November 5, 2015

U.S.-China Economic and Security Review Commission 1 

U.S. Freedom of Navigation Patrol in the South China Sea: 

What Happened, What it Means, and What’s Next 

Matthew Southerland, Policy Analyst, Security and Foreign Affairs 

Background: The U.S. response to China’s land reclamation and construction activities on seven land features it 

controls in the Spratly Islands continues to evolve. Heretofore, Washington’s response included statements by 

senior officials, a call for all claimants in the South China Sea disputes to freeze land reclamation, and the 

publicizing of U.S. surveillance flights near, but not within 12 nautical miles (nm) of, the land features.1In May, 

the Wall Street Journal reported that the Obama Administration was becoming more concerned about China’s 

activities and was considering sending U.S. Navy ships and aircraft within 12 nm of China’s land reclamation 

projects.2 U.S. military ships and aircraft had not sailed or flown within 12 nm of Chinese-occupied features in the 

Spratly Islands since 2012.3 

What Happened? After much deliberation by the Administration,4 on October 27 a U.S. Navy guided missile 

destroyer conducted a freedom of navigation* patrol within 12 nm of Subi Reef, an artificial island created from a 

low-tide elevation in the Spratly Islands.†,5 According to a U.S. official quoted by the Washington Post, the patrol 

“was completed without incident,” though China’s navy sent two ships to monitor and issue warnings to the U.S. 

destroyer and a Chinese Ministry of Foreign Affairs spokesperson warned that, “If the relevant party keeps stirring 

things up, it will be necessary for China to speed up its construction activities.”6 A spokesperson for China’s 

Ministry of National Defense asserted that the patrol “threatened China’s sovereignty and security” and 

“undermined the peace and stability in the region.” He also said the patrol was an “action of intimidation aimed at 

creating militarization in the region of the South China Sea.”7 The U.S. ship also conducted freedom of navigation 

operations within 12 nm of land features occupied by Vietnam and the Philippines.8

What the Patrol Means, and What it Does Not Mean: The objective of the freedom of navigation patrol appears 

to have been to signal that the U.S government does not consider Subi Reef to have a territorial sea,

‡

a 12 nm area 

of sea adjacent to a country’s land territory over which that country has full sovereignty. § , 9 Under the UN 

 

* The U.S. government challenges what it considers to be other countries’ excessive maritime claims under international law through its 

Freedom of Navigation program, which provides a toolkit of options ranging from diplomatic consultations and representations to

military operations. U.S. Department of Defense, U.S. Department of Defense Freedom of Navigation Program: Fact Sheet, March 

2015. 

† According to the UN Convention on the Law of the Sea, low-tide elevations are land features that are submerged at high tide. UN 

Convention on the Law of the Sea, “Part 2: Territorial Sea and Contiguous Zone.”

‡ Although China has not explicitly declared whether the land features it controls in the Spratly Islands have territorial seas, the Chinese 

government regularly claims sovereignty over the Spratly Islands and their “adjacent waters.” China’s Ministry of Foreign Affairs, 

Foreign Ministry Spokesperson Lu Kang's Remarks on USS Lassen's Entry into Waters near Relevant Islands and Reefs of China's 

Nansha Islands, October 27, 2015; China’s Ministry of Foreign Affairs, Foreign Ministry Spokesperson Hua Chunying’s Regular Press 

Conference on April 9, 2015, April 9, 2015.

§ At the time of writing, the U.S. government has not made an official statement about the specific activities conducted by the U.S. 

destroyer near Subi Reef or the legal rationale for conducting the operation. Without such a statement, the exact message that the 

operation was intended to convey is uncertain. Adam Klein and Mira Rapp-Hooper, “What Did the Navy Do in the South China Sea?” 

Lawfare (Blog), November 4, 2015. https://www.lawfareblog.com/what-did-navy-do-south-china-sea.
U.S.-China Economic and Security Review Commission 2 

Convention on the Law of the Sea (UNCLOS), low-tide elevations such as Subi Reef may not generate a territorial 

sea unless they are located within the territorial sea of an island or mainland coastline.10 In addition, transforming 

a low-tide elevation into an artificial island does not entitle it to a territorial sea.11 This apparent message of the 

patrol is consistent with earlier statements by U.S. officials that “turning an underwater rock into an airfield simply 

does not afford the rights of sovereignty or permit restrictions on international air or maritime transit” and that the 

United States will “fly, sail, and operate wherever international law allows”.

