South China Sea and Freedom of Navigation
Image Credit: MC3 Ramon G. Go

South China Sea and Freedom of Navigation

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The South China Sea has sparked a seemingly daily stream of statements from diplomats, military leaders, academic experts, and media commentators. That’s not a surprise: It is a strategic corridor for maritime trade carried throughout the globe, contains lucrative resources, and is the subject of competing claims. With increased focus and attention, however, it is becoming more important than ever to separate fact from fiction.

This year marks the end of a television era of sorts, as the Science Channel is broadcasting its final season of Mythbusters. For those who might be unfamiliar with this show, it has aired almost 300 one-hour episodes over the past 15 years, and features two teams of former Hollywood special effects experts. The recurring task of these expert teams is to use elements of scientific methodology to test the validity of rumors, myths, movie scenes, adages, internet videos, and news stories. During the life of the show, they have tested nearly 1,000 myths. The show’s approach is informative, compelling, and entertaining to watch – even for viewers with a limited background in the natural and applied sciences. Hardly a weekend passes in which my children and I do not watch a Mythbusters episode together.

It should therefore come as no surprise that this television show and its methodical approach came to mind when reading Dr. Jin Kai’s recent commentary, 5 Myths About China’s Missile Deployment on Woody Island. Jin is a former officer in the People’s Liberation Army (PLA) of China. Among the five myths proffered by Jin, he enumerates one about the freedom of navigation in the South China Sea. Such comments, and others like them by Chinese officials, share a common theme. More specifically, they attempt to message that any international concern about China’s actions in the South China and their impact on the freedom of navigation is much ado about nothing. They also suggest that, because China has not interfered with commercial ships transiting the South China Sea, the world has nothing to worry about when it comes to the freedom of navigation in the South China Sea.

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While at least one other commentator has responded to all five of Jin’s myths, the commentary below will focus solely on analyzing his “myth” regarding the freedom of navigation in the South China Sea (hereinafter, the “FON myth”). The analysis below will attempt to test the FON myth, by (1) identifying the applicable universal standards, (2) correcting inherent fallacies in the myth, and (3) applying those standards to relevant data. Steps 1 and 2 will be covered in this commentary, and Step 3 will be covered in a follow-on commentary.

STEP 1: Identify the Applicable Universal Standards to Test the FON Myth

For starters, one should identify and understand the appropriate universal standards to apply in testing the FON myth. During the opening segments of a Mythbusters episode, the show’s hosts often identify and explain the applicable universal standards (e.g., the laws of physics) in order to properly frame the myths being tested in that episode. To test the FON myth, the universal standards are derived primarily from the international law of the sea, as reflected in the United Nations Convention on the Law of the Sea (UNCLOS).

Given that much of what will be discussed below involves either China, the United States, or both, it should be acknowledged upfront: China is a party to UNCLOS, while the United States has not yet joined despite presidential and military support. This author fully believes that the United States should accede to UNCLOS, and has published and stated publicly that belief on a number of occasions. But while invoking the non-party status of the United States might be a handy rhetorical jab for those defending China’s behavior in the South China Sea, the observation lacks substance. Since the treaty’s adoption, the U.S. policy has long regarded much of UNCLOS to “generally confirm existing maritime law” and to abide by its provisions “relating to traditional uses of the oceans – such as navigation and overflight.” Further, the United States government as well as international courts and tribunals have considered much of the Convention to reflect customary international law binding on all states. Moreover, the governments of China and the United States understand that the rules reflected in UNCLOS apply to their maritime activities: China is bound by UNCLOS as a matter of treaty law, and the U.S. is bound as a matter of customary international law. All states, including China and the United States, have a converging interest that the rules of law reflected in UNCLOS serve as the common rule-set, and that underlying consensus is a good thing. It reinforces stability to the international order, which is beneficial to all states.

STEP 2: Assessing the Crux of the FON Myth, and Refining It as Appropriate

As with each Mythbusters episode, the next step in the scientific methodology is to develop a hypothesis that can be tested in later steps of the process. This usually involves starting with a “working hypothesis,” which is sometimes preliminary or provisional in nature. If the working hypothesis contains conceptual errors or logical fallacies, then it should be refined to its final form, so that it can be tested properly. In this instance, Jin’s description of the FON myth appears to contain several inherent fallacies, which are discussed below.

Fallacy A: Freedom of navigation is only one particular right, not a set of them.

