Experts said the recent US Freedom of Navigation Operation (FONOP) is not enough to deter China in the East Sea, but sometimes it created a chance for Beijing to defiantly strengthen their wrong arguments.

Professor of law Julian G.Ku Law, from Hofstra University, said the recent FONOP at the Fiery Cross reef, just like the two previous FONOP, was designed to avoid any risk of conflict.

Beijing sent fighters to the sea while naval ammunitions were instructed to track US ships in the waters. Both reactions, though ostensibly new, actually do not have much meaning.

However, the change in the Beijing’s recent statements shows the limitation of FONOP as a tool to deter China’s intention of expansion in the region.

First of all, the Chinese Defense Ministry began by declaring that the USFONOP shows that China needs to build "a defense base" in the East Sea. But with just a calculation of time, one can see that this argument is absurd. The US resumed FONOP in this area in October 2015 after a 4-year hiatus, while in the past two years, China has made claims and conducted militarization of the illegally-expanded islands.

Secondly, China's Foreign Ministry has always tried to isolate the US legally. Emphasizing the distinction between military and commercial vessels, a spokesman of the Chinese Foreign Ministry stated: "No country accepts military ships passing wherever they want, as this is an offense against international law ". 

This spokesman also cited the UN Convention on the Law of the Sea (UNCLOS): "This law allows foreign vessels to innocently pass waters belonging to the territory of other countries, but there is no provision allowing military vessels to do this."

China's transformation from complaining about the "violation" of the US to the interpretation of UNCLOS in another way suggests the possibility of a shift in diplomatic strategy and statements of Beijing in the future.

If the complaints about the US’s threats against sovereignty only show China’s aggression in territorial claims, then the complaints about the expanded maritime activities of the US is a matter that many other countries can find common ground with China. With this strategy, Chinese diplomats have exerted efforts to create a "chain of friendly countries".

Before the ambition of a “rising China”, with sophisticated and tricky behaviors, while the US cannot abandon FONOP, Washington needs to take other measures to challenge the territorial claims and the expansion of China. Therefore, FONOP is not enough.

Professor of Political Sciences at the Massachusetts Institute of Technology Taylor Fravel said that FONOP has never been used as a tool in territorial disputes involving third parties.

The purpose of this activity is to only assert the freedom of navigation that "exaggerated claims" of maritime jurisdiction of other countries may restrict or prevent, which are inconsistent with the "freedom of navigation in the sea" as stated in the UNCLOS. FONOP only affirmed the US policy of freedom of navigation, rather than an act to prevent countries pursuing their claims in maritime disputes.

Professor Julian said that in the East Sea, FONOP can be used to challenge excessive claims for different issues in dispute.

If recently, FONOP was used only to challenge travel restrictions for military vessels in the territorial waters of 12 nautical miles, then in the future, FONOP flights can be used to challenge the claims of jurisdiction over the sea for some artificial island that China has illegally renovated. At least four of these islands will not enjoy territorial waters of 12 nautical miles since they are artificial structures built on low-tide elevations.

Thao Linh