Introduction Stiftung Wissenschaft und Politik German Institute for International and Security Affairs Comments The United States, China and the Freedom of the Seas WP S Washington’s FONOPs Conflict with Beijing Michael Paul After several years of restraint, the United States conducted its latest freedom of navi- gation operation in the South China Sea on 22 January 2016. Three weeks later Presi- dent Barack Obama hosted a conference of the ASEAN heads of state and government in California to discuss the opportunities for reducing tensions in the region, which is witnessing spiralling conflicts between China and its East Asian neighbours over island territories and their resources. Rather than contributing to a deescalation, China fanned the flames by stationing missile batteries on Woody Island, which is also claimed by Taiwan and Vietnam. Alongside that regional conflict, the South China Sea is also turning into an arena of conflict between Beijing and Washington. Amidst different interpretations of maritime law and the Convention on the Law of the Sea (UNCLOS), the question of whether the “freedom of the seas” is upheld or curtailed will have con- siderable geopolitical and strategic military consequences. On 27 October 2015 the guided missile de- theless, this freedom of navigation opera- stroyer USS Lassen (DDG-82) passed less than tion (FONOP) was intended to demonstrate twelve nautical miles from a Chinese-built Washington’s determination to accept no outpost on Subi Reef in the South China Sea. restrictions on its freedom of navigation in The reef has been occupied by China since this region. 1988 and forms its northernmost outpost Months of controversy preceded the in the Spratly Islands, close to the Philip- naval manoeuvre. High-ranking representa- pines. Since July 2014 the Chinese have tives of both parties in Congress, including transformed Subi Reef into a base measur- Senator John McCain, Chairman of the ing almost four square kilometres. The Senate Armed Services Committee, and Bob Americans officially described their opera- Corker, Chairman of the Senate Committee tion as a routine move in accordance with on Foreign Relations, had called on Secre- international law, and denied that they tary of Defence Ashton Carter and Secretary were taking sides in the competing terri- of State John Kerry to respond to shifts in torial claims in the South China Sea. None- the status quo in the region. A policy of re- Dr. Michael Paul is a Senior Fellow in SWP’s International Security Division SWP Comments 15 March 2016 1 straint could be a “dangerous mistake”, said exclusive zones would leave the South McCain: “If you respect the twelve-mile limit, China Sea looking like a Swiss cheese, then that’s de facto sovereignty, agreed to gravely obstructing freedom of navigation tacitly.” in one of the world’s most important sea Washington had in fact for years ignored routes. The same would apply if China had the implications of Chinese expansionism its way and up to 90 percent of the South in the South China Sea. The USS Lassen’s pa- China Sea came under Chinese control. trol was the first FONOP in this region since Such a development would call into ques- 2012 but there was great controversy over tion the existing liberal order. what message it was actually supposed to convey. Subi Reef is a “low-tide elevation” under Article 13 of the Convention on the Opposing Principles: Law of the Seas (UNCLOS), generating no “Mare liberum” vs. “Mare clausum” claim to territorial sea in the sense of a Under UNCLOS, the “high seas” comprise twelve-mile zone. To that extent the course all waters where no coastal state exercises of the US warship was no “innocent passage”, sovereign rights. That does not, however, as that applies only in territorial waters, give the coastal states a free hand to define which these were not. Some argued, how- their own territorial waters. Clear limits are ever, that the USS Lassen’s passage within set on the seaward extent: territorial sea is twelve miles implied American recognition restricted to twelve nautical miles at most, of China’s claims. That assertion is contra- the exclusive economic zone (EEZ) to no dicted by maritime law and geography, more than two hundred. because Subi Reef is located close to Sand Unlike China, which joined in 1996, the Cay, a small island (claimed by China, United States has never signed UNCLOS. On Taiwan, the Philippines and Vietnam) that 10 March 1983, President Ronald Reagan does possess a twelve-mile zone. declared that: “the United States will recog- The passage of the USS Lassen was intended nize the rights of other states in the waters to underline that China’s base-building ac- off their coasts, as reflected in the Conven- tivities had not altered the status quo con- tion, so long as the rights and freedoms of cerning free navigation. Consequently, the the United States and others under inter- Americans treated the outpost erected on national law are recognized by such coastal a “low-tide elevation” as an artificial island, states.” Under its Oceans Policy, the United which may have a safety zone but no terri- States insists on exercising global naviga- torial waters. The patrol by the USS Curtis tion and overflight rights and rejects uni- Wilbur (DDG-54) close to Triton Island in lateral measures restricting them. January 2016 was directed against “exces- The fundamental principle upon which sive claims” by China and Vietnam. Here maritime law is constructed is the “freedom too, the passage occurred without the prior of the seas” (mare liberum) as defined by notification demanded by China and Viet- Hugo Grotius, who regarded the sea as a nam. common good for all humanity. By its very By ignoring artificial outposts and the nature, he argued, the sea was open to use associated claims to territorial sea, the by all. John Selden, on the other hand, pro- United States is acting to prevent the Chi- posed in his book published in 1635 that nese acquiring possession by default. While claims to exclusive rights existed in the the creation of artificial islands cannot be sense of a “mare clausum”. It was certainly undone, the claim to sovereignty, the asso- possible, he argued, to achieve and enforce ciated right to establish exclusive zones and state authority over parts of the seas by the ensuing restriction of freedom of navi- military means. gation can certainly be denied. Given the Ultimately the principle of freedom won rival territorial claims, recognition of diverse the day, as it lined up with the maritime in- SWP Comments 15 March 2016 2 terests of the most important European apply only in territorial waters. The Chi- naval powers of the age. To this day, how- nese justify this expansion on the grounds ever, there is a counter-current, presently that the matter is not explicitly regulated supported by China, that seeks to place in the Convention on the Law of the Sea. more extensive maritime areas (and their Other states also claim exclusive rights. resources) under the control of the coastal Vietnam wishes to be informed before war- states. Such calls for a “terranisation of the ships enter its territorial waters. Like China sea” are acknowledged in UNCLOS, which and a string of other states (including Ma- does not exclude the possibility of change; laysia, India, Iran and Sri Lanka), Vietnam the initiative for this lies with the states. believes that coastal states are entitled to From the US perspective, the sea, as a regulate military activities in their EEZs. global commons, is subject to all the rights Three of these states – China, North Korea and liberties according to international and Peru – have already intervened directly law. This also applies to the “right of inno- (leading in the Chinese case to incidents cent passage”: Since ancient times coastal with American and Indian ships and air- states have subjected the strip of sea along craft). Altogether the EEZs account for more their coasts to their own jurisdiction. But than 30 percent of worldwide seas and because all seafaring states share an inter- oceans (and almost 40 percent in the Asia- est in accessing these coastal waters, both Pacific region). As well as parts of the Pacific, merchant vessels and warships enjoy the waters such as the Persian Gulf and the right of innocent passage – whether to pass Mediterranean could be affected if coastal through or to enter or leave the internal states restricted access. waters of a coastal state. The arrangement Acceptance of restricted access to for- also avoids international shipping being merly freely accessible waters would not forced to take long and potentially dan- only call into question existing maritime gerous detours. law based on the principle of the “freedom In this context, freedom of navigation of the seas”, but also create hairline frac- means that it is permissible to pass through tures in the global order. Ultimately “free the twelve-mile zone and the two-hundred- seas” cannot be taken for granted. For mile EEZ of a coastal state without obtain- many centuries “closed” areas existed, as ing prior permission (UNCLOS Art. 58). The for example the Persian Gulf or the South rules of innocent passage, under which mili- China Sea could become in future. tary activities are prohibited (submarines The US Navy has since 1945 borne the must surface and show their flag), apply costs and burdens of keeping shipping only within territorial waters (UNCLOS routes open and secure in the interests of Art. 17). That rule strongly implies that the free trade. But that requires a correspond- right to conduct military activities such ing freedom of navigation.