US Assistant Secretary of State for East Asian and Pacific Affairs David Stilwell in a July 12, 2019 interview with NHK in Tokyo before he flying in to Manila for the 8th US-Philippine Bilateral Strategic Dialogue said, “… “We’re strongest when we coordinate with like-minded allies and others … and when more than one country pushes back and resists these things, multilateral resistance is impossible for the PRC (People’s Republic of China) to ignore and has proven very effective in the past,”.

                What Stilwell called “multilateral resistance” is the U.S. shepherding of its Western allied countries Britain, France, Germany and its subalterns in Asia, Australia and Japan, to join the U.S. in its FONOPs or Freedom of Navigation Operations. But that “resistance” is a subterfuge for the real operation of the U.S. in the FONOPs as the operations’ real intention is strategic preparation for eventual “gunboat diplomacy” to contain of China and “provocation” in the immediate term.

                To appreciate the full significance of the U.S. FONOPs they need to be juxtaposed to the numerous naval exercises the U.S. are conducting in the SCS and environs. Even before the announcement of Barack Obama’s announcement of the “Pivot to Asia”, as far back as 2005 a U.S. and allies naval exercise started to be conducted – the Talisman Saber, avowedly intended to practice “closing down of the Malacca Straits”.

                A full six years before Obama’s declaration in November 2011, the U.S. had already been preparing. Obama’s announcement only formalized the pivot and was followed by a seemingly coordinated series of provocations starting 2012 – Japan’s nationalization of the Diaoyu or Senkaku, Benigno Aquino’s instigation of the Scarborough stand-off to the filing of a case with the non-court the PCA.

Talisman-Saber

                Retired Gen. Vic Corpus in his writing and in public discussions in various for a have explained repeatedly the overall aggressive intent of the FONOPs and naval exercises led by the U.S. in the South China Sea. He points to one naval exercise the is of utmost importance to students of the strategic situation in the SCS – the Talisman-Sabre naval exercise held every two years in the waters of the South China Sea. It is, Corpus says, “… an exercise to block the Malacca Straits, as well as of Sunda and Lombok of Indonesia”.

                John Pilger, award winning journalist, author and filmmaker who produced the blockbuster documentary “The Coming War on China” in an interview said, “In secrecy, the biggest single American-run air-sea military exercise in recent years – known as Talisman Sabre – has rehearsed an Air-Sea Battle Plan, blocking sea lanes in the Straits of Malacca, cutting off China’s-access to oil, gas and other raw materials from the Middle East and Africa.  It is largely this fear of an economic blockade that has seen China building airstrips on disputed islands and reefs in the South China Sea. “

                Pilger, in a TeleSur (the inter-South American public news broadcast) describes the U.S. preparations for Obama’s “Asia Pivot” as “The greatest build-up of American-led military forces since the Second World War is well under way.” Writing in the July 2017 issue of the Guardian, Stuart Rollo says of Talisman Sabre “It is a dress-rehearsal of the new American battle doctrine, the Joint Concept for Access and Maneuver in the Global Commons (JAM-GC), which was developed to ensure continued US military dominance of the Western Pacific and the South China Sea, in the face of growing Chinese military capabilities.”

Asean and China affirms Freedom of Navigation in COC.

                In the Declaration on the Conduct of Parties in the South China Sea signed onto by China and the ten Asean countries as far back as 2002 it was already provided that “The Parties reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea”.

                China’s Foreign Ministry in reply to a statement by US Vice President Mike Pence which was raised by a journalist during an MFA briefing, said this:

                “On the issue of the South China Sea, we have said before that the freedom of navigation and overflight has never encountered any problem. We have asked the US side or those claiming that there are problems with the freedom of navigation in the South China Sea many times to produce a single piece of evidence to prove which ship or plane from which country has encountered problems when navigating or flying over the South China Sea at what time. However, up to now, no one can give us a clear-cut answer. This shows that the so-called issue of freedom of navigation and overflight in the South China Sea is a non-existent proposition.

