For the first time since the 1980s, the United States and the world are fixated on the right of freedom of navigation. When Moammar Gadhafi claimed sovereignty over the Gulf of Sidra in the Mediterranean Sea and declared a "line of death," US naval fighter jets challenged the claim. Similarly, US warships asserted their right to innocent passage in the territorial sea of the Soviet Union in the Black Sea bumping incident.
In recent years, Chinese ships and aircraft have aggressively intercepted US naval forces in the South China Sea, most recently by warning a US P-8A Poseidon maritime patrol aircraft to "go away quickly" from artificial installations constructed in the Spratly Islands.
In 2009, China resurrected an historic claim to "indisputable sovereignty" over the South China Sea, and last year began aggressively building artificial islands there on seven features. With airstrips emplaced on these enhanced reefs and islets, China is positioning to assert control over the South China Sea to back up its maritime claims. The US has indicated that it may send ships and aircraft within 12 nautical miles of the features in the South China Sea controlled by China.
To defuse a spiraling crisis, some have assured the world that the United States has not yet challenged China's new territorial claims. But US naval aircraft and warships are doing just that at several levels every time they operate in the South China Sea.
First, US forces in the region continually challenge China's nine-dashed-line claim of "indisputable sovereignty" over 90 percent of the water and features of the South China Sea. Second, US forces challenge China's illegal claim to restrict military activities within its 200 nautical mile exclusive economic zone, measured either from mainland China or one of China's islands.
Third, the US challenges China's right to claim a 12-nautical mile territorial sea from submerged features. Under international law, the construction of artificial islands confers no right of sovereignty over neighboring waters, and the US has made it clear that it will not respect China's claims improperly based on reefs.
Fourth, even small rocks that are above water at high tide may generate a 12-nautical mile territorial sea and national airspace. So far, US forces have not entered within 12 nautical miles of features claimed by China, but they should. All surface ships are entitled to innocent passage inside the territorial sea of any state, and US warships should conduct the same type of patrols in the South China Sea today that they did in the Black Sea in the 1980s.
Furthermore, state sovereignty and a territorial sea are not automatically created by a remote rock, but rather are a function of lawful title to feature by a sovereign state. China has not demonstrated lawful title to any feature located south of Hainan Island, and therefore US aircraft need not give those features the effect of national airspace.
Until the sovereignty disputes are resolved, the United States is not bound to observe any maritime zones that might be theoretically generated from a maritime feature. The islands and features of the South China Sea are devoid of national maritime zones under the UN Convention on the Law of the Sea until sovereignty over them is adjudicated and recognized by the international community. Until China works to resolve its claims through negotiations under international law, the United States should conduct operational challenges against China's illegal claims.
Since President Jimmy Carter began the freedom of navigation program in 1979, the US naval and air forces have tangibly demonstrated non-acquiescence of unlawful maritime claims. The program contains three elements: military-to-military engagement, official State Department diplomatic demarches, and operational assertions by ships and aircraft into areas purportedly claimed by coastal states.
During its heyday in the 1980s, the program challenged 35-40 coastal states each year. As recounted in my study, "Maritime Power and Law of the Sea," in recent years the program has fallen on hard times due to lack of adequate force structure and a dearth of political will inside the Beltway.
Many of China's illegal claims have not been subject to challenge by US ships and aircraft in more than a decade. China's unlawful internal-waters claims in the Paracel Islands and around Hainan Island, for example, were last challenged in 1997. An effective program requires capability and willpower. Capability springs from an adequate force structure and willpower requires interagency commitment to plan and conduct the operations, even at the risk of recrimination from Beijing.
After years of neglect, the legal and policy importance of freedom of navigation in the global commons is being understood as important not just for commercial shipping but for strategic stability and military security. Now that Australia, Japan, India and other states have reawakened to its importance, the US should coordinate with these states and conduct operational challenges in the South China Sea.
