What Happened at Subi Reef?

9 November 2015, 1739 EST

Following on my last point which tried to understand the logic of ISIS’s role (if indeed it is responsible) in the bombing of a Russian charter plane int he Sinai, let’s turn our attention to the confusion surrounding the recent activity in the South China Sea. In an (alleged…more on this later) effort to counter China’s claims of expanded territorial waters and recent island building in the South China Sea, the US Navy sent the destroyer USS Lassen within 12 miles of Subi Reef, a part of the Spratley archipelgo claimed by several regional actors. China responded by asserting its “indisputable sovereignty” over the reef and accused the US of violating Chinese territorial waters. At the time, that seemed to be the end of it: the US conducted a Freedom of Navigation Operation (FONOP), China responded with predictable rhetoric, and that’s the end of that.

Not so fast.

Several defense-related sources, including USNI Newsare reporting that the USS Lassen turned off its communications, targeting systems, and other critical systems, rendering its passage an “innocent passage” rather than  FONOP.  “Innocent passage” is when warships enter a country’s 12 mile territorial waters without notice but under constrained conditions, including that passage should be continuous and expeditious, with no use of on-board weapons, aircraft or “any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State.” Innocent passage, therefore, is an explicit recognition of a country’s sovereignty, where a FONOP would be an explicit rejection of a territorial claim. According to the sources mentioned above, “this surprising revelation has not been officially confirmed but is understood to have been widely corroborated by sources in the U.S. Navy, Department of Defense and Capitol Hill.”

So, if we assume that the USS Lassen did indeed behave as is alleged, why would it have done so?

There a couple of explanations that come to mind. One, is that President Obama intended the Lassen to make innocent passage; another is that the administration wanted the Lassen to conduct a FONOP but somehow, accidentally, it conducted innocent passage instead. Neither of these arguments are convincing. It is nearly incomprehensible that the administration wanted to carry out innocent passage; the damage that such an act would do to critical US allies is enormous. So much so that I think that argument can be ruled out. Similarly the accidental innocent passage is equally implausible. A FONOP involving China would be a highly sensitive and delicate operation, approved by, I would assume, the highest level of decision makers (the CINC and JCS). It’s hard to imaging that there was not constant communication with the Lassen making accidental innocent passage extremely unlikely.

So what else could explain this? The Lawfare blog has one idea, suggesting  that the Lassen was conducting innocent passage, but with regards to Thitu Island which is controlled by the Philippines. Thus, “if this was indeed the legal basis for the FONOP, the Lassen’s innocent-passage transit would not necessarily suggest acceptance of a territorial sea around Subi Reef, or other artificial islands built on low-tide elevations.” But Lawfare goes on to present two arguments against this possibility. First, that “because an innocent-passage transit is consistent with a territorial sea, the operation probably didn’t demonstrate our rejection of China’s claim that Subi and other artificial islands built on low-tide elevations command territorial seas.” And secondly, that “the ambiguity surrounding this FONOP has blunted its effect.”

I tend to lean towards the second explanation but not the Thitu Island part. One of my major criticisms of the Obama Administration’s foreign policy is that President Obama likes to split differences and pursue half-measures between his preferred policy options and those of his perceived opponents. For example, announcing the “surge” in Afghanistan and at the same time announcing the timetable for withdrawal. Or his issuing a “red line” over CW use in Syria and then clearly not be willing to follow through. Or his claim that he was forced into supporting Syrian rebel groups.

My guess is that President Obama understood the importance of conducting a FONOP but wanted to do so without provoking the Chinese into the kind of response that a FONOP might normally expect, such as fighter jet overflight or a naval intercept. These kinds of situations are inherently dangerous, as they can result in accidents like the 2000 collision between a US surveillance plane and a Chinese fighter. So, to that end, it’s entirely possible that Obama informed the Chinese that the Lassen was conducting a FONOP (and the Chinese rhetorical response seems to acknowledge that they knew what was going on; one doesn’t respond with claims of “indisputable sovereignty” to an innocent passage) but tried to deescalate the situation by ordering the Lassen to transit the disputed waters as non-intrusively as possible.  Of course, splitting these hairs would, as Lawfare suggests, undermine the efficacy of the FONOP itself. Even if China got the message, a disguised FONOP would fail to reassure American regional allies who are very concerned not only about China’s continual territorial expansion but about the commitment of the US to defend them against potential Chinese aggression.

Whatever was actually the purpose behind the USS Lassen’s transit, the message has gotten lost.  We can hope that China got it, but there are too many actors who need to know what that message was. And while the US has tried to avoid provoking China by not publicly discussing the operation or even answering questions about what happened and why, that might be a very counter-productive hair to split. As Nick Bisley writes, “until such time as the United States and its allies realize the scale of China’s ambition and develop suitably strategic responses, China will continue to act as if the South China Sea is Chinese. And the longer that takes, the more likely that reality becomes.”