                China’s position is very clear. We are willing to join hands with the regional countries to firmly safeguard the true freedom of navigation and overflight enjoyed by all countries in accordance with the international law. Meanwhile, we firmly oppose undermining the sovereignty and security interests of the littoral states under the pretext of the freedom of navigation.”

                The unspoken threat to the SCS freedom of navigation is not from China, which is the nation that should be and is most apprehensive if any disruption occurs in any transit through the SCS as 80% of its fuel and trade flows here, but from the U.S. and its Western allies as evidenced by the Talisman-Sabre and the Asia Pivot which has minimal relative economic and security stakes in these waters.

                If there is minimal economic and security stake for the U.S. and its Western allies, what else can its interest be but military dominance and, with Talisman-Sabre in mind, the ability to close off the SCS in an envisaged siege of the “strategic rival” China. China obviously is not going to sit back in the face of this threat, hence all its preparation to face the naval forces of the U.S. and its allies is not a simplistic “militarization” for militarization’s sake but a complex defensive measure.

Right of Innocent Passage and FONOPs.

                Confusion in the public understanding of Freedom of Navigation, Freedom of Navigation in EEZ and Right of Innocent Passage creates many of the problems.

                Freedom of Navigation in international waters is not and cannot be restricted by any party or by the nature of the ship, i.e. merchant or warship. Freedom of Navigation in an EEZ (Exclusive Economic Zone) present a controversy between states that claim EEZ that could require notification from ships, particularly warship, or bans military activities in its EEZ. The Right of Innocent Passage refers to the just claim of a ship to pass the 12 nautical mile territorial sea of a littoral state so long as it will not be prejudicial to the peace, good order or security of the coastal state.

                There is an important qualification on the Right of Innocent passage rooted in the philosophy of sea of one man considers the father of the modern law of the sea, Dutch jurist Hugo Grotius. The lawteacher.net presents a view based on Philip C. Jessup’s “The Law of Territorial Waters and Maritime Jurisdiction”:

                “Grotius considered the right of innocent passage related to the ‘most specific and unimpeachable axiom of the Law of Nations, called a primary rule or first principle, the spirit of which is self-evident and immutable, to wit [13] : Every nation is free to travel to every other nation and to trade with it. The right of innocent passage is premised on the general right of freedom of navigation in international waters. Grotius was disposed to claim this right as an adjunct of the right to trade.’”

                It is important to note this “first principle” that every nation’s freedom to traverse in all the seas is based on the desire for free trade, all the freedom of navigation is as “an adjunct of the right to trade.”

                FONOPs or Freedom of Navigation with the descriptive term “Operations” is a freedom claimed by some for their countries’ warships to traverse the seas with the same right as ships for trade, which is what the United States aggressively pushing. This is where countries like China and most of Asean disagree with the U.S. It is in these definitions that many complications arise and the U.S. interpretations are suspect and daunting.

U.S. Gunboat FONOPs against 21 countries.

                The GESI (Grupo de Estudios en Seguridad Internacional) in a publication by naval analyst Federic E. Sarro declares that “US Gunboat Diplomacy and Freedom of Navigation Operations as Two Sides of the same Coin”. The paper correctly states that:

                “The US hasn’t ratified the UNCLOS (where Innocent Passage and Freedom of Navigation is codified) … Nevertheless, even if it sounds contradictory, since 1983 US Oceans Policy says that the country is willing to exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the UNCLOS, and will not acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.”

                Following the principle, the U.S. since 1979 has been challenging (or violating as seen from the viewpoint of those states whose territorial and EEZ rights are challenged) up to two dozen countries with seas territories and EEZs. The most abused country by U.S. FONOPs is actually the Philippines as its internal, archipelagic waters are most frequently violated by the U.S. warships’ deliberate challenge. A 2010 U.S. Navy report to the U.S. Congress on its FONOPs listed over a dozen challenges. The grounding of the USS Guardian in the Tubbataha Reef in 2013 highlighted these violations.

