In November 2022 nuclear-capable 

bombers from the People’s Republic of 

China (PRC) and Russian Federation 

flew a combined patrol over the Sea of 

Japan and East China Sea. Weeks later 

PRC and Russian naval forces took part 

in a weeklong naval exercise designed to 

“further deepen strategic partnership”, 

according to a statement by the PRC’s Eastern Theater Command. 

These events reflect growing military ties 

between the PRC and Russia, in contrast 

to assurances made by the PRC to 

Ukraine, particularly: 

 Upon Ukraine’s nuclear disarmament in 1994, 

the PRC recognized Ukraine’s sovereignty, 

independence, and territorial integrity in a 

statement to the United Nations (UN) General 

Assembly; urged all nations to never threaten 

nuclear aggression against Ukraine; and stated 

“disputes and differences should be settled 

peacefully through consultations on an equal 

footing.” 

 In 2001 the PRC and Ukraine signed a Joint 

Statement in which the PRC noted its respect 

for Ukraine’s “independence, sovereignty and 

territorial integrity” and “reiterated its 

commitment of guaranteeing nuclear safety” to Ukraine. 

 In 2013, the PRC and Ukraine entered into a 

Treaty of Friendship signed by Xi Jinping 

in which the PRC agreed to “immediately 

begin discussions to develop countermeasures” against any threat to Ukraine’s territorial integrity. A statement accompanying 

the Treaty “pledge[d] unconditionally to 

not use or threaten to use nuclear weapons” against Ukraine and to provide 

Ukraine with “corresponding security 

guarantees” if faced with a nuclear threat.

The PRC reportedly opposes the threat 

or use of nuclear weapons in Ukraine, 

but continues to operate with Russian 

strategic bombers, despite its guarantee 

of nuclear safety to Ukraine and in the 

face of Russia’s nuclear threats.

Additionally, despite the PRC’s recognition of Ukraine’s independence, sovereignty and territorial integrity, and espousal of a “UN-centered international 

system”, it chose to abstain from backing UN action against Russia’s UN 

Charter violations in Ukraine, in favor 

of “deepen[ing] strategic partnership”. 

The PRC-Ukraine Treaty of Friendship 

is subject to the Vienna Convention on 

the Law of Treaties, which binds states 

to act “in good faith” and “refrain from 

acts which would defeat the object and 

purpose of a treaty.” Members of the 

international community should take 

note of the PRC’s security guarantees 

and treaty obligations to Ukraine in considering reliance on similar assurances. 

Chinese and Russian naval fleets conducting joint drills on 

23 Oct 2021 in the East China Sea - CNN, 19 Dec 22

PRC’s Commitments to Ukraine Under Scrutiny

I N S I D E T H I S 

I S S U E :

Tri-lateral 

Legal Talks

2

ROROs risk to 

Civilians

2

Unsafe Air 

Intercepts

3

CARAT 22 in 

Indonesia

4

Vietnam: SCS 

conference

4

DIILS in Palau 5

Partnership 

with COFA

5

FONOPS 6

USINDOPACOM Office of the Staff Judge Advocate 

Legal Vigilance Dispatch

Promoting the Rule of Law to Ensure a Free and Open Indo-Pacific

I S S U E 2 , W I N T E R J A N U A R Y 2 0 2 3

S P E C I A L 

P O I N T S O F 

I N T E R E S T :

 PRC’s commitment to 

honoring Ukraine 

sovereignty on shaky 

ground

 Australia, Japan and 

U.S. legal advisors 

conduct talks reaffirming Free and Open 

Indo-Pacific

 PRC’s ROROs and 

unsafe intercepts a 

cause for concern

 Cooperation between 

US and COFA states 

on the rise 

 FONOPS peacefully 

reinforce Rule of Law 
P A G E 2

Collaborating on a trilateral statement reflecting 

shared legal understandings 

and a commitment to a Free 

and Open Indo-Pacific 

Use of Roll-On Roll-Off Ferries by the PLA Risk Harm to Civilians

Tri-lateral Legal Talks Advance Free and Open Indo-Pacific

From Dec 14-16, 2022, the 

INDOPACOM Office of 

the Staff Judge Advocate 

hosted tri-lateral talks with 

senior legal advisors from 

the Japan Joint Staff and 

Australia Joint Operations 

Command. 

