By Nat South for the Saker Blog
A new tiny twist in U.S. naval activities, albeit one that raises some eyebrows happened last week due to its location. The latest in “freedom of navigation operation”, aka ‘FONOP’ carried out by the U.S. Navy took place in Peter the Great Bay (Zaliv Petra Velikogo), near to Vladivostok in the Far East of Russia. The fact that Washington cherrypicked the location might be at first sight, insignificant and also petty considering the context, but there’s more to this given the timing and ongoing pinprick but widely applied pressure applied to Russia on many fronts these days, (military, political, trade and diplomatic).
The legal background and historical details for the Peter the Great Bay incident has been explained in the article “Driving Russia further into China’s arms”, which lays out the legal issues and interpretations of baselines, internal, territorial and historic waters.
The bottom line is that naval vessels do have a right to navigate within other countries’ 12 nautical mile territorial limit, if it is under the rule of “innocent passage”, (see Article 19 of UNCLOS), by transiting in a “continuous and expeditious” manner that is not “prejudicial to the peace, good order or security of the coastal state”. There are specific activities that are not permitted including surveillance and flying shipborne aircraft.
Naval and air incursions have been going on for years and also back in the Soviet era, famously highlighted by the Black Sea ‘bumping’ incidents in 1986 and 1988, (also due to UNCLOS). The Black Sea remains one of the vital pressure points to this day, yet the Far East not so until December 2018, when the first post-Cold War FONOP in the area was carried out by the USS ‘McCampbell’.
The notion and implementation of FONOPs, started in 1979, are uniquely peculiar to the U.S. and symptomatic of Washington’s persistent mindset of “needing to poke their noses” where and when it suits them to prove all too often counterproductive point. Following the Peter the Great Bay incident, the U.S. Pacific Fleet stated that the “United States will never bow in intimidation or be coerced into accepting illegitimate maritime claims, such as those made by the Russian Federation.”
The concept of FONOPs also stands sharply at odds with Washington’s stance on UNCLOS, as the Senate has not ratified it. Nevertheless, it is worth pointing out that Washington has accepted UNCLOS as binding international law. Back in 2015, the chairman of the Joint Chiefs of Staff, Gen. Joe Dunford, stated: “We undermine our leverage by not signing up to the same rule book by which we are asking other countries to accept.” Except that the U.S. would be bound by all the articles of UNCLOS and not stay in a position of cherry-picking just a selection that suits its narrow set of interests. Quite telling, the reasons as to why the U.S. shouldn’t ratify UNCLOS, as laid out in this Heritage Foundation document, namely the threat of lawsuits and being made accountable and abide by the decisions of the International Seabed Authority. This excerpt from another article speaks volumes about the mindset at work: “The U.S. can best protect its rights by maintaining a strong U.S. Navy, not by acceding to the convention.”
Cynically, the very fact that the U.S. hasn’t ratified it, means that Washington interprets UNCLOS with its usual ‘exceptionalism’ outlook and takes it upon itself to be the world’s leading proponent of upholding “freedom of navigation”; this only goes one way and it is principally the U.S. Navy that applies this concept, usually in the form of a destroyer. Typically, the style of Washington is to send in cruise missile carrying “505 feet of American fighting steel” over differences of legal views over claims over sea areas and reiterate pedantic enforcement of “innocent passage” in selected localities. The U.S. Coast Guard has been involved in FONOPs too, but in a very restricted capacity and more recently (and unusually so) one in the South China Sea.
The rationale for FONOPs is based uniquely on Washington’s interpretation of “excessive claims” made by other states that it finds unacceptable, “to protest other states’ excessive maritime claims and encourage those states to harmonize their claims with U.S. interpretations of international law” (Odell 2019) as well as maintain customary international law. There are two aspects to note, a. “innocent passage” and “excessive maritime claims” regarding territorial waters, since there is a fine line between these two statements. I am not at this stage going to go into the specifics and gritty details of the issues of either customary international law or UNCLOS, other to say it is complex and invariably there are conflicting views over interpretation. The crux of the legal matter is that the U.S. maintains the belief that if challenges to customary international law are not carried out, then this over time ultimately legitimatise them by setting a negative precedent. If this multiplied over and over worldwide, this ultimately erodes U.S. supremacy, (for an insight in this – read the top paragraph of page 3 of this document). In short, it sounds really immature and pathetic to nit-pick over where the baseline for Zaliv Petra Velikogo, yet this precisely what Washington did last week, because do not doing so erodes their maritime rights.
There are several elements that underpin a FONOP, legal, diplomatic and ultimately the operational naval stage. Originally, ‘operational’ FONOPs were designed as the next step to supplement diplomatic efforts to challenge excessive claims or when these efforts have proven fruitless. An example of this, the USCG did a FONOP 35 years ago in the North Western Passage, much to the annoyance of Canada.
As Odell stated, “the United States does not conduct FONOPs vis-à-vis all excessive maritime claims everywhere in the world every year”. The pattern, tempo and nature of ‘operational’ FONOPs has principally focussed on those countries who happen not to agree with the “rules-based liberal international order”, a concept exclusively promoted by Washington to uphold its global primacy. While other countries who take umbrage at what they perceive as excessive claims, they go to the ITLOS to try to settle the matter, the U.S. sends in the navy. What does that say?
