‘Freedom of Navigation’ and China-us Relations in the South China Sea

The South China Sea issue has evolved into a show of force featuring the United States and China. Despite divergent legal interpretations on the navigation regime, China and the US have shown political willingness to keep their dispute under control and enhance maritime cooperation.

The December 2016 incident involving an unmanned underwater vehicle (UUV) of the United States was neatly wrapped up on December 20 after China returned the vehicle.1 The legal debate that arose during the UUV incident focused on three aspects: legitimacy of the Chinese action, whether the UUV enjoys sovereign immunity, and the legal status of the location where it was seized. The divergent legal interpretations of the UUV incident are only a small part of a much larger debate about the legitimacy of military activities in a foreign country’s exclusive economic zone (EEZ), which is a long-standing legal issue that has divided China as a coastal state and the United States as a user state. The divergence covers interpretations of key UNCLOS concepts, including “freedom of navigation,” “innocent passage,” “peaceful use of the ocean,” and “due regard.” This reflects a long-standing debate on the clash of freedom of navigation and coastal states’ interests in the South China Sea.

Freedom of Navigation vs. Coastal States’ Interests

The United States has strong interest and is actively involved in East Asia — specifically the South China Sea dispute. Skeptics have traditionally Hong Nong is Executive Director of the Institute for China–america Studies and a Research Fellow at both the National Institute for South China Sea Studies in China and the University of Alberta in Canada.

1 A US oceanographic underwater drone was seized by a Chinese naval warship about 50 nautical miles northwest of Subic Bay in the South China Sea as the USNS Bowditch, a civilian-manned US Navy oceanographic vessel, was conducting research using a UUV known as an “Ocean Glider.”

asked: Why should the US care about a dispute among Asian countries in a region so far from itself when there are far more pressing foreign policy considerations? At least freedom of navigation is one of its concerns. The United States’ Freedom of Navigation Program challenges territorial claims on the world’s oceans and airspace that are considered excessive by the US, using diplomatic protests and/or by operational activities.2

The US government has repeatedly defined freedom of international navigation as one key aspect of its security concerns. For the US government, such freedom also includes that for the warships of the US Navy. Given the history of US military involvement in East Asia, the US demands for innocent passage (i.e. without having to inform the governments of countries immediately bordering the ocean) of its warships is usually used as an assurance that none of the Asian governments can have the right to demand it.3 As such, the geography of the South China Sea area means that its legal ownership and the right to use it are open for contention by countries other than those that directly border the water areas. Outside powers such as the United States and Japan are equally important actors in the dispute due to their identification of possible threats to their commercial and military interests. The US holds that China’s excessive maritime claims in the South China Sea are adversely affecting freedom of navigation and regional stability in Southeast Asia, while China argues that freedom of navigation is never a problem in that region. A case study is selected as follows, among many similar ones, to show the trend of conflicting interests of maritime powers and coastal states regarding the freedom of navigation.4

On April 1, 2001, a US Navy EP-3 surveillance plane collided with a Chinese F-8 fighter jet in the airspace above China’s claimed 200-nautical-

mile EEZ. The accident resurrected arguments concerning, inter alia, state interpretation of Article 58 of the United Nations Convention on the Law of the Sea (UNCLOS), and more specifically, whether the distinct legal regime created by the establishment of an EEZ has imposed limitations on “pre-existing rights” on the high seas.

It is almost impossible to draw any conclusion from the widely differing accounts of the collision.5 Both states alleged that the accident resulted from the dangerous maneuvers of the other state’s pilot. The only fact on which both states agreed was that the collision occurred over the South China Sea, approximately 70 nautical miles from Hainan, in the airspace over China’s EEZ. Whilst the US have officially complained to China, prior to this collision, about the “aggressive actions” of Chinese jets when intercepting US surveillance planes,6 the Chinese have also complained to the US about the presence, and increased frequency, of US surveillance flights over China’s EEZ.7

In China’s view, in the first place, the US military surveillance plane violated the principle of “free overflight” in the international law,8 because the collision occurred in airspace near China’s coastal waters, and within China’s EEZ. According to Article 58(1) of UNCLOS, all states enjoy freedom of overflight within this zone. However, at the same time, Article 58(3) stipulates that “States shall have due regard to the rights and duties of the coastal States.” The Chinese view was that the flight “posed a threat to the national security of China,” and that such flights went far beyond the scope of “overflight” and abused the principle of overflight freedom.9 Second, it was illegal for the US military plane to enter China’s territorial airspace and land at a Chinese airport without approval. The US plane’s

action constituted an infringement upon China’s sovereignty and territorial space. Third, according to Chinese domestic laws and the international law, China had the right to investigate the root cause of the incident, and the plane itself.10

The US held a different interpretation. First, the US was engaging in traditional military activities over international seas, which are legally permissible, and was conducted with due regard to China’s rights and duties as a coastal state. Second, the EP-3 made an emergency landing following the collision and was the sovereign property of the US. It should therefore not have been boarded or examined in any way. Third, maritime law dating back hundreds of years had established a precedent of “safe harbor” for military vessels and their crew in distress. Therefore, entering Chinese airspace was not illegal,11 and the crew should have been returned to the US without any delay.

