Foreign Relations & International Law

Would a Military Sail-by at Mischief Reef Be a FON Operation?

Graham Webster
Tuesday, November 1, 2016, 1:00 AM

There are limited details about the recent U.S. Freedom of Navigation (FON) operation in the South China Sea on October 21, but by any account it surely did not achieve what some had advocated: challenging China’s installations on artificial land in the Spratly Islands.

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There are limited details about the recent U.S. Freedom of Navigation (FON) operation in the South China Sea on October 21, but by any account it surely did not achieve what some had advocated: challenging China’s installations on artificial land in the Spratly Islands. Instead, if press accounts and expert analysis (such as Julian Ku’s post) are correct, the USS Decatur challenged Chinese claims to “straight baselines” surrounding the separate Paracel Islands, which the U.S. government has long claimed are excessive. By challenging an explicit claim on the grounds that it exceeds what international law supports, such a maneuver is a textbook FON operation. A military maneuver designed to challenge China’s Spratly Islands construction is far less clear-cut.

This most recent FON operation was the first publicly known instance since May. This is not necessarily extraordinary, but an anonymous source told Reuters in November 2015 the challenges would occur “about twice a quarter or a little more than that,” which many observers took as a reference point. The Decatur’s operation took place 164 days—almost two full quarters— after the last public report on May 10 and some had begun to question U.S. resolve.

But the public maneuvers from May 10 and October 21 are not necessarily the only recent examples of U.S. FON operations. Last month, Assistant Secretary of State Danny Russel implied not all FON operations are announced, saying “some things are only visible to people with radar and tracking.” The U.S. government does, however, publish an annual report describing which “excessive claims” by which countries the FON program challenged through “DoD operational assertions and activities.”

If the dominant interpretation of last week’s FON operation is correct and it was indeed designed to challenge China’s “excessive straight baselines,” this is nothing new in the U.S. FON program. As shown in the chart below, the Defense Department’s annual reports show challenges to China’s baselines in fiscal years 2011, 2013, 2014, and 2015 (the last year for which data is available). U.S. Naval War College Professor James Kraska is reported as saying that the January 2016 USS Curtis Wilbur FON operation in the Paracels also challenged the straight baselines—noting that previous challenges had been in the air, versus on the water’s surface—though official government statements at the time did not specifically mention baselines.

In Washington, however, China’s straight baselines in the Paracels, which date back to the ‘90s, are not the hottest issue in China’s maritime activities. China’s rapid land reclamation and construction in the Spratlys and the July award issued by the UNCLOS tribunal in the Philippines v. China case are far more salient for those watching the strategic tides. It is no surprise, therefore, that advocates for a strong U.S. presence have backed FON operations that challenge China’s artificial island–building and exercise maritime rights affirmed by the tribunal.

With those goals in mind, observers have long looked to Mischief Reef as a potential target for a U.S. FON operation. A Center for Strategic and International Studies project reports that China has constructed 1,379 acres of manufactured land, an airstrip, and other facilities there. But the UNCLOS tribunal concluded Mischief Reef was a low-tide elevation, saying flatly “there exists no legal basis for any entitlement by China to maritime zones in the area of Mischief Reef.”

Even before the tribunal award was released, Mischief Reef was on the agenda. “Once the tribunal says that Mischief Reef is a low-tide elevation, then I think the U.S. will be certain it has law on its side, and then it will conduct that FONOP,” Bonnie Glaser of the Center for Strategic and International Studies reportedly said. Once the award came out, Senator Dan Sullivan argued, “In the coming weeks the U.S. Navy should conduct a FON op. at Mischief Reef.” These are but two prominent voices among many.

The usual proposal for a Mischief Reef FON operation is to send a military vessel within 12 nautical miles of the artificial island while behaving in some way so as to indicate non-adherence to the protocol of “innocent passage.” As Ku observes, the most recent operation likely did not take place under innocent passage procedures, since a Department of Defense official indicated on the record that the U.S. ship “conducted this transit in a routine, lawful manner,” and innocent passage might not be described as routine. By not adhering to innocent passage procedures, a military vessel can signal that it does not recognize any claim to a territorial sea in the waters it passes through.

Challenging China’s declared straight baselines surrounding the Paracels in this way is relatively simple. A U.S. ship or plane can enter within 12 nautical miles of the baseline in an area where there are no land features within 12 nautical miles—here is one such possible path—thereby entering territory China claims as a territorial sea by virtue of a formal filing with the United Nations. Entering those waters without following innocent passage procedures indicates a ship is not acknowledging a territorial sea.

Taking the show to Mischief Reef is a different matter. As my colleague Rob Williams notes, a Chinese claim of maritime entitlements over the Spratly Islands as a group was rejected by the UNCLOS tribunal. Although China has declared no baselines in the Spratlys (whether as a whole or for individual land features), Williams writes that “the Tribunal deemed it unlawful to draw straight baselines around the Spratlys as a single unit.” Since Mischief Reef was also found to be a low-tide elevation and therefore part of the Philippines’ continental shelf, there are no grounds in UNCLOS to claim a territorial sea surrounding it. China would clearly be in conflict with UNCLOS if it claimed a maritime zone near Mischief. It is not, however, clear that China explicitly claims any such zone.

To challenge China’s actions at Mischief Reef under the usual pattern for a FON operation, the U.S. government would identify an “excessive maritime claim” and design a maneuver to challenge that claim while scrupulously respecting all maritime rights it deems legitimate. In the Spratlys, however, much of the activity U.S. and other officials find objectionable is not enshrined in formal declarations of claims. While the UNCLOS tribunal declared that artificial island construction violated Philippine rights within the country’s exclusive economic zone, no tailor-made sail-by (innocent passage or not) can gracefully challenge that activity in the way many FON operations challenge specific claims.

Some Chinese activities may still verge on “claim” status. Chinese officials have reportedly warned away foreign aircraft from a “military alert zone” with ambiguous boundaries, and the U.S. government could declare that it is challenging that zone. But such a challenge would be nothing new. As a 2015 CNN report showed, U.S. military aircraft have already transited those ambiguous zones—and the fly-by CNN reported is not apparently reflected as a FON operation in the 2015 annual report.

The situation at Mischief Reef does not appear to provide the U.S. government with explicit claims of the kind usually challenged through the FON program. This raises two questions. First, if the U.S. Navy were to send a ship through waters less than 12 nautical miles from Mischief Reef, would it qualify as a FON operation that would appear in the annual report? A look back at the available 23 reports covering 25 years (represented in part in the chart) offers no preexisting category such a maneuver would fit. Previous FON operations have challenged various states’ “claimed security zones,” but it is not clear that the Chinese warnings about “military alert zones” constitute a claim.

The second and more basic question is whether a FON operation is the best tool for every U.S. demonstration of its determination to, in the words of President Barack Obama, “sail, fly and operate anywhere that international law allows.” In the case of the artificial islands in the Spratlys, the basic U.S. policy objection might be said to be the magnitude and character of Chinese presence in the area and what that means about stability and Chinese intentions. The legal point that building on another state’s continental shelf violates UNCLOS (to which, it is always worth noting, the United States is not a party) is arguably very important but strategically secondary.

FON operations are not the only tool at the U.S. government’s disposal. Former Chief of Naval Operations Admiral Gary Roughead told the Carnegie-Tsinghua Center podcast last month that the FON program in the South China Sea

should continue. … But it should be part of a menu of activities that we pursue and others pursue that demonstrate the freedom of the seas and the ability for countries who follow a rules based order to operate in that important area. I think it’s also key that we conduct other types of operations and exercises, to include with the Chinese.

A drastically increased public awareness of the FON program may have led to an over-emphasis on this tool among the many available to U.S. policymakers.

Graham Webster is editor in chief of the Stanford-New America DigiChina project and a China digital economy fellow with New America. A joint effort of the Stanford Cyber Policy Center and New America's Cybersecurity Initiative, DigiChina is a collaborative project to translate, contextualize, and analyze Chinese digital policy documents and discourse. Webster also writes the independent Transpacifica e-mail newsletter. He was previously a senior fellow and lecturer at Yale Law School, where he was responsible for the Paul Tsai China Center's U.S.–China Track 2 dialogues for five years before leading programming on cyberspace and high-tech issues. In the past, he wrote a CNET News blog on technology and society from Beijing, worked at the Center for American Progress, and taught East Asian politics at NYU's Center for Global Affairs. Graham holds a master's degree in East Asian studies from Harvard University and a bachelor's degree in journalism from Northwestern University. He is based in Oakland, California.

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