The mantra often trotted out on these occasions by the U.S. Navy is that it “operates in close coordination with allies and partners who share our commitment to uphold a free and open international order that promotes security and prosperity.” In other words, only security and prosperity that serves first and foremost U.S. interests, namely via a rolled out globalised Monroe Doctrine. The FONOP concept has morphed into something wider -” to uphold security and prosperity interests”, not quite the same category as “challenging excessive maritime claims” or conducting “innocent passage” transits.
It is interesting to see that there is barely lukewarm support for FONOPs from those “allies and partners”, despite Washington’s active encouragement. In fact, they are not on the same page in terms of carrying out U.S. style FONOPs, especially in the South China Sea. Since a few states have competing interests and claims as well as strong trade relations themselves in the region, as such they aren’t keen on jumping on that particular kind of boat so to speak, (South Korea and Japan for instance are a case in point). U.S. FONOPs have been frequently carried out in the South China Sea for over a decade. Quite tellingly, Chinese PLA(N) ships have themselves sailed through U.S. waters back in 2015 to and from the Bering Sea and Washington merely twitched back then.
So the much vaunted short lived unilateral acts conducted by the U.S. can also be flipped, as the saying goes, it takes two to tango, so there is little that the U.S. could do if the PLA(N) (again) or let’s say even the Russian Navy decides to apply Article 19 “innocent passage” transit off continental U.S, the Aleutian Islands, Puerto Rico or Hawaii.
Another important pressure point is the Arctic, specifically the Northern Sea Route (NSR). Last year, I outlined the situation and background to FONOPs in the Arctic, as a result of the French Navy’s BSAH ‘Rhône’ transit from Norway to Canada via the NSR. Of interest to note that the Rhône’s voyage was essentially a very low key FONOP in nature, but without resorting to either using a combat ship or making public statements to the effect. Furthermore, I mentioned at the time that U.S. has started to take incremental steps towards a fully-fledged FONOP in the Arctic region.
As I write this, the U.S. had indeed taken further steps this year to carry out limited operations in the Barents Sea. In May, 4 US Navy ships and a UK frigate went to the Barents Sea, the first time in the area since the 1980s. On this occasion the Northern Fleet was notified, however this was not the case in September. In total, the US Navy went to the Barents: Sea 3 times in 2020 alone (2). The latest reason? – “This Barents Sea mission marks a significant milestone, clearly demonstrating our dynamic ability to operate anywhere in the world,” said Cmdr. John D. John, Ross’ commanding officer.
The U.S. isn’t actually trying to preserve UNCLOS for all, but in reality, trying to reimpose and expand a US‐led regional status quo, whether in the Barents or the South China Sea. It can thus be considered that FONOPs are little more than a barely concealed tool for keeping and deploying the U.S. Navy Fleets globally to obscure far flung places in order to make their combat capability posturing and presence known. If the U.S. had wanted to prove a point strictly regarding the principle of freedom of navigation, it would have been more tactful to send non-combat ships instead like the French apparently did. To certain extent, this can be summed up by the words of the commandant of the USCG, Adm Schultz, who said. “I think in the Arctic right now, if we did something with the Navy, it’s more about just showing our ability to project capability up there.”
Certainly, the U.S. Navy has a knack in conducting FONOPs near to the Russian Navy Fleets’ homeports or significant Chinese military installations. The Peter the Great Bay incident is no exception, given Vladivostok and the nearby new mega shipyard, ‘Bolshoy Kamen’, which just happens to be carrying out nuclear submarine upgrades. Hence the tone set recently by Moscow in response to the incident may be an indicator: “Such muscle flexing is apparently meant to exacerbate the situation, which once again proves that at the current historical stage the United States is opting to use force methods to advocate own foreign policy interests.”
So foolishly, the U.S. rattles the FONOP cage once more, with lofty pronouncements made once more, and more bloviating about freedom and security. What does this actually achieve other than more pushbacks and toughening of stances from Russia in this instance?
FONOPs are not a constructive diplomatic tool or even add value since they trigger more tensions and are also a cost to the military, (paradoxically even the U.S. ‘rules-based partners’ such as Canada and Australia see it that way too). Although, the aim of FONOPs is to shape the U.S.’s desired strategic effects and improve partnerships, they ultimately fail to do this is any consistent or meaningful manner of asserting maritime rights. Instead, FONOPs are seen as a crude instrument of U.S. military primacy, designed to send an antagonistic signal of power projection.
- Odell, Rachel, How Strategic Norm-Shaping Undergirds America’s Command of the Commons (August 31, 2019). MIT Political Science Department Research Paper No. 2019-23,
- May: Arleigh Burke-class Aegis destroyers USS Donald Cook, Porter and Roosevelt + HMS Kent; September: USS Ross + HMS Sutherland + HNoMS Thor Heyerdahl. October: USS Ross again).