United States freedom of navigation operations
The United States maintains a deliberate and active programme of diplomatic and operational challenges to maritime claims which it determines to be excessive, whether in respect of the geographical extent of the claim or iii the functional restrictions applying within particular zones. Despite not being party to the 1982 Convention, the United States has declared that it will abide by its navigation regimes. While other states also assert navigational rights, it is only the United States that has a public, systematic programme for doing so. The introduction to the Department of Defense Report to Congress: Annual Freedom of Navigation Report: Fiscal Year 2018 states US actions for the preceding year. It describes the US approach succinctly as follows:
The United States demonstrates its resistance to excessive maritime claims through the U.S. Freedom of Navigation (FON) Program. Formally established in 1979, the program consists of a two-pronged, complementary strategy to support the global mobility of U.S. forces and the unimpeded traffic of lawful commerce. The Department of State leads the first prong by diplomatically protesting excessive maritime claims. The Department of Defense complements those efforts by conducting operational challenges against excessive maritime claims. DoD’s operational challenges are also known as ‘FON assertions’, ‘FON operations’, and ‘FONOPs’. Then- comprehensive, regular, and routine execution supports the longstanding and global U.S. national interest in freedom of the seas.
This programme saw a deadly engagement between United States and Libyan forces in the Gulf of Sidra in 1986. The United States did not accept Libya’s historic bay claim to the Gulf with its extended bay closing line. It condrrcted large-scale exercises in the Gulf with three aircraft carriers and numerous other warships. Libya engaged the US forces with fighter aircraft, land-based missiles and missile corvettes. This led to the loss of two Libyan corvettes and damage to three others, together with unknown losses in the shore batteries. This illustrates the potential significance of the US ‘FONOPs’ programme. It is this approach which also often leads to the actions of China. Russia or Iran to impede or harass foreign warships, perhaps as a deliberate response to US FONOPs in order to provoke an excessive US reaction.
It is important to note that in recent years there have been other, lesser-known, incidents between the UK and Spain,49 Vietnam and Indonesia?0 Greece and Turkey,51 and also between Japan and South Korea,52 and most likely other nations as well. Whilst the risk of escalation into military conflict in these cases would appear to be much lower, the conclusions of this book should be equally applicable.
Freedom of navigation is always a salient issue in the law of the sea. The use of force is always a salient issue in international law. Both issues are widely discussed, even if not often together. Some books have touched upon these issues but not fully?3 The lawfulness of using force to prevent the navigation of warships, or to assert that navigation, is actually not so clear. While much depends on the maritime zone in which any interception takes place, much also depends on whether the navigation is in fact ‘a threat or use of force against the territorial integrity or political independence of
- 49 Aakriti Bachhawat, Rebecca Moore, Ain Kok and Georgia Grice, ‘The Five-Domains Update’ The Strategist (online), 11 December 201S www.aspistrategist.org.au/the-five-domains-update-43/?utm_med
- 50 Greta Nabbs-Keller, ‘Indonesia - Vietnam Maritime Clash a Sign of Rising Indo-Pacific Tensions’ The Strategist (online), 14 May 2019 www.aspistrategist.org.au/indonesia-vietnam-mantime-clash-a-sign-of-rising-indo-pacific-tensions/
- 51 ‘Greek and Turkish Warships Collide in Mediterranean “Accident,” Defense Official Says’ Haaretz (online), 14 August 2020 wwwhaaretz.com/world-news/europe/greek-and-tufkish-warships-collide-in-mediterranean-accident-1.9072623
- 52 Tetsushi Kajnnoto and Hyonhee Shin, ‘Japan Accuses South Korea of “Extremely Dangerous” Radar Lock on Plane’ Reuters (onlme), 21 December 201S https://uk.reuters.com/ article/uk-japan-defence-southkoreajapan-accuses-south-korea-of-extremely-dangerous-radar-lock-on-plane-idUKKCNl OKI 1T
- 53 David Froman’s article ‘Uncharted Waters: Non-innocent Passage of Warships in the Territorial Sea’ (1984) 21 San Diego Law Review 625-689 was on point; as was Dale Stephens, ‘The Impact of the 1982 Law of the Sea Convention on the Conduct of Peacetime Naval/ Military Operations’ (1999) 29 California Western International Law Journal 283 in Donald Rothwell (ed), Law of the Sea (A Research Collection) (Elgar, 2013), 705; Kraska and Pedrozo incorporate consideration of the use of force into a broader discussion of freedom of navigation in chapters 8,9 and 10 of International Maritime Security Law, n 10; Natalie Klein addresses it in chapters 2 and 6 of Maritime Security and the Law of the Sea (Oxford University Press, 2011); James Kraska does so to a lesser extent in chapters 3 and 5 of Maritime Power and the Law of the Sea (Oxford University Press, 2011); DP. O’Connell addressed these issues to some extent in The Influence of Law on Sea Power, see previous discussion, and The International Law of the Sea (Clarendon Press, 1982), referenced in Chapters 1 and 4 of this book any State’. While the question of whether a threat should invoke a right to forceful self-defence is always highly contextual, there must be, and are, some rules which guide these decisions. They have not received much consideration for a long while, really since the Cold War. The law on the use of force, the jus ad bellum, also does not provide neat answers for every incident at sea. Similarly, the successive law of the sea conventions have avoided questions of the use of force between sovereign immune vessels. The law of aimed conflict, the jus in bello, also has much uncertainty over its threshold of application. This is significant because, once it does apply, it is dramatically more permissive for the use of force than the jus ad bellum. The increasing prominence of these issues invites a fresh consideration of the law on these questions.
The aim of this book is to distil rales identifiable from cases and state practice applicable to incidents at sea involving warships. Warships are defined in the same way as in the 1982 Convention, but the discussion will include other sovereign immune vessels with related functions such as naval auxiliaries and coastguard ships. Where these rales are unclear, it will argue for such rales as may be realistic. It will refer to existing statements of rales, such as in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. In doing so, it is important to acknowledge that the best rales cannot prevent the use of force at sea where states are aggressive and disregard the rales, commanders are mistaken, or people are simply frightened and make fateful decisions in the heat of the moment.
-  Statement on United States Oceans Policy, 10 March 1983, www.jag.navy.mil/organization/ documents. Reagan%200cean%20Policy%20Statement.pdf 2 James Gerstenzang, ‘U.S. Nary Ends Maneuvers in Gulf of Sidra’ Los Angeles Times, 28 March 1986 www.latimes.com/archives/la-xpm-1986-03-28-mn-624-stoiy.html; Kraska and Pedrozo, n 10, at 247-252 3 Ibid.
-  art 301, and see also arts 19 and 39, of the 1982 Convention and see also art 2(4) of the United Nations Charter 2 Ibid. 3 Louise Doswald-Beck (ed), (Cambridge University Press, 1995) ('San Remo Manual') 4 The Corfu Channel Case (Merits), (United Kingdom v Albania) International Court of Justice, 9 April 1949 5 Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicaragua v United States) International Court of Justice, 27 June 1986