South China Sea

U.S. Defense Department Confirms USS Decatur Did Not Follow Innocent Passage and Challenged China’s Excessive Straight Baselines

By Julian Ku
Friday, November 4, 2016, 9:12 PM

In my analysis of the USS Decatur’s freedom of navigation operation (FONOP) near the China-occupied Paracel Islands last month, I wrote that the FONOP “probably” did not follow innocent passage and “most likely” challenged China’s excessive straight baselines. I hedged my language on both points a little because the initial US government statement called the passage “routine” and did not mention straight baselines.

Thanks to Commander Gary Ross, from the press office of the Office of the U.S. Secretary of Defense, I can now confirm both facts. In an email to me, Commander Ross writes:

In this operation on Oct. 21, the U.S. naval vessel USS Decatur engaged in normal operations by conducting a non-provocative maneuvering drill.

"Normal operations" refers to the exercise of "high seas" freedoms under international law as reflected in Articles 58 and 87 of the Law of the Sea Convention. This differs from innocent passage, which involves the continuous and expeditious traversing of the territorial sea. Normal operations can be demonstrated through the exercise of maneuvering drills, launch and recovery of aircraft, man-overboard drills, or other non-continuous/non-expeditious actions.

In response to my emailed query, Commander Ross also confirms that the Decatur FONOP was aimed at challenging China’s excessive straight baselines.

Thanks again to the U.S. Defense Department for confirming these small but very significant details for Lawfare’s readers.