I don't remember ever concluding this conversation partly because Jeff in a way truncated it.
I will attempt to deconstruct your position as groundless from the standpoint of legal, logical and philosophical. Your underlying premise is an attempt to decouple the meaning of FON into "civilian" and "military" in that they are effectively separate entities rather than one.
FON in its most basic meaning is just that "freedom of navigation" i.e. freedom to navigate unhindered because implicit in that freedom is the notion that the high seas is a global commons. In other words it is an intrinsic right that belongs to all humanity. The moment that right is impeded in any form the notion of freedom is circumvented. That is the philosophical foundation behind the argument of FON. Once you place a restriction on a vessel it is no longer fulfilling the meaning of freedom as it is then restricted. Having said that, there is also a tension and recognition pertaining to the intrinsic rights and sovereignty of coastal nations. Within UNCLOS, the agreement that we have today reflects a grand bargain by extending the territorial seas from 3 nm to 12 nm; the creation of the 200 nm EEZ; and the high seas. The terms of navigation allowed in these different zones do not have the primary distinction between "civilian" and "military" FON. China's position is outside accepted convention both with customary international law and UNCLOS provisions. Also In international law, the norm is that what is not prohibited is allowed. This is also the reason why innocent passage was specifically defined to cater for a narrower state of passage. Even so, the distinctive feature is defined by a set of actions rather than the nature of the vessel i.e. civilian vs. military. The legal framework and the meaning within this structure do not support China's position either in meaning or in intend. Finally I conclude with the logical meaning of FON by simple application governing FON. FON is not a permanent state and from time to time that state must be protected. For example, the seas off Somalia frequently are subject to piracy and the notion of FON can only be guaranteed by military means. The moment you remove the military angle you automatically removes the notion of FON because of the normative cause and effect that is often in play. As to the point that China has not impeded civilian FON, I don't believe that is factually supported by facts on the ground say in the Scarborough Shoal.
Okay, one minor point of contention is the issue of China's position being outside the norm. A number of other nations do also hold certain restrictions similar to what China has regarding territorial waters, but a large number of nations also hold the position of the US and like other developed nations. This is a minor issue but here I'd just like to point out that while China might be in the slight minority, it isn't exactly alone in holding such a position. Whether it is outside "accepted convention" implies that there is an "accepted convention" which I think some of the nations which hold contrary opinions would protest to.
The larger issue is that of civilian vs military FON.
Now, I'm not sure exactly what your underlying premises are (to be honest the bulk of your writing makes it difficult to string out individual premises), but it seems that your conclusion is simply that it is logically, philosophically and legally incongruent to divide FON into "civilian" vs "military" in a practical or legal sense.
However, that is not actually the discussion I was having in my previous post, though I can understand how it may be easy to mix the two up given I wasn't being very precise.
I was talking about FON in the context of the SCS FON narrative, which has been portrayed as one where the FON of civilian shipping is under threat and which must be protected. This isn't a question about law or philosophy on any sort of large or global scale, it is about relating specific actions to the SCS FON narrative.
The reason why I believe it is necessary to consider civilian FON vs military FON in this specific context to begin with, is because the narrative has been portrayed in a way where it seems like civilian FON has been emphasized as under threat due to either past actions by certain nations or suspicions that certain nations might seek to obstruct it, but where there is actually a lack of evidence to suggest it. Thus I believe it is a significant misportrayal of actual past events as well as the intentions and perceived threats and interests of the various actors involved.
If the narrative had been portrayed in a more wide manner and spoken by media and govt and military officials in a broader sense to acknowledge the lack of past evidence regarding civilian navigation as being under threat, and acknowledged the fact that past navigation obstructions were in relation to military ships or aircraft -- putting it another way, if the narrative was clear that the reason FON emerged as an issue was because of past incidents involving military aircraft and vessels -- then I could agree that it would not be as necessary to differentiate between civilian vs military in the SCS context.
tldr: the reason I'm emphasizing the need to separate civilian and military FON in the context of the SCS is because of the narrative portrayal by media, and military and govt officials as presenting civilian FON in the SCS as seemingly under threat with significant past indicators to believe so, when in reality the past indicators point virtually exclusively to military FON being obstructed only. Therefore, conflating both civilian and military FON in the context of SCS has the great potential to present a distorted picture of what is practically going on in the SCS
PS: I should add that all nations technically restrict FON to an extent if any nation ever seeks to regulate any sort of civilian shipping of any kind, especially if conflict occurs. The US itself has conducted blockades as well as boarding civilian ships on the basis of perceived security threats as part of direct conflicts or as part of peacetime operations. If China ever entered a conflict or if it experienced a threat to its security in the SCS it would no doubt seek to use its maritime power in such a manner as well, and I think we should acknowledge that such operations are not necessarily obstructing FON and would need to be viewed on a case by case basis.
