What Freedom of Navigation is the U.S. Navy Exercising?

Editor’s Note: This was originally published by The Interpreter, which is published by the Lowy Institute for International Policy, an independent, nonpartisan think tank based in Sydney. War on the Rocks is proud to be publishing select articles from The Interpreter.

A U.S. Navy warship, the destroyer USS Dewey, recently sailed within 12 nautical miles of the Chinese-occupied Mischief Reef in the South China Sea. This was the first such challenge to Beijing by the United States under President Donald Trump, but neither the location or the operation itself should have come as a surprise. It may also score some points for the United States in the Philippines without unduly upsetting China or the rest of the region.

The U.S. Navy has for some time been itching to conduct a freedom of navigation operation (FONOP). Back in March, U.S. Pacific Command requested permission for a Navy warship to sail within 12 nautical miles of Scarborough Shoal, a disputed reef in the South China Sea claimed by both China and the Philippines. The Pentagon turned down this request, as it had two similar requests made in February.

Adm. Scott Swift, Commander of U.S. Pacific Fleet, said in Singapore earlier this month that the recent hiatus in FONOPs in the South China Sea did not mean that the U.S. Navy was reluctant to confront China and exercise its freedoms of navigation in the area. He said there had been no change in policy under Trump and spoke of the advantages of doing FONOPS in view of the uncertainty about the future role of the United States in Asia since the November presidential election.

The decision not to challenge China earlier is believed to have been a move to not “rock the boat” while Washington sought help from Beijing to resolve the escalating crisis on the Korean Peninsula. Or, as an unnamed official from the U.S. Defense Department said, Secretary​ of Defense Jim Mattis was putting FONOPS on hold as part of a broader review of “the American security posture around the world.”

As the situation on the Korean Peninsula calmed somewhat, a FONOP in the South China Sea became more likely. The American FONOP program to challenge what the United States views as “excessive claims” has a long history (as the Lowy Institute’s new interactive map shows). In recent years, China has been a major target of the program. To stop doing FONOPs in the South China Sea would have been seen as a major victory for China, and would have strengthened doubts in Southeast Asia about Washington’s commitment to the region.

Mischief Reef was the obvious choice for a FONOP given it, along with its Second Thomas Shoal feature nearby, was found by the Tribunal in The Hague to be a low-tide elevation with no entitlement to a territorial sea, exclusive economic zone (EEZ), or continental shelf. The Tribunal also concluded that both features form part of the EEZ and continental shelf of the Philippines.

The Tribunal further ruled that China had protected and failed to prevent Chinese fishermen from fishing within the Philippines’ EEZ at Mischief Reef and Second Thomas Shoal, and had constructed installations and artificial islands at Mischief Reef without authorization from Manila. The Tribunal therefore concluded that China had violated the Philippines’ sovereign rights with respect to its EEZ and continental shelf. As an artificial island built up from a reef covered at high water, Mischief Reef is only entitled under the U.N. Convention on the Law of the Sea (UNCLOS) to a 500-meter safety zone around it.

Mischief Reef and Second Thomas Shoal rate highly in the national psyche of the Philippines. They are well within the EEZ of the Philippines and China’s activities on and around them have been a vexed issue between the two countries for many years. In the late 1990s, China built structures to protect fishermen on Mischief Reef, sparking furious protests from the Philippines. The Philippines subsequently ran an old landing ship aground on Second Thomas Shoal, using it as living quarters for a group of marines tasked with protecting Philippine sovereignty over the feature. However, in recent years, Chinese ships have regularly disrupted Philippine attempts to resupply or rotate these marines.

The selection of Mischief Reef for the recent FONOP raises the question as to what particular freedom of navigation the United States was seeking to exercise. If it was the right of a warship to innocent passage in a territorial sea, then it could be construed as an acceptance of Chinese sovereignty over the feature. But if it was to demonstrate a high seas freedom of navigation past a feature not entitled to a territorial sea, then the operation might have been conducted more aggressively with, for example, the firing of weapons and the launching of the ship’s helicopter (all activities prohibited during innocent passage but acceptable high seas freedoms). This point should be clarified, but the United States is unlikely to do so. It is sufficient, in Washington’s view, for the United States to conduct a FONOP without risking criticisms of acting provocatively or being more assertive. Washington probably appreciates the point that more provocative actions in the South China Sea may not win friends in the region.

With Philippine President Rodrigo Duterte recently criticizing U.S. actions and inactions in the South China Sea, a FONOP past Mischief Reef, and perhaps Second Thomas Shoal as well, was likely to be well received in the Philippines. It might also send a relatively harmless message to other Southeast Asia countries about American commitment to the region.

What will China do? Apart from making the standard protests, Beijing is unlikely to view the latest FONOP too seriously. Beijing would have expected American FONOPs in the South China Sea to continue and, provided they don’t escalate too much in terms of frequency or aggressiveness, Beijing will not be too fussed. FONOPS are the game Washington is expected to play.

Dr. Sam Bateman retired from the Royal Australian Navy as a Commodore and is now a Professorial Research Fellow at the Australian National Centre for Ocean Resources and Security (ANCORS) at the University of Wollongong in Australia, and a Senior Fellow in the Maritime Security Program at the S. Rajaratnam School of International Studies (RSIS) at the Nanyang Technological University in Singapore.

His naval service included four ship commands ranging from a patrol boat to guided-missile destroyer. He was awarded his PhD from the University of NSW in 2001 for a dissertation on “The Strategic and Political Aspects of the Law of the Sea in East Asian Seas.” He has written extensively on defence and maritime issues in Australia, the Asia-Pacific and Indian Ocean.

Image: U.S. Pacific Command, MC2 John Philip Wagner, Jr.