Maritime claims in the South China Sea and freedom of navigation operations

Abstract

Among the four categories of territorial-maritime claims existing in the South China Sea, only one of those categories of claims is challenged by Freedom of Navigation Operations (FONOPs): specifically, excessive maritime claims that have been enacted domestically by several of the claimant states, but that are inconsistent with international law. FONOPs are lawful as matter of international law and are legitimate as a policy option, because state action is important in preventing excessive maritime claims from becoming accepted. Yet some of the complicating factors in the South China Sea, such as a deliberate lack of clarity by some of the claimant States about some of their maritime claims, make it more difficult to conduct FONOPs in some portions of that body of water. Nonetheless, the United States and other like-minded States should conduct FONOPs and other presence operations in the South China Sea on a routine basis, in order to preserve the freedom of the seas that is guaranteed to all nations under international law.