By Lauren Stimpert
Since at least 2015, China has been constructing a series of artificial islands, including building on Mischief Reef in the Spratly Island chain. China’s artificial islands are intended for military purposes, outfitted with airways and military hangers. While Hague Tribunal’s ruling struck down China’s claim, invalidating their South China Sea claim, China has ignored that ruling and continues to assert its power, devoting substantial resources to developing these islands. While the Chinese maintain these islands are for civilian purposes, the increased military installations and infrastructure directly contradict that statement. The United States Navy has conducted several Freedom of Navigation operations (FONOPS) in the South China Sea. Both the Obama Administration and Trump Administration have taken different approaches to China’s attempts at expanding their power and influence in the South China Sea. Throughout the Obama Administration, the Navy’s FONOPS were conducted under the right of “Innocent Passage.” In contrast, the Trump Administration has conducted FONOPS in and around the South China Sea likely pursuant to Article 87(1)(a) of UNCLOS, freedom of navigation on the high seas. (See also Freedom of Navigation in the South China Sea: A Practical Guide)
The United Nations Convention on the Law of the Sea (UNCLOS) defines passage as innocent “…so long as it is not prejudicial to the peace, good order or security of the coastal State.” Some claim innocent passage (IP) falls under a category of Freedom of Navigation, however legally and operationally they are completely different. IP concedes to another country’s coastal territory claim, and a ship navigating pursuant to IP deferentially acknowledges it is transiting through another country’s territorial seas. When the Chinese government began their aggressive campaign to claim the islands, the Obama Administration maintained the tepid response of IP. The United States in a way accepted and recognized China’s assertion that the manmade islands generated territorial waters around them. This runs directly counter to Article 60 of UNCLOS, which is also incorporated in Article 87(1)(d) concerning the freedom of the high seas, explicitly states that “[a]rtificial islands . . . do not possess the status of islands . . . have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea. . . .”
Such tacit recognition also runs counter to what the United States Department of State has provided concerning the Freedom of Navigation program in that “the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.” As opposed to IP, FONOPS conducted pursuant to freedom of navigation on the high seas (as described by Article 87 of UNCLOS) directly challenges a country’s coastal territory claim. Thus, conducting FONOPS in the South China sea directly disputes China’s claim to the Spratly Islands. FONOPS conducted in this manner allow United States vessels to sail the seas, including the South China Sea, because the high seas do not belong to one country. In 2017, the United States Navy under the Trump Administration has carried out four FONOPS operations in the South China Sea. Recently, in October, the USS Chafee carried out “normal maneuvering operations” and challenged China by not giving them notification of their position as they requested. The Chinese navy responded by sending out to fighter jets to escort the ship out to what they were claiming as their territorial water space.
If China continues to expand their claimed territory and no one opposes them, major national security and trade implications occur. First, the South China Sea sees $5 trillion in ship-borne trade annually. If China takes claim over these islands and controls who comes into their “territory,” what would happen to that ship-borne trade? The Chinese government could begin to dictate who would be allowed to pass through these waters. Second, China’s claim over these manmade islands is a national security issue. China could use these militarized islands to exercise their will against their other countries in the region. The United States and the current administration should continue exercising FONOPS in the South China Sea to challenge and oppose China’s continuing build-up and expansion on these manmade islands.