Since its founding, the United States has protected freedom of navigation. Of all lawful uses of the oceans, freedom of navigation has proven the most critical to American national security by enabling the global mobility of U.S. forces, and to U.S. economic prosperity by facilitating free and open maritime commerce. What is more, these benefits are not singularly enjoyed by the United States but rather by all law-abiding countries.
Threats to freedom of navigation this past year have been multiple, including manifestly hostile and life-threatening ones, such as terrorism against private shipping in the Middle East and resurgent piracy in the Gulf of Guinea. But maritime threats can also be less visible yet equally destructive to national and economic security.
Among such threats to freedom of navigation are “excessive maritime claims” — that is, foreign laws, proclamations, or decrees that assert more control over the maritime environment than allowed by international law. These claims seek to restrict navigation and overflight rights or other lawful uses of the seas. They can be restrictions on military exercises in international waters, prohibitions on the transit of nuclear-powered vessels, assertions of security authority beyond territorial sea limits, or any number of other restrictions inconsistent with the law of the sea.
By undermining the rules-based international order, these illegitimate assertions of authority, born out of patent self-interest, are a danger to international peace and security. As part of the rules-based order that has benefited all nations since World War II, the 1982 U.N. Convention on the Law of the Sea (UNCLOS) strikes a deliberate balance between maritime control by coastal states, on the one hand, and navigational freedoms for all, on the other. From a defense perspective, this balance decreases the risk of military miscalculation, but it also promotes cooperation in other areas, like law enforcement, scientific exploration, and commercial development. When a nation asserts an excessive maritime claim that upsets this balance, it promotes instability, which has negative economic and security implications for the entire international community, including land-locked nations. Acquiescence to these unlawful, excessive maritime claims could, over time, erode the law and permanently infringe on all nations’ navigational rights and freedoms.
To defend these rights and freedoms, the United States has challenged unlawful claims of authority over the oceans through its Freedom of Navigation Program for over forty years. The program is administered jointly by the U.S. Departments of State and Defense. The Department of State leads diplomatic efforts and formally objects to foreign actions inconsistent with customary international law, while the Department of Defense exercises maritime rights and freedoms through freedom of navigation operations, commonly referred to as “FONOPs.”
Contrary to the views of some nations, FONOPs are not provocative excursions intended to inflame regional tensions and impose the United States’ will on the rest of the world. Rather, they are peaceful, routine operations that protest excessive maritime claims. By adhering to international law as reflected in the Law of the Sea Convention, FONOPs serve to uphold the rules-based order on behalf of all nations large and small, without regard to their naval strength, economic prowess, or international partnerships. They prompt diplomatic dialogues and academic conversations about the law of the sea, its limits, and its rights and freedoms. And they encourage other nations to comply with the law of the sea.
The program’s success is due to its even-handed application of the law against any excessive maritime claims, whether promulgated by allies, partners, or competitors. This consistent and principled approach, utilized by both Democratic and Republican administrations over the past four decades, has been key to the legitimacy of the program. A focus on unlawful claims, rather than the claimants making them, also assures that the United States’ commitment to the rule of law will transcend any current events or crises.
In recent years, the United States has significantly expanded the scope and frequency of its FONOPs. Globally, the United States challenged twice the number of unlawful maritime claims in 2020 as it did in 2009. In the South China Sea, a body of water that is home to the most expansive and flagrant excessive maritime claims in the world, the United States more than doubled its number of annual FONOPs from 2016 to 2020. The United States also challenged Russia’s excessive maritime claims in 2018 and 2020 — the first time such operations have occurred since the end of the Cold War.
Like-minded countries have taken notice. Other nations that respect the law of the sea have become more active in pushing back diplomatically against excessive maritime claims, and they are now speaking with a unified voice. The joint statement made in September 2020 by the United Kingdom, Germany, and France, for instance, sent a clear and united message to China that UNCLOS is the legal framework within which all activities in the oceans are governed. The Association of Southeast Asian Nations (ASEAN) also issued its strongest statement in recent memory, reaffirming the importance of upholding freedom of navigation and of peacefully settling South China Sea maritime disputes in accordance with the Convention. The United States should remain ready to build on this international support, encouraging partnership opportunities and helping other like-minded nations establish their own formal programs that support the law of the sea.
Excessive maritime claims will continue testing the resolve of the international community and its commitment to the rule of law for the foreseeable future. To best defend the rules-based order, the United States must continue the steady drumbeat of global FONOPs to support international law and strengthen our relationships with other nations. Sustaining the scope and pace of FONOPs that we have achieved over the past few years will not only safeguard U.S. national security, foreign policy, and economic objectives but will make the world more secure and more prosperous for all.
David F. Lasseter is the former Deputy Assistant Secretary of Defense for Countering Weapons of Mass Destruction and oversaw Oceans Policy for the U.S. Department of Defense.
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