Monday, August 5, 2019

Freedom of Navigation Versus Innocent Passage

The US Navy engages in a practice they refer to as Freedom of Navigation (FoN) exercises as an attempt to enforce international rights as regards the movement of ships on the high seas.  While the term, ‘Freedom of Navigation’ is derived from the UNCLOS treaty (1), UNCLOS defines no such FoN procedure.  Thus, as practiced by the Navy, the procedure has no legal backing and is not a recognized enforcement act.  As such, it has no legal standing and accomplishes nothing from a legal perspective.  What it attempts to accomplish is the normalization and acceptance of the FoN rights related to a specific body of water as granted under UNCLOS.  Legally, there is no need to do this as FoN rights cannot be lost by failure to exercise them.  In a practical sense, the Navy procedure attempts to remind other countries of the FoN rights so as to prevent the acceptance of abridgement of those rights by countries making fraudulent claims to international waters.  The practice is intended to ‘send a message’ disputing the subject country’s fraudulent claim.

The US Navy’s FoN procedure is quite simple.  A ship passes through the disputed area, generally within 12 nm of the associated land. 

This passage is intended to demonstrate the UNCLOS FoN rights.  Ironically, the procedure actually reinforces the disputing country’s fraudulent claim because the procedure actually meets the requirements and definition of Innocent Passage, as described in UNCLOS (2).

Summarized, Innocent Passage is the right of a ship to pass through another country’s territorial waters in an ‘innocent’ manner.  The requirements of the passage are laid out in UNCLOS and, essentially, require that the passing vessel proceed in a continuous and expeditious movement with no prejudicial actions.  Thus, the passing ship cannot stop, land or launch aircraft or boats, use sensors to collect information (spy), exercise weapons, fish, or conduct research.

With this definition in mind, we can see that the Navy’s FoN exercises actually conform to the UNCLOS Innocent Passage definition.  Given that Innocent Passage can ONLY occur within a country’s territorial waters, the FoN can be construed as granting de facto territorial status to the waters in question, thereby reinforcing the disputed country’s territorial claim rather than disputing it!

If the Navy really wanted to dispute the territorial claim, the FoN procedure should be modified to have the passing vessel stop, exercise weapons, launch and recover aircraft, and operate sensors.  That would clearly demonstrate that the ship was NOT engaged in Innocent Passage but was, instead, exercising its Freedom of Navigation in the disputed waters.

Thus, sailing past one of China’s illegal, fraudulent, artificial islands actually reinforces China’s claim of sovereignty rather than disputing it because the passage meets the requirements of Innocent Passage which can only be associated with a valid territorial land mass.  The Navy is unwittingly granting and acknowledging China’s claims!

Discussion points:

1. If FoN doesn't work, what can more effectively accomplish the purpose?
2. How do you evaluate Iran's seizure of our riverine boats and crews in light of the legal requirements of Innocent Passage?
3. Does FoN accomplish anything?
4. Should we be using Innocent Passage to 'tweak' China and Russia's noses?  Before you answer, consider that they've done that to the US in Alaskan waters.
5. Is the actual FoN message, perhaps, that we're too weak willed to contest the Chinese expansion?


(1)UNCLOS, Part VII High Seas, Section 1. General Provisions, Article 87 Freedom of the High Seas

(2)UNCLOS, Part II Territorial Sea and Contiguous Zone, Section 3. Innocent Passage in the Territorial Sea, Subsection A. Rules Applicable to All Ships, Article 19 Meaning of Innocent Passage


  1. The operation would be more effective if the ship circled the artificial island very closely and played Wagner's "Ride of the Valkyries" a la Apocalypse Now. I believe a SK propaganda vessel, its one big speaker, tagged along to do the honors...

  2. I understand the chinese are sinking obstacles/emplacements to make that more difficult

  3. As as I see matters, one of the primary missions of the U.S. Navy is to ensure the free use of the global commons. China has been a prime beneficiary of this as it has grown from poverty and starvation. Attempts by China to subvert the freedom of the global commons should be met with the strongest replies.

