Japan Institute for National Fundamentals

　　　　　On January 30, the United States carried out a freedom of navigation operation (FONOP) in which a U.S. naval ship passed through waters within 12 nautical miles from a China-controlled island or rock in South China Sea for the first time in three months. Although the previous operation last October took place near an artificial island built by China in the Spratly Islands, the latest one came in waters adjacent to the Paracel Islands that have been free from China’s land reclamation. While the past two operations are commonly designed to send a message that the United States would not allow China to violate the freedom of navigation, the latest one lacked a message against China’s artificial island construction.

Exercising right of innocent passage
　　　　　In the latest operation, the U.S. Navy’s Aegis destroyer Curtis Wilbur approached the Paracel Islands’ Triton Island, one of the islands that China has occupied for more than 40 years since its naval battle with former South Vietnam in 1974. In 2014, China brought a huge oil drilling rig to waters near Triton Island, triggering a skirmish with Vietnam.
　　　　　In the latest operation conducted at the waters with such stories behind them, the United States demonstrated its exercise of the right of innocent passage for military ships. The right under international law allows a ship to pass through territorial waters of a foreign country unless it prejudices peace, order or security of that littoral country. While China has demanded foreign military ships to obtain advanced approval before passing through Chinese territorial waters, the United States has shrugged off such demand as violating the right of innocent passage. It implemented the latest operation without any prior notification to China.
　　　　　In fact, the previous operation in October was also conducted as the exercise of the right of innocent passage. The Subi Reef subjected to the operation is one of the two low-tide elevations (LTEs) among the seven reefs where China has been reclaiming land in the Spratly Islands. Even if an artificial island is built on a LTE that is drowned at high tide, waters around such island cannot be authorized as territorial.
　　　　　If there is an island that is not drowned even at high tide within 12 nautical miles from a LTE, however, territorial waters around the island can be expanded by up to 12 nautical miles from the LTE. As an inhabited land feature called Sandy Cay exists within 12 nautical miles from the Subi Reef, waters within 12 nautical miles from the LTE have room to be interpreted as territorial waters.
　　　　　In the previous operation, the United States conducted the FONOP as the exercise of the right of innocent passage without prior notification to China in an attempt to cause no international law problem with the Aegis destroyer Lassen’s passage even if waters around the Subi Reef are interpreted as territorial waters. The operation did not mean the United States recognized waters around the Subi Reef as Chinese territory.

Message against China’s construction of artificial islands
　　　　　In a letter to U.S. Senate Armed Services Committee Chairman John McCain last December, Defense Secretary Ash Carter explained that the FONOP aims to secure both the right of innocent passage in territorial waters and the freedom of navigation in high seas. Given that the past two operations were conducted as the exercise of the right of innocent passage, I would like the next operation to clearly emphasize the freedom of navigation in high seas. A candidate site for the next operation should be around the Mischief Reef of the Spratly Islands.
　　　　　Like the Subi Reef, the Mischief Reef is a LTE where an artificial island has been constructed. Unlike the Subi Reef, however, the Mischief Reef has no land feature within 12 nautical miles and cannot be interpreted as having territorial waters. By implementing free navigation through high seas rather than innocent passage plagued with a ban on information gathering and some other restrictions, the United States can send China a strong message that artificial island construction cannot expand territorial waters.

Yasushi Tomiyama is Senior Fellow and Planning Committee Member at the Japan Institute for National Fundamentals.