October 23, 2015

Freedom of Navigation Operations in the South China Sea: What to Watch For

By Dr. Mira Rapp-Hooper

It is widely expected that in the next several days, the United States will conduct a freedom of navigation exercise near China’s artificial islands in the South China Sea. The Obama Administration has been debating the use of freedom of navigation operations (FONOPS) in the Spratly Islands for several months, and a public debate on the matter has been ongoing since May. As one of us argued in Foreign Affairs last week, the history and record of the Freedom of Navigation program make it clear that these exercises should not be considered controversial or escalatory. This program has existed since 1979, is primarily a legal instrument, and conducts dozens of “navigational assertions” each year, many of them in Asia.

The relationship between the Navy’s imminent freedom of navigation operations and maritime law, however, is not entirely straightforward. Our aim here is to disentangle and explain the key legal and factual elements of a freedom of navigation operation. We begin by exploring three factors that complicate legal analysis of exercises near China’s artificial islands, and then move on to examine the three legal rationales under which these operations could take place.

This piece is intended as a user-friendly guide to help readers interpret the legal message the United States will be sending if and when a FONOP occurs in the Spratly Islands.

 Complicating Factor #1: Diverging Views on the Law of the Sea 

The first complicating factor is that the United States and China hold diverging views of the applicable law. Under the UN Convention on the Law of the Sea, or UNCLOS (which the United States has not ratified but accepts as confirming customary law governing navigation and overflight), a coastal state’s sovereignty extends 12 nautical miles into the ocean. This 12 nm zone is known as the “territorial sea.” A coastal state also receives an “Exclusive Economic Zone,” which extends 200 nautical miles from its coastline. Within its EEZ, a coastal state has the exclusive right to exploit mineral resources in the seabed, among other entitlements.

The United States and China hold different views of what “freedom of navigation” entails under UNCLOS, particularly where these two zones are concerned. According to the U.S. interpretation, all ships are allowed to pass through the 200 nm EEZ and 12 nm territorial sea of a coastal state without obtaining prior permission. This position holds that military vessels can conduct any activity in the EEZ, including military exercises and surveillance. It also maintains that military vessels can transit the territorial sea, as long as they do so consistent with the principle of “innocent passage,” which means that no overt military activities can take place. For passage to remain innocent, a warship must refrain from engaging in any military operations, surveillance, launching aircraft, or survey activities. For a submarine transit to qualify as innocent passage, the submarine must navigate on the surface and show its flag.

The Chinese, on the other hand, argue that military vessels cannot conduct exercises or surveillance in the EEZ—basically, that any transit within 200 nm must be consistent with innocent passage. They also hold that military ships need to request permission to enter a coastal state’s territorial sea, even if they do so consistent with innocent passage.

Most states accept the U.S. position, which is consistent with the text of UNCLOS. A few states, including some in the Pacific, share China’s views. Beijing’s position may be changing, however, as evinced by its recent innocent-passage transit through U.S. territorial waters in the Bering Sea.

 Complicating Factor #2: Determining the Maritime Entitlements of Reclaimed Features 

The second complicating factor is that different types of land features—reefs, rocks, and islands—are entitled to different maritime rights under UNCLOS.

Low-tide elevations. Under Article 13 of the Convention on the Law of the Sea, reefs or low-tide elevations (LTEs) are not entitled to a 12 nm territorial sea or a 200 nm EEZ. Vessels can pass as close to these features as safe navigation will allow. Artificial islands that have been built atop LTEs are therefore given no additional maritime entitlements, with the lone exception that the owner may declare a 500-meter safety zone for transit.

Rocks. Under Article 121, rocks—that is, features that are permanently above water (at least in part), but are not capable of sustaining human or economic life—are entitled to a territorial sea and airspace but no EEZ. The same holds true for an artificial island that has been built atop a rock.

Islands. Finally, full-fledged islands that can sustain human habitation and economic life are entitled to a territorial sea, airspace, and an EEZ, just like coastal states themselves.

Evaluating the maritime entitlements of Chinese-held features is complicated by the extensive land reclamation China has carried out on many of them. Because China has engaged in massive construction atop reefs and rocks, we cannot use any present-day visual evidence to determine which features were originally rocks or originally reefs. This, of course, determines the attendant rights that each feature should have under UNCLOS. Numerous scientific surveys exist, however, which can give U.S. policymakers and other states confidence in their evaluation of the legal status of Chinese-held features before Beijing transformed them into artificial islands. China has not clearly stated that it rejects UNCLOS’s taxonomy of maritime land features and their appurtenant legal rights. Its actions, however, suggest that it believes that its land reclamation projects afford these land features rights greater than those UNLCOS confers.

 Complicating Factor #3: Contesting Maritime Claims but not Sovereignty 

The U.S. Navy’s upcoming freedom of navigation operation will be an assertion of this taxonomy of maritime entitlements, black-letter principles clearly established by UNCLOS. It will not, however, be a statement on the underlying question of which neighboring state rightfully holds sovereignty over the land features the Navy transits. Washington has long taken a position of neutrality on South China Sea sovereignty disputes, meaning it does not weigh in on which country holds title to these land features. (The United States does, however, insist that these disputes be resolved using methods approved by international law.) Put simply, the upcoming operation should not be taken as a statement that the United States is contesting Chinese sovereignty claims, or privileging those of other claimants.

Finally, while the United States as a policy matter takes no position on the underlying sovereignty disputes, there is an argument that our decision not to recognize any claimant’s sovereignty itself diminishes the maritime rights that attach to these land features. James Kraska of the Naval War College explains that because the United States does not recognize any state’s claim, it could argue that these features are terra nullius not entitled to a “theoretical” territorial sea, even if they would ordinarily merit one.

