So, on October 27, the USS Lassen conducted a Freedom of Navigation (FON) exercise in the South China Sea (SCS) sailing within 12 nautical miles of a Chinese built artificial island in the area. Historically, and under the United Nations Convention on the Law of the Sea (UNCLOS), artificial islands have never been recognized as sovereign territory, and thus, have no territorial waters associated with them. * That is, all the ships and planes of the world are able to freely operate or conduct commerce in those waters, including transit or passage, or fishing, or routine military operations. There are any number of places in the world where nations have staked out a claim of territorial waters, and the US has responded by conducting FON exercises. Probably the most famous was the 1986 Gulf of Sidra “Line of Death” incident, where Muhamar Ghaddaffi declared the gulf as territorial waters for Libya. The US Navy promptly mounted large scale FON exercises in those waters, with destroyers operating just outside the recognized 12nm territorial limit, and placing Combat Air Patrols well inside the limits claimed by Libya.
Libya responded with hostile acts that quickly ended badly for Libya.
Don’t bring a Nanchuka corvette to an A-6 Intruder fight.
While tensions with China aren’t as great as those with Libya in 1986, they are also likely a greater cause for concern in the long run.
After news leaked out that the Navy had not conducted any FON exercises near the artificial islands in the SCS, eventually the White House caved pressure from Congress, leading to USS Lassen’s voyage.
But as @AmericanHipple of CIMSEC notes, Chris Cavas writing in DefenseNews.com shows us that the exercise may accidentally undermine the Freedom of Navigation exercise.
New details about the Lassen’s transit became available Oct. 30 from a US Navy source, who said the warship took steps to indicate it was making a lawful innocent passage with no warlike intent. The ship’s fire control radars were turned off and it flew no helicopters, the source said. Although a US Navy P-8 Poseidon maritime surveillance aircraft was in the area, it did not cross inside the 12 nautical mile limit.
Here’s the problem with the statement from that source- innocent passage.
Innocent passage is a well established legal doctrine, both historically and under UNCLOS, that applies only to territorial waters of a sovereign state.
UPDATE: A clarification from Matt Hipple. He’s not arguing that it was an exercise in futility, but notes that if in fact it was conducted as Innocent Passage, it undermines the entire point of the FON exercise. It should be noted that Hipple’s views are his personal views, and not necessarily those of the United States Navy nor CIMSEC.
That’s not to say the US should commit overtly hostile acts within the areas claimed by China. But to fail to exercise genuine Freedom of Navigation, and to characterize the voyage as innocent passage is to tacitly acknowledge Chinese sovereignty.
Several actions could and should have taken place to emphasize that the US considers the waters to be international, and not territorial. Sailing on varied courses and speeds, having the accompanying P-8A enter the 12nm zone, flying the embarked ship’s helicopter while within 12nm, and conducting fire control tracking drills against that helicopter, and small boat operations all would serve to drive home the point that the international waters of the world are available for the use of all nations.
Speaking of CIMSEC, a couple of Hipple’s coauthors have a very interesting piece on the paramilitary aspects of Chinese maritime power, and how they use it to frustrate US and other nations efforts in the region.
*Nor do they have an associated 200nm Exclusive Economic Zone, which actually might be of more interest to China.