    1.) Your second to last paragraph sounds like an excellent start! A strong PR campaign illustrating the illegal, fraudulent, and artificial nature of China’s maritime claims should be conducted in concert, and neighboring nations should be encouraged to get in on the act.

    2.) The riverine boats did come to a stop to conduct repairs, but seem to otherwise be inoccordance with Innocent Passage.

    3.) A “robust” FoN, with weapons exercises, aircraft launches, and active sensors seems worthwhile, while a “weak” FoN done under Innocent Passage format seems harmful.

    4.) As long as they fail to adhere to UNCLOS, China and Russia should be tweaked by any and all legal means. I’m ok for us to receive the reciprocal, because then we’re establishing a precedent of aligning Russian and Chinese actions with UNCLOS. Giving China the waters inside the First Island Chain in exchange for them staying outside Alaskan waters seems like a poor trade.

    5.) Politically, we’ve been far too passive in response to the illegal buildup of Chinese military power inside the First Island Chain. While I’m ready for us to push back, both the Executive & Legislative branches of Congress need to support such an effort, and I’d be surprised to see that happen. Our weakness is more representative of our morals than of our material capability.

    1. "The riverine boats did come to a stop to conduct repairs, but seem to otherwise be inoccordance with Innocent Passage."

      Just to be clear, stopping for repairs IS allowed under Innocent Passage. Though lost and inadvertently within Iranian territorial waters, the US riverine boats were completely within UNCLOS Innocent Passage protocol. The Iranians violated the protocol. Legally, I suspect they committed an act of war by illegally boarding and seizing US vessels and crew.

    2. Under innocent passage provisions, military vessels are protected from seizure. In this case, the Iranians can either offer assistance or escort it out of their territorial waters. The seizure itself violates the rules but then it is moot if there is a lack of political will to act against such transgression. The Iranians knew it as the Obama administration will simply take the sxxt to protect the nuclear treaty from collapsing.

    3. The current administration has an enormous amount riding on the possibility of a trade deal resolution with China.
      They've bet an enormous amount and played a game of economic brinkmanship to try and achieve a new trade deal. So far China hasn't really blinked.
      Trump has played most of his cards already and the Chinese have yet to come to the table with any compromise that his administration deems acceptable.

      This means that potentially escalating the situation in the South China Sea has little support, as Trump's trade negotiators see it as problematic and detrimental to their efforts to forge a new deal.

      It's important to note that the military is and always has been simply an extension of the political.
      There are competing priorities in play.
      The defence of the international commons, and UNCLOS, while important to Washington, is currently deemed less important than resolving a trade war that is beginning to seriously damage the global economy and which the Trump administration has prioritised as one of their primary aims.

  4. Just to be clear about UNCLOS, the US has signed it, but has ratified it. I take that it means US isnt legally bound to it, although the major provisions were adopted by Presidential executive order but that may be

    1. "the US has signed it, but has ratified it."

      I assume you mean to say that the US has NOT ratified it.

      You're correct, the US is not legally bound by UNCLOS although we generally abide by the provisions.

  5. During the Obama presidency most (and if I recall correctly, all) FONOPs by US Navy in the South China Sea were actually conducted as full innocent passage, including switching off the Aegis combat system and radar upon entering the 12-mile zone, and switching it on again upon exit from the the 12-mile zone.

    During the Trump presidency so far it was more like a 50/50 situation, with some half of the FONOPs being again innocent passages, but the other half being genuine FONOP operations.

    1. "some half of the FONOPs being again innocent passages, but the other half being genuine FONOP operations."

      Where are you getting your information? I ask because I've generally been unable to determine from public announcements whether a given passage was Innocent Passage or not. If you have a definitive source, I'd love to see it!

    2. I have followed this topic a little bit over the last few years. A very good source of information I found to be "The Diplomat".

      This is a Japanese magazine published in English. I personally find their articles to be well researched and also generally quite neutral (not necessarily to be expected considering that Japan is actually one of the major players involved).

