Home » Foreign Forces » Confusion Continues to Surround U.S. South China Sea Freedom of Navigation Operation

Confusion Continues to Surround U.S. South China Sea Freedom of Navigation Operation

USS Lassen (DDG-82). US Navy Photo

USS Lassen (DDG-82). US Navy Photo

Last week the United States sent a guided missile destroyer past a Chinese artificial island to challenge questionable claims in the South China Sea, but confusion still reigns from Washington, D.C., to the Western Pacific as to exactly what message was supposed to be transmitted.

USS Lassen (DDG-82) made about a 72 nautical mile loop around Chinese, Vietnamese and Filipino territorial holdings in the Spratly Islands as part of the longstanding U.S. freedom of navigation (FON) program, in conjunction with a nearby P-8A Poseidon maritime surveillance aircraft.

In a Thursday interview with the media on board the USS Theodore Roosevelt (CVN-71)—under way in the South China Sea—Lassen’s commander acknowledged the destroyer went within about six miles of the Chinese artificial island on Subi Reef.

“We went by Subi Reef, for sure,” Cmdr. Robert C. Francis Jr. told reporters.
Beyond limited comments, the White House has placed tight controls on both the Navy and the Pentagon on releasing details of the operation—the first South China Sea FON operation past the Chinese artificial islands since 2012—with information trickling out in leaks to trade and the popular press with no complete explanation of American intent.

Subi Reef Transit

Chinese Subi Reef facilities in April 2015. Digital Globe Photo via The Diplomat

Chinese Subi Reef facilities in April 2015. Digital Globe Photo via The Diplomat

Multiple sources confirmed to USNI News Lassen’s mission was to enter the 12 nautical mile bubble around Subi Reef without the prior notification the Chinese have asked for around their artificial islands in the South China Sea—testing the freedom of navigation rights in territories the United States views as an international common.

Subi Reef, in particular, was chosen as the Chinese installation since it was built on a low-tide elevation, which is not recognized by maritime law as a feature that can command a territorial sea, several sources told USNI News.

However, Lassen conducted the transit with the characteristics of an “innocent passage,” a defense official and others familiar with the operation told USNI News on Monday.

Under the rules of innocent passage, a warship can enter another country’s territorial waters unannounced as long as the ship does not undertake any military operations, such as activating fire control radars, running drills, launching helicopters or transmitting propaganda.

On Wednesday, Pentagon spokesman Capt. Jeff Davis told USNI News that Lassen did not conduct an innocent passage.

While technically true—as a low tide elevation at Subi Reef doesn’t have a territorial sea from a U.S. perspective and an innocent passage transit would not be applicable—a transit that looks like an innocent passage could arguably be used in a legal argument and the court of world opinion as an implicit recognition of Chinese sovereignty of Subi Reef.

One explanation given to USNI News was Lassen’s subtle passage in the Spratlys was not in deference to Subi Reef but instead to nearby longstanding holdings of Vietnam and the Philippines that do command a 12 nautical mile territorial sea.

If the explanation is accurate, the feature that required the innocent passage transit was likely Thitu Island, the second largest island in the Spratlys, which has been controlled by the Philippines since the 1970s and home to one of its naval stations. Nearby, Vietnam’s Sand Cay also has its own territorial boundary.

Depending on how a distance measurement is taken, Thitu Island—also called Pagasa—is about 12 to 15 nautical miles from the Chinese installation on Subi Reef.

International Confusion

Within the past week, the ambiguity surrounding the nature of the operation has raised questions in legal circles and internationally as to what the United States attempted to communicate through FON ops and how China could use the action in the future.

“If it transpires that last week’s U.S. Navy Spratlys mission is regarded officially as innocent passage then much of the legal impact will have been blunted for this and future [FON ops], which unnamed U.S. defense officials have said since are likely to be conducted ‘about twice’ per quarter,” read a post in the Interpreter, a blog from Australian’s Lowy Institute for International Policy.

A Thursday post with Lawfare said the lack of clarity is “a problem for U.S. foreign policy and for international law . . . if allowed to harden, the widespread belief that [Lassen] conducted innocent passage would be extremely damaging; indeed, it could make the operation worse than having done nothing at all.”

While the Chinese response to Lassen’s transit was forceful, watchers noted the language in the myriad statements condemning the operation was chosen carefully.
Lack of Clarity

Regardless of the Chinese interpretation, widespread conjecture and lack of clarity surrounding the mission is arguably antithetical to the root of FON ops.

The operations under the U.S. FON program, begun in the 1970s, are designed to “make crystal clear determination” of what national claim in opposition to international law a ship or aircraft is contesting, Gregory Poling of the Center for Strategic and International Studies told USNI News on Wednesday.

Poling maintained that the FON op was a necessary because of China’s persistence in enforcing claims that ran counter to international law.

“We did a freedom of navigation operation and that is important and needed,” he said.
“China has a bevy of restrictions that it is trying to place on the regular operation of ships and overflight [in the region].”

However, not explaining the operation publically is unhelpful, Poling said.

“Allowing this kind of confusion is counterproductive because now it is unclear exactly what we were contesting,” he said.

  • Curtis Conway

    The primary problem with this whole situation is there are too many ‘Sea Lawyers’ who have never been to ‘sea’, and do not understand the ‘Law of the Sea’, all that it entails, and represents, making decisions and giving orders, not understanding the inference and implication of those orders. ‘Law of the Sea’ is a specific thing in an operational environment and reality . . . and it AIN’T LIKE TRAFFIC COURT. The American People own the actions, and what they represent, and what they will provide/preserve down the road. Give anything up now, and you will expend blood later getting it back. Call the bluff. Need more Poker Players in the administration. Probably why they don’t like to go to Las Vegas . . . except to get the votes.

