It is widely expected that in the next several days, the United States will conduct a freedom of navigation exercise near China’s artificial islands in the South China Sea. The Obama Administration has been debating the use of freedom of navigation operations (FONOPS) in the Spratly Islands for several months, and a public debate on the matter has been ongoing since May. As one of us argued in Foreign Affairs last week, the history and record of the Freedom of Navigation program make it clear that these exercises should not be considered controversial or escalatory. This program has existed since 1979, is primarily a legal instrument, and conducts dozens of “navigational assertions” each year, many of them in Asia.
The relationship between the Navy’s imminent freedom of navigation operations and maritime law, however, is not entirely straightforward. Our aim here is to disentangle and explain the key legal and factual elements of a freedom of navigation operation. We begin by exploring three factors that complicate legal analysis of exercises near China’s artificial islands, and then move on to examine the three legal rationales under which these operations could take place.
This piece is intended as a user-friendly guide to help readers interpret the legal message the United States will be sending if and when a FONOP occurs in the Spratly Islands.