Thayer Consultancy Background Brief

ABN # 65 648 097 123

South China Sea: Freedom of
Navigation and the 12 Nautical
Mile Limit
January 29, 2019

We request your assessment of claims by Australian newspapers that U.S. Freedom of

Navigation Operational Patrols (FONOPS) are designed to challenge China’s claim to a
12 nautical mile territorial sea around its artificial islands in the Spratly archipelago.
For example, Greg Sheridan, the Foreign Affairs Editor for The Australian, wrote on 29
January: “a formal freedom of navigation operation or FONOP, means sailing within
12 nautical miles of a disputed territory or island. This could be an island that Beijing
has claimed and occupied or an artificial structure it has built.”
On the same day, Lisa Murray wrote in The Australian Financial Review, “the US has
been pushing Australia to take part in so-called ‘freedom of navigation’ operations by
sailing within the critical 12-nautical mile zone of China’s man-made islands…”
ASSESSMENT
Freedom of Navigation – Two Meanings
There are two distinct meanings of freedom of navigation that are often confused in
the media. There is freedom of navigation under customary international law that
permits all nations to sail on the high seas. The second meaning of freedom of
navigation is that used by the United States for its Freedom of Navigation (FON)
program. The U.S. State Department described this program as follows:
U.S. policy since 1983 provides 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. The FON Program since 1979 has highlighted
the navigation provisions of the LOS Convention to further the recognition of the vital
national need to protect maritime rights throughout the world. The FON Program
operates on a triple track, involving not only diplomatic representations and operational
assertions by U.S. military units, but also bilateral and multilateral consultations with
other governments in an effort to promote maritime stability and consistency with
international law, stressing the need for and obligation of all States to adhere to the
customary international law rules and practices reflected in the LOS Convention
[emphasis added].
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As noted, one of the three tracks used by the U.S. in its FON program are operational
assertions by U.S. military units. These are termed Freedom of Navigation Operational
Patrols or FONOPs.
The 12 Nautical Mile Maritime Zone and Innocent Passage
Under the United Nations Convention of the Law of the Sea (UNCLOS) all littoral states
are entitled to a 12 nautical mile maritime zone called the territorial sea. Any state
that occupies an island or a rock is entitled to a 12-nautical mile territorial sea around
these land features.
States have sovereign jurisdiction over the water, marine resources and seabed within
their territorial sea. However, states do not have absolute sovereignty over their
territorial sea as UNCLOS makes provision for innocent passage by commercial and
military vessels within the 12-nautical mile territorial sea. UNCLOS provides the
following conditions for innocent passage:
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal State. Such passage shall take place in conformity with this Convention and
with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order
or security of the coastal State if in the territorial sea it engages in any of the following
activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the principles
of international law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of
the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the
customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
If military vessels conduct innocent passage under these restrictions in the Spratly
archipelago they are in effect recognizing China’s right to a territorial sea. If military
vessels under take any of the proscribed (or similar) activities within the 12-nautical
mile territorial sea they are in effect challenging China’s claim to a territorial sea.
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Spratly Islands Land Features

It is important to note that the Arbitral Tribunal that heard the case brought by the
Philippines against China ruled that none of the land features in the Spratly islands
were islands under the legal definition in UNCLOS. In other words, China cannot claim
a 200 nautical mile Exclusive Economic Zone (EEZ) around any of its artificial islands.
Further, the Arbitral Tribunal ruled that two of China’s “artificial islands” were in fact
low tide elevations and were not subject to appropriation. Mischief and Subi reefs
were ruled to be low tide elevations. They are not entitled to a 12 nm territorial sea.
China has constructed two 3-kilometer long runways on each of these reefs. Under
international law, artificial construction does not change the nature of the land
feature. A low tide elevation remains a low tide elevation despite being converted to
an airstrip.
U.S. FONOPS
U.S. freedom of navigation operational patrols in the South China Sea challenge
several types of restrictions imposed by China and other littoral states.
One example is China’s requirement that all foreign vessels request prior permission
to enter its 200 nm Exclusive Economic Zone. The U.S. challenges this assertion by
sailing through the EEZ without requesting prior permission.
A second example of China’s attempt to restrict navigation is its promulgation of
straight baselines around the Paracel archipelago that include distant features such as
Triton island. The U.S. challenges this assertion by sailing in the waters between Triton
and other features in the Paracels.
China’s Military Alert Zone
With respect to the Spratly Islands, China does not observe international law in
advancing claims to maritime zones under UNCLOS. China has never promulgated
base lines around any of its seven land features/artificial islands nor claimed a 12 nm
territorial sea.
China’s claims are more expansive and have no basis in international law. The Arbitral
Tribunal ruled that China’s nine-dash (or dotted) line claim to the South China Sea had
no basis in international law. Nonetheless, China claims all land features and their
adjacent waters in the South China Sea. It is on this basis that China declares a military
alert zone over the area and challenges the right to freedom of navigation and
overflight by all foreign military ships and aircraft, including those of the Philippines,
the United States and Australia.
The United States has never stated explicitly that its FONOPs in the waters around the
Spratly Islands are a challenge to China’s assertion of a military alert zone.
Nevertheless the U.S. Navy sails and flies over these waters and reportedly passes
within 12 nm of China’s artificial islands.
Since the United States declares that it takes no sides in disputes over sovereignty, it
would appear the United States is bound by international law to recognize China’s
right to sovereign jurisdiction over a 12 nm territorial sea around five rocks (“artificial
islands). By exercising innocent passage within the 12 nm territorial sea the U.S. is
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recognizing China’s sovereign jurisdiction. At present this is a hypothetical situation as