 Putting it All Together: How To Interpret The Upcoming Freedom of Navigation Operations

At their core, freedom of navigation operations revolve around three questions: What legal position does the United States want to assert? What contrary assertion by a foreign power does it want to demonstratively reject? And what action does the U.S. Navy take to demonstrate the U.S. view of the law and reject the other state’s view?

We consider here three courses of action that the U.S. Navy might conceivably undertake in the anticipated freedom of navigation operations, describing what each would entail as a practical matter and what legal assertions each would imply. These are ordered from mildest to most assertive.   

 

  1. Innocent Passage Near a Rock, or an Artificial Island Built on One
     
    • What this would entail: Unannounced innocent passage within 12 nautical miles of a rock, or an artificial island built on a land feature that is strongly believed to have been a rock before China’s improvements—say, Johnson South Reef.
       
    • What message it would send: Under international law, military vessels may transit another country’s territorial sea unannounced, as long as they observe the requirements of innocent passage. This type of operation would reject China’s apparent view that innocent passage through the territorial sea requires the permission of the coastal state.
       
    • Analysis: Innocent passage transit would not signal what the United States hopes to communicate with this exercise. First, The United States has consistently maintained that there is no need to give prior notification of innocent passage, and China’s recent Bering Sea passage may signal that it has already accepted that military ships may conduct unannounced innocent passage within the territorial sea. Second, such an operation would not countermand China’s view that artificial islands built on low-tide elevations can acquire maritime rights over the surrounding seas—arguably the crux of the freedom of navigation dispute. Finally, because the original status of many of the Spratly features is debatable, an exercise of this nature may have the unintended consequence of enabling China to claim that innocent passage is required near artificial islands built on reefs.
       
  2. Normal Operations Near a Low-Tide Elevation
     
    • What this would entail: A U.S. Navy surface vessel sails within 12 nm of a low-tide elevation, or an artificial island built on a low-tide elevation, such as Mischief, Subi, or Gaven Reefs, while conducting normal operations. Vessels could conduct searches or military maneuvers, indicating that they are not engaging in innocent passage.
       
    • What message it would send: This operation would indicate that the United States does not recognize a territorial sea in the area of operations, but rather views the water as the high seas, and is exercising accordingly. This would send the signal that Chinese construction on low-tide elevations does not confer a territorial sea.
       
    • Analysis: This seems like the appropriate, and most likely, course of action. It clearly addresses the core legal disagreement between the parties: whether human improvements to a land feature increase the maritime rights that attach to it.
       
  3. Normal Operations Near a Rock or an Artificial Island Built on One
     
    • What this would entail: A U.S. Navy surface vessel sails within 12 nautical miles of a rock, or an artificial island built on a land feature that is known to have been a rock before China’s improvements—Johnson South Reef—while conducting normal operations.
       
    • What message it would send: Under UNCLOS, a rock affords its owner a 12 nm territorial sea. By taking actions inconsistent with a territorial sea (i.e., conducting normal operations within 12 nm), this operation would signal that the United States does not view the feature as conferring any maritime entitlements because ownership is disputed.
    • Analysis:  This is the most assertive option, as it conflicts with China’s claim of sovereignty over the land feature. It does so, however, without privileging any other claimant; rather, it expresses the view that no state has established sovereign title to the feature. That said, the distinction between not recognizing a territorial sea because the United States doesn’t recognize anyone’s claim, and not recognizing a territorial sea because the United States rejects China’s claim, is very fine, and may be difficult to communicate with military vessels. Perhaps more importantly, this course is potentially provocative, as China would likely feel pressure to bolster, by some concrete response, its claim to the land feature.

Of the three options presented here, we view the second option—normal operations near a low-tide elevation—as most consistent with U.S. foreign policy goals and the most likely to occur. This would be an assertion that the waters around Mischief, Subi, or Gaven Reefs, for example, remain high seas because reefs have no maritime entitlements and land reclamation cannot change that fact. This is the crux of the diplomatic conversation that has taken place between the U.S. and China in the last several months, and gets to the heart of many regional states’ international legal concerns.

 Lowering the Temperature

When these operations occur, there are a few things the United States can do to lower the temperature surrounding them. The Navy should, and presumably will, conduct similar operations around features controlled by other South China Sea claimants. It can also stagger transit such that it transits the features of other claimants both before and after it passes by those controlled by China. This would not be a departure from past practice; last year alone, the Navy conducted freedom of navigation operations to challenge excessive claims by Malaysia, the Philippines, and Vietnam. Doing so again would make plain that these operations are not uniquely targeted at China.

Second, the Pentagon should, and again presumably intends to, clearly explain the legal view underpinning whatever action it takes. This has two virtues: ensuring that the intended message is received, and clarifying that our operations do not imply a position on the underlying territorial disputes. This, in turn, will make it all the easier for other states in the region and around the world to register public support for U.S. operations.

 Conclusion

Ultimately, China is unlikely to change its view that a U.S. FONOP is a violation of its sovereignty. But these wildly differing interpretations of UNCLOS, and the fact that China has not been explicit about what maritime entitlements it is claiming based on its artificial islands, are precisely why the Navy is conducting a FONOP in the first place. Put simply, the Navy will be sending China a message about Washington’s, and much of the world’s, view of the law.  The guide, we hope, will help you interpret it. 

The authors thank Cdr. Jennifer S. Couture, USN, for sharing her expertise in naval operations and maritime law.

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