12

The patrol did not make a statement about the validity of China’s sovereignty claim over Subi Reef itself. The U.S. 

government does not take a stance on the various sovereignty claims over land features in the South China Sea.13 

What Happens Next? Here are some key questions to keep in mind in the coming days, weeks, and months:

What else will China do? China’s response to the patrol has been relatively restrained so far, but if China’s past 

behavior is any guide, it could use the perceived “incursion” as an opportunity to take new “defensive” steps to 

enhance its position.14 Such steps could include increasing the pace and scale of its reclamation and construction 

efforts, as was suggested by the Ministry of Foreign Affairs spokesperson; more frequently shadowing or engaging 

with U.S. Navy ships and aircraft near the reclaimed islands; or establishing or threatening to establish an air defense 

identification zone in the South China Sea. China could also direct maritime militia ships, which U.S. Naval War 

College associate professor Andrew Erickson and research fellow Conor Kennedy describe as a “dual-hatted force 

of specially registered fishing vessels with fisherman-soldier crews,”15 to harass U.S. ships conducting future 

freedom of navigation patrols near the artificial islands. Defense News reported that, according to a U.S. Navy 

source, when the U.S. destroyer was conducting its patrol near Subi Reef, several Chinese merchant or fishing 

vessels were in the area and one crossed the U.S. destroyer’s bow at a safe distance. The source said the vessels

appeared to be there “because they anticipated the [U.S. ship’s] transit.”16 These vessels likely were part of China’s 

maritime militia.17

What else will the United States do? U.S. officials have indicated that the United States will conduct more freedom 

of navigation operations within 12 nm of China’s artificial islands in the South China Sea, though the place and 

nature of these future operations are uncertain.*18 In addition to future freedom of navigation patrols, the United 

States could take other diplomatic or military steps to assert its position; alternately, the United States could seek a 

“cooling off” period to allow relations with China to calm.

How will the region respond? In general, countries in the Asia Pacific reacted positively to the U.S. Navy patrol. 

The president of the Philippines welcomed the U.S. Navy patrol,19 and Malaysia’s defense minister described the 

patrol as “very important.”20 Australian defense officials are considering similar actions,

21 and South Korea’s 

defense minister and Singapore’s Minister of Foreign Affairs voiced support for freedom of navigation as well.

22

Whether and how other regional stakeholders weigh in will be important. History suggests that China is more likely 

to moderate its behavior when several countries in the region are united against it.23

Although not a response to the freedom of navigation operation, a few days after the U.S. Navy patrol, on October 

29, an arbitral tribunal at the Permanent Court of Arbitration in The Hague announced that it has jurisdiction in a 

case initiated by the Philippines in 2013 over China’s claims and activities in the South China Sea. The tribunal will 

address such questions as: whether certain land features in the South China Sea are rocks rather than islands; whether 

certain features are low-tide elevations; and whether China has unlawfully prevented Filipino fishermen from 

fishing at Scarborough Reef, one of the disputed features which China has effectively controlled since 2012.† During 

the next phase of the arbitral proceedings, the tribunal will hold a hearing on the merits of the Philippines’ claims 

and will consider its jurisdiction to rule on the other questions, including whether China’s claims as encompassed 

 

* Reuters reported that a U.S. defense official said the U.S. Navy plans to conduct patrols within 12 nm of artificial islands in the South 

China Sea about two times each quarter. Andrea Shalal and Idrees Ali, “U.S. Navy Plans Two or More Patrols in South China Sea per 

Quarter,” Reuters, November 2, 2015. http://www.reuters.com/article/2015/11/03/us-southchinasea-usa-navyidUSKCN0SR28W20151103#lCyMgiAKjksTszBF.97.

†

In 2012, after a standoff between Philippine and Chinese ships, China effectively secured control of Scarborough Reef, a contested 

fishing ground approximately 500 nm from Hainan Island, China’s southernmost province, and 124 nm from the Philippines’ province of 

Zambales. U.S.-China Economic and Security Review Commission, 2012 Annual Report to Congress, November 2012, 231–233.
U.S.-China Economic and Security Review Commission 3 

by the “nine-dash line” *are contrary to UNCLOS. 24 China’s Ministry of Foreign Affairs issued a statement 

reiterating that the Chinese government, which refused to participate in the arbitral proceedings, will not accept any 

ruling by the tribunal and stating that the case “is in essence not an effort to settle disputes but an attempt [by the 

Philippines] to negate China’s territorial sovereignty and maritime rights and interests in the South China Sea.”25

The tribunal said it expects to rule on the merits of the Philippines’ claims and on whether it has jurisdiction to rule 

on the other questions in 2016.26

Disclaimer: The U.S.-China Economic and Security Review Commission was created by Congress to report on the 

national security implications of the bilateral trade and economic relationship between the United States and the 

People’s Republic of China. For more information, visit www.uscc.gov or join the Commission on Facebook.

