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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
eventually it might claim that the entire Spratly Island area generates maritime zones as if
it were one physical feature. China has a territorial sea law that requires Chinese
maritime agencies only to employ straight baselines (contrary to international law). And
it formally claimed straight baselines all along its continental coastline, in the Paracels,
and for the Senkaku/Diaoyu Islands, which China claims and Japan administers. All of
these actions are contrary to international law and infringe on international navigational
rights. These have all been subject to American FONOPs in the past-and rightly so.
They are excessive claims. But China has never specified baselines in the Spratlys.
Accordingly, no one knows for sure where China will claim a territorial sea there. So for
now, since there is no specific legal claim to push against, a formal FONOP is the wrong
tool for the job. The U.S. Navy can and should simply exercise the full, lawful measure
of high seas freedoms in and around the Spratly Islands. Those are the right tools for the
job where no actual coastal state claim is being challenged.
Second, the conflation of routine naval operations with the narrow function of a formal
FONOP needlessly politicizes this important program, blurs the message to China and
other states in the region, blunts its impact on China's conduct, and makes the program
less effective in other areas of the globe. This conflation first became problematic with
the confused and confusing signaling that followed the FONOP undertaken by the USS
Lassen in the fall of 2015. Afterward, the presence or absence of a FONOP dominated
beltway discussion about China's problematic conduct in the South China Sea and
became the barometer of American commitment and resolve in the region. Because of
this discussion, FONOPs became reimagined in the public mind as the only meaningful
symbol of U.S. opposition to Chinese policy and activity in the SCS. In 2015 and 2016
especially, FONOPs were often treated as if they were the sole available operational
means to push back against rising Chinese assertiveness. This was despite a steady U.S.
presence in the region for more than 700 ship days a year and a full schedule of
international exercises, ample intelligence gathering operations, and other important
naval demonstrations of U.S. regional interests.
In consequence, we should welcome the apparent decision not to conduct a FONOP
around Scarborough Shoal-where China also never made any clear baseline or
territorial sea claim. If U.S. policy makers intend to send a signal to China that
construction on or around Scarborough would cross a red line, there are many better ways
than a formal FONOP to send that message....
The routine operations of the fleet in the Pacific theater illustrate the crucial-and often
misunderstood-difference between a formal FONOP and operations that exercise
freedoms of navigation. FONOPs are not the sole remedy to various unlawful restrictions
on navigational rights across the globe, but are instead a small part of a comprehensive
effort to uphold navigational freedoms by practicing them routinely. That consistent
practice of free navigation, not the reactive FONOP, is the policy best suited to respond
to Chinese assertiveness in the SCS. This is especially true in areas such as the Spratly
Islands where China has made no actual legal claims to challenge.129
Cost-Imposing Actions
Some of the actions taken to date by the United States, as well as some of those suggested by
observers who argue in favor of stronger U.S. actions, are intended to impose costs on China for
conducting certain activities in the ECS and SCS, with the aim of persuading China to stop or
129 Peter A. Dutton and Isaac B. Kardon, "Forget the FONOPs Just Fly, Sail and Operate Wherever International
Law Allows," Lawfare, June 10, 2017.Congressional Research Service
56
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O'Rourke, Ronald. Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, report, August 17, 2017; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1020870/m1/61/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.