    For anyone who changed their mind about walking down a street because the gangs were out in force, and it wasn’t safe . . . understand FONOPS.

    For those who think that some human life is more special that others, or hint that illegal, unsanctioned, or otherwise blatant authority is declared and respected only because they say so . . . should not holds sway and should not be respected.

    China is a signatory of UNCLOS and should conduct their actions accordingly. They do not own the South China Sea because they say so. THAT is what international arbitration, is ‘In Accordance With’ the Law of the Sea.

    • FedUpWithWelfareStates

      “China is a signatory of UNCLOS and should conduct their actions accordingly. They do not own the South China Sea because they say so. THAT is what international arbitration, is ‘In Accordance With’ the Law of the Sea.”

      All true, but who appointed the U.S. as the world’s policeman? Nobody!

      What will cost us in blood, is getting involved with every other country’s problems, both internal & external, & promoting OUR military adventurism, all at a great cost to OUR country in terms of the lives of thousands of our children wasted for wars that we cannot win & the destruction of our economy.

      Let countries which are actual claimants to the SCS, of which the U.S. is NOT, conduct their FONOPS & deal with China their selves. It is NOT our responsibility to wipe the world’s butt…

      • Curtis Conway

        The day we do not rise to the challenge, you can write off this Maritime Nation’s economy. Captain Alfred Thayer Mahan’s lecturers in naval history applies. Of course if you prefer ‘politics by other means’ (war) that comes after the lack of Proactive Presence that prevents that eventuality, then . . . so be it. Your choice! One takes money and character, the other takes all that and some blood.

      • BOB!!

        No one appointed the U.S. to be the world’s policeman. But national rights under international law evaporate if other nations’ actions that violate them are ignored. Allowing China (or any other nation) to make unilateral declarations that are inconsistent with customary international law and treaties they’ve signed without challenging their declarations is almost a recognition of their claims (and if a claim is ignored for long enough, it acquires the strength of international law).

        The U.S. can either conduct FONOPS or send diplomatic messages. FONOPS shows the Chinese that the U.S. is willing to back up its rights with force, while even the most strongly worded diplomatic message is a piece of paper. If you were an American merchant mariner working on one of the numerous ships that transit the SCS every day, would you rather have your country protect your right to do your job with a letter or with a destroyer?

      • chen meicheng

        If you don’t act now, who do you think will preserve the freedom of navigation at the said sea? China? it’s not only the countries involved in disputes but also a US interest to secure the safety passage of their 1.2 trillion trade among claimants. If you let China freely do whatever they want, US might end up loosing its economy in the future. Invest your military strength to secure your future.

      • Ako Madamosiya 毛むくじゃら

        Since you’re tired of wiping our butts, why don’t you leave Japan all together? You are no longer welcome in Okinawa. What are you waiting for? Wakarimaska? That way we can nuclear arm ourselves properly and meet knuckleheads head on.

        • enviropal99

          We should kick out everyone that lives on Okinawa since we conquered that island. It should be ours now and be home to lots of Americans instead of Okinawans that fought for Japan in their attempt to conquer the Pacific.

          • Michael Nunez

            I like your reply, because it’s totally True . Okinawa was the staging base for the invasion of China , and the slaughter of a lot of People . Where did they pay ……for all the atrocities they commented. It is they who should leave Okinawa….. .

    • Don Bacon

      I’m confused, CC. First you indicate that there is no sea law and might makes right, with gangs out in force, and then you say China should obey UNCLOS and go to arbitration (which US would never do, BTW, even if it had ratified UNCLOS).

      • Curtis Conway

        Like I said . . . TOO Many Sea Lawyers!

  • Don Bacon

    “Hello, China, we’re from the US Navy and we’re here to safeguard your commercial shipping in the East China Sea, courtesy of American taxpayers.” –hah

    • sferrin

      Glad this situation amuses you so. If you were a little more intelligent you’d be concerned.

      • Don Bacon

        Great Scott, I love it when you go ad hominem indicating a weakness of position and an inability to address issues.

        • sferrin

          What issues? You’re just over there clapping your hands and squealing in delight like a six year old girl on her birthday over this mess. I’m not seeing you promote any “position” or “issues” whatsoever.

          • Don Bacon

            Well, Scott, if there are no issues concerning the US then how could it be a mess? Who cares, or should care, about itty-bitty islands in the South China Sea. The US Navy is just making itself look silly, cruising in “innocent passage” near an island in the South China Sea that the average American has absolutely no reason to care about. It’s a gambit they can’t win, but they persist at it anyhow. Don’t they have anything better to do?

          • sferrin

            As I said, if you were a little more intelligent. . . But thanks for illustrating my point.

          • Don Bacon

            Ah Scotty, you mercifully keep your short comments short and free of any substance.
            Why is the US Navy so interested in the South China Sea, which mainly includes China to-and-from commerce, and none for the US?

          • sferrin

            “Ah Scotty, you mercifully keep your short comments short and free of any substance.”

            In your case, why would I waste the time? The phrase “casting pearls before swine” comes to mind. You have absolutely no interest in intelligent dialogue. You have your ideology and that’s all that matters to you. Combine that with the maturity of a twelve year old and it’s a wonder anybody talks to you. Oh sure, you’re a useful pawn for the right crowd. (I believe they use to call them “useful idiots”.) But hardly worth anything but mockery.

    • BOB!!

      One of the reasons why we have a US Navy is to guarantee freedom of navigation for commercial shipping.

  • sferrin

    “Confused” is Obama’s middle name.

  • Don Bacon

    Why should the US taxpayers pay for security of predominantly China shipping? WalMart wants freedom of navigation exercises on its trans-Pacific routes, and not in the South China Sea remote from any US commercial interests.

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