Until 1951, the U.S. Navy was governed by the Articles for the Government of the United States Navy, also known as “Rocks and Shoals” in part because Article 4, Section 10 stated that the punishment of death could be inflicted on any person in the naval service who intentionally or willfully caused a vessel to be “run upon rocks or shoals.”
While reports indicate that movement is being made in this direction, the current administration thus far appears willing to risk the ability of U.S. ships and aircraft to freely navigate vast portions of the Pacific Ocean by failing to conduct lawful ‘freedom of navigation’ operations (FONOPs) in response to blatantly illegal Chinese actions regarding rocks, shoals, and reefs in the South China Sea (SCS). In so doing, policymakers are willfully running U.S. presence in this vital region into metaphorical rocks and shoals. The danger to U.S. national security cannot be overstated, and these operations must be conducted as soon as possible.
As reflected in the March 2015 U.S. Department of Defense Freedom of Navigation fact sheet, “Since the founding of the nation, the United States has asserted a vital interest in preserving freedom of the seas and necessarily called on its military forces to preserve that interest.” Similarly, the U.S. Department of State website on Maritime Security and Navigation makes it clear that the United States will not “acquiesce in the unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.”Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Yet, despite these unambiguous assertions, the current administration appears content to allow illegal Chinese actions in the SCS that clearly infringe upon freedom of navigation to go unchallenged out of a perceived fear of escalation, miscalculation, or both. While verbal protests by government officials place China on notice that the U.S. objects to their unlawful claims, they are insufficient to alter Chinese behavior, bolster the confidence of regional partners, or ensure U.S. freedom of navigation rights. It is critical that the U.S. Navy conduct FONOPs now to make it crystal clear to China and nations around the world that the U.S. will not stand for any unlawful infringement on its navigational rights.
China’s Ultimate Objective
Seemingly acknowledging that several other nations also claim sovereignty over islands, rocks, and low tide elevations in the SCS, China signed the 2002 Declaration on the Conduct of the Parties in the South China Sea. Pursuant to that declaration China agreed to: 1) reaffirm its respect for and commitment to the freedom of navigation in and overflight above the SCS, 2) resolve territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, and 3) to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from the action of inhabiting presently uninhabited islands, reefs, shoals, cays, and other features. Since 2009 China has breached each one of these provisions.
In May 2009, the PRC informed the United Nations that it had “indisputable sovereignty over the islands in the South China Sea,” a position that it has consistently held since 1948. In July 2010, a Chinese Ministry of Defense spokesman asserted that China possessed “sufficient historical and legal backing” for such a claim and added that China would “in accordance with the demands of international law, respect the freedom of the passage of ships or aircraft from relevant countries.”
However, in November 2013 China surprised the world when it announced the establishment of an Air Defense Identification Zone (ADIZ) over the East China Sea (ECS) that not only overlapped with the South Korean and Japanese ADIZs and the disputed Senkaku/Diaoyu Islands but also required all aircraft that intended to enter the ADIZ to file a flight plan and adhere to the directions of Chinese officials. In response, the U.S. flew two B-52 bombers through the ADIZ to send a clear message that Chinese ADIZ requirements violated customary international law and thus unduly infringed on U.S. freedom of navigation.
Shortly thereafter, in December 2013 and once again without notice, China began a massive land reclamation project in seven locations in the SCS. Once discovered, a Chinese foreign ministry spokeswoman stated in late 2014 that the construction was “mainly for the purpose of improving the working and living conditions for people stationed on the islands” and so that the PRC could “better fulfill its international obligations and responsibilities in search and rescue.” However, by April 2015, after satellite imagery showed an airstrip being built on one of the artificial islands, the same spokeswoman acknowledged for the first time that China’s activities were also intended to serve “necessary military requirements.”
While the United States and some ASEAN nations protested China’s unilateral actions as unlawful and destabilizing, it wasn’t until May 2015 that U.S. Secretary of Defense Ash Carter asked for options that included flying naval surveillance aircraft and steaming naval vessels in the vicinity of these man-made islands.
