Daily Times

Recently, the South China Sea seems to be evolving ‘from a territorial and maritime dispute’ between China and the US ‘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 maritime power struggling to pursue its maritime interests as a coastal State). In the premises of the international law, (particularly with reference tothe doctrine of freedom of navigation) both Washington and Beijing hold different views of what “freedom of navigation” entails under UNCLOS, particularly where these two zones are concerned.China’s responses in the ‘lawfare fundamentally suggest that China on this issue reflects a rule-of-law oriented-approach which is dissented by the US administration.

Freedom of navigation seems one of the oldest and most recognized principles in the legal regime– governing ocean space. It is fairly argued – since it was enshrined in the chapter ‘De mare liberum’ (‘On the freedom of the sea’) in the treatise – actually it was a legal opinion – of Hugo Grotius (the father of internationallaw) ‘De iurepraedae’ of 1609 – this principle constitutes one of the pillars of the law of the sea and was at the origins of modern international law.

The UN Convention on the Law of the Sea(UNCLOS.1994) is an international agreement that definesthe rights and responsibilities of nations with respect to their use of the world’s oceans.it makes ample reference to the freedom of navigation, article 36 (freedom of navigation in straits used for international navigation), article 58 (freedom of navigation in the exclusive economic zone), article 78 and article 87 (high seas). In this context, the right of ‘innocent passage’ in the territorial sea and through archipelagic waters as specified in articles 17 to 26 and 52 of the Convention should also be mentioned, as well as the freedom of transit passage in straits used for international navigation (article 38 of the Convention). The three freedoms intrinsically mean the same – freedom of movement of ships.What glaringly distinguishes them is the different influence coastal States may exercise on the freedom of movement. Though the US has not ratified the UNCLOS, it mostly honours the provisions.

For passage to remain innocent, a warship must refrain from engaging in any military operations, surveillance, launching aircraft, or survey activities. For a submarine transit to qualify as the innocent passage, the submarine must navigate on the surface and show its flag

The core fact remains that China and the United States do not contest the existence of a right of ‘innocent passage’ in territorial seas under the 1982 United Nations Conventions on the Law of the Sea (UNCLOS), they differ on the specific rights of ‘warships.’ The United States holds that warships enjoy the same right to the’ innocent passage’ as commercial vessels, while China mandates in its domestic law that flag states of warships exercising innocent passage must obtain prior permission from coastal States.

According to the U.S. interpretation of the freedom of navigation, all ships are allowed to pass through the 200 nm EEZ and 12 nm territorial sea of a coastal state without obtaining prior permission. This argument holds that military vessels can conduct any activity in the EEZ, including military exercises and surveillance. It also holds that military vessels can transit the territorial sea, as long as they do so consistent with the principle of “innocent passage,” which means that no overt military activities can take place. For passage to remain innocent, a warship must refrain from engaging in any military operations, surveillance, launching aircraft, or survey activities. For a submarine transit to qualify as the innocent passage, the submarine must navigate on the surface and show its flag.

James Kraska of the US Naval War College explains that because the United States does not recognize any state’s claim, it could argue that these features are terra nullius not entitled to a “theoretical” territorial sea, even if they would ordinarily merit one. Ultimately, China is unlikely to change its view that a U.S. FONOP is a violation of its sovereignty. But these wildly differing interpretations of UNCLOS, and the fact that China has not been explicit about what maritime entitlements it is claiming based on its artificial islands, are precisely why the Navy is conducting a FONOP in the first place.

On August 26, Chinatriggered a series of ballistic missiles, including an apparent “carrier killer” weapon, into the disputed South China Sea as part of integrated military exercises apparently simulating a strike on U.S. warships in a warning to the United States. The launches on Wednesday came as a backlash against Washington’s current move to blacklist 24 Chinese companies and targeted individuals it said were part of construction and military activities in the South China Sea – the first such sanctions against Beijing over the strategic waterway and a dramatic escalation of the U.S. offensive against China’s actions there. But obviously, the Pentagon seems to havedefied Chinese territorial claims via flying the US aircraft near two People’s Liberation Army exercises. The Chinese military officials and diplomats warned on August 24 about a U-2 spy plane flyover near Northern Theater Command drills.The Chinese military claimed that it forced a US warship away from disputed islands (the Paracel Islands) in the South China Sea.

A spokesperson for China’s embassy in Washington, DC, condemned the US sanctions as “completely unreasonable”, and urged the US to reverse them.”[South China Sea Islands are] an integral part of China’s territory, and it is fully justified for us to build facilities and deploy necessary defence equipment there,” the spokesperson said. “The Chinese government has firm determination to safeguard its sovereignty and territorial integrity.”United States-led naval operations in contested areas have emerged as the preferred countermeasure thereto. However, diverging legal positions, complex territorial and maritime disputes, and growing aspirations to enlarged national spheres of influence have resulted in unintended outcomes.

Arguably, the right of ‘Innocent Passage’ for foreign vessels within the territorial sea of a coastal State (subject to various restrictions) is defined as navigation through the territorial sea for the purpose of (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility. The Passage must be ‘continuous and expeditious,’ but it may include stopping and anchoring when incidental to ordinary navigation or rendered necessary by unusual circumstances.

The US, while accusing China of militarising the South China Sea seems highly prejudicial to Chinawhen it charges that Beijing is trying to intimidate Asian neighbours(who might want to exploit its energy and fishing reserves.US warships)– have gone through the area to assert the freedom of access to international waterways, raising fears of clashes. Yet a fair insight into the South China Sea crisis reveals about China’s legal objectivity to preserve the integrity of its territorial waters while the US side is making its unilateral assertion– seeing its right to navigate in the international waters.

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan