By Sean P. Henseler
November 05, 2015
Last week, after months of public debate, the U.S. Navy finally conducted a Freedom of Navigation Operation (FONOP) in the South China Sea (SCS) when the USS Lassen sailed within 12 nautical miles (nm) of Subi Reef, a low tide elevation located hundreds of miles from the Chinese mainland and one of seven massive land reclamation projects undertaken by China since late December 2013.
Ostensibly, the purpose of the FONOP was to visibly assert the U.S. government’s stated vital interest in ensuring freedom of navigation around the globe in accordance with international law. For months senior officials repeatedly stated that U.S. military forces would “fly, sail and operate wherever international law allows…and the South China Sea will not be an exception.”
However, according to multiple press reports, the USS Lassen was exercising its rights of “innocent passage”during the FONOP. If so, then the U.S. succeeded in further muddying the waters in the ongoing saga that surrounds China’s ambiguous claims in the SCS and may have unintentionally signaled that Subi Reef is an island deserving of territorial seas, national airspace, and 200 nm Exclusive Economic Zone (EEZ).
Innocent Passage or High Seas Freedoms?
In the immediate aftermath of the FONOP the “White House directed Department of Defense officials not to say anything publicly about the incident. No formal announcements or news releases alerting the media to the passage of the destroyer, [Lassen], were to go out, White House officials ordered…and if asked, officials were instructed not to speak on the record about the specific maneuver.”
While the U.S. government position in the days since the FONOP appears to be that the Lassen was simply exercising its rights in accordance with international law, multiple press accounts reported that the Lassen was exercising its right of “innocent passage” when it sailed within 12 nm of Subi Reef. Additional details about the Lassen’s transit became available Oct. 30 from a U.S. Navy source, who told Defense News that “the warship took steps to indicate it was making a lawful innocent passage with no warlike intent. The ship’s fire control radars were turned off and it flew no helicopters. Although a US Navy P-8 Poseidon maritime surveillance aircraft was in the area, it did not cross inside the 12 nautical mile limit.” According to a recent USNI News report, “the decision for Lassen to transit via innocent passage by Subi Reef was made by the White House from a menu of freedom of navigation missions presented by Pentagon and U.S. Pacific Command officials.”
If this account is true, it has tremendous significance and calls into question the wisdom and coherence of U.S. policy in the SCS. Per the U.N. Convention on the Law of the Sea (UNCLOS), only a rock or an island that is the sovereign territory of a nation is entitled to a 12 nm territorial sea and the national airspace above it. Ships traversing a nation’s territorial sea must operate in a legal regime known as innocent passage as defined by Articles 17-19 of the U.N. Convention on the Law of the Sea (UNCLOS). As such, implying that the Lassentraversed the area in innocent passage has the unintended consequence of suggesting that that land form at issue (here Subi Reef) is actually an island or rock entitled to a territorial sea and national airspace and perhaps even a 200 nm EEZ.
Prior to the land reclamation project, Subi Reef was actually nothing more than a low tide elevation (LTE); a feature that is above water only at low tide but submerged otherwise. Per UNCLOS, such features are not entitled to a territorial sea and possess no associated national airspace. Ships and aircraft are thus entitled to steam as close to, or even fly right over, a LTE while exercising their high seas freedoms. On the high seas, and in the international airspace above them, the only constraint is that ships and aircraft must operate with due regard for the safety of other ships and aircraft in the area.
The upshot of this brief analysis is that if the U.S. was serious about exercising all of its freedom of navigation rights under international law, as officials have suggested on multiple occasions in recent months, then it should have flown a helicopter off the decks of the Lassen or flown another aircraft within 12nm of Subi Reef to clearly indicate that the airspace was international airspace and that U.S. forces were operating in accordance with their high seas freedoms.
Instead, by not flying a helicopter or other aircraft inside 12 nm, by not clearly informing the world via strategic communications of the precise legal interpretation of the status of Subi Reef (island, rock, LTE, or artificial island?), by not allowing DoD officials to clarify the exact nature of the operation, and by not contradicting published reports that the Lassen’s transit was an exercise of innocent passage, the United States has joined China in making ambiguous statements about SCS issues that are left open to interpretation. This is a baffling result given that many observers were hopeful that a U.S. FONOP might actually persuade China to clarify its ambiguous position that it possesses “indisputable sovereignty over the islands in the South China Sea.”
If published reports are true that the U.S. will continue to conduct FONOPS in the SCS, policy makers need to think long and hard about the message they are trying to send to China and the world. Moving forward, any FONOP should exercise the full range of freedoms permissible under international law and White House officials would be well advised to clearly and unambiguously state the legal basis for U.S. actions undertaken to uphold a vital U.S. interest.
Professor Sean P. Henseler is the Director of Operations, Operational Level Programs, within the College of Operational and Strategic Leadership at the U.S. Naval War College in Newport, Rhode Island. A retired Navy Judge Advocate General, Prof. Henseler took part in FONOPS over the course of his 20-year naval career and frequently lectures on Law of the Sea issues. Professor Henseler’s opinions do not represent the U.S. Naval War College, the U.S. Navy, or the Department of Defense.
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