China has not promulgated baselines around its rocks and determined the limits of its
territorial sea.
China’s remaining two “artificial islands” are low tide elevations and are not entitled
to a territorial sea; thus, the issue of a “critical 12 nm zone” is specious.
As noted above, China attempts to restrict freedom of navigation by asserting a claim
to a military alert zone over a great swath of the South China Sea and regularly warns
off foreign military ships and aircraft.
Policy Recommendation
Both Australia and the United States should alter their declaratory policy. Instead of
asserting that they take no sides in disputes over sovereignty, their policy declarations
should declare at the onset that they uphold international law and legal awards by
courts and tribunals established under UNCLOS Annex VII. Freedom of navigation
patrols should be undertaken to continuously challenge states, such as China, that
refuse to comply with legal awards. In the case of Subi and Mischief reefs, the United
States and Australia should object to China’s illegal appropriation of these features. In
practice, naval ships should sail as close to these low tide elevations as navigational
safety permits.
Addendum
Both Greg Sheridan and Lisa Murray should be called upon to explain their
characterization of U.S. freedom of navigation patrols and relationship to the 12
nautical mile territorial sea.
The following letters to the editor of their newspapers were not published and went
unanswered:
Editor
The Australian
Could Greg Sheridan (“Canberra waves a red flag at China”, 29/1) please explain why
sailing within 12 nautical miles (nm) of a littoral state’s coast line, islands or rocks
constitutes a freedom of navigational operational patrol (FONOP)? All of these land
features are entitled to a 12 nm territorial sea. Military ships are entitled to enter the
12 nm limit if they exercise innocent passage and proceed expeditiously from one
point to another. Under customary international law as distinct from a FONOP
warships have the right of freedom of navigation to sail on the high seas (outside the
12 nm claim). U.S. FONOPS are designed to challenge excessive maritime claims such
as China’s straight baselines encompassing the entire Paracel archipelago. The real
issue in the Spratly Islands is that China has not promulgated base lines nor declared
a territorial sea around any of its land features. China claims a specious military alert
zone and warns off foreign naval ships and aircraft. Two of China’s artificial islands are
low-tide elevations that not entitled to a 12 nm territorial sea under international law.
China’s assertion of a military alert zone is an excessive maritime claim that should be
challenged by traditional freedom of navigation under customary international law.
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Editor
The Australian Financial Review
Could Lisa Murray (“Australia open to holding joint operations in the South China Sea”,
29/1) please explain why sailing within 12 nautical miles (nm) of a littoral state’s coast
line, islands or rocks constitutes a freedom of navigational operational patrol
(FONOP)? All of these land features are entitled to a 12 nm territorial sea. Military
ships are entitled to enter the 12 nm limit if they exercise innocent passage and
proceed expeditiously from one point to another. Under customary international law
as distinct from a FONOP warships have the right of freedom of navigation to sail on
the high seas (outside the 12 nm claim). U.S. FONOPS are designed to challenge
excessive maritime claims such as China’s straight baselines encompassing the entire
Paracel archipelago. The real issue in the Spratly Islands is that China has not
promulgated base lines nor declared a territorial sea around any of its land features.
China claims a specious military alert zone and warns off foreign naval ships and
aircraft. Two of China’s artificial islands are low-tide elevations that not entitled to a
12 nm territorial sea under international law. China’s assertion of a military alert zone
is an excessive maritime claim that should be challenged by traditional freedom of
navigation under customary international law.

Suggested citation: Carlyle A. Thayer, “South China Sea Freedom of Navigation and 12
Nautical Mile Limit,” Thayer Consultancy Background Brief, January 29, 2019. All
background briefs are posted on Scribd.com (search for Thayer). To remove yourself
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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.