An underlying assumption in Jin’s FON myth is that the freedom of navigation consists only of one navigational right. Consequently, he conflates the freedom of navigation interest with freedom of navigation as a single navigational right. To the contrary, freedom of navigation is an overarching interest that is effectuated by the set of rights, freedoms, and lawful uses of the sea and airspace codified in UNCLOS.

In reality, the sovereign states of the world have a number of interests in the oceans. These national interests include, but are not necessarily limited to: maintaining international peace and security, preserving the freedom of navigation, conserving and utilizing the living resources of the sea in an optimum manner, and protecting the marine environment. Yet, to borrow an observation by George Orwell about politics and the use of language, words such as “freedom” and “security” are “political words.” Such words have “different meanings which cannot be reconciled with one another,” and consequently have a risk of becoming “meaningless.” This raises the question: how can sovereign states with different political systems and different understandings of national interests mitigate the risk of political words becoming meaningless in the relations between and among states? One way is through international law, composed of definitions and inter-related rules that balance those interests of states. That is precisely the approach of the legal regime that was drafted, negotiated and ultimately codified in UNCLOS.

First, consider the words of Ambassador Tommy T.B. Koh of Singapore. Koh served as the conference president during the last three years of the diplomatic conference that negotiated UNCLOS. In December 1982, he delivered a speech titled “A Constitution for the Oceans,” in which he described a number of interests shared by states around the world. About the freedom of navigation interest, he said the following:

“The world community’s interest in the freedom of navigation will be facilitated by the important compromises on the status of the exclusive economic zone, by the regime of innocent passage through the territorial sea, by the regime of transit passage through straits used for international navigation and by the regime of archipelagic sea lanes passage.”

Koh importantly did not identify freedom of navigation as only one specific navigational right; rather, he described it as an “interest” that was codified by various provisions of the negotiated text of UNCLOS. In fact, after discussing several of these interests in his speech, Koh assessed that the treaty’s text “successfully accommodated the competing interests of all nations.”

Second, consider the text of UNCLOS itself. The legal regime reflected in UNCLOS is comprehensive in scope, as its 320 articles balance the interests of states in all parts of the ocean space (e.g., littorals, semi-enclosed seas, high seas, etc.), and address all categories of vessels. A number of those articles recognize specific rights, freedoms, and lawful uses of the seas and airspace that are guaranteed to all states in the oceans of the world, as specified for particular portions of that ocean space. These include: the right of innocent passage through the territorial sea of all coastal states (Article 17), the right of transit passage through straits used for international navigation (Article 38), the right of archipelagic sea lanes passage through the archipelagic waters of archipelagic states (Article 53), the freedoms of navigation and overflight, laying of submarine cables and pipelines, and “other internationally lawful uses of the sea” in the exclusive economic zone (EEZ) of all coastal states (Article 58), and the freedom of the high seas (Article 87). Clearly, the text of UNCLOS reflects not a single navigational right, but a number of them.

Jin suggests that the United States might be “confused” about the freedom of navigation, but the record suggests otherwise. The stated objective of the U.S. Freedom of Navigation Program is unambiguous: to preserve all of the rights, freedoms, and lawful uses of the sea and airspace guaranteed in international law to all states. Similarly, the U.S. Department of Defense’s 2015 Asia-Pacific Maritime Security Strategy declares that the United States has “throughout its history, advocated for the freedom of the seas for economic and security reasons.” And that Strategy further clarifies that it uses the phrase “freedom of the seas” to mean “all of the rights, freedoms, and lawful uses of the sea and airspace, including for military ships and aircraft, recognized under international law.” (Emphasis added.) The elements of that definition are fully consistent with applicable international law, including “rights” (rights of innocent passage, transit passage, and archipelagic sea lanes passage, “freedoms” (freedoms of navigation and overflight, to lay submarine cables and pipelines, freedoms of the high seas), and “uses” (other internationally lawful uses of the sea). In short, international law guarantees rights, freedoms, and lawful uses of the sea and airspace, just as the DoD Maritime Security Strategy indicates.

Fallacy B: FON is something that only “civilian and commercial” vessels enjoy.

Jin also implies that freedom of navigation involves the navigational rights of only non-military vessels and aircraft. Specifically, he states, “For the past decades, civilian and commercial freedom of navigation in the South China Sea has never been sabotaged by China’s military forces.” (Emphasis added.)

To the contrary, the rights, freedoms, and lawful uses of the sea and airspace guaranteed in international law are available to all categories of vessels and aircraft – not only merchant ships, fishing vessels, and government ships, but also warships and military aircraft.

