Published by The Lawfare Institute
in Cooperation With
On Friday, we published a “what to watch for” guide to the then-imminent U.S. freedom of navigation operation (FONOP) in the South China Sea. Yesterday, the USS Lassen, an Arleigh Burke-class guided missile destroyer, transited within 12 nautical miles of Subi Reef—one of China’s artificial islands in the Spratly Island group. Some sources suggest that the operation also included Mischief Reef, another low-tide elevation, and that the Lassen was accompanied by a P-8 Poseidon surveillance aircraft.
As we noted in our previous post, the purpose this operation, like all FONOPS, was to demonstrate the United States’ view of the legal status of international waters and to demonstratively reject China’s excessive maritime claims. It was not, as some coverage has suggested, to “challenge to Beijing’s territorial claims” to the land features themselves.
With that in mind, what precise legal message did the United States send with this operation?
As we expected, the operation was most consistent with our Option 2: normal military operations near a low-tide elevation. The Lassen transited around Subi Reef—a fully submerged reef prior to Chinese land reclamation. The transit was almost certainly a normal military patrol, as opposed to an innocent-passage transit, because it included a surveillance aircraft in addition to the destroyer. Surveillance inside of 12 nautical miles is inconsistent with innocent passage.
This distinction is important because innocent passage is consistent with a 12 nm territorial sea; normal operations are not. Normal operations within 12 nautical miles of Subi Reef thus signal that the United States rejects Chinese claims to territorial waters or airspace around artificial islands built on low-tide elevations. The operation therefore gets to the heart of the legal disagreement between China and the United States (as well as many other states in the region).
Chinese reactions were as expected: Beijing responded with harsh rhetoric, calling the operation a “deliberate provocation” and a violation of sovereignty, and summoning the U.S. ambassador for a demarche, but there was no immediate military escalation.
Were there any surprises? As of this morning, it seemed that the FONOP may have transited only Chinese-held features, contrary to our expectations that that Navy would include features held by other claimants to send an “equal opportunity” signal. However, news this afternoon suggests the operation did, in fact, include features held by the Philippines and Vietnam, consistent with our predictions. As we also expected Washington appears to have laid some diplomatic groundwork with its treaty allies in advance of the operation; Australia and the Philippines have publicly endorsed the operation since it took place.
In all likelihood, this FONOP marks the beginning of more regular navigational assertions in the South China Sea. We look forward to interpreting the legal signals as these operations unfold.