The validity of the legal arguments forwarded by both the US and China rest in part on their different interpretations of Article 58 of UNCLOS. Article 58 provides that all states, within others’ EEZ, enjoy the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms. It also requires states, while exercising their rights and performing their duties, shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with the provisions of the Convention and other rules of international law.

The phrase “other internationally lawful uses,” and the incorporation of high sea “rights” contained in Articles 88-115, were considered by major maritime powers, including the US, as a safeguard of the “pre-existing rights” on the high seas with regard to military operations involving ships

and aircraft within the EEZ.12

However, the freedoms referred to in Article 87 which regulate the freedom of the high seas, are subject to the restriction of “being compatible with other parts of this Convention.”13 Thus the rights of “freedom of overflight” and “freedom of navigation” are subject to “being compatible” with Article 88, which limits the use of the high seas to “peaceful purposes,” and Article 301 on peaceful uses of the seas, which requires states parties to refrain from any threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.

The issue is further complicated by the lack of consensus as to what constitutes “peaceful purposes.”14 In addition, Article 58(3) provides that in exercising their rights and performing their duties in the EEZ, “states shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State” in accordance with the Convention provisions and other rules of international law, insofar as they are not incompatible with Part V (on the EEZ). The Chinese argument is that US surveillance activities are not considered to be of peaceful purpose. Such activities do not accord “due regard to the rights and duties of the coastal State” in that they threaten the security of China. Their argument is supported, in part, by declarations made by a number of states to the effect that provisions of the Convention do not authorize other states to conduct military exercises or maneuvers within the EEZ, without the consent of the coastal state.15

In turn, under Article 56(2), the coastal state is required to have due regard to the rights and duties of other states in exercising its rights and performing its duties in the EEZ. Churchill and Lowe have stated that the effect of these declarations, if adopted, would be to “close off enormous areas of the seas for such routine military activities.”16 This attempt to balance rights and interests of states is restated in Article 59 of UNCLOS.17 This article indicates that when a conflict arises between the interest of the costal state and any other state or states, it should be resolved on the basis of equity and in light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

But UNCLOS gives no clear guidance either as to the meaning of “due regard” or what constitutes “equity,” other than “relevant circumstances,” and the respective importance of the interests involved to the parties as well as the international community as a whole. Thus, there are no specific criteria except, perhaps, that the activity should not interfere with the “rights and interest” of the states concerned. There is no agreement on what constitutes such rights and interests, nor is there agreement as to whether the interference must be unreasonable or not, and whether it could be or must be actual or potential.

The different views have already resulted in several incidents in the EEZS of the Asia-pacific region. Major incidents include the March 2001 confrontation between the US Navy survey vessel Bowditch and a Chinese frigate in China’s EEZ; the April 2001 collision between a US EP-3 surveillance plane and a Chinese jet fighter over China’s EEZ; the December 2001 Japanese Coast Guard pursuit of and firing at a North Korean spy vessel in its and China’s EEZ; the clash between Chinese vessels and a US ocean surveillance ship in China’s EEZ in 2009; and Vietnam’s

protest against Chinese live fire exercises in Vietnam’s claimed EEZ in 2015.

Efforts to Bridge the Conceptual and Perception Gap

The Ocean Policy Research Institute (formerly Ocean Policy Research Foundation) organized a series of international conferences titled “Regime of the Exclusive Economic Zone – Issues and Responses” from 2003 to 2005, inviting experts to establish a framework on navigation and overflight in the EEZ. At the final conference, participants adopted a proposal titled Guidelines for Navigation and Overflight in the Exclusive Economic Zone. However, the participants did not reach consensus that the Guidelines should be sent to the policymakers of the countries involved for their consideration. Between 2012 and 2013, given that seven years have elapsed since the Guidelines were published and the security environment of the seas in East Asia has drastically changed, the OPRF organized a twoyear study project for reviewing the Guidelines that was conducted. As a result, the Principles for Building Confidence and Security in the Exclusive Economic Zones of the Asia-pacific was drawn up by the participants of the project.

