U.S. stance on FONOPs in China's territorial waters undercut by its non-party status to UNCLOS

The United States claims that one of its main concerns is protection of “freedom of navigation.” But Washington purposely conflates freedom of commercial navigation with freedom to undertake military intelligence, surveillance, and reconnaissance (ISR) probes against China and others in the region. It then alleges that China’s interference with probes by these military vessels and aircraft in and over China’s exclusive economic zone (EEZ) violates the freedom of navigation. China argues that it is not challenging freedom of navigation itself but U.S. abuse of this right by its military. Beijing maintains that it has not and will not interfere with maritime trade.

Southeast Asian countries have not explicitly taken a position on this particular aspect of this complex issue, either individually or collectively. This is understandable because the debate over military freedom of navigation does not directly involve them and is essentially a bilateral U.S.-China dispute that can only be resolved by the two parties. Although the United States has asked several of its Asian allies to join FONOPs in the South China Sea, they have demurred. However, the resolution of this peculiar dispute would be warmly welcomed by Southeast Asia in general. What they fear most is that they will be used as pawns in an intensifying great power struggle.

The United States also claims it wants to maintain the rules-based order in the South China Sea. The UN Convention on the Law of the Sea (UNCLOS) is a key part of that rules-based order. The U.S. says that in addition to China, Cambodia, Malaysia, Indonesia, the Philippines, Thailand, and Vietnam are in violation of aspects of UNCLOS and it has challenged these violations militarily with FONOPs. Ironically, unlike most of Asia and indeed the world, the United States has not ratified UNCLOS and may even be violating some of its provisions. It is the U.S. itself that is undermining this Convention — and thereby the rules-based order.