On May 20, the world was able to view a CNN television crew aboard a U.S. Navy P-8 aircraft, which flew a mission in international airspace (outside 12 nautical miles) in the vicinity of China’s man-made islands. During the flight, a Chinese military official repeatedly warned the P-8 that it was in a Chinese “military alert zone” and demanded that the aircraft depart the area. Shortly thereafter, Secretary Carter proclaimed that the U.S. “would fly, sail, and operate wherever international law allows” and noted that “turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit.” In response, on August 11, Chinese Ambassador Zhao Jianhua brazenly asserted that “freedom of navigation does not mean to allow other countries to intrude into the airspace of the sea which is sovereign… no freedom of navigation for warships and airplanes.”
It now appears that China intends to build airstrips on three of the seven man-made islands it has created. Earlier this year, Admiral Samuel Locklear, former Commander of the U.S. Pacific Command, told the U.S. Senate that if Chinese activity continued it would give the PRC “de facto control” of the maritime territory they claim. In more recent testimony before the Senate Armed Services Committee, Adm. Harry Harris, the current Commander of U.S. Pacific Command, observed that in addition to airstrips China was also building deep-water port facilities that could house major combatant ships, and postulated that there could be a network of missile sites, runways, fighter planes and surveillance sites such that “it creates a mechanism by which China would have de facto control over the South China Sea in any scenario short of war.”
Other experts have noted that the man-made islands allow China to greatly extend the range of not only its fighter aircraft but also its surveillance and anti-submarine warfare (ASW) aircraft, thus enhancing its ability to conduct ASW inside the so called ‘first island chain.’ Finally, one observer concluded that China’s recent moves in the SCS, coupled with their 2013 surprise enactment of an ADIZ of the ECS, and their frequent intercepts and harassment of U.S. Navy ships and aircraft in the region, should be seen as a series of actions “that are rooted in an effort to push U.S. and allied forces away from Chinese ‘near seas’ and areas of ‘core interest’ while at the same time attempting to negate operational concepts like…Air Sea Battle and associated weapons platforms that could challenge China’s growing anti-access/area-denial (A2/AD) capabilities.”
While China has asserted sovereignty over the SCS since 1948, only recently has it possessed both the technological and military capability to expand control over the region. It has boldly demonstrated a willingness to create facts on the ground, in obvious contravention to the 2002 Conduct of the Parties in the South China Sea, and thus far no nation appears willing to directly challenge China’s illegal actions. Ironically, China frequently justifies its actions as legal under international law, to include the U.N. Convention on the Law of the Sea (UNCLOS), despite the fact that a near-consensus of knowledgeable observers from around the globe concur that China’s actions in the ECS and SCS are in flagrant violation of international law.
Moving forward, it would not be surprising if China were to announce an ADIZ over the entire SCS while at the same time increasing its verbal warnings to aviators and mariners, aircraft intercepts, and harassment of other nation’s aircraft, warships, and fishing vessels in both the ECS and SCS. If the United States, the only nation that uses military forces to assert freedom of navigation, doesn’t step up and act now, it may well be construed by the Chinese and others that Washington is in effect ceding its ability to freely navigate in international waters and airspace in the SCS as well as acquiescing to China’s assertion of sovereignty over their man-made islands.
How the United States Should Respond
The United States recently concluded agreements with the PRC designed to reduce the likelihood of miscalculation during unplanned encounters between ships and aircraft of the two nations. The United States has also increased its military-to-military engagement with the PRC in recent years, to include hosting each other’s senior officers, conducting a U.S. 7th Fleet flagship port visit to China, and inviting China to participate in a major exercise involving several Pacific nations called RIMPAC. Recently, when several Chinese warships sailed within 12 nautical miles (NM) of the United States in the Aleutian Islands asserting their freedom of navigation right of innocent passage, the U.S. response was to acknowledge Chinese rights. Finally, President Barack Obama and Chinese President Xi Jinping recently met and one of the issues discussed was the U.S. objection to Chinese actions in the SCS that impinge upon freedom of navigation. Taken in sum, these deliberate actions have mitigated the risk of escalation and miscalculation to the extent that the conduct of U.S. FONOPs, synchronized with unambiguous strategic communication, is a low risk endeavor from a strategic perspective.