During the workshop “EEZ: Challenges and Issues,”18 there was an agreement that the exercise of the freedom of navigation and overflight in and above EEZS should not interfere with or undermine the rights or ability of the coastal state to protect and manage its own resources and its environment.19 There was also agreement that activities for the purpose of marine scientific research should not occur without the consent of the coastal state. However, there is still disagreement regarding the different interpretations of the relevant UNCLOS provisions, the means of resolving

the disagreements, and even whether or not there is a need to resolve such disagreements.

The disagreements relating to the interpretations of UNCLOS provisions generally relate to the exact presumed meaning of the terms in the Convention, as well as the meaning of specific articles. For example, there are specific differences with regard to the meaning of “freedom” of navigation and overflight in and above the EEZ, i.e., whether such freedoms can be limited by certain regulations — national, regional or international — or whether such freedoms are absolute.

There are also different interpretations regarding the precise meaning of UNCLOS’S phrase that allows “other internationally lawful uses” of the sea in the EEZ. For example, some argue that it clearly does not include warfare in the EEZ of a non-belligerent, while others would insist that under circumstances such as self-defense, such activities are allowed. The interpretation of this phrase will in turn be affected by the interpretation of such terms as “due regard,” “non-abuse of rights,” “peaceful use,” “peaceful purpose,” and the obligation not to threaten or use force against other countries. In this context, questions arise as to whether some military and intelligence gathering activities are lawful exercises of the freedom of navigation and overflight, whether they are a non-abuse of rights, whether they pay “due regard” to the interests of the coastal countries, and whether they are a threat to peace and security as well as the interests of the coastal countries.

What is clear is that it is no longer accurate to say that the freedom of navigation exists in the EEZS of other countries to the same extent that it exists on the high seas.20 Coastal states have acted to control such navigation to protect their coastal living resources, to guard against marine pollution, and to protect the security of coastal populations, and it can be anticipated that such assertions of coastal state control will continue. In many cases, these claims have been approved by the International Maritime

Organization (IMO) and by other regional and global organizations. As Van Dyke claimed, the balance between navigation and other national interests continues to develop, and navigational freedoms appear to be disappearing during this evolutionary process,21 at least in the EEZ.

I have interviewed a few scholars and government officials from China and the United States on the issue of whether the third party forum of UNCLOS plays an important role in addressing the clash between freedom of navigation and coastal states’ interests. Wu Shicun, a leading Chinese scholar on South China Sea studies, denies the role of third party mechanism in helping solve the China-us conflict in China’s EEZ, such as the cases discussed above.22 Likewise, Ramses Amer points out that major powers, in particular the US, do not want any third party to interfere its security policies. The US wants the freedom to go everywhere with its military fleet while China is very keen to uphold its claims in the South China Sea.23 Wu Jilu from China Institute for Marine Affairs insists that any military activities relating to military investigation, military survey, and military information gathering fall into the category of ocean scientific research which requires prior permission from the coastal states. However, he also points out that China should also consider the necessity in the future of conducting surveys in foreign states’ EEZ in the future. He suggests that the government and armed forces from China and the United States should learn from the Us-russia agreement and enhance exchanges and cooperation. John Moore likewise points out the fact that China, as a growing maritime power, will likely be faced with the same dilemma as the United States of balancing freedom of navigation and its security interests in the future.24

The number of high-level meetings and mutual visits between the

two militaries has increased notably in order to implement the important consensus reached by Chinese President Xi Jinping and the former US President Barack Obama that the Asia-pacific region should be a cooperative arena for China and the US to strengthen coordination and cooperation instead of one for conflict. In recent years, China’s Ministry of National Defense and the US Department of Defense have held several rounds of consultations on the establishment of a notification mechanism for major military activities and the Rules of Behavior for Safety of Air and Maritime Encounters in order to manage differences over sensitive issues in a constructive way. In 2015, the two sides formally signed the newly added annexes, i.e. “Military Crisis Notification” attached to the notification mechanism and “Air Encounters” attached to the Rules of Behavior. Both sides agreed to continue consultation on the other annexes to the notification mechanism. This was an important step to better understand each other’s strategic intentions, promote mutual trust, manage crisis and prevent risks.

In addition to bilateral approaches, the two militaries have also worked closely under the framework of the Asia-pacific multilateral security dialogue mechanism. The two navies signed the Code of Unplanned Encounters at Sea (CUES) in 2014, which will reduce misunderstanding and miscalculation of military air and marine maneuvers of all countries in order to prevent air and marine accidents and secure regional stability. The two navies have conducted many exercises for implementing CUES since it was adopted.

