By Ankit Panda
November 23, 2015
The U.S. Navy may be gearing up for its second freedom of navigation operation in the South China Sea within 12 nautical miles of a Chinese artificial island. Bill Gertz, at the Washington Free Beacon, citing U.S. officials with knowledge of matter, reports that two U.S. Navy warships will sail within 12 nautical miles of Mischief Reef. The operation is expected to take place in “several weeks.” The U.S. Navy carried out its first freedom of navigation operation within 12 nautical miles of a Chinese artificial island on October 27, when an Arleigh Burke-class destroyer, the USS Lassen, sailed past Subi Reef.
The choice of Mischief Reef for a second freedom of navigation operation makes sense and should help the Obama administration assert that it does not recognize any territorial sea claim around these features in the Spratly Islands. As I wrote recently, the October 27 operation left matters ambiguous, causing considerable disagreement among many well-informed South China Sea experts about what precisely the United States asserted with its freedom of navigation operation there. The United Nations Convention on the Law of Sea (UNCLOS) determines the conditions under which certain features generated maritime entitlements, including 12 nautical mile territorial seas and 200 nautical mile exclusive economic zones.
The United States’ policy is to take no position on the sovereignty of individual features in the South China Sea, but to categorically reject excessive maritime claims stemming from those features. Complicating matters further, China has, to date, refused to clearly state what it claims around its occupied features in the South China Sea. It has referred to the airspace and waters around its artificial islands as a “military alert zone,” a term that has no precise meaning in international law. (This is in addition to its already ambiguous nine-dashed line claim, which encompasses around 90 percent of the South China Sea.)
Of the seven features where China has been carrying out extensive land reclamation and construction activities, only Subi and Mischief Reefs were wholly submerged at high tide, giving them no entitlement to a territorial sea under UNCLOS. Additionally, under UNCLOS, artificial islands receive no special consideration and their legal entitlements are set by their pre-enhancement status; China’s artificial islands are entitled to a 500 meter safety zone, similar to what oil rigs in international waters would receive.
Mischief Reef, in particular, is also an interesting freedom of navigation operation target for other reasons. First, it is, by far, the largest and most developed of the seven features where China has been carrying out construction activities. China has reclaimed 5,580,000 square meters of land at Mischief Reef, according to the Center for Strategic and International Studies’ Asia Maritime Transparency Initiative. Mischief Reef has a natural lagoon, which suggests it may be repurposed into an important naval logistics facility for the Chinese People’s Liberation Army-Navy. Crucially, unlike Subi Reef, which has other South China Sea features within 12 nautical miles, no South China Sea features fall within 12 nautical miles of Mischief Reef.
This means that Mischief Reef is a prime candidate for a freedom of navigation operation where the United States Navy asserts high seas freedoms. After the dust settled on the October 27 freedom of navigation operation, it appeared that the USS Lassen complied with UNCLOS’ innocent passage requirements and merely asserted that the U.S. Navy wouldn’t comply with China’s advance notice requirement for innocent passage within 12 nautical mile (a requirement outside of the purview of UNCLOS). Near Mischief Reef, the U.S. Navy could sail warships with their fire control radars on, gathering intelligence and even deploy ship-based helicopters. These activities are explicitly in violation of innocent passage, but perfectly acceptable on the high seas.
The administration likely saw an operation near Mischief as too provocative for an initial freedom of navigation operation. But given China’s relatively restrained, albeit angry, response after the Lassen‘s transit near Subi, passage near Mischief makes sense. Tensions do remain high between the United States and China, but if Washington sees freedom of navigation as a core interest in the South China Sea, it needs to keep up a drumbeat of regular patrols in these waters.
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