The legal teams exchanged 

views, identified areas for 

collaboration, and built 

legal products on matters 

of mutual concern.

Discussion focused on developments in national defense 

policy, expanding tri-lateral 

cooperation, and collective 

efforts to counter gray-zone 

activities.

The talks culminated in a trilateral commitment to 

continued legal collaboration, 

interoperability, development of bi/multi-lateral information papers on topics 

relating to a Free and Open 

Indo-Pacific, and a collective 

focus on legal vigilance.

Follow-on engagements are 

planned in spring 2023, 

which will include additional 

allies and partners. 

The People’s Liberation Army’s (PLA) use of commercial roll-on roll-off (RORO) ferries may increase the risk of harm to civilians by blurring the principle of distinction 

under the law of armed conflict (LOAC). The LOAC requires parties to a conflict distinguish combatants from civilians and military objectives from civilian objects. Increasingly over the last two years, the PLA has blurred the line between civilian and 

military objects by employing commercial ROROs as a frontline maritime force responsible for over-the-beach insertion of troops and equipment, according to the 2022 

report by US DoD Military Security Developments involving the PRC. 

Since 2012, the PLA has established support ship fleets in major state-owned shipping 

companies, including companies that operate ferries used primarily to transport 

civilians. The first publicized evidence of RORO usage in PLA operations came in 

2019 when the 15,000-ton ferry, Bang Chui Dao, was incorporated into a PLA 

amphibious assault exercise. Despite the central role of commercial ROROs in the 

PLA’s amphibious force, the PLA has taken no measures to ensure that ROROs can be 

visually distinguished from civilian ferries, such as by applying a gray paint scheme 

or affixing markings consistent with state practice for military vessels.

The PLA’s intentional mixing of civilian/military objects, under the veil of domestic 

legitimacy created by the PRC’s domestic law and regulations, sets a dangerous pretext for the use of civilian vessels to fulfill belligerent functions in armed conflict. This 

increases the risk of harm to legitimate civilian vessels and crews in future conflicts.

Commercial ferries offloading 

tanks and participating in 

PLA amphibious exercises.

Senior military lawyers from AUS, 

JPN, and U.S. meet in Hawaii for 

Dec 22 talks 

CIMSEC, 9 Sep 21

USNI News, 26 Jul 21

News.com.au, 2 Oct 22

USINDOPACOM Office of the Staff Judge Advocate 
P A G E 3

On Dec 21, 2022, a People’s Liberation Army - Navy (PLAN) J-11 

fighter conducted a dangerous intercept of a U.S Air Force RC-135 

operating lawfully in international 

airspace over the South China Sea. 

The video released by the U.S. government shows the close proximity 

(20 feet) of the two aircraft as the J11 cuts toward the nose of the RC135, causing the larger and slower 

RC-135 to take evasive action to 

avoid collision. 

A statement from USINDOPACOM characterized the PLAN pilot’s maneuver as “unsafe,” and said that all 

countries are expected to use international airspace safely “in accordance with international law.” The “due 

regard” principle is paramount to safe operations under international law, particularly during close intercepts when pilots have reduced maneuver space and limited time to respond to unforeseen situations. 

The “due regard” principle is derived from customary international law and international treaties, 

including Article 58 of the U.N. Convention on the Law of the Sea (UNCLOS). It serves as a lodestar for 

state-to-state interaction in the skies, requiring states to respect each other’s lawful exercise of rights and 

freedoms in international airspace (see Justice Liang’s discussion of the freedom of navigation and the 

exercise of “due regard” here).

Article 3 of the Chicago Convention on International Civil Aviation and implementing advice from the 

International Civil Aviation Organization (ICAO) informs the international community’s understanding 

and application of the “due regard” principle. Of note, ICAO advises that “military aircraft... avoid flying 

in such proximity to the intercepted aircraft that a collision hazard may be created and the need to avoid 

crossing the aircraft’s flight path[.]” 

By forcing evasive action at close range, the PLAN pilot failed to exercise “due regard” as required by international law. This interaction reflects a pattern of conduct by the PLA, exemplified by recent dangerous 

intercepts by the PLA of Canadian and Australian military aircraft operating lawfully over the South China 

Sea. Despite the international community’s rejection of the PRC’s sweeping and excessive claims in the 

South China Sea (Arbitration ruling here), the PRC’s claims to sovereignty in international airspace over 

the South China Sea seem to be precipitating the uptick in dangerous intercepts. It is nevertheless incumbent on all nations to continue to fly, sail and operate at sea and in international airspace with due regard 

for the safety of all vessels and aircraft under international law. 