      Sometimes they had quite detailed descriptions of the FONOPs including such details like lunching a helicopter inside a 12-mile or carrying out certain manouvers (during genuine FONOPs), or switching off radars and sensors (during innocent passage).

      They are beyond paywall, but five articles per month are free. If you insert into Google such search phrases like "FONOP innocent passage The Diplomat" then certainly several interesting links will appear. Here maybe a few examples:

      Another interesting source of information might be The Lawfare Blog, here one example link:

      And also in other sources you can sometimes find interesting articles about FONOPs:

    3. That's quite a reading list. I'll get on it! Thanks.

  6. Another interesting aspect of the FONOP operations in the South China Sea is that the islands being enlarged by the Chinese through land reclamation are not really artificial. The seven islands in question had already existed naturally before, and had belonged to China before land reclamation began.

    Of these seven islands, four were so called high-tide elevations, and three were low-tide elevations.

    A high-tide elevation is an island big enough and high enough to emerge from the ocean during both low tide and high tide; a low-tide elevation is an island which is so small that is emerges from the ocean during low tide, but is covered by water during high tide.

    According to UNCLOS, a high-tide elevation belonging to a certain country gives that country a right to a 12-mile zone of teritorial waters around that island, but a low-tide elevation does not give such a right.

    Four of the Chinese islands in the South China Sea used to be high-tide elevations before land reclamation, and continue to be high-tide elevations after land reclamations. According to UNCLOS, China has a right to a 12-mile zone here, and this right seems to be rather uncontested by the relevant players in the region.

    However, three of the islands used to be low-level elevations before land reclamation, but are high-tide elevations after land reclamation.

    The UNCLOS seems not to cover such a situation in detail, leaving much room for interpretation. It is not really supprising that American legal experts insist that important is the status of the island in its natural state (e.i. before land reclamation), while Chinese legal experts insist that important is the status of the island in its present state (e.i. after land reclamation).

    This aspect is also reflected by the fact that the FONOPs conducted so far (during both Obama and Trump presidency) seem so far to concentrate on the three low-tide/high-tide islands, while leaving the remaining four islands more or less uncontested.

    1. Any island that has low tide elevation is not considered an island under UNCLOS and hence there is no territorial rights associated with it. This was affirmed by the Tribunal regardless of the Chinese interpretation. As such there is no notion of innocent passage since there is no territorial waters to begin with.
      The other 4 high tide elevation islands do have a 12 mile territorial waters according to UNCLOS. The issue is they are contested by other nations and the US position is it is not taking a position on who has sovereignty. As such, innocent passage provision do apply when sailing through the 12 miles water.
      The confusion is when a high tide elevation island adjoins to a low tide elevation island and there is an overlap of the 12 mile territorial waters. I remember there is one such situation with one of the seven islands but can't remember which one. I believe this is the reason why the transit passage seems to be rather in between at times.

    2. "China has a right to a 12-mile zone here"

      You're leaving out the fact that the ownership of the islands is disputed. NO ONE has a 12-mile zone on a disputed island. Fiery Cross Reef, for example, is claimed by Vietnam, Philippines, and Taiwan, in addition to China. So, no, China's 12 mile zones are not recognized.

      China recently lost an ownership claim case in front of the UNCLOS tribunal, to which they are a signatory, but seem intent on ignoring the ruling.

    3. "China recently lost an ownership claim case in front of the UNCLOS tribunal"

      To expand on that a bit, the case being referred to is Philippines v. China. China has been vocally refusing to recognize the jurisdiction of the UN arbitral tribunal since as early as 2013, and it declared exception from compulsory rulings under UNCLOS back in 2006, in accordance with that treaty (as some western nations have done).

      The Phillipines' case was less about ownership and more about the classification of the islands under UNCLOS, the applicability of that treaty, and the validity of China's broadest claims. The tribunal did not rule specifically on the ownership of the islands, recognizing the ongoing multilateral dispute and the scope of the case. They did rule that the extent of China's claims (clustering the islands and claiming the waters between them - nearly the entire SCS) was unfounded based on the classification of the islands under UNCLOS, and that their core claim of "historical rights" is invalid because UNCLOS supersedes such claims, in addition to the rulings about the classification (and its post-reclamation applicability) of particular islands pointed out by Anon:

      Yeah, it's a wiki link. It references and links to the actual ruling if you're worried the OpFor has been fiddling with it.

