Does Washington know what it’s doing?
The idea that the United States may send military aircraft and ships
to assert freedom of navigation around Chinese claimed islands in the South
China Sea is seriously bad. It’s bad because it would involve an unreasonably
assertive interpretation of the international law of the sea, and because it
shows such little regard for the impact of such action on regional stability.
There are
three main implications of the U.S. proposal that concern the law of the sea.
The first is the status of China’s claims to the disputed islands. A recent
authoritative report from the
Center for Naval Analyses in Washington concluded that while Vietnam may have a
better claim to both the Spratlys and the Paracels, ‘[a]t the same time, U.S.
policymakers cannot lose sight of the fact that China’s claims may be
superior’, and that ‘[t]he absence of an unambiguous legal case in any of these
disputes reinforces the wisdom of the U.S. policy of not taking a position
regarding which country’s sovereignty claim is superior.’ The action now being
contemplated can only be seen as an indication that in fact the United States
has taken a position on the sovereignty claims.
The
second issue is the oft-stated line from Washington that China threatens the
freedom of navigation in the South China Sea. But what freedoms of navigation
are being threatened? China has always said that with freedoms of navigation
and overflight, it only disputes the right of the United States to conduct
military activities, particularly certain types of intelligence collection and
military data gathering (so-called ‘military surveys’) in its exclusive
economic zone (EEZ). China’s disputation of the right of the United States to
undertake these activities isn’t without merit, particularly when the military
surveys constitute marine scientific research which is under the jurisdiction
of the coastal State in its EEZ. Also, it’s significant that several other
regional countries, India, Malaysia and Thailand, share China’s position on
military activities in the EEZ.
Washington
then aggravates the situation by referring to the waters of the South China Sea
as ‘international waters’, ignoring the reality that these waters are actually
the EEZs of the bordering countries, including China. It also ignores the fact
that the high seas freedoms of navigation and overflight available to other
countries in these waters shall be exercised with what UNCLOS calls ‘due
regard’ to the rights and duties of the relevant coastal State. The freedoms of
navigation being claimed by the United States in the South China Sea aren’t
absolute and have to be exercised with ‘due regard’ to the rights of coastal
States. For the United States now to be claiming them appears as though it’s
ignoring the sui generis nature of the EEZ established by UNCLOS.
The last
law of the sea issue arises from reports that the options being considered in
Washington include sending aircraft and ships within 12
nautical miles of the reefs and islands occupied by China. This would be an
exercise of the right of innocent passage available through the territorial
sea. Even though the features may not be full ‘islands’ under UNCLOS, they have
a territorial sea. Sending ships and aircraft into such waters specifically for
demonstrating a right wouldn’t be a legitimate exercise of innocent passage.
UNCLOS makes clear that innocent passage should be ‘continuous and
expeditious’, and shouldn’t involve ‘any threat or use of force against the
sovereignty, territorial integrity or political independence of the coastal
State.’
For all
these reasons, the action contemplated by the United States looks like a
dangerously unilateral assertion of rights by Washington. What’s even more
worrying is that the US, as a non-party to UNCLOS, may be ignoring some of the
convention’s carefully balanced outcomes between the rights of coastal States
and those of major maritime powers.
In even
contemplating such an assertion of rights in the South China Sea, it appears
the United States has given little consideration to the impact on regional
stability. Provoking China in such an aggressive and unnecessary manner can
only make the current situation worse. One wonders whether the United States
knows what it’s doing in the South China Sea. Is it propping up its treaty
partner, the Philippines, or is it asserting its own interests vis-à-vis those
of China? Does it know its own limitations when it comes to following through
on it its actions? Is it thinking of the consequences? Does it have any idea of
an endgame in the South China Sea? These are all vexed questions the answers to
which are far from clear.
Sam
Bateman is a professorial research fellow at the Australian National Center for
Ocean Resources and Security (ANCORS), University of Wollongong, and also an
adviser to the Maritime Security Program at the S. Rajaratnam School of
International Studies (RSIS), Nanyang Technological University, Singapore. A
version of this article was first published in the Australia Strategic Policy Institute’s
blog The
Strategist
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