South China Sea and the US FONOP

by Matt Schrader
China’s ‘island building’ in the South China Sea Photo:

China’s ‘island building’ in the South China Sea

Concern over the construction of artificial islands in the disputed waters of the South China by the PRC intensified in 2015. Separate reports by the Pentagon and the Washington DC-based Asia Maritime Transparency Initiative indicated that work on seven islands had either been completed or was well advanced by May 2015. In January 2016, the Chinese completed an airstrip on Fiery Cross Reef—an established reef that the Chinese have converted into an artificial island that is long enough to land the PLA’s heaviest bombers and air transports. In total, between early 2014 and mid-2015, Chinese dredgers raised roughly twelve square kilometres of land above the waves, an area about the size of Heathrow Airport. According to the Pentagon, over the past forty-five years other claimants (which include the Philippines and Vietnam) have reclaimed only about one hundred acres of land in the area.

This disparity, and the PLA’s apparent determination to assert Chinese sovereignty over both the airspace and sea around its new islands came under increasing fire by senior US officials in the first half of the year, culminating in a speech by US Secretary of Defense Ashton Carter at the 30 May Shangri-La Dialogue in Singapore. Carter called for ‘a lasting halt’ to island building, singled out China for going ‘much further and much faster than [any other claimant]’, and said that the US military would not be deterred from sailing or flying where it wished.

Carter’s remarks foreshadowed the mutual tension that built over the summer and into the early fall. US Pentagon officials also dropped frequent hints that the US was examining options for ‘freedom of navigation operations’ (FONOP) in the waters around the new islands. FONOPs, in which US ships sail through contested waters, are intended to challenge what the US sees as excessive or illegal territorial claims.

Under the United Nation Convention on the Law of the Sea (UNCLOS), sovereign states are entitled to ‘territorial waters’ extending twenty-two kilometres from their coastline. Foreign military vessels are permitted ‘innocent passage’ through territorial waters, but they must refrain from any activity ‘prejudicial to [the coastal state’s] peace, good order or … security’. Although UNCLOS does not require warships making an innocent passage to provide advance notice, Chinese law does, a position that the PLA Navy seeks to enforce.

Although the South China Sea was on the agenda of a summit meeting between Barack Obama and Xi Jinping at the White House in late September, they failed to reach an understanding. In October, the USS Lassen, a US Navy guided missile destroyer, sailed within twenty-two kilometres of Subi Reef, one of the newly built artificial islands, in what anonymous Pentagon sources described as both an innocent passage and a FONOP. The Lassen did not provide prior notice of its passage. Some observers wondered whether the US, in claiming innocent passage, had inadvertently bestowed implicit recognition upon China’s territorial claim.

A letter from Ashton Carter to US Senator John McCain on 22 December finally put the rumours to rest by clarifying that the Lassen’s passage was meant to challenge what the US saw as China’s illegal attempts to restrict freedom of navigation by requiring prior notice for innocent passage. It was not, he stressed, an indication that the US had taken a position ‘on which nation has the superior sovereignty claims over each land feature in the Spratly Islands. Thus, the operation did not challenge any country’s claims of sovereignty over land features, as that is not the purpose or function of a FONOP.’

Chinese official reaction to the Lassen operation took little note of these distinctions. State media described the US as ‘irresponsible’ and ‘reckless’, and Chinese Foreign Ministry spokesman Lu Kang 陆康 said the US should not ‘make a fool out of themselves in trying to be smart’.