In October 1982 (three months before the UNCLOS negotiations were concluded), Ambassador Koh participated in a law of the sea symposium, in which he stated: “I think the Convention is quite clear on this point. Warships do, like other ships, have a right of innocent passage through the territorial sea, and there is no need for warships to acquire prior consent or even notification of the coastal state.” Subsequently, in January 1984, Koh spoke at an academic conference and stated, “Nowhere is it clearly stated whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted.”  The text of UNCLOS and insights from the president of the Convention’s diplomatic conference confirm that military forces share in the freedom of navigation interest, and that the rights, freedoms, and uses reflected in UNCLOS were deliberately intended to guarantee the military component of that interest.

Why does Jin limit his attention to only “civilian and commercial freedom of navigation”? One explanation might be that he is not aware of the text and negotiating history of UNCLOS. Alternatively, he might be fully aware of that text and negotiating history, and is engaged in a revisionist effort to deliberately amputate the military component of the freedom of navigation interest from this body of international law. From the text of his commentary, his mindset is not entirely clear, but it would be especially troubling if he is attempting the latter.

Fallacy C: ‘Sabotage’ is the prohibited threshold for coastal states limiting the FON of other States.

Jin also implies that the threshold for the prohibited actions taken by a coastal state in its maritime zones is relatively high. Specifically, he writes, “For the past decades, civilian and commercial freedom of navigation in the South China Sea has never been sabotaged by China’s military forces.” (Emphasis added.)  What is unclear to the reader is whether Jin’s intended meaning of a word in Chinese was lost when translated to “sabotaged” in English, or whether his use of that English word was a deliberate choice. But if his intent was the latter, that too would be troubling.

Once again, the text of UNCLOS sets the parameters on the extent to which a coastal state may enact laws and regulations that restrict the rights, freedoms, and lawful uses of the sea and airspace enjoyed by other states. Of note, the text of UNCLOS does not use the threshold “sabotage.” Instead, it requires coastal states to not enact laws and regulations or otherwise take actions that “deny” or “impair” the rights, freedoms, and uses of the sea and airspace guaranteed to other states, and that all of their national laws, regulations, and actions are to be “in conformity with” UNCLOS and “not incompatible with” other rules of international law. For example, Article 24 of UNCLOS states that, within the territorial sea, a coastal state “shall not impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage.” 

Fallacy D: Only a coastal state’s military activities are questionable for limiting FON improperly.

Jin also implies that the only activities by a coastal state that should be questioned are those conducted by its military forces. Specifically, he asserts, “For the past decades, civilian and commercial freedom of navigation in the South China Sea has never been sabotaged by China’s military forces.” (Emphasis added.

While his prior military experience in the PLA might cause him to focus attention solely on the activities of China’s military forces, international law does not. Instead, both treaty law and customary law focus on the actions of all official organs of individual states – to include not only their militaries, but also their heads of government, their civilian ministries and agencies, their legislatures, their judiciaries, and their provincial and local governments. Moreover, international law considers not merely the declarative statements of government officials, but also the actions that those representatives direct, legislate, or regulate. In fact, the text of UNCLOS repeatedly contains references to what the coastal state shall or shall not do – without specifying which organs of the coastal state take the action, or the rule-making methods by which states take those actions. Therefore, testing the FON myth would require examining the facts and evidence of actions by any organ of China’s government, not just the military.

Conclusion

Correcting these four fallacies of Jin’s “working hypothesis” would result in the following refined hypothesis: No organ of China’s government has taken action to deny or impair any of the rights, freedoms, or lawful uses of the sea and airspace of other states in the South China Sea; China’s laws and regulations are in full conformity with provisions of UNCLOS and are not incompatible with any other rules of international law.

The four fallacies about the FON myth call into question whether Jin innocently misunderstands the nature and applicable rules of international law, or whether he was deliberately attempting to create and refute a strawman argument. Regardless, this commentary has attempted to refine his original premise to properly reflect the nature and rules of international law. A follow-on commentary will test the refined FON myth with relevant data.

Commander Jonathan G. Odom is a judge advocate (i.e., licensed attorney) in the U.S. Navy. Currently, he serves as a Professor of Law at the Daniel K. Inouye Asia-Pacific Center for Security Studies. From 2012 to August 2015, he served as the Oceans Policy Advisor in the Office of the Secretary of Defense. The views expressed are his own and do not necessarily reflect the positions of the U.S. Department of Defense or any of its components. He may be contacted at [email protected].

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