South China Sea Challenges under the Trump Administration

Despite different interpretations of some legal terms, China and the United States have carefully managed their differences in a way that reflects their respective national interests without triggering the nerves of the other. In 2016, the United States increased the frequency of its naval patrols in and outside the 12-nautical-mile zones of the Spratly

and Paracel Islands under the name of innocent passage and freedom of navigation, all without challenging China’s sovereignty claims. Compared with its strong reaction to the 2001 EP-3 incident and the 2009 Impeccable incident, during which a strong nationalism dominated public discourse, China reacted with low-profile official protests, without objecting to the doctrine of freedom of navigation itself. The behavior of the US and China reflects the political willingness of both countries to keep the South China Sea dispute under control and to enhance maritime cooperation despite these divergent views.

Whether this balance might continue under the Trump administration is not yet clear. During his confirmation hearing, Secretary of State Rex Tillerson took a tougher stance against China’s presence in the South China Sea. He contested China’s sovereignty claim, saying China’s “access to those islands is not going to be allowed.”25 Recently, however, he has reportedly pushed Trump to reaffirm the One China policy after the President had indicated that it should be reconsidered. Secretary of Defense James Mattis also seems to be eager to walk back the rhetoric a little, suggesting during his inaugural trip to Tokyo that there is “no need for dramatic US military moves in [the] South China Sea.”26 At the same time, however, Steve Bannon, the appointed Senior Counselor to the President, said “there is no doubt” that the United States is “going to war in the South China Sea in 5 to 10 years.”27 Sean Spicer, Trump’s White House Press Secretary, claimed that “we’re going to make sure that we defend international territories from being taken over by one country.”28 Notably, the words “freedom of

navigation” — the linchpin of Obama-era declamations of US interests in the South China Sea — were not mentioned at the briefing. Whether this signaled a sharp departure in the US approach to handling China’s territorial claims at sea remains to be seen. All these comments from key members of Trump’s foreign policy team suggest an uncertain US policy in the South China Sea.

In addition to the uncertainty and unpredictability of the Trump administration’s policy, the debate about the presence of the United States Coast Guard (USCG) in the South China Sea might be another point of friction between the US and China. On November 29, 2016, Admiral Paul Zukunft, the USCG Commandant, spoke at the Brookings Institution about sending USCG ships to the South China Sea to maintain regional order. From the US perspective, as USCG Vice Commandant Charles Michel has argued, there is reason to think that China might respond more positively to USCG white hulls than US Navy cruisers and destroyers, and that the Coast Guard can more easily maneuver the “narrow door of diplomacy.”29 However, the argument that the USCG should have a more visible presence in the South China Sea highlights a misunderstanding about coast guard roles and thereby risks increasing the chance of conflict with China and possibly other claimant states, especially Indonesia and Malaysia.

In addition, if the USCG’S presence in the South China Sea aims, as the USCG Commandant claimed, at working with coast guards of regional allies and partners to enforce those countries’ laws, this is also legally problematic. This is a problem of international rather than domestic law; US experts have suggested in Track 2 settings that USCG activity in the South China Sea is not prohibited by domestic law, and in any case the US Congress would likely ratify this proposal if doing so would enhance the security of maritime trade routes. However, to

conduct law-enforcement activities, such as boarding fishing boats on behalf of regional partners, the USCG would need the authority and jurisdiction to operate in relevant waters. This would likely be worked out through bilateral agreements with relevant countries, which would require recognition of those countries’ territorial claims — something the United States has been unwilling to do so far. Likewise, even in uncontested waters that fall within the absolute sovereign control of a coastal state, critics of the USCG will argue that a foreign state’s lawenforcement activities will impinge on the sovereignty and jurisdiction of the coastal states, which has been a long-standing concern for some countries in Southeast Asia. Strong opposition from Malaysia and Indonesia to the Regional Maritime Security Initiative proposed by former US Pacific Commander Thomas Fargo is a typical example. Hence, it is very likely that the USCG’S contributions in Southeast Asian waters will be limited to capacity building, with no extensions into active law enforcement.

All these recent developments suggest that the competition between China and the United States will become a salient feature of the geopolitics of the South China Sea. One of the root causes is the structural contradiction between an established power and an emerging one, encompassing competition for geopolitical strategic advantage, sea power, and dominance over the international order in East Asia. This competition will continue to intensify as a result of China’s rise and the United States’ comprehensive strategic adjustment in the Asia-pacific. Although the Trump administration has not yet clearly expressed its South China Sea policy, from the perspective of some Chinese analysts the United States has sent signals that it will bolster its military presence in the region. Even after Secretary Mattis softened his position, China does not seem to take this as persuasive due to the uncertainty inherent in Trump’s Asia policy. Navy Times reported on February 12, 2017, that “the Navy is planning fresh challenges to China’s claims in the South China Sea,” which would be a clearer indication of the Trump

administration’s future policy direction than the statements currently offered by top officials.