This report is the product of professional research performed by the staff of the U.S.-China Economic and Security 

Review Commission, and was prepared at the request of the Commission to supports its deliberations. Posting of 

the report to the Commission’s website is intended to promote greater public understanding of the issues addressed 

by the Commission in its ongoing assessment of U.S.-China economic relations and their implications for U.S. 

security, as mandated by Public Law 106-398 and Public Law 109-7. However, it does not necessarily imply an 

endorsement by the Commission, any individual Commissioner, or the Commission’s other professional staff, of 

the views or conclusions expressed in this staff research report

 

* China delineates its claims on its South China Sea maps using a nine-dash line (and in some cases a ten-dash line), which encompasses 

almost all of the South China Sea.
U.S.-China Economic and Security Review Commission 4 

Endnotes

1 U.S. Department of Defense, IISS Shangri-La Dialogue: ‘A Regional Security Architecture Where Everyone Rises,’ May 30, 2015. 

http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1945; CNN, “High Stakes Surveillance over the South China Sea,” May 20, 

2015. http://www.cnn.com/videos/politics/2015/05/20/south-china-sea-surveillance-plane-sciutto.cnn.

2 Adam Entous and Julian A. Barnes, “U.S. Military Proposes Challenge to China Sea Claims,” Wall Street Journal, May 12, 2015.

http://www.wsj.com/articles/u-s-military-proposes-challenge-to-china-sea-claims-1431463920.

3 Senate Committee on Armed Services, Hearing on Maritime Security Strategy in the Asia-Pacific Region, oral testimony of David Shear, 

September 17, 2015.

4 Austin Wright, Philip Ewing, and Bryan Bender, “Obama Team, Military at Odds over South China Sea,” Politico, July 31, 2015. 

http://www.politico.com/story/2015/07/barack-obama-administration-navy-pentagon-odds-south-china-sea-120865.html; Dan De Luce 

and Paul Mcleary, “In South China Sea, a Tougher U.S. Stance,” Foreign Policy (Blog), October 2, 2015.

http://foreignpolicy.com/2015/10/02/in-south-china-sea-a-tougher-u-s-stance/.

5 Demetri Savastopulo and Charles Clover, “China Accuses US Navy of Illegal Incursion in South China Sea,” Financial Times, October 

27, 2015. http://www.ft.com/intl/cms/s/0/8a05582e-7c18-11e5-98fb-5a6d4728f74e.html.

6 Helene Cooper and Jane Perlez, “White House Moves to Reassure Allies With South China Sea Patrol, but Quietly,’” New York Times, 

October 27, 2015. http://www.nytimes.com/2015/10/28/world/asia/south-china-sea-uss-lassen-spratly-islands.html; Simon Denyer, 

Craig Whitlock, and Steven Mufson, “U.S. Warship Sails within 12 Miles of Chinese-Built Island in South China Sea,” Washington 

Post, October 26, 2015. https://www.washingtonpost.com/world/us-warship-sails-within-12-miles-of-chinese-built-island-in-southchina-sea/2015/10/26/a178497b-7033-4e4c-a328-0f3c980cf193_story.html; Demetri Savastopulo and Charles Clover, “China Accuses 

US Navy of Illegal Incursion in South China Sea,” Financial Times, October 27, 2015. http://www.ft.com/intl/cms/s/0/8a05582e-7c18-

11e5-98fb-5a6d4728f74e.html; Open Source Center, “PRC: Defense Ministry Spokesman Speaks on USS Lassen's Entering Coastal 

Waters of Spratly Islands,” October 27, 2015. ID: CHR2015102749772143; and China’s Ministry of Foreign Affairs, Foreign Ministry 

Spokesperson Lu Kang's Remarks on USS Lassen's Entry into Waters near Relevant Islands and Reefs of China's Nansha Islands, 

October 27, 2015.

7 Open Source Center, “PRC: Defense Ministry Spokesman Speaks on USS Lassen's Entering Coastal Waters of Spratly Islands,” October 

27, 2015. ID: CHR2015102749772143.

8 Ben Blanchard and Andrea Shalal, “Angry China Shadows U.S. Warship near Man-Made Islands,” Reuters, October 28, 2015. 

http://www.reuters.com/article/2015/10/28/us-southchinasea-usa-idUSKCN0SK2AC20151028#BJqaRUkX3KpYvBk0.97; Sam LaGrone, 

“U.S. South China Sea Freedom of Navigation Missions Included Passage near Vietnamese, Philippines Claims," USNI News, October 

27, 2015. http://news.usni.org/2015/10/27/u-s-south-china-sea-freedom-of-navigation-missions-included-passage-near-vietnamesephilippine-claims. 

