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?

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(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

Freedom of Navigation - Trump Version

We’ve previously noted that the infrequent Freedom of Navigation (FON) actions by the US Navy in the South China Sea have done more harm than good, legally, by serving to reinforce China’s claims of sovereignty.  The actions were carried out as “innocent passage” which is a prescribed method (see the UNCLOS documents for the exact procedure) for warships to pass peacefully through the waters of another country.  By conducting the FON actions as innocent passages, they served to bolster China’s claims since innocent passage can only be applied to another country’s territorial waters.  Thus, the US was implicitly recognizing China’s claims.  Alternatively, some FON actions were conducted at greater than 12 miles from any disputed islands or lands which, again, bolsters China’s claims of sovereignty. 

Had the US wanted to dispute China’s sovereignty claims, the FON actions should have studiously avoided following innocent passage procedures or observing the 12 mile territorial limit. 

Interestingly, the Navy has just recently executed a FON action near Mischief Reef in the Spratly Islands that explicitly ignores the innocent passage procedures.

“A U.S. destroyer sailed within six nautical miles of a Chinese artificial island on Wednesday in the strongest challenge of hotly debated Chinese claims in the South China Sea, USNI News has learned.

Around 7 P.M. EST on Wednesday (7 A.M. Thursday local time), USS Dewey (DDG-105) passed within six nautical miles of the Chinese installation on Mischief Reef in the Spratly Island chain, several U.S. officials confirmed to USNI News

The guided-missile destroyer operated normally and did not conduct the transit under the rules of an innocent passage – the restrictions that allow a warship to pass through another country’s territorial waters with no notice.

The ship was within 12 nautical miles of Mischief Reef for about 90 minutes zig-zagging in the water near the installation. At one point during the operation, the ship’s crew conducted a man overboard drill, a U.S. official told USNI News.” [emphasis added] (1)

This is good news in a minimalist sense.  At least this FON did no further legal damage.  Presumably, this change in policy is due to the new Trump administration.

On the other hand, this kind of FON serves no concrete purpose if the other side, the Chinese in this case, choose to ignore it.  It does not hinder development of artificial islands or bases.  It does not blockade any Chinese actions.  It does not lodge an official protest with the UN.  It does not establish a “counter-island” developed and controlled by the US.  In short, it does nothing but offer a silent, unspoken, token, symbolic protest in the mildest manner possible.

Previous FON actions have clearly done nothing to dissuade China from their expansionist policies and actions in the South and East China Seas.  FON actions, even this type, accomplish nothing but ratcheting up tensions.  We need to either back out of the area and concede the South and East China Seas as Chinese territories or begin taking concrete, productive actions along the lines we’ve discussed in previous posts and comments.

As a reminder,

“Unlike other Chinese artificial islands in the South China Sea, the Mischief Reef installation isn’t subject to overlapping territorial claims from any other country and is built on a low-tide elevation, as determined by the 2016 Hague tribunal ruling on Chinese claims in the South China Sea.

Under the U.N. Law of the Sea Convention [UNCLOS], a low-tide elevation cannot be claimed as the territory of any country and does not command a territorial sea.”

China, you’ll recall, is a signatory to UNCLOS and, therefore, bound by it’s rules and regulations.  Despite this, China is actively violating several aspects and provisions of the agreement.

Setting aside the myriad political and economic actions that we could and should take, the following actions, which cover a range of intensity, should also be considered.

• Close, high speed passes to attempt to cause wake damage to island facilities
• Blockade of islands and bases
• Physical hindering of resupply ships
• Physical disruption of, and interference with, reclamation vessels
• Covert disruption of island facilities (SEAL missions)
• Electronic jamming of island communications

China is clearly on a militaristic expansionist path.  It is only a matter of time before China and US come to blows.  One can make a pretty compelling argument that it is better to do it now while China has not yet gained complete parity/superiority than to wait and do it under even less favorable circumstances.

If we’re not going to contest the South and East China Seas then we need to cede the area and retire from the region, diffuse tensions, and save the wear and tear on our ships and aircraft.  Of course, if we’re going to do all that, one can also reasonably ask why we need ships and aircraft.  We can cede entire regions without the use of our military!

Our policy of token resistance is having no positive effect whatsoever.  We need a new geopolitical and military strategy for the region.

