Freedom of navigation exercises essential to preserve rights

The much-awaited freedom of navigation (FON) operation by the United States to defy excessive Chinese maritime claims in the South China Sea (SCS) was finally conducted on Tuesday, after months of hand-wringing by the American administration and predictions that China would respond firmly to any challenge to its purported sovereignty over disputed land features in the sea.

Contrary to these excessive concerns, the operation went off smoothly without incident. In fact, the People's Liberation Army Navy (PLAN) of China acted quite responsibly during the transit of the USS Lassen, during which the US destroyer sailed within 12 nautical miles of China's reclaimed artificial formation on Subi Reef, as well as within 12 nautical miles of reefs claimed by the Philippines and Vietnam. US defence officials confirmed that a PLAN destroyer and a frigate shadowed the Lassen, consistent with international law, during the transit.

Of course, Beijing engaged in a war of words following the transit, expressing its strong displeasure over the operation and warning that China would take "all necessary measures" to safeguard its national sovereignty and security interests.

China had previously cautioned Washington not to conduct operations in the vicinity of its claimed SCS features, calling on the US to "refrain from saying or doing anything provocative and act responsibly in maintaining regional peace and stability". Reminiscent of the Cuban missile crisis, two rival powers stood "eyeball to eyeball", Washington called Beijing's bluff, and China "blinked".

The USS Lassen (right) taking part in an exercise east of the Korean peninsula in March. China's navy acted responsibly when the USS Lassen sailed within 12 nautical miles of Subi Reef on Tuesday. PHOTO: EUROPEAN PRESSPHOTO AGENCY

Despite China's rhetoric following the transit, US officials stated that Beijing should expect more FON operations in the SCS in the future. While such a pronouncement is a welcome change to the current administration's heretofore hesitancy to conduct such operations, the US must be careful not to fall prey to the ancient Chinese proverb, "Talk doesn't make rice". US officials have repeatedly stated that US forces "will fly, sail and operate wherever international law permits" and "we will do that at the times and places of our choosing", including the SCS. It's time for the US to start cooking the rice.

As Senator John McCain correctly pointed out, FON "operations should not be sporadic spectacles to behold, but ordinary and consistent demonstrations" of America's commitment to preserve the freedom of the seas.

The most recent operation, however, fell well short of that standard and was poorly managed during the pre-and post-execution phases of the operation.

First, the US does not take a position on the sovereignty claims over the SCS islands. Establishing maritime zones is a function of sovereignty over land territory. Under international law, only a "state" may establish maritime zones. Therefore, if sovereignty over a feature is not established or recognised, which is the case in the SCS, any maritime zones claimed for that feature are null and void.

Until the sovereignty issue is resolved, no nation can claim maritime zones around the SCS features. By calling the operation an FON challenge, the United States tacitly acknowledged Chinese sovereignty over the disputed SCS features. The operation should simply have been called an exercise of high seas freedom of navigation.

Second, although a US State Department spokesman correctly indicated that no nation has to consult with another nation before exercising its navigational freedoms, statements that the USS Lassen would carry out an FON operation in the vicinity of Chinese-claimed reefs in the SCS were apparently leaked to the press prior to the operation. So, in effect, the United States gave China prior notice that it was going to challenge its excessive claims. The FON programme is premised on the basis that advance notification will not be given to the coastal state concerned.

Third, the State Department spokesman also stated correctly that the United States was exercising freedom of navigation in "international waters". However, US Department of Defence officials reportedly labelled the Lassen transit as "innocent passage", which can only take place in the territorial sea or archipelagic waters of another nation.

Artificial islands constructed on submerged features like Subi Reef are not entitled to a 12-nautical-mile territorial sea. Therefore, US ships and aircraft can legally conduct high seas freedom of navigation and overflight within 12 nautical miles of the man-made islet. By referring to the transit as "innocent passage", the United States once again tacitly acknowledged Chinese sovereignty over the feature and implicitly recognised Subi Reef to be an "island" entitled to a 12-nautical-mile territorial sea.

FON operations may have short-term costs in terms of diplomatic fallout, but they are a necessary measure to preserve enduring and non-negotiable rights at sea.

The US must, therefore, continue to maintain a continuous presence in the SCS to demonstrate its resolve, put an end to Chinese aggression against its neighbours, and preserve navigational rights and freedoms for all nations. But let's get it right the next time so that US Defence Secretary Ash Carter's words - "We will fly, sail and operate wherever international law permits" -are not in vain.

  • The writer is a Fellow of the Stockton Centre for the Study of International Law at the Naval War College and a Deputy General Counsel for the US Department of Defence. He previously served as Staff Judge Advocate, US Pacific Command, and Special Assistant to the Undersecretary of Defence for Policy.

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A version of this article appeared in the print edition of The Straits Times on October 30, 2015, with the headline Freedom of navigation exercises essential to preserve rights. Subscribe