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| Image: Flickr User - Official U.S. Navy Page |
By Ankit Panda
Details on the late October FON operation have been slim, but they matter immensely.
The headline to this article promises a lot, especially since U.S. officials have been unwilling to publicly clarify the precise circumstances of the USS Lassen‘s operation in the South China Sea, near Subi Reef, on October 27, 2015. Fortunately, after more than two weeks of considering various public reports, citing mostly anonymous U.S. official sources and, notably, the skipper of the Lassen itself, experts have determined that the first U.S. freedom of navigation operation near Subi Reef was not an assertion of high seas freedom by the United States. Rather, the USS Lassen transited within 12 nautical miles of Subi Reef in compliance with the innocent passage provisions outlined in Part II, Article 19 of the United Nations Convention on the Law of the Sea (UNCLOS). In essence, the October 27 U.S. freedom of navigation patrol asserted that ships – both civil and military – had the right to sail near Subi Reef without notifying Chinese authorities as long as they complied with innocent passage regulations.
The definitive clarification of why the USS Lassen complied with innocent passage comes courtesy of two noted U.S. experts on the South China Sea, Bonnie Glaser and Peter Dutton, who outlined the legal justification everyone else had missed for why the U.S. Navy didn’t assert high seas freedoms within 12 nautical miles of Subi Reef. Dutton and Glaser note in The National Interest that the very geography of the South China Sea means that Subi Reef could likely qualify for the territorial waters under UNCLOS. Specifically, Sandy Cay, an unoccupied “rock” (not to be confused with the Vietnam-occupied Sand Cay, which is approximately 37 nautical miles from Subi), could have its territorial sea “bumped out” by Subi Reef since Subi Reef itself falls within a 12 nautical mile radius of Sandy Cay. Prior to Glaser and Dutton, no South China Sea observers had pointed out this possible justification for why Subi Reef could be granted a territorial sea in the future. (I would add that Euan Graham at the Lowy Institute has a helpful reaction to Glaser and Dutton here; Mira Rapp-Hooper and Adam Klein take a look this “innocent passage mystery” at Lawfare, discussing the relevance of another nearby feature, Thitu Island; Julian Ku, also at Lawfare, expands on the implications of innocent passage.)
Read the full story at The Diplomat