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5 Nat'l Sec. L.J. 59 (2016-2017)
Legal Imperative? Deconstructing Acquiescence in Freedom of Navigation Operations

handle is hein.journals/nseclj5 and id is 67 raw text is: 59 [Vol. 5:1 LEGAL IMPERATIVE? DECONSTRUCTING ACQUIESCENCE IN FREEDOM OF NAVIGATION OPERATIONS Ryan Santicola* For over 30 years, the United States has conducted freedom of navigation operations (FONOPs) in protest of excessive maritime claims by states around the globe. As tensions surrounding the maritime disputes in the South China Sea have escalated, so too has attention on these previously subtle military operations. Yet, despite that attention, the legal rationale posited by the United States as to why FONOPs are necessary as a matter of international law has largely escaped critical examination. In exploring the international law of protest and the principle of acquiescence, this paper concludes that the argument in favor of FONOPs as a legal imperative is unpersuasive and that the United States would be well-served to uncouple these military operations from the international law of protest. INTRODUCTION ................................................................................. 60 I. THE U.S. FREEDOM OF NAVIGATION PROGRAM..................... 64 The author is a Lieutenant Commander in the U.S. Navy's Judge Advocate General's Corps. He holds a J.D. from Albany Law School and LL.M. degrees from both Columbia Law School and The George Washington University Law School. His current assignment is as the Staff Judge Advocate for Carrier Strike Group 15 and previous assignments include multiple operational and overseas postings, including in Japan, Cuba, Greece, and Iraq. The views expressed in this paper are the author's own and do not reflect the official positions of the U.S. government. The analysis presented here is based on academic research of publicly available sources. [Vol. 5:1 59

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