                In January 2013 the ran aground on Tubbataha Reed in a protected area of the Philippines in the middle of the Sulu Sea which is part of the internal waters of the Philippines. The Philippines Supreme Court issued a statement citing court deliberation declaring, “The US’ nonmembership in the Unclos does not mean that the US will disregard the rights of the Philippines as a coastal state over its internal waters and territorial sea,”. The USS Guardian was on a routine FONOP through Philippine internal waters and territorial sea when this happened.

                In 2017 the U.S. Navy conducted FONOPs against the territorial seas and/or EEZs of the following: Albania, Algeria, Cambodia, China, Croatia, Ecuador, India, Indonesia, Iran, Malaysia, Maldives, Malta, Montenegro, Oman, Philippines, Slovenia, Sri Lanka, Taiwan, Tunisia, Venezuela, Vietnam, Yemen.

From U.S. to multilateral Gunboat FONOPs.

                To find out what other countries, if any, could be doing FONOPs anywhere else the way the U.S. is doing in SCS I Googled the question, “Is there any other country conducting FONOPs in any part of the World aside from the U.S. In the many variations of the question that we tried only a Quora discussion appears.

                A Quora question entered in January 2018 asked, “Why don’t other countries practice freedom of navigation through the South China Sea besides the U.S.? There were eight responses, a few we cite here:

                1) the US is the world’s policeman and the US thinks it can go anywhere it wants; 2) Countries have FON [but no OPS, bracket mine] thru’ the SCS all the time. That’s why US$ 5trillion a year of trade goes thru’ this sea; 3) For the same reason that the US has the Monroe Doctrine..; 4) Because US never signed UNCLOS so they can do whatever they want outside the frame; 5) They do. British and Australian ships, as well as Japanese naval vessels, have engaged in them [but only at the behest of the U.S… my comment].

                The Quora question demonstrates that the U.S. with its FONOPs in the SCS was increasingly looking like the odd man out of the hundreds of countries the world peacefully respecting the UNCLOS principles on territorial waters and EEZs. The U.S. began pushing individual FONOPs of Allies and the shepherding of the “coalition of the willing” with Australia, Japan, Britain and France to form joint FONOPs in the China Sea in 2018 and continues to push it today.

                The USNI (US Naval Institute) News published in February 12, 2019 a report by Ben Werner entitled “Future South China Sea FONOPS will Include Allies, Partners”. The report did not name any country indicating the uncertainty of the “allies and partners” at that point in time, although countries such as Britain, France and Australia floated balloons either sailing in or announcing intentions to do FONOPs in the China Sea.

                In early May 2019 the U.S. led a bevy of ships from Japan, India, Philippines transited through the SCS “performing formation exercises and other low-profile drills”, China issued a statement reiterating it “indisputable sovereignty” over the features and demanding the U.S. stop such operations. While some of the U.S. allies have conducted FONOPs of their own these and most particularly the “coalition” are received with great misgivings and with trepidation in some U.S. allies’ leaders and population.

The Asean and the neighborhood view.

                The largest country in Asean is Indonesia. What it says counts very heavily in the direction of the regional body of ten Souitheast Asian countries. This is what has been most quoted from a high authority of Indonesia on the issue of U.S. FONOPs, quoting from a wide number of reports

                “Coordinating Minister for Political, Legal and Security Affairs Luhut Pandjaitan was quoted as saying, ‘We disagree, we don’t like any power projection. Have you ever heard of power projection solving problems’” Meanwhile, Defense Minister Ryamizard Ryacudu stated that if the countries with claims in the South China Sea can calm tensions on their own, ‘there’s no need to involve other parties in resolving the dispute.’ On the other hand, Jakarta refrained from openly condemning China’s land reclamation.”