9 Adam Klein and Mira Rapp-Hooper, “Freedom of Navigation Operations in the South China Sea: What to Watch For?” Lawfare (Blog), 

October 23, 2015. https://www.lawfareblog.com/freedom-navigation-operations-south-china-sea-what-watch.

10 UN Convention on the Law of the Sea, “Part 2: Territorial Sea and Contiguous Zone”; Gregory Poling, “Carter on the South China Sea: 

Committed and (Mostly) Clear,” Center for Strategic and International Studies, June 3, 2015.

11 UN Convention on the Law of the Sea, “Part 5: Exclusive Economic Zone.”

12 U.S. Department of Defense, IISS Shangri-La Dialogue: ‘A Regional Security Architecture Where Everyone Rises,’ May 30, 2015. 

http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1945.

13 Michael Green, Bonnie Glaser, and Gregory Poling, “The U.S. Asserts Freedom of Navigation in the South China Sea,” Center for 

Strategic and International Studies, October 27, 2015. http://csis.org/publication/us-asserts-freedom-navigation-south-china-sea.

14 U.S.-China Economic and Security Review Commission, 2014 Annual Report to Congress, November 2014, 238-239.

15 Andrew S. Erickson and Conor M. Kennedy, “China’s Island Builders,” Foreign Affairs, April.9, 2015.

https://www.foreignaffairs.com/articles/east-asia/2015-04-09/china-s-island-builders.

16 Christopher Cavas, “China’s Little Blue Men Take Navy’s Place in Disputes,” Defense News, November 2, 2015. 

http://www.defensenews.com/story/defense/naval/2015/11/02/china-lassen-destroyer-spratly-islands-south-china-sea-andrew-ericksonnaval-war-college-militia-coast-guard-navy-confrontation-territorial-dispute/75070058/.

17 Christopher Cavas, “China’s Little Blue Men Take Navy’s Place in Disputes,” Defense News, November 2, 2015.

http://www.defensenews.com/story/defense/naval/2015/11/02/china-lassen-destroyer-spratly-islands-south-china-sea-andrew-ericksonnaval-war-college-militia-coast-guard-navy-confrontation-territorial-dispute/75070058/.

18 Andrea Shalal and Idrees Ali, “U.S. Navy Plans Two or More Patrols in South China Sea per Quarter,” Reuters, November 2, 2015. 

http://www.reuters.com/article/2015/11/03/us-southchinasea-usa-navy-idUSKCN0SR28W20151103#lCyMgiAKjksTszBF.97.

19 Aya Lowe, “Philippines’ Aquino Welcomes US Warship’s Deployment in Disputed Sea,” Channel News Asia, October 27, 2015. 

http://www.channelnewsasia.com/news/asiapacific/philippines-aquino/2221382.html.

20 Trefor Moss, “Support Grows for U.S. Approach in South China Sea,” Wall Street Journal, November 3, 2015. 

http://www.wsj.com/articles/support-grows-for-u-s-approach-in-south-china-sea-1446545714.

21 Rob Taylor, “Australia Prepares Option of Sail-Through to Test China,” Wall Street Journal, October 28, 2015. 

http://www.wsj.com/articles/australia-prepares-option-of-sail-through-to-test-china-1446023112.

22 Jonathan Cheng and Gordon Lubold, “South Korea Calls for South China Sea Rights,” Wall Street Journal, November 2, 2015. 

http://www.wsj.com/articles/south-korea-calls-for-south-china-sea-rights-1446461006; Singapore’s Ministry of Foreign Affairs, MFA 

Press Statement: Introductory Calls on Minister for Foreign Affairs Minister Dr. Vivian Balakrishnan, October 28, 2015. 

 
U.S.-China Economic and Security Review Commission 5 

 

23 Robert Sutter and Chin-Hao Huang, “China-Southeast Asia Relations: Beijing Sets Positive Agenda, Plays Down Disputes,” Center for 

Strategic and International Studies, January 2015; U.S.-China Economic and Security Review Commission, Hearing on China’s 

Relations with Southeast Asia, written testimony of Robert Sutter, May 13, 2015. 

24 Permanent Court of Arbitration in The Hague, Press Release: Arbitration between the Republic of the Philippines and the People’s 

Republic of China, October 29, 2015.

25 China’s Ministry of Foreign Affairs, Statement of the Ministry of Foreign Affairs of the People’s Republic of China on Jurisdiction and 

Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines, 

October 30, 2015. 

26 Permanent Court of Arbitration in The Hague, Press Release: Arbitration between the Republic of the Philippines and the People’s 

Republic of China, October 29, 2015.