FONOPs: Not The Only Option

The United States conducts freedom of navigation operations (FONOPs) to uphold the rules-based international order of unfettered access to the world’s global commons—especially in support of a free and open Indo- Pacific. However, Beijing has ignored the 2016 ruling of the Permanent Court of Arbitration (PCA) under Annex VII of the Law of the Sea Convention (UNCLOS), which concluded China’s claims to possession of most of the South China Sea, encompassed by the so-called nine-dash line, are without legal effect.¹ 

FONOPs are legally important because they contest improper territorial claims, but they do little to deter China’s harassment of Southeast Asian fishermen. China Coast Guard vessels regularly harass and intimidate fishing vessels from the Philippines and other regional nations operating near Scarborough Reef and throughout the South China Sea.² The FONOP/military-only solution yields few strategic gains and is unlikely to deter China or assuage allies and partners from the Association of South East Asian Nations (ASEAN). 

ASEAN’s founding “consensus principle” has made it difficult to stand up to Chinese aggression in the South China Sea. In 2016, the organization failed to sign a joint statement that affirmed the PCA’s ruling in favor of the Philippines. China employed economic leverage over Cambodia to block any mention of the court ruling in the joint statement.³ Economic coercion also has obstructed ASEAN from  signing a code of conduct that would manage South China Sea disputes and protect access to lucrative natural resources. It will take U.S. leadership to help stakeholders coalesce around an innovative approach that could provide mutual gains: a multinational fisheries patrol.

Who Benefits?

A multinational enforcement mechanism to protect fish stocks in the South China Sea would stabilize the region and provide benefits to ASEAN nations, China, and the United States and would mitigate regional risks to trade and food security. The system would include agreeing on access to shared maritime commons and constabulary patrols by participating nations and, perhaps, third parties such as the U.S. Coast Guard.

China’s participation in the initiative would support that country’s geostrategic ambitions and bolster its panoply of soft power policies. Refusal to participate, on the other hand, would be counterproductive to its national interests, risking Chinese diplomatic isolation while enhancing U.S. influence. A further destabilized South China Sea could threaten the Chinese Communist Party’s desire for economic growth and stability.

The current lack of regional fishing regulations carries far-reaching implications for regional food security and economic development. At present, fishing in the South China Sea represents up to 30 percent of the economies of coastal nations.⁴ A multinational patrol would provide oversight, increased transparency, and a safer environment for all fisherman—critical assurances, as the demand for fish protein from ASEAN countries is expected to double in the coming decade. And China has its own food security concerns—its demand for fish proteins increased tenfold in the past 25 years and continues to rise.⁵ Overfishing is diminishing fish stocks at an unsustainable rate.⁶ Improving access to food sources while protecting each nations’ rights would ensure future sustainability while adequately addressing food security concerns for all. 

China prefers to use its large economy to pressure regional states to resolve territorial and resource disputes bilaterally. But with so many claimants in the South China Sea, it would be prudent for ASEAN to adopt a multilateral approach. The strategy would legitimize it as a credible regional organization and increase interoperability among its militaries and law enforcement agencies. Success would demonstrate that a unified ASEAN is more effective when it negotiates multilaterally.

China would benefit as well. It would increase its soft power influence across the region. Since the 1980s, Chinese leaders have advocated policies that emphasize shared fishery management, and China joined the ASEAN–China Free Trade Area agreement in 2002. Its participation in a multinational fisheries patrol would potentially open cooperation with its neighbors to address illegal, unreported, and unregulated fishing. Furthermore, signing on to the fishery effort would show tangible results from Chinese contributions to stabilizing and developing the region. In the short term, it would allow China to assuage neighbors and recharacterize its rise as benign and could exchange contested and costly attempts to dominate the South China Sea for assured diplomatic and economic gains.

The South China Sea has been as a major artery for international trade for centuries, connecting local economies with the rest of the globe. ASEAN nations and China each depend on the waterway, with nearly 70 percent of ASEAN national trade transiting the strategic sea lanes.⁷ China has worked to diversify its global trade delivery system, but it remains reliant on trade through the area. 

Building strategic trust among stakeholders on this one comparatively narrow issue could lead to future negotiations that enhance regional economic stability.⁸ The fishery could serve as a model for multinational management of other disputed natural resources. And such an arrangement fits nicely with the UNCLOS preference for cooperation over conflict or litigation and ASEAN’s preference for consensus. Developing the fishery patrol would enhance fishermen’s rights and food security without necessarily aggravating sensitive territorial disputes.

De-escalation Through Cooperation

Implementing this initiative would require coordination and cooperation among a network of military, diplomatic, and law enforcement agencies. The United States would assist in standing up the multinational patrol force by providing training and resources, similar to the Africa Maritime Law Enforcement Partnership (AMLEP) program with the U.S. Navy and Coast Guard. 

The United States does not have a direct stake in the fishery, but U.S. national strategic guidance emphasizes enhancing U.S. security cooperation through investment in partners and allies.⁹ Stabilizing the South China Sea and enhancing regional cooperation would be a worthwhile return on those investments. As with AMLEP, the Coast Guard would train regional law enforcement agencies on international fishery laws and provide technical assistance for visit, board, search, and seizure (VBSS) teams. The Navy could provide command-and-control resources—and could serve as a deterrent to illegal fishing and maritime militias.¹⁰ The Navy could also provide intelligence, surveillance, and reconnaissance (ISR) support. Collectively, enhancing training and integration among regional law enforcement agencies would increase interoperability and improve trust. 

