The U.S. Navy on Friday conducted a freedom of navigation operation (Fonop) near disputed features in the South China Sea, its fourth in the past year. A destroyer, the USS Decatur, sailed “in the vicinity of the Paracel Islands,” close to but not within the 12-nautical-mile territorial limits of land features in the Paracels.
In past Fonops, U.S. warships sailed within the 12-nautical-mile zone of land features claimed by China and other countries in the region. Those operations challenged unlawful requirements that a warship seek prior authorization or provide advance notification to exercise innocent passage in territorial waters.
The latest operation was different. It broadened the target of U.S. Fonops in the South China Sea to include China’s illegal straight baselines around the Paracels. Straight baselines join the outermost points of an island or a group of islands, and have the effect of enclosing the waters within them as “internal waters.”
The USS Decatur’s exact path wasn’t specified, but a U.S. Defense Department spokesman confirmed in an email exchange that the vessel went through the Paracels, outside of any 12-nautical-mile territorial sea generated by features. He also confirmed that the purpose of the operation was to challenge China’s use of “straight baselines” around the Paracels.
Beijing promulgated geographical coordinates for straight baselines around the Paracels (and for most of the Chinese coastline) in May 1996. Three months later, the U.S. issued a written protest detailing its objections.
Under the 1982 United Nations Convention on the Law of the Sea (Unclos), only archipelagic states such as Indonesia and the Philippines can draw straight baselines joining the outermost points of the outermost islands in their archipelagoes. Continental states such as China aren’t permitted to employ straight baselines around midocean archipelagoes. So even if China establishes sovereignty over the Paracels, which are also claimed by Taiwan and Vietnam, straight baselines cannot be drawn in this area.
Illegal straight baselines have real implications for the international community, since they adversely affect rights to use the ocean and airspace. Waters landward of a straight baseline are internal waters that may only be entered with a coastal state’s permission, except in situations of distress.
Beijing roundly condemned the latest U.S. operation, as it did the three preceding it. It accused the U.S. of sending a ship into Chinese “territorial waters” without permission. Beijing also sent vessels to shadow the USS Decatur.
Sound and fury notwithstanding, interactions reportedly took place without incident. This allows cautious optimism that China won’t allow responses to Fonops to spiral out of control.
In a report I published in June on the U.S. Freedom of Navigation Program, I argued that the U.S. should continue to regularly assert maritime rights in the South China Sea, including by conducting operations through the Paracels, to underscore the illegitimacy of China’s straight baselines. The latest U.S. Fonop checks this box.
In future the U.S. and other countries with an interest in maintaining international law should also seek to exercise maritime rights through the Spratlys, a group of features located in the southern part of the South China Sea. China has thus far refrained from declaring straight baselines around the Spratlys, though Chinese diplomats in the past confirmed that Beijing was contemplating such a course.
Recent statements issued by China’s Ministry of Foreign Affairs referred for the first time to “internal waters . . . based on Nanhai Zhudao,” the South China Sea Islands. Though vague, this could suggest that China is preparing to announce straight baselines around the Spratly Island group.
A tribunal set up in accordance with Unclos in a case brought by the Philippines against China explicitly rejected the lawfulness of treating the Spratlys as a unit over which straight baselines can be drawn. If states exercise maritime freedoms through the Spratlys, it will demonstrate to Beijing that the international community won’t countenance attempts to convert these waters into internal waters.
States should also assert maritime rights in respect to features that were the subject of the tribunal’s award. This means exercising the right of innocent passage within the territorial seas of features in the Spratlys identified as rocks by the tribunal, and high-seas freedoms around features identified as low-tide elevations or submerged features. This will give the award teeth and render it more difficult for China to ignore the ruling.
Some critics of U.S. Fonops complain that they haven’t stopped China’s island-building and construction activities on features it occupies in the South China Sea. This is akin to blaming a screwdriver for not being any good at driving a nail through a wall.
Fonops demonstrate the U.S. understanding of its maritime rights under international law so that these aren’t lost over time. They won’t stop Chinese activities, nor were they ever designed to do so. But such operations can help limit China’s illegitimate attempts to control the waters of and air above the South China Sea. This will contribute to greater stability in the region.
Ms. Kuok is a nonresident fellow at the Brookings Institution and a visiting fellow at Harvard Law School.