Seen holistically, freedom of navigation is inherently good and worthy. No one argues against its importance in the South China Sea. Superficially this looks positive, but in reality there are different views about particular freedoms of navigation. Even adding caveats such as ‘in accordance with international law’ makes little difference as there is no agreement on key points of international law related to particular freedoms.
Basic questions abound about freedom of navigation in the South China Sea. Is it a freedom for all ships and aircraft? Where does it apply? Is it only for commercial vessels? Should warships and fishing vessels also enjoy a particular freedom? What are valid restrictions on a particular freedom? Are military activities a freedom of navigation in an exclusive economic zone (EEZ)?
These questions could go on and on. It’s no good arguing that international law provides answers. It doesn’t. The relevant law can be ambiguous, and international arbitration to resolve these ambiguities, particularly in cases related to military activities, is unlikely. Ultimately, answers to these questions will only come through a political process.
The major differences in opinion about what constitutes a freedom of navigation concern two issues. First, there is the freedom of a warship to transit another country’s territorial sea without prior notification or authorisation by the other country. Second, there is the freedom to conduct military activities in the EEZ of another country. China and the United States hold polar views on these two issues.
China and other littoral countries to the South China Sea argue that warships have no automatic right of innocent passage in their territorial sea. But the United States and some other extra-regional countries argue with some justification that this right applies to all ships of all nations regardless of the ship’s nature.
Military activities in an EEZ are a vexed issue. There are two complications.
First, the EEZ regime established by the 1982 UN Convention on the Law of the Sea (UNCLOS) was the result of a compromise. In negotiating UNCLOS, the United States argued that the EEZ was an extension inwards of the high seas while many coastal states argued it was an extension outwards of their territorial sea. The compromise saw the EEZ established as a zone all of its own — neither classified as high seas nor territorial sea and subject to its own legal regime.
The freedom of navigation in the EEZ of another country is not absolute, and an EEZ is not international waters. UNCLOS makes clear that countries exercising their rights and duties in the EEZ of another country should do so with ‘due regard’ to the rights and duties of that country.
But this is a major qualification often not recognised. For example, the Belfer Center at the Harvard Kennedy School recently published Freedom of Navigation in the South China Sea: A Practical Guide. According to the guide, ‘The exclusive economic zone is considered part of international waters. States do not have the right to limit navigation in the exclusive economic zone’. There was no reference to the ‘due regard’ qualification. Instead, the statement set aside the carefully balanced nature of the EEZ regime in UNCLOS.
The second issue is that the scope of ‘military activities’ is very wide. They can range from full-scale military operations through to passive intelligence collection and surveillance. Some activities may be acceptable; others may not. Some activities, such as oceanographic research by naval vessels, may infringe on the coastal state’s jurisdiction over marine scientific research within its EEZ, or on its right to exploit the resources of its EEZ.
Language has also become a key issue in the South China Sea dispute. The term ‘freedom of navigation’ is a sensitive issue for some South China Sea countries because they perceive other states as using the phrase to push for extensive navigational freedoms. While they accept the term ‘freedom of navigation’ as an inherently good and worthy concept, the archipelagic countries, in particular Indonesia and the Philippines, don’t like the phrase because it implies a threat to the integrity of their national waters.
Rather, these countries think of a ‘right’ of navigation, not a ‘freedom’. A ‘right’ has a more restrictive meaning than a ‘freedom’ — it’s a qualified freedom. UNCLOS reflects this subtle distinction. It defines navigation in straits used for international navigation and the high seas as freedoms, whereas innocent passage in territorial seas and archipelagic waters, and transit along archipelagic sea lanes are ‘rights’.
Some common understanding of these issues would be an important confidence-building measure that would help prevent maritime incidents in the South China Sea. But achieving these understandings would be slow and difficult in view of the polarised views on many issues. Meanwhile, it’s important to appreciate that the issues are not as clear-cut as many commentaries would have us believe.
Sam Bateman is an adviser to the Maritime Security Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University. This commentary draws on the event report, Understanding Freedoms of Navigation – ASEAN Perspectives.
Care needs to be taken in giving legitimacy to the views of those states that resist innocent passage by warships. UNCLOS is very clear on this point. There in no ambiguity. It provides answers. Article 17 states that “ships of all States … enjoy the right of innocent passage through the territorial sea.” This Article is located in Part II, Section 3, Subsection A of UNCLOS which is headed “Rules Applicable to All Ships”. That the right of innocent passage applies to warships is also confirmed in Article 20 which provides that submarines exercising innocent passage are to navigate on the surface and show their flag. It is true that some states on signing and ratifying UNCLOS lodged Declarations indicating a contrary interpretation, however a number of States responded with their own Declarations rejecting any interpretation of the innocent passage provisions that require prior notification or authorisation for passage by warships. in 2017, the 1982 UNCLOS does need to be interpreted in light of subsequent state practice consistent with the provisions of the 1969 Vienna Convention on the Law of Treaties, but it would seem clear that the position of states such as China and others that require prior notification and authorisation for the passage of warships is a minority view and not consistent with UNCLOS.
A)Yes, it’s true that Unclos Article 17 states that “ships of all States … enjoy the right of innocent passage through the territorial sea.”
But lest anyone forgets, there is a litany of ambiguities because Article 19 states the meaning of ‘innocent passage’, which is open to many interpretations due to its language. Quote:
“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 wilful 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.” Unquote.
To exacerbate the complexities of Unclos, in October 2015 then US Secretary of Defense, Ashton Carter, in defiance of the majority view in the world, declared that the “US will sail,fly and operate wherever international law allows”, never mind that the US cannot possibly operate in accordance with the international law on the sea because the US has repeatedly refused to ratify Unclos, since it came into force in 1994.
On 12 May 2016, Mr Xu Hong, Director-General of the Department of Treaty and Law on the South China Sea Arbitration Initiated by the Philippines, told reporters that “There are vast waters for the US naval ships to navigate. But it deliberately had them go through the narrow sea belts in proximity to China’s maritime features. It is apparently neither “innocent”, nor (a) “passage”. They also have admitted that it is a challenge, and a show of force. Up to date, the United States has yet to ratify the UNCLOS, but it is now challenging the domestic law of other States formulated in line with the UNCLOS”.
B) “it would seem clear that the position of states such as China and others that require prior notification and authorisation for the passage of warships is a minority view and not consistent with UNCLOS.”
This is debatable because Article 21 on “Laws and regulations of the coastal State relating to innocent passage” allows the coastal states great flexibility.
Quote:
“1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.” Unquote.
C) The writer of the piece is therefore right to observe that “Freedom of navigation is in the eye of the beholder”, more so due to the troubling myopia of the United States.