Why “Following International Law” Won’t Necessary Solve the South China Sea Conflict Over Freedom of Navigation

by Julian Ku

As Chris notes below, it seems like there will be a showdown soon between the U.S. and China in the South China Sea over the right of freedom of navigation set out in the UN Convention on the Law of the Sea and customary international law. It is tempting to see this as a problem of one side ignoring international law, and the other trying to uphold it.  But the U.S. and China have a fundamentally different understanding of what international law requires and allows under the principle of “freedom of navigation”. So getting all sides  to “follow” international law is not necessarily going to solve the dispute here.

The U.S. definition of freedom of navigation means all ships (including warships) are allowed to traverse both the 200 nm exclusive economic zones (EEZ) and the 12 nm territorial seas without obtaining the permission of the coastal state.  In the 200 nm EEZ, the U.S. believes that military ships may conduct any activity, including surveillance of the coastal state (e.g. “spying”).  Within 12 nm, the U.S. believes military ships must abide by the rules of “innocent passage” which precludes any overt military-related activity.

The Chinese definition of freedom of navigation is quite different.  Essentially, the Chinese argue that military ships should have to follow rules of innocent passage even in the 200 nm EEZ, and that military ships must get permission to enter the 12 nm territorial sea, even if those ships are planning to make an innocent passage.

Why does this difference in the definition of freedom of navigation matter?  Because it allows both sides to say that they are abiding by the rules for freedom of navigation set forth in UNCLOS, while disagreeing dramatically on what each side is allowed to do.  From the U.S. perspective, its navy should be allowed to enter the 12 nm territorial seas around China’s “islands” as long as they abide by the rules of innocent passage.  But the Chinese will say that freedom of navigation doesn’t permit this activity.

Most states agree with the U.S. definition of freedom of navigation.  But some states (including neighboring South China Sea coastal states) do agree with the Chinese view on the EEZ (like Malaysia) and others follow the Chinese view on the 12 nm territorial sea (like Vietnam). So although I think the U.S. reading of UNCLOS is the correct one, the Chinese are not alone in their interpretation.  And as this editorial from China’s leading state-run English language paper indicates, the Chinese are going to emphasize this difference in legal interpretations in their response.

Of all foreign military activities in the special economic zones (especially those of China and the U.S.), the innocent passage of warships through territorial seas, have fueled the majority of clashes and disagreements, as the United Nations Convention on the Law of the Sea fails to provide explicit regulations on such activities.

To be sure, the Chinese may be shifting their own views since the Chinese Navy recently entered U.S. territorial seas on an “innocent passage”. But the official Chinese position still would require the U.S. to get permission before entering its 12 nm territorial seas.

One more note:  because several of China’s “artificial islands” are not islands but underwater features like shoals or reefs, the U.S. position ought to be that there is no “innocent passage” requirement for its naval ships even after entering within 12 nm miles.  Because China’s artificial island do not generate a 12 nm territorial sea, the U.S. should make clear it is NOT following the rules of innocent passage.

In any event, although international law is important, it cannot by itself resolve this festering US-China dispute until both sides agree on what international law actually requires.

http://opiniojuris.org/2015/10/15/why-following-international-law-wont-necessary-solve-the-south-china-sea-conflict-over-freedom-of-navigation/

13 Responses

  1. There is no such thing like the US definition or the Chinese definition of freedom of navigation. The rights and duties of the flag states and littorals are enshrined in the UNCLOS. The Chinese interpretation that ships need to seek permission for exercising the right of innocent passage in the territorial waters is alien to the law of the sea as it exists today and China cannot misinterpret or change the law unilaterally to suit its convenience. If China starts behaving like a bully, it is time China is made to behave like any other civilised law abiding nation.

  2. Thank you for the post. International law is not the solution of world problems. Political problems must have a political solutions. But it is the law that must be complied with. International law is not an optional, nor a matter of agreement among the parties. Certainly those countries do not think that international law is optional, or subject to interpretation, when they pass Security Council resolutions requiring compliance with international law/human rights and so on. International law is the framework within which responsible political actors can operate. If there is no framework, it all comes down to who has more muscles..the military and economically stronger is going to dictate the law…

  3. Clashing national foreign relations law between two guarantor states of the UN system does not international law make — Yoda

  4. Kind of behind-the-scene operators serve to maximize China’s national interest rather than US’s national interest

  5. Has the US ratified UNCLOS?

  6. The US has not ratified the 1982 Law of Sea Convention. However, that cannot be a ground for China to violate the provisions of the Convention vis-a-vis the US or other signatories.

  7. Since when the US start to abide by international laws ?

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