                The “power projection” cited by Indonesian Minister for Political, Legal and Security Affairs Pandjaitan refers to what the U.S. Navy has defined as:

                “Distributed Lethality… an effective response to the tactical, operational, and strategic challenges posed in denied or contested environments. The operational construct to control the sea is centered on the tactical training and capabilities that allow commanders to deceive, target, and destroy an adversary. These operational functions provide GCCs options for employment of surface forces across the spectrum of conflict and serve as a foundational paradigm for our community’s approach to sea control.”

                Indonesia does not want any of that, particularly from countries outside the regional community that actually shares the South China Sea, such as outsiders like the U.S. and others that come to the Asean neighborhood with their warships. As the Indonesian Defense Minister said and we repeat, “there’s not need to involve other parties in resolving the dispute”, meaning the SCS disputes.

                “Vietnam”, maritime policy analyst Mark Valencia has written widely about, “is nothing but opportunistic. Its warming to US will last just as long as it is needed. There is no alignment of fundamental interests – other than to contain China –  “ thence “Vietnam also clearly welcomes and support the US military presence and has been appealing to the US to balance China’s influence in the region.”

                Mark Valencia’s assessment of the others we subscribe to, “Although a rival claimant, Brunei’s position seems to be reaching an accommodation with that of China.  US relations with non-claimant Thailand have not been close since the military coup there in 2014 and it seems to be leaning towards China.  Non-claimants Cambodia, Laos, and Myanmar do not have a direct interest in the SCS and are either neutral or in China’s camp on this issue.

                Given that 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 aspect of US military actions –at least against themselves.”

                In Australia, the deep internal debate continues. In The Interpreter an article reflects this intense Aussie anxiety over the U.S. FONOPs and the U.S. invitation for Australia to join the “coalition of the willing” which some also see as a “coalition of provocation”. The article “Australia struggles for clarity on the South China Sea” reports:

                “… Julie Bishop (Australian foreign minister until 2018) was quick to criticize Labor’s pro-FONOP position in the House of Representatives. She claimed that Marles (Richard Marles, Australian politician) had ‘decided that Australia should escalate tensions’ by conducting FONOPs, ‘something that Australia has not ever done before’. Bihsop implicity – but clearly – suggested that the Coalitoin’s policy was not to conduct such FONOPs: Canberra instead should ‘be seeking to de-escalate tensions… Australia should not take sides, and we should continue to urge… peaceful negotiations.”

FONOPs the other face of Gunboat Diplomacy.

                FONOPs is a power projection tool, and power projection is a military act that is not in the spirit of Grotius’ Mare Liberum which see trade as the reason for keeping all the seas free for every nation’s ship to traverse with liberty – trading ships, not warships. If warships are to sail crossing EEZs and territorial waters of coastal or littoral nation they must conform to the rules of the coastal or littoral nations.

                The South China Sea has not seen the disruption of free trade since the Second World War, the only threat since then of disruptions of peace and tranquility in the China Sea and South China Sea has been the infrequent threat of U.S. interventions in the affairs of the region. The recent decades in the 21st Century has however seen the emergence of threatening preparations from an external power for a strategic interdiction in the region, the Talisman-Sabre and the “Asia Pivot” of the U.S.

                The U.S. facing the determined resistance of the emerging Asian power, China, which the U.S. has labelled a “strategic competitor” and failing to intimidate its perceived rising rival. Failing to entice Asean into collaborating in its “containment” of China which instead engages in cooperation with China, the U.S. now seeks to augment its power projection with allied countries of the West such as Britain, France, even Canada, and U.S. Asian client Japan, in a “coalition of the wiling” to collective conduct FONOPs in the SCS.

                The U.S. “coalitions of the willing” have failed miserably in every instance and every part of the World it has attempted to operate, there is no reason to doubt that it will have any better chance of success in Asia and the South China Sea. It will fail because its reason for being is null and void, as Asean and China is assuring the rest of the World that the record of Freedom of Navigation in the South China Sea has been unblemished and will continue to be guaranteed by the countries of the region that together are the stewards of this vital body of water, trade and transportation.