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(1)USNI News website, “U.S. Warship Came Within 6 Miles of Chinese Artificial Island in Toughest Challenge Yet to Beijing South China Sea Claims

”, Sam LaGrone, 25-May-2017,

https://news.usni.org/2017/05/25/u-s-warship-came-beijing-south-china-sea-claims

Green Bay Packers

The old Green Bay Packers of Vince Lombardi’s day supposedly used to tell the opposing players what play they were going to run and dare them to stop it.  For those readers from around the world who may not be familiar with the reference, we’re talking about football (real football, not soccer) and, arguably, the greatest team to ever play the game.  You have to admire a team that is so good, so strong, so talented, and so determined that they’re willing to tell you the upcoming play because they don’t believe you can stop them even if you know what’s coming.  That’s power!

The Chinese just told us in no uncertain terms what’s coming.

As USNI website reports (1),

“The head of the People’s Liberation Army Navy told his U.S. counterpart that China has no intention of stopping its island building campaign in the South China Sea Spratly Islands …”

Well, that seems crystal clear.  The Chinese have claimed the entire South China Sea and all islands and features in it and are daring us to stop them. 

Yeah, but the Chinese are such friendly, reasonable, and peace-loving people the Chinese apologists assure us, maybe we misunderstood what was said.  Well, here it is stated another way.

““We will never stop our construction on the Nansha Islands [Spratly] halfway… the Nansha Islands are China’s inherent territory, and our necessary construction on the islands is reasonable, justified and lawful,” PLAN’s Wu Shengli told Richardson …”

Sure sounds like they're serious, right?  Still, they’re just harmless bases, aren't they?

“Wu also said that Beijing would reserve the right to increase defenses in the location”

OK, I guess they’re going to be major defense installations.

So, what will happen if the US doesn’t vacate the Sea and, instead, continues its sporadic and worse than useless Freedom of Navigation exercises?

““This kind of military freedom of navigation is damaging to freedom of navigation in the South China Sea, and it could even play out in a disastrous way,” Adm. Sun Jianguo …”

China is telling us that they’re going to create an incident if we don’t capitulate.

This could not be any clearer.  China is telling us exactly what they’re going to do in the South China Sea because they don’t believe we can stop them.  It’s as simple as that.  They’ve slapped us in the face with a glove, told us their play, and are daring us to do anything about it.

America, your move.  What are you going to do?

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(1)USNI News website, “PLAN’s Wu to CNO Richardson: Beijing Won’t Stop South China Sea Island Building”, Sam LaGrone, July 18, 2016,

https://news.usni.org/2016/07/18/plans-wu-cno-richardson-beijing-wont-stop-south-china-sea-island-building

Chinese Land Reclamation

As has been widely reported, the Navy sent a Burke class destroyer on another freedom of navigation operation, this time near Fiery Cross Reef in the disputed Spratly Islands, near the Philippines.  Indications suggest it was another of the worse-than-nothing Innocent Passages which actually wind up acknowledging Chinese sovereignty rather than disputing it.  Setting that legalistic technicality aside, what are these operations accomplishing?  They certainly haven’t slowed the pace of China’s land reclamation efforts.  They haven’t slowed the rate of expansion of Chinese claimed territories.  They haven’t eased any tensions.  In short, they’re accomplishing nothing.

At some point, we have to either abandon the South and East China Seas and leave the neighboring countries to their inevitable Chinese annexation fates or we have to physically stop Chinese expansion activities.  What we’re doing now with an occasional passage that actually solidifies Chinese claims is just ramping up tensions for no good result.

Don't Own An Island?  Make One!

So, what can we do short of declaring war?  Well, here’s a list of suggestions.

Physically herd Chinese supply ships out of the area.  Bump their ships, sail into their path, and make it impossible for them to get to the disputed location.  There is precedence for this since the Chinese have herded our ships and other foreign country’s ships with these tactics on numerous occasions.  The Soviets also did it routinely during the Cold War.

Swamp any supplies that make it ashore.  Make high speed passes as close as possible to create large wakes (a use for the LCS?!) that will wash away supplies and equipment.  After all, we claim that these are international waters so we’re free to sail where and how we want.  Russia has certainly firmly established the precedent of high speed, very close range passes!

Form a physical blockade with ships.  It would only take a few ships.  These are tiny points of reefs, not large land masses.  Form a barrier and don’t let Chinese ships through.

Blow stuff up.  We have drones, subs with torpedoes, and special forces whose job is to covertly blow things up.  If a pile of supplies exploded, it’s probably because the Chinese had explosives or unstable chemicals in the supplies, right?

Conduct land recycling operations on the same location that China is trying to reclaim land.  As fast as they reclaim it, we’ll recycle it back to the ocean!  These are not Chinese lands according to us, so we have as much right to recycle as they have to reclaim – probably more right since we can claim we’re protecting reef ecosystems.

Ultimately, we have to be prepared and willing to escalate in order to stop the Chinese.  If we are not prepared to do so then we should leave.