Earlier this month, the Wall Street Journal reported that the U.S. Department of Defense, for the first time under the Trump administration, had decided to set up a schedule of regular freedom of navigation operations (FONOPs) in the South China Sea under the authority of U.S. Pacific Command. The decision addresses a major criticism of the operations under the Obama administration: namely that their irregularity made them appear subservient to political and diplomatic interests, undermining their legal signaling utility.
The Obama administration presided over four FONOPs in the South China Sea near Chinese possessions. These began in October 2015 and ended in October 2016, but the gap between each operation during that time was far from regular. The Trump administration, by contrast, carried out its first FONOP in May by sailing a guided-missile destroyer within 12 nautical miles of Mischief Reef in the Spratly group to assert high-seas freedoms and has since carried out two more operations. Since then, we’ve seen two more operations: one in July and one in August.
There is a clear benefit to an apolitical schedule. The United States has long argued that the FONOPs are merely a legal signaling tool and do not specifically signal out Beijing. The latter point has been reinforced by having U.S. destroyers challenge the excessive maritime claims of other South China Sea claimants — news reports mostly emphasize FONOPs as an a maneuver against China, but the U.S. Navy challenges claims by everyone from the Philippines to Vietnam to Taiwan.
The former point, however, had been arguably undermined by the irregularity of FONOPs. Even when this May’s FONOP came after a gap of more than 200 days, some commentators suggested that the Department of Defense was seeking to avoid scrutiny on the South China Sea ahead of the Shangri-La Dialogue, where U.S. Defense Secretary Jim Mattis ultimately touted freedom of navigation in his address.
The Journal‘s report is hardly surprising given the pace of operations the Trump administration has undertaken in recent days, but would regularized FONOPs succeed in drastically changing the situation on the water in the South China Sea? That’s unlikely. China’s negative reactions remain constant and its behavior has not changed as a result of FONOPs. U.S. allies and partners, no doubt, would welcome a more regular schedule.
In the end, removing the White House and the National Security Council (and a broader interagency process) from decision-making on FONOPs could even end up vindicating the Obama administration’s often-criticized reasoning behind spacing out the operations. For instance, the Trump White House has shown itself to have a clear hierarchy of issues with China, with trade and North Korea sitting at the top. China could impose diplomatic costs on Washington for continued FONOPs, frustrating the White House in the process.
Time — and future FONOPs — will tell just how well this decision will pan out for U.S. interests and international law in the South China Sea.