Unsafe Intercept of U.S. Aircraft over South China Sea

Screenshot from USINDOPACOM released intercept video

USINDOPACOM Office of the Staff Judge Advocate 
P A G E 4

U.S. and Indonesian JAGs 

participating in CARAT 

December 2022.

Vietnam Hosts South China Sea Conference in Da Nang

Cooperation Afloat Readiness and Training Report (CARAT 2022):

Indonesia and U.S. Judge Advocates Strengthen Legal Partnerships

Legal advisors from 13th Marine Expeditionary Unit and CTF 73 participated in 

an exchange with legal officers from the 

Indonesian National Military-Naval 

Force (TNI-AL) in Dec 22, at Surabaya,

Indonesia. The TNI-AL JAG Corps number 200 legal professionals and advise a 

combined Navy and Marine force of 

over 100,000 personnel. Topics included 

the Law of Armed Conflict, rules of engagement (ROE) development, and Law 

of the Sea (specifically freedom of navigation and military activities in the Exclusive Economic Zone).

The newly published Newport ROE 

Handbook was used for ROE training 

focused on how to advise commanders.

CARAT exercises build professional 

relationships and consensus on international maritime legal issues with 

partners across Southeast Asia 

including Indonesia. The overarching 

theme of the exchange focused on high 

seas freedoms, collective obligations to 

enforce the rule of law at sea, and cooperative legal integration as critical to a 

rules-based international order and 

ensuring a free and open Indo-Pacific.

On 16-17 Nov 22, the Diplomatic 

Academy of Vietnam hosted the 14th

South China Sea Conference in Da 

Nang. The conference included an 

array of presenters/panelists and 

topics, including a focus on the rules 

based maritime order.

During opening remarks, Vietnam’s 

Deputy Minister of Foreign Affairs set 

the tone by emphasizing that 

Vietnam’s policy on the South China 

Sea is to always to respect and 

implement international law and to 

resolve disputes peacefully (rather than 

by force or coercion).

Representatives from U.S. Indo-Pacific 

Command attended as both a panelist 

and observers. The U.S. and Vietnam 

are trusted partners with a friendship 

grounded in mutual respect. By 

including a focus on upholding the 

rules-based maritime order and 

peaceful dispute resolution, the

conference exemplified shared regional 

interest in maintaining peace and 

stability. 

USINDOPACOM Office of the Staff Judge Advocate 
P A G E 5

In partnership with the Defense Institute of International Legal Studies (DIILS), U.S. 

Indo-Pacific Command supported a legal Institutional Capacity Building (ICB) and 

Human Rights (HR) engagement in Palau from 19-23 Sep 22, which included training 

on rules for the use of force, maritime security and law enforcement. 

Palauan attorneys, customs and border agents, security personnel, and law enforcement officials participated in a series of group discussions to understand, improve, 

and build their maritime legal frameworks. ICB topics ranged from maritime threat 

assessment and resolution to interagency cooperation, bi-lateral agreements, and international partnerships. Presentations occurred in an interactive classroom with lessons covering topics such as the right against torture, international fisheries law, and 

boarding and search procedures.

ICB/HR engagements help establish legal frameworks, improve processes for allies 

and partners, and deepen the professional experience of U.S. participants. The engagement exemplified the shared commitment of the U.S. and Palau to preserving the 

rules-based international order as well as peace and prosperity in the Indo-Pacific.

U.S. and Palau attorneys discuss 

maritime legal frameworks and the 

rule of law

U.S. Judge Advocates Build Legal Partnerships in Palau

INDOPACOM Helps Reaffirm Partnerships with Compact of Free Association (COFA) States 

INDOPACOM OSJA participated in recent national 

level meetings with the COFA States (Republic of 

Palau, Republic of the Marshall Islands, and 

Federated States of Micronesia), reaffirming close 

ties. Under the COFA, the U.S. provides economic 

development assistance to these countries.

Bilateral engagements with each of the COFA states 

reflect shared values and common support and 

commitment by the parties to a free and open IndoPacific underpinned by the rules based international order.

