical argument. Since the turn of the century, Chinese ships and planes have repeatedly harassed or intimidated US military ships legally operating 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 while China may require prior authorization for foreign military operations in its 12 nautical miles of territorial sea, it must respect the right of “innocent passage” for foreign warships there.

Freedom of navigation disputes are not new to US-China relations. Beijing has long objected to U.S. surveillance activities near Chinese territory despite U.S. operations complying with 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 US Senate has not ratified UNCLOS, but US policymakers recognize and adjust UNCLOS’s provisions on maritime claims and freedom of navigation .) This gap has been exacerbated by China's artificial fabric construction islands in the South China Sea.

In late 2013, China began dredging thousands of acres of sand on seven controversial rocks and at low tide in the Spratly Islands, turning the features into seven large, militarized man-made islands. It wasn't until early 2015 that they moved into the international spotlight when the Asia Maritime Transparency Initiative released high-resolution satellite images of the growing Chinese outposts.

National security experts quickly urged the Obama administration to conduct FONOPs within 12 nautical miles of the man-made islands, predicting that China would seek jurisdiction over the outposts that are inconsistent with international law, including attempting to protect the U.S. To restrict the freedom of navigation.

Still, Washington thought about it for months. In June 2015, Daniel Russel, US Deputy Secretary of State for East Asian and Pacific Affairs, sent a strange and confusing signal saying, "As important as the South China Sea is, it is not fundamentally a US-US China problem."

The long deliberation led to an escalating diplomatic game with Beijing. "China will never tolerate military provocation or violation of sovereignty by the United States or any other country as the United States refused 53 years ago (during the Cuban Missile Crisis)," China Daily said in 2015. "This is our backyard; we can choose which vegetables or flowers to grow, ”said Lt. Col. Li Jie of the People's Liberation Army Military Academy.

In September 2015, Chinese naval vessels entered US territorial waters for the first time after a naval exercise with Russia and passed the Aleutian Islands in Alaska, just as the state hosted a rare visit from President Barack Obama. The following month, a senior Chinese military official told Newsweek, "In the South China Sea, 209 land features remain vacant and we could confiscate them all."

Finally, the Obama administration called China's bluff. In late October 2015, the USS Lassen conducted a FONOP near the Subi Reef, one of China's man-made islands in the Spratlys. However, even this belated operation met with criticism. With several Chinese man-made islands and various forms of FONOP to choose from, the government opted for an innocent passage within 12 nautical miles of Subi Reef, "the weakest type of FONOP the US could have chosen," said international law expert Julian Ku. "And to make matters worse, FONOP's limitation to innocent passages could actually strengthen China's sketchy territorial claims in the region." Even sympathetic experts found that the FONOP was “poorly managed”, with a “lack of clarity” and possibly a “big mistake”.

In the years that followed, the FONOPs in the South China Sea became more robust and routine, but the hesitation and apparent politicization of the first operation risked creating the impression that freedom of navigation was negotiable. Ely Ratner, former deputy national security advisor to then Vice President Joe Biden, has argued that the United States was insufficiently determined in its response to early Chinese provocations in the South China Sea, resulting in "additional gains" for China.

The Biden administration must avoid these early missteps and instead implement a strict and clear program. Starting in 2021, the Biden government should have a regular FONOP schedule in the South China Sea at least twice a quarter, set in 2019 and exceeded in 2020. On February 5, the USS John McCain reportedly conducted the first South China through the Biden administration's Sea FONOP, accompanied by an unusually detailed display of the operation.

Should Chinese attempts to restrict US freedom of navigation escalate, the government should be ready to step up the pace and consider new flavors of FONOPs. James Kraska, professor at Naval War College, recommends strengthening FONOPs by deploying not only individual ships and aircraft, but also "squadrons such as surface action groups and aircraft carrier and expedition strike groups."

FONOPs were supposed to continue to include military maneuvers within 12 nautical miles of LTEs, which were subsequently converted into man-made islands through Chinese land reclamation. International law is clear: LTEs cannot be classified as natural islands that are entitled to a territorial sea and an EEZ. Any Chinese attempt to use an undefined “military alert zone” around the outposts or to restrict navigation is illegal.

FONOPs should also be depoliticized and not made sensational. The Obama administration has been criticized for appearing to delay or downgrade the FONOPs in order not to offend Beijing when the Chinese government sought cooperation on issues such as climate change and the North Korean nuclear program. Beijing will undoubtedly seek to trick the Biden government into similarly unbalanced compromises, as the recent irritable exchange on climate change has shown.

At the same time, FONOPs shouldn't be advertising. In some ways, international fanfare can undermine the intended goal. Regular routine operations and transits of the South China Sea are arguably just as effective in signaling the US's non-recognition of China's unlawful claims. Experts Isaac Kardon and Peter Dutton believed that “a consistent practice of free navigation, rather than reactive FONOP, is the policy best suited to respond to the Chinese assertion in the (South China Sea). This is especially true in areas like the Spratly Islands, where China has not made any actual legal claims. "

Although U.S. allies have shown little interest in conducting joint FONOPs in the South China Sea, Gregory Poling, a staff member at the Center for Strategic and International Studies, argues that the U.S. government should try to convince like-minded partners to conduct their own FONOPs independently. The vast majority of world capitals find China's claims in the South China Sea ridiculous. 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 made their exercise of freedom of navigation in the South China Sea more robust than Australia.

FONOPs are not a panacea for the South China Sea, but they are a uniquely potent tool in promoting the United States' primary interest there. In October 2019, Kurt Campbell, the new "Indo-Pacific Tsar" of the Biden government, reiterated without a doubt: "I think the most important dimension of the South China Sea (dispute) is freedom of navigation." Defending the diverse interests of the United States and addressing China's complex challenges in the South China Sea require a much broader US strategy. But FONOPs are an important pillar of this strategy – not a distraction from it.

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