The Fiscal Year 2016 National Defense Authorization Act created the Southeast Asia Maritime Security Initiative, which allocated $119 million for building partner readiness, reducing capability gaps, and building capacity.¹¹ Similar future allocations could use foreign military sales and financing programs to provide ISR assets, communication platforms, and other critical hardware for the fishery patrol, and surplus military equipment could be transferred to participants. For example, in May 2017, the United States transferred a former Coast Guard cutter to Vietnam.¹²

Partnerships between the Navy and members of the initiative would not require commitment of significant additional assets, since the Navy already has a substantial presence in the South China Sea and considerable experience working alongside multinational networks. In 2016, for example, the Philippines, Indonesia, and Malaysia established a trilateral cooperation mechanism to conduct joint maritime patrols of the Sulu Sea to interdict pirates and members of ISIS.¹³ The Navy supported those countries by teaching VBSS techniques and providing assets for information sharing.¹⁴

Mitigating Risks

A major advantage of building the multinational fishery initiative, in contrast with FONOPs, is that it would extend an invitation for the China Coast Guard to participate in the effort. Were China to decline, it would signal formal approval of the violent tactics used by the People’s Armed Forces Maritime Militia against fishing vessels from ASEAN nations.¹⁵ U.S. policymakers would need to develop policies to mitigate risk in the event China perceives that the initiative crosses a “red line.” 

The first approach would be to assuage China by showing that its participation is in its best interests. President Xi Jinping wishes to achieve the “China Dream”—the rejuvenation of the nation by 2049. To secure this objective, China must improve its image as a responsible, stable global leader. Rejecting the multinational effort could cause the international community to perceive China as an aggressor. The United States previously punished Chinese militarization of the South China Sea by withdrawing an invitation to participate in the 2018 Rim of the Pacific (RimPac) exercise. U.S. policymakers could encourage China’s membership in the fishery initiative as a precondition for participating in future RimPac or other bilateral/multilateral exercises. Both U.S. and Chinese leaders could claim victory by declaring that the world is more stable when the two strongest nations cooperate regarding shared interests. 

Should China decline to join, the United States and partners would need to generate international diplomatic pressure on China. The United States would call on China to adopt the 2014 Code of Unplanned Encounters at Sea to mitigate escalation between the multinational patrol and Chinese vessels. The overt U.S. and ASEAN messaging that promotes de-escalation thereby would frame any Chinese military or naval response as undeniably aggressive in nature, thus preserving the moral high ground. In this way, the deployment of U.S. and ASEAN military and law enforcement vessels in the South China Sea would affirm the U.S. image as a regional stabilizer. At the same time, the invitation to join the initiative would remain open, providing a standing diplomatic off-ramp for China.

U.S. policymakers also would need to develop strategies to allay partner concerns regarding likely Chinese economic coercion in response to participation in the multinational effort. In 2017, China pulled a number of coercive economic levers against South Korea over U.S. deployment of a Terminal High-Altitude Area Defense (THAAD) missile system. Collectively, the sanctions cost South Korea some $15.6 billion in lost revenue, and South Korean leaders eventually acquiesced, declaring the infamous “Three Nos”—no future THAAD deployments, no integration into a U.S. missile-defense network, and no membership in a military alliance with the United States and Japan.¹⁶ The United States should plan to mitigate the potential damage to future economic growth for partner nations highly dependent on Chinese investment. 

Together, the United States and Japan could blunt the impact of Chinese economic coercive strategies by offering ASEAN nations an alternative to Belt and Road Initiative (BRI) investments. In 2018, Congress passed the Better Utilization of Investment Leading to Development Act, which aims to fund more than $60 billion through the U.S. International Development Finance Corporation.¹⁷ Meanwhile, Japan announced its ambitious Infrastructure Export Strategy, which will invest more than $270 billion across ASEAN.¹⁸ This compares favorably to Chinese foreign investments in Southeast Asia, which are estimated at $155 billion.¹⁹ And unlike opaque Chinese contracts, U.S. and Japanese investments provide high levels of transparency and jobs for local workers. Coercive Chinese economic strategies have begun to hurt China’s standing in the international community as its patron-client model has caused a number of nations to rethink BRI funding.

Strength Through Cooperation

The South China Sea status quo allows China to erode the perceived effectiveness of the U.S. military and calls into question the durability of the international rules-based order regarding a free and open South China Sea. (See “The South China Sea Needs a ‘COIN’ Toss,” May 2019.) Today’s FONOPs fail to yield strategic gains and could even lead to an armed escalation scenario. By contrast, an internationally supported multinational fishery patrol would reduce tensions through increased cooperation and decreased confrontation. The initiative breaks out of the false dichotomy between aggression or the loss of influence. 

This multinational initiative does not directly address China’s alarming militarization of the South China Sea. Instead, the multinational approach sets a foundation for increased levels of coordination among ASEAN nations, the United States, and China. The initiative would serve as an important confidence-building measure that demonstrates military and law enforcement cooperation is achievable—and stabilizing. Success could lead to the eventual codification of a regionwide South China Sea Code of Conduct. A successful multinational fisheries patrol would serve as the foundation, by tackling small problems before addressing more complex issues.

The proper application of policies across the spectrum of diplomatic, military, and economic domains has the potential to reduce tensions and provide mutual benefits for all participants. The initiative does not cede China’s economic primacy in the region and would continue to make the United States the security partner of choice for ASEAN nations. Strong U.S. support for the ASEAN effort would signal to partners and competitors alike that the United States continues to have both the hard capabilities and the political will to defend the international rules-based order.