The engagements also provided an opportunity to 

reinforce longstanding friendships between the nations. The unwavering commitment to each other 

demonstrates how countries committed to transparency and accountability can shape a stable and 

prosperous Indo-Pacific region.

Delegates from 

the U.S. and 

Republic of 

Palau

Delegates from the U.S. 

and Federated States of 

Micronesia

Delegates from 

the U.S. and 

Republic of 

Marshall Islands 

States of 

Micronesia

USINDOPACOM Office of the Staff Judge Advocate 
By challenging excessive maritime claims, FONOPs help preserve the rights, freedoms, and uses of the sea guaranteed to all nations under international law. FONOPs also advance a free and open Indo-Pacific by supporting the free flow of 

goods and people, and by upholding global mobility of forces that could be used in 

peacetime for humanitarian assistance and disaster response, or in crisis to deter or 

defend against threats to peace. Nations across the globe, large and small, share in 

the benefits of freedom of navigation. 

In their execution, U.S. FONOPs are conducted in accordance with international law 

and are not directed against any particular country. They are peaceful exercises of 

navigational rights focused on specific excessive maritime claims and restrictions to 

navigation. The U.S. conducts FONOPs against a wide array of maritime claims, including claims of competitors, potential adversaries, allies, partners, and others. FONOPs are just one component of the broader U.S. freedom of navigation program, 

which also includes diplomacy (e.g., bilateral and multilateral consultations) to address excessive maritime claims.

The U.S. maintains transparency in its freedom of navigation program, including its origins, purpose, and other 

details. The U.S. also publishes extensive analyses of excessive maritime claims in the U.S. Navy’s Maritime 

Claims Reference Manual and U.S. State Department’s 

Limits in the Sea series, in addition to annual freedom of 

navigation reports. This transparency and detail exemplifies a commitment to legal vigilance. 

While FONOPS are not directed against any particular country, Secretary Blinken 

observed that “[n]owhere is the rules-based maritime order under greater threat 

than in the South China Sea. The PRC continues to coerce and intimidate Southeast 

Asian coastal states, threatening freedom of navigation in this critical global 

throughway.”

Freedom of Navigation Operations (FONOPS): Legal Vigilance in Execution

P A G E 6

USINDOPACOM Office of the Staff Judge Advocate 
Joint Operational Law Team

Office of the Staff Judge Advocate

Camp H.M. Smith

Hawaii, United States

Phone: (808) 477-6378

Email: j06.pacom@pacom.mil

What is Legal Vigilance?

Legal vigilance refers to the monitoring and assessment 

of the legal environment. Maintaining legal vigilance 

ensures the United States Indo-Pacific Command 

(USINDOPACOM) and its Allies and partners are able 

to identify threats (including “legal warfare” by the 

People’s Republic of China), integrate across the combined joint force, and implement action to uphold the 

rule of law. 

The Legal Vigilance Dispatch is an informal, noncomprehensive survey of open-source information on 

the legal environment. Unless otherwise noted, content 

is produced by the USINDOPACOM Office of the Staff 

Judge Advocate (OSJA) and does not necessarily reflect 

official positions of the U.S. government.

In addition to identifying threats in the legal environment, the Legal Vigilance Dispatch highlights cooperative efforts by the United States and its allies and partners to uphold the rule of law. USINDOPACOM OSJA 

is committed to building legal partnerships and working with Allies and partners to preserve peace and stability in the Indo-Pacific. If you have comments, feedback, or vignettes to share, please contact us.

U.S. Indo-Pacific Command

Promoting the Rule of Law to Ensure 

a Free and Open Indo-Pacific

The threat to rules-based maritime order caused by extent of the PRC’s excessive maritime 

claims underscores the importance and utility of FONOPs, notwithstanding the PRC’s attempts to paint FONOPs as destabilizing or provocative. To the contrary, the PRC’s sweeping, expansive maritime claims, and attempts to enforce them, threaten others’ rights, freedoms, and uses of the sea.

FONOPs remain an important legal vigilance tool to uphold freedom of navigation guaranteed to all nations. Legal advisors across the Indo-Pacific preserve freedom of navigation 

through focused efforts to advance international law and counter misperceptions and 

flawed narratives. 

Arleigh Burke-class guided-missile 

destroyer USS Benfold (DDG65) 

conducting routine underway 

operations in Philippine Sea

—INDOPACOM 22.

USINDOPACOM Office of the Staff Judge Advocate