Thayer Consultancy Background Briefing:

ABN # 65 648 097 123

South China Sea: US Freedom of
Navigation Patrols
Carlyle A. Thayer
May 26, 2017

[client name deleted]

Can you provide an assessment of the recent US freedom of navigation patrol
conducted by the USS Dewey (DDG 105)?
ASSESSMENT: US freedom of navigation operational patrols (FONOPs) address the key
issues in the Spratlys. The FONOPs are part of a larger political and diplomatic
programme to challenge excessive claims to maritime zones. In the case of the
Spratlys, China has never promulgated base lines around its land features. This is a
prerequisite for determining the 12 nautical mile (nm) territorial sea.
In the current case the US sailed within 12 nautical miles of Mischief Reef and
practiced a man overboard drill (not innocent passage). Mischief Reef was ruled a low
tide elevation by the Arbitral Tribunal (erroneously referred to as the Permanent Court
of Arbitration in many media reports) that heard the claims by the Philippines against
China. According to the Award a low tide elevation is not subject to appropriation by
China, that is, it belongs to the Philippines. A low tide elevation is not entitled to a 12
nm territorial sea. It is entitled to a 500 meter safety zone at best.
China has constructed a 3 kilometre-long runway on Mischief Reef turning a low tide
elevation into a Chinese military possession. If the US wants to mount a legal challenge
it should sail as close to Mischief Reef as possible and do so on a regular basis.
China consistently challenges ships and aircraft in this area. China claims they are
entering a military alert or military safety zone" and that the foreign ships and aircraft
are endangering the safety of the People's Liberation Army. This is a claim that is not
based on international law. The US should regularly fly over the Spratlys.
China should be pressured into promulgating base lines around its rocks and
demarcating a territorial sea. If the other claimants did the same thing it would be
possible to identify areas of overlap. This would lend itself to demarcation, or failing
that, agreement between the parties on measures of a practical nature (as spelled
out in United Nations Convention on the Law of the Sea). China views the entire
Spratly archipelago as a unit over which it claims "indisputable sovereignty." The
Arbitral Tribunal ruled that there was no basis in international law to draw base lines
around the Spratly archipelago.
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The Arbitral Tribunal ruled there were no islands in the Spratlys in the legal sense. An
island is entitled to a 12 nm territorial sea and a 200 nm Exclusive Economic Zone.
Having said this, the recent FONOP is to be welcomed as a sign that the United States
under Trump will remain engaged in the region. The risk is that China will follow
through on its past statements that it will further militarise its features in response to
increased threats.

Suggested citation: Carlyle A. Thayer, South China Sea: US Freedom of Navigation

Patrols, Thayer Consultancy Background Brief, May 26, 2017. All background briefs
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.