FONOPs to Preserve the Right of Innocent Passage? Despite Popular Misconception, that is Hardly Mission Impossible

The Diplomat, February 2016

6 Pages Posted: 4 Mar 2016

See all articles by Jonathan G. Odom

Jonathan G. Odom

Government of the United States of America - U.S. Navy Judge Advocate General's Corps

Date Written: February 25, 2016

Abstract

The U.S. Freedom of Navigation (FON) Program has received more attention in the past year than perhaps the Program’s preceding 35 years combined, due largely to ongoing developments in the South China Sea. Official summaries of the Program provided by the U.S. Departments of State and Defense are informative, but are not necessarily exhaustive in depth, due to a number of reasons. This informational lacuna has led to a series of commentaries by outside observers seeking to fill in factual gaps, make logical connections, extrapolate intentions, and forecast future events. But some of those commentaries have been less than fully accurate, warranting substantive correction by those having direct experience with the FON Program.

This article is another such effort to help inform the public discussion on a particular aspect of the Program as it pertains to the legal concept known as the right of innocent passage. In short, it is not an “operational impossibility” for a U.S. warship to conduct a freedom of navigation operation (FONOP) challenging an excessive maritime claim, and to exercise the right of innocent passage simultaneously. To the contrary, if depicted as a Venn diagram, FONOPs and innocent passage would be overlapping circles, not mutually exclusive ones. In fact, the United States has routinely conducted FONOPs to preserve the right of innocent passage for many years, consistent with applicable international law and longstanding U.S. FON Policy. Hence, there’s no need to whistle the theme song to “Mission Impossible.”

Keywords: International Law, Freedom of Navigation Operations, FONOP, Law of the Sea, Innocent Passage

Suggested Citation

Odom, Jonathan G., FONOPs to Preserve the Right of Innocent Passage? Despite Popular Misconception, that is Hardly Mission Impossible (February 25, 2016). The Diplomat, February 2016, Available at SSRN: https://ssrn.com/abstract=2741238

Jonathan G. Odom (Contact Author)

Government of the United States of America - U.S. Navy Judge Advocate General's Corps ( email )

United States

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