Given the tremendous benefits that will accrue to the United States by conducting FONOPs, and in light of the mitigated potential disadvantages, Washington should plan to conduct FONOPs as soon as possible in order to assert its vital interest in the freedom of navigation.
Part of this planning requires a strategic-level decision as to the “legal” nature of the objects in the SCS that the United States intends to fly and sail near. Islands, rocks, low tide elevations, and artificial islands each have unique characteristics under international law and, depending on how the United States classifies these features they may or may not have a territorial sea (TTS) or an exclusive economic zone (EEZ).
This is critical because warships have a right of innocent passage in another nation’s territorial sea. However, there is no corresponding right of innocent passage for military aircraft in the airspace above the territorial sea (called national airspace). Pursuant to UNCLOS, which the United States has not ratified but asserts is reflective of customary international law, naturally formed islands are entitled to both a 12 nm TTS as well as a 200 nm EEZ. Both warships and military aircraft can steam and fly outside of 12 nm (airspace outside 12 nm is international airspace) as long as they exercise due regard for the safety of other ships and aircraft.
None of the seven features in the SCS on which China has built man-made islands were islands before the land reclamation project. However, arguably, some of the features might have been rocks before the massive dredging and building effort. A rock is an object that remains above water at high tide but cannot sustain human habitation or economic life. Rocks are entitled to a 12 nm TTS with its associated national airspace but no EEZ. Several of the features that China built on were most likely low tide elevations (LTEs). LTEs are rocks that are above the water at low tide but submerged otherwise. LTEs have no TTS and thus no national airspace. Per UNCLOS, nations are permitted to build artificial islands in their EEZ after providing due notice.
The problem here is two-fold. First, China does not have indisputable sovereignty over the features it is building on. Second, the features are not within what many nations would acknowledge as China’s EEZ (the features at issue here are over 600 nm from China’s Hainan Island and are much closer to the Philippines and Vietnam). Regardless, artificial islands are not entitled to a TTS but rather only a 500 meter safety zone. As such, U.S. ships and aircraft could fly and steam within 500 meters. Finally, reefs in the middle of the ocean are not entitled to their own TTS and arguably can be overflown and ships can steam as close as sound navigation allows.
Once the legal nature of the man-made islands has been determined, the U.S. Navy should immediately plan and execute FONOPs flying and sailing as close to the man-made features as the law allows. In conjunction with actually conducting FONOPs, the United States, through diplomatic and informational channels, should also make its legal analysis clear vis-à-vis the legal status of the features in the SCS.
Arguably, U.S. FONOPs would be seen as more legitimate by the PRC and perhaps other nations if they were also conducted in the vicinity of rocks, reefs, and LTEs in the SCS that are currently claimed, and in some instances, occupied by, other regional nations to include the Philippines and Vietnam. Doing so would make it clear that U.S. FONOPs are not designed to necessarily challenge the sovereignty of any particular nation but rather to assert the right of freedom of navigation first and foremost.
Additionally, if possible, the U.S. should make greater efforts to persuade other nations who have a vested interest in freedom of navigation to: 1) agree with the U.S. legal analysis regarding the nature of the features China has built on in the SCS, 2) file diplomatic protests with China challenging its infringement on navigational rights, and 3) actually conduct military FONOPs in the SCS. Finally, perhaps the time is ripe for Congress to once again consider ratifying UNCLOS as recommended by every president, Chairman of the Joint Chiefs of Staff, and Chief of Naval Operations since the 1990s. Doing so would increase the legitimacy of U.S. FONOPs, demonstrate to the world that the U.S. is willing to play by the same rules it expects others to follow, and allow greater opportunities to have a voice in emerging, contentious issues related to the law of the sea.
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.