      I wouldn't call 2013 recent, although the actual 2016 ruling could be considered recent. Nearly every English-language article on the topic of the SCS has referenced this since 2016, so I'm confused as to how Polish Ghost ever engaged with this topic without coming to the consensus conclusion that China's SCS claims are only recognized by themselves and their vassals.

    4. Sorry for the imprecision. I forgot to mention that I had the situation in the Paracel Islands in mind.

      The situation in the Spratly Islands or Scarborough Shoal is a little more complicated.

    5. The state of ownership of the islands are clearly disputed by a number of countries but not the 12 mile territorial waters associated with it. The main issue is not a legal one but of politics. The Chinese are more prepared to escalate if necessary than the US is over those islands. The US public are generally not interested in going to war over some islands in the South China Sea unlike the Chinese. That is the bottom line when it is all said and done.

    6. "The Chinese are more prepared to escalate if necessary than the US is over those islands."

      There are two historical truisms that apply, here, although they offend our modern sensibilities:

      1. Might makes right.
      2. Possession is 9/10 of the law.

      These have been true throughout history and China is determined to apply them today. The US needs to figure out what its response is.

    7. "Paracel Islands"

      The Paracels are claimed by China, Vietnam, and Taiwan(?). China, militarily seized the islands from Vietnam in 1974, if I recall correctly.

    8. China was in control of much of the Paracel Islands since the 1950s, after Japan and France stopped to be key players in the region (Japan temporarily, and France permanently).

      By 1974, the only other country left in the Paracels was South Vietnam, which was in control of one island, the Shanhu Island.

      The military operation in 1974 during which China seized control of that one remaining island was a relatively small one, with some 70 lethal casualties.

      Since that China has been in de facto control of virtually all the islands in the Paracels.

      From time to time there are some attempts by Vietnam and Taiwan to contest China's control in the Paracels, but they are mostly symbolic in nature.

  7. I've just started "Red Star Over the Pacific", and there was a great point made early on. As one of the 5 permament UN Security Council members, communist China is entrusted with upholding and acting as a coguarantor of the UN system yet now actively denouces that system in unequivocal terms.

    1. To be fair, the US denounces many (most?) of the UN activities and actions.

      Polling of US citizens about the UN reveals very poor impressions of the UN (2/3 negative) while maintaining a good degree of support (largely hope?) for continued involvement (2/3 for continued involvement).

  8. Certainly. I personally dislike UN actions that I perceive to be incompatible with US political independence and uniqueness. There's a lot of nations with little understanding or respect for kinds of rights and privileges associated with American citizenship.

    That said, of course, as long as there's going to be a UN, I'd rather the US be an important and leading part of it.

    I think that one of the key defining charachteristics of "us" versus "them", is understanding and agreeing to the rules of global commons- China and Iran stand out to me as perhaps the most prominent violators.

    My understanding of the status of UNCLOS in Congress is that resistance to some of the environmental clauses of UNCLOS is the primary source of opposition to US adoption.

    1. "understanding and agreeing to the rules of global commons"

      China signed and ratified the UNCLOS agreement and yet feels they are not bound by it if so doing is inconvenient for their objectives. In other words, they agreed to the 'rules of the global commons' but do not abide by them - and they wonder why the world views them with suspicion and distrust?

  9. This is an old thread, but a recent developaent that I think deserves mention and commentary.

    On 7 April a US destroyer apparently conducted a FONOP in the economic zone of... guess whom... India. Why in the name of all that is holy are we running FONOPs against India? I grant that they don't accomplish much against China, but India is supposed to be our ally, and potentially a very useful one against China. So why are we rattling their cage?

    Or have our seamanship skills gotten so bad that we don't know where we are at sea, and this FONOP story was concocted to explain away a horrid gaffe?


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