MISCHIEF REEF: PRESIDENT TRUMP’S FIRST FONOP?

BY BONNIE GLASER, ZACK COOPER AND PETER DUTTON | NOVEMBER 30, 2016 / Asia Maritime Transparency Initiative

The election is barely over, but the pressure will soon be on the new administration and its national security team to demonstrate U.S. resolve to support international rules and norms in the South China Sea. Observers will be watching closely for any sign of the new administration’s willingness, or unwillingness, to accept risk in response to China’s recent assertive behavior. In particular, regional experts will judge the new administration on where and when it conducts its first freedom of navigation operation (FONOP) in Asia. China too may be tempted to test the new administration’s policies with assertive operations, as was done in 2001 and 2009.

Latest FONOP: Challenging Straight Baselines in the Paracels

The FONOP conducted by the U.S. Navy on October 21 was qualitatively different from the previous three South China Sea FONOPs. Those operations, which were carried out on October 27, 2015, January 30, 2016, and May 10, 2016, challenged China’s right to require warships to obtain permission for transit through the territorial sea, even when the vessel exercises innocent passage. The United Nations Convention on the Law of the Sea (UNCLOS) permits a vessel to conduct innocent passage through a coastal state’s territorial sea without prior permission, so long as it does so “continuously and expeditiously.” The first three FONOPs in the South China Sea reaffirmed this freedom against China’s attempt to impose restraints on it.

Unlike the prior operations, the most recent FONOP did not challenge China’s attempt to impose excessive conditions on freedoms of navigation in the territorial sea. Rather, the United States challenged China’s claim to encompass the entire group of Paracel Islands within a ring of sovereign waters.

In May 1996, China established 28 basepoints from land features in the Paracel Islands and connected them using straight baselines. This action was contrary to UNCLOS, which only permits archipelagic states to draw straight baselines around island groups. According to UNCLOS, an archipelagic state is “a State constituted wholly by one or more archipelagoes and may include other islands.” In other words, to qualify for straight baselines around island groups, a state must be comprised entirely of islands with no continental territory. China is a continental state and therefore is not permitted to establish archipelagic straight baselines around any of its offshore island groups, including the Paracels.

Nonetheless, China’s 1996 claim asserts a ring of baselines around the outermost of the Paracel Islands and claims for China all the water space within it, plus a twelve-nautical-mile territorial sea belt around the island group. Inside the ring, China appears to claim fully sovereign internal waters. Normally, UNCLOS requires all ships to obtain the coastal state’s permission before entering internal waters. Both China’s baseline claims and its internal waters claim are illegal. Accordingly, as several observers have noted, the USS Decatur crossed China’s illegal straight baselines and conducted maneuvering drills. Maneuvering drills are exercises of high seas freedoms, which are lawful in waters beyond 12 nautical miles from any feature and therefore outside any legitimately claimed internal waters or territorial sea. Contrary to China’s claims, the Decatur was in an area in which high seas freedoms apply.

Why does it matter that the operation undertook high seas freedoms? If it had simply transited through the waters inside China’s unlawful straight baselines, the Decatur would have effectively challenged China’s internal waters claim inside the baselines. But exercise of innocent passage through the Paracels’ waters would not have challenged China’s specious claim to a territorial sea around the entire group of islands, rather than around each island individually. In fact, such a transit could have signaled acceptance.

Following the FONOP, a Department of Defense (DoD) spokesman said that the Decatur conducted the transit “in a routine, lawful manner.” DoD spokesman Commander Gary Ross further elaborated in a phone call that after crossing one of China’s straight baselines in the Paracels, the Decatur loitered and held maneuvering drills before crossing a straight baseline again as it exited the area. The ship did not approach within 12 nautical miles of any individual land feature entitled to a territorial sea. Instead, it remained beyond sovereign waters, operating in accordance with international laws and standards. Furthermore, Commander Ross noted in a subsequent email, “U.S. Navy ships previously challenged excessive straight baselines drawn by China in 1997, 2011, 2013, 2014, and 2015. This included challenges in the Paracel Islands. The DoD Maritime Claims Reference Manual reflects the 1997 challenge, and it will be updated to reflect the 2015 challenge. The 1997 challenge was not listed on the DoD Annual Report that year, but we have confirmed that it did occur despite not being included in the DoD Annual Report.”

The stage is now set for the next U.S. FONOP in the South China Sea. An anonymous U.S. government source told Reuters in November 2015 that FONOPs would be held “about twice a quarter or a little more than that.” Yet, based on public sources, the pace of FONOPs has not met this standard. Although Assistant Secretary of State Daniel Russel noted that “some things are only visible to people with radar and tracking,” U.S. government sources have not made public any other FONOPs. According to public information, therefore, the Obama administration’s FONOPs against China have been separated by 95, 101, and 164 days (for an average of 120 days). Thus it seems likely that the next FONOP will be conducted after Donald Trump’s inauguration, which is only 95 days from the October 21 operation.

Given the limited number of South China Sea policy options available to the incoming administration, many observers will be judging the Trump administration on whether it carries out an early FONOP in the South China Sea. If the administration holds to the recent pattern of alternating between FONOPs in the Paracels and the Spratlys, then the next FONOP will be held in the Spratly Islands. The FONOP location that would most directly relate to enforcement of the July 12 arbitral tribunal ruling is Mischief Reef, which was found to be a low-tide elevation that does not generate an entitlement to a territorial sea, exclusive economic zone, or continental shelf. Given that the United States does not recognize any entitlements in the waters surrounding Mischief Reef, a U.S. Navy ship would have to go beyond innocent passage procedures within 12 nautical miles of the feature, unlike the previous two FONOPs in the Spratlys.

There may also be an opportunity for a new administration to rethink whether it wants to continue to use the FON program as the basis for its maritime operations in and around the Spratly Islands. The United States has an interest in maintaining international rights to freedom of navigation and should continue to operate wherever and however international law allows. But how should those operations be categorized? A FONOP is just one type of naval operation and its focus is fundamentally about the law, rather than the politics of maritime security. Read more…

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