The United States has been unable to synchronize successful air and sea freedom of navigation (FON) operations in the South China Sea with an erratic diplomatic message and a legal case that is too clever by half. Our colleagues Bonnie Glaser and Peter Dutton tried to reconnect these dimensions when they wrote in the The National Interest that while the administration has not done a “stellar job of explaining its actions,” the U.S.
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In yesterday’s post, we asked “What did the Navy do in the South China Sea?” That wasn’t a rhetorical question. The Department of Defense hadn’t yet clearly explained what the USS Lassen did during its recent freedom of navigation operation (FONOP) in the South China Sea. Nor has it explained the precise legal basis for the operation.
After the U.S.S. Lassen’s freedom of navigation operation (FONOP) in the Spratly Islands last week, we wrote that the Lassen and the accompanying P-8 Poseidon aircraft appeared to have conducted normal military operations inside 12 nm around Subi Reef. That was important because normal military operations are not “innocent passage,” a demonstrably nonthreatening mode of transiting another nation’s territorial seas.
The US Navy’s “Innocent Passage” In the South China Sea May Have Actually Strengthened China’s Sketchy Territorial Claims
As David Bosco hinted in his insightful Lawfare post from yesterday on the US-China showdown in the South China Sea, it turns out that the much-heralded U.S. “freedom of navigation operation” (FONOP) last week in the South China Sea was conducted according to the rules of “innocent passage.” As I will explain below, this approach is the weakest type of FONOP the U.S. could have chosen.
Much of the coverage of the USS Lassen's maneuver near the Subi reef in the South China Sea presented the operation as a challenge to Chinese maritime claims and island-building operations. But in fact there are two quite distinct legal issues at play. The first is the traditional U.S. interpretation of the right of innocent passage (even by warships) through territorial waters.
On Friday, we published a “what to watch for” guide to the then-imminent U.S. freedom of navigation operation (FONOP) in the South China Sea. Yesterday, the USS Lassen, an Arleigh Burke-class guided missile destroyer, transited within 12 nautical miles of Subi Reef—one of China’s artificial islands in the Spratly Island group.