The difference on the South China Sea tends to give way to political standoff on the Korean Peninsula after the Trump-xi meeting in Florida this April. However, while China assumes a softer tone from the Trump administration on the South China Sea issue, the most recent spat raises the debate again when the guided-missile destroyer USS Stethem came within 12 nautical miles of Triton Island well within China’s territorial sea.30 Defense Secretary Mattis in keynote address at the Shangrila Dialogue in Singapore on June 3, and more recently Secretary of State Tillerson and Secretary Mattis during a joint press conference in Washington, D.C. on June 21 in conjunction with the first session of the Us-china Diplomatic Security Dialogue, seem to suggest that the outlines of the Trump administration’s South China Sea policy are gradually emerging. One of the message from Mattis is that the Freedom of Navigation operations will continue without change.31

Despite the above illustration of a worst-case scenario, we should not be too pessimistic about the future of the Us-china relationship in the South China Sea. The UUV incident could not have been resolved in six days without the prior military trust-building efforts made by both countries. Both sides have learned from the 2001 EP-3 incident, the 2009 USNS Impeccable encounter, and the recent underwater drone incident how best to manage crises at sea. Current crisis-management mechanisms between the two countries — such as the memoranda of understanding (MOU) on notification of major military activities and the Rules of Behavior — are playing a crucial role in dealing with emergencies and preventing the escalation of tensions arising from unplanned and unwanted incidents at sea or in the air.

China and the United States should seek to preserve good faith and a positive spirit in their military relations, despite the divergence in their legal views on maritime issues. As far as the South China Sea dispute is concerned, they should maintain interactive military relations in order to guard against misjudgment, reduce confrontation, and manage and control crises. Both countries should endeavor to avoid escalation stemming from confrontations or tensions triggered by frequent US freedom of navigation operations or the Chinese construction of military facilities on the reclaimed features in the Spratly Islands. Both countries should remain calm, guard against misinterpretation, and expand channels for military exchanges and communication. Both countries should also advance existing crisis-management mechanisms based on the principles of the Us-china Military Maritime Consultative Agreement and the two MOUS signed in 2014 so that such mechanisms can play a greater role in the future.

In order to resolve this paradox, China and the United States have no choice but to engage each other and maintain regular consultations on how they can coexist with their respective core interests. After all, the Asia Pacific is big enough for both countries to share and exert their respective influence without constantly being at each other’s throats. While China’s rise stands a good chance of triggering a regional power shift, the United States needs to acknowledge China’s rise and its core interests. Similarly, China must respect the legitimate interests of the United States in the South China Sea, especially freedom of navigation in line with UNCLOS, which in any case is also in China’s interest. What would work practically in favor of both countries is to explore the fields of developing maritime cooperation between the two sides. Joint efforts in anti-piracy in the Gulf of Aden have provided one successful example. Providing search and rescue at sea and humanitarian assistance would be areas for both countries to take a lead in this region with their naval capacity. It will be in China and the United States’ interests to initiate a regional mechanism in line with the safety and security of navigation, e.g. an Incidents at Sea Agreement

(INCSEA) or a CUES in this region.

Conclusion

The South China Sea issue has evolved from a territorial and maritime dispute between China (including Taiwan) and the other four claimant states, to a show of force primarily featuring the United States, as a strong maritime power and a user state of the South China Sea, and China, as a growing regional power struggling to pursue its maritime interests as a coastal state. China and the United States, both having legitimate interests in the South China Sea, have divergent views on several issues: freedom of navigation, state practice of international law, and approaches to maritime dispute management, etc.

The US and China differ in their legal interpretations on the navigation regime associated with the concept of freedom of navigation, and the relationship between military activity and freedom of navigation. The debate on the legitimacy of military activities in a foreign country’s EEZ reflects the competing interests of two groups, the user states and the coastal states inspired by the doctrine of Mare liberum and Mare clausum respectively. A deep analysis on the EP-3 incident reflects a long-standing debate on the clash of freedom of navigation and coastal states’ interests in the South China Sea.

Despite the divergent legal interpretations and perception gap, the United States and China have shown the political willingness to keep the South China Sea dispute under control and enhance maritime cooperation. While it remains to be seen whether this balance might continue under the Trump administration, China and the US share interests in maintaining peace and stability in this region and further enhancing maritime cooperation on non-traditional security. The benefits of such efforts should not be underestimated.