Freedom of navigation is in the eye of the beholder

The need for freedom of navigation in the South China Sea is invariably mentioned in statements from regional forums. For example, the Association of South-east Asian Nations (Asean) and China recently agreed on the Asean-China Framework for the Code of Conduct for the South China Sea.

An objective of this framework is to “ensure maritime security and safety and freedom of navigation and overflight”.

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 freedom 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 it.

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? What about military activity in an exclusive economic zone (EEZ)?

These questions could go on and on. It is no good arguing that international law provides answers. It does not. 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 come only through a political process.

The major differences in opinion about what constitutes 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 United Nations Convention on the Law of the Sea (Unclos) was the result of a compromise. In negotiating Unclos, the US 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 Centre 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 is 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, 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, do not 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”. “Right” has a more restrictive meaning than “freedom” — it is 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 is important to appreciate that the issues are not as clear-cut as many commentaries would have us believe. EAST ASIA FORUM

ABOUT THE AUTHOR:

Dr Sam Bateman, a retired Royal Australian Navy commodore, 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.