Does Freedom of Navigation ring across the South China Sea?

America needs a new maritime communications strategy to win the war of words

Xiaodon Liang

Government and governance, International relations, Law, National security, South China Sea | Australia, Asia, East Asia, South Asia, Southeast Asia, The Pacific, The World

15 February 2016

Regional fence-sitters on the South China Sea issue might be better convinced by highlighting China’s disregard for peaceful settlement of disputes, not contested rules of the sea, writes Xiaodon Liang.

On January 30, the USS Curtis Wilbur sailed past Chinese-controlled territory in the Paracel Islands. The Wilbur operation was an exercise of innocent passage, traditionally a right of seafarers under the norm of freedom of navigation. During this episode and a similar operation by the USS Lassen last year, the United States relied heavily on freedom of navigation to justify its naval operations in the South China Sea—and appealed to other countries to rally behind it.

Even and equitable application of rules of international behaviour, however, seldom benefit all states equally. The equity of rules matters because it determines how strongly appeals to those rules resonate with non-claimant parties. In appealing to freedom of navigation in the South China Sea dispute, the United States has attempted to regionalise, if not globalise, its complaints about Chinese behaviour.

Non-claimant states, from US allies in Northeast Asia to key regional fence-sitters like Indonesia and Singapore, have heard this appeal but remain unconvinced that Chinese rule-breaking is truly their problem. “Non-claimant Perspectives on the South China Sea Disputes,” a roundtable published in the January 2016 issue of the National Bureau of Asian Research’s Asia Policy journal, found that states subordinate their maritime concerns to commercial interests, or are only motivated to protest Chinese action in light of broader strategic considerations.

More on this: Maritime muscle in the South China Sea | Sarah Kirchberger

While China’s pattern of behaviour in the South China Sea should indeed concern the entire world, the US strategy for communicating this message must be adjusted. The United States should recognise that appeals to freedom of navigation, while certainly not hollow, are not always convincing.

First, freedom of navigation is most useful to states like the United States and its Western partners with powerful naval forces that can exercise their freedoms off other nations’ coasts. As former head of the US Pacific Command Thomas Fargo argues in Asia Policy, sea power makes neighbours of distant US allies—but it brings US forces closer to erstwhile enemies as well. States with weak naval forces have no natural sympathy for freedom of navigation, and a gradual enclosing of the world’s oceans under tight domestic regulations might seem an appealing prospect. Many states thus interpret UN Convention of the Law of the Sea (UNCLOS) articles very differently than the United States does. In 2014 alone, the United States protested requirements for prior notification of innocent passage through territorial waters against Argentina, Indonesia, Nicaragua, South Korea, and Taiwan.

The clash of interests applies to actions outside a country’s 12 nautical mile territorial zone as well. Both the Hainan EP-3 incident in April 2001 and the USS Cowpens near-miss with the Liaoning escort flotilla in December 2013 were a result of the United States exercising its right to conduct surveillance outside China’s territorial waters but within its exclusive economic zone (EEZ). Besides China, numerous other states prohibit military manoeuvres or intelligence collection within their EEZs, despite the US Navy’s vigorous protests under its Freedom of Navigation program.

Second, maritime rights are difficult to assert individually because the 1982 UN Convention on the Law of the Sea was arrived at as a grand bargain, full of deals between log-rolled interests, which almost all could accept as a whole, but few could accept in its parts. One such bargain was the endorsement and universalisation of the concept of the EEZs, which—to put it simply—could be treated as one country’s territory for economic purposes, but would remain part of the high seas for all others. Any single right asserted in isolation might appear an outrage to national sovereignty or historic maritime freedoms, but explaining the bundling of these rights in UNCLOS would set the outrage in appropriate context. Unfortunately, explaining the negotiating history of UNCLOS is no easy feat.

A much better communications strategy would be for the United States to emphasise a different rule of international society that China has regularly flaunted: peaceful resolution of international disputes. Article 2(3) of the UN Charter requires states to settle their disputes peacefully, but China has actively reneged on this commitment in at least two ways.

China has engaged in dangerous and provocative military manoeuvres to demonstrate its willingness to clash with neighbours over sovereignty claims, and with the United States over rights at sea. In past decades, Beijing periodically resorted to direct military action to displace rival claimants—notably Vietnam from the Paracel Islands in 1974. Chinese military action assumes operational risks that go beyond what other claimants are willing to accept, and in initiating dangerous games of “chicken,” Beijing bears the largest responsibility for inflaming the dispute.

Moreover, and more profoundly, by refusing to participate in the arbitral case filed by the Philippines under the dispute settlement terms of UNCLOS, China has chosen to undermine the rule of law. Responsibility for initiating the trend of non-participation belongs with Russia in its response to the Netherlands’ case protesting the detainment of a Greenpeace vessel in 2013. By perpetuating this practice, however, China has implicitly endorsed Russia’s cavalier disregard for its international commitments. The legal implications of non-participation are nil—the arbitration has continued without China and its decisions will be as authoritative as if a lawyer from Beijing were present—but the message is clear: China is above the law and will not engage its neighbours as equals.

The United States and its allies might better convince non-claimants to protest Chinese provocations by referencing China’s disregard for peaceful settlement of disputes, not contested and convoluted rules of the road at sea. This rhetorical case, combined with the launch of a multilateral dispute-settlement process between all other claimants in the South China Sea, could help create a broader international consensus on the importance and attainability of a peaceful maritime region.

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