‘North to Alaska:’ US and Chinese Competing Visions of Maritime Fair Use

What makes the Chinese transit of the Aleutians provocative to some is an apparent hypocrisy.

‘North to Alaska:’ US and Chinese Competing Visions of Maritime Fair Use
Credit: flickr/U.S. Navy

In August, China and Russia conducted a large bilateral naval exercise called Joint Sea 2015 II in the Sea of Japan. The exercise concerned some observers for what it implied about a solidifying geopolitical block aligned against the U.S. But its location provided the Chinese with another opportunity – to enter the Bering Sea and then transit unannounced through U.S. territorial waters in the Aleutian Island chain.

Chinese operations in the Bering Sea are believed to be unprecedented, and there are numerous political statements that can be read into the transit, which coincided with President Obama’s historic visit to Alaska. But legally, the Chinese were well within their rights; in fact a right the United States has long defended both for itself and others. What makes the Chinese transit of the Aleutians provocative to some is an apparent hypocrisy. While the U.S. takes a maximalist and institution-based position on the maritime rights of all nations, China is comparatively selective; it enjoys its full maritime rights internationally while routinely attempting to deny similar rights to nations transiting or operating in and near its waters.

In passing through the Aleutians, the Chinese were exercising a treaty right called innocent passage. Under the United Nations Convention on the Law of the Sea (UNCLOS), ships may transit the territorial waters of another nation so long as the transit is not “prejudicial to the peace, good order or security of the coastal state.” As such, military and government vessels exercising innocent passage are prohibited from engaging in threatening activities like weapons drills, surveillance, aircraft operations, etc. Fueling Sino-US tensions are disagreements about claims and limits under UNCLOS, and special areas like Air Defense Identification Zones (ADIZ) that are not governed by treaty.

UNCLOS defines several ocean zones and the rights within each: Territorial waters are sovereign national territory generally extending 12 nautical miles from the coast, but with special cases for broken coastlines, archipelagos, historic bays, etc., and subject to certain international rights like innocent passage. The Contiguous Zone extends an additional 12 nautical miles from territorial waters and permits a coastal state limited enforcement rights to ensure compliance with national laws and security interests within its territorial waters. The Exclusive Economic Zone (EEZ) is an area extending 200 nautical miles from its territory within which a coastal state has special exclusive rights to the exploration and exploitation of marine resources like fisheries and energy. Special areas like ADIZs are not defined by treaty, only by custom and precedent. ADIZs are established to allow a country to identify potential airborne threats and engage them before they are within territorial airspace (which follows the same boundaries as territorial waters).

Because international law is founded on customary practice, what a nation is able to credibly enforce is more important than what they claim on paper. This is the idea behind the U.S. Freedom of Navigation program (FON). When the United States has deemed that a maritime nation has made legal claims in excess of what is allowed under the UN Law of the Sea, in addition to diplomatic challenge, Washington will also physically assert its rights by sending ships or aircraft to transit the waters or airspace being circumscribed.

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Sometimes states’ attempts to enforce their claims against the U.S. challenge has resulted in tense incidents, such as the shouldering of two U.S. warships by Soviet vessels in the Black Sea in 1988. In that incident, the United States was asserting its right to innocent passage after the USSR had passed specific strictures on warships in their territorial waters. The diplomatic crisis that followed led to the repeal of the excessive laws and Soviet recognition of the universal right to unimpeded innocent passage.

The Chinese transit through the Aleutians bears the hallmarks of a Freedom of Navigation assertion. Instead of heading southwest back to China at the conclusion of the Sino-Russian exercises, the Chinese vessels proceeded northeast into the Bering Sea and then through the Aleutians, signaling the deliberateness of the passage. The timing with President Obama’s visit to Alaska cannot be discounted, nor the backdrop of generally increasing tensions over resource and navigation rights in the Arctic. Nonetheless, since the United States imposes no limits on innocent passage, the Chinese freely exercised a right the U.S. has defended for all states through missions like the one in the Black Sea. In fact, one of the most recent U.S. challenges in support of that right was against Chinese restrictions on foreign warships in 2013.

Beyond innocent passage, the most potent maritime disagreement between the United States and China may be over rights in the EEZ. The United States routinely conducts survey and surveillance within China’s EEZ, and maintains that “[UNCLOS] does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical-mile territorial waters.” China believes these missions are illegal and almost as routinely challenges or harasses the unarmed aircraft and ships engaged in them. Some of the best known incidents arising from this disagreement are the 2001 collision between a U.S. EP-3 aircraft and Chinese fighter jet resulting in the death of the Chinese pilot, harassment of the USNS Impeccable in 2009, a dangerous intercept of a P-8 aircraft in 2014, and well-publicized verbal challenges against another P-8 in 2015 with a CNN news crew onboard.

Part of the dispute arises from ambiguity within UNCLOS, leading to legal debate about coastal states’ enforcement rights against military activities in the EEZ, but the United States asserts the ambiguity resolves in favor of the rights of foreign navies. For its part, China has conducted similar survey and surveillance operations in the US EEZ off of Hawaii, possibly as far back as 2012, and certainly during the biennial Rim of the Pacific (RIMPAC) exercise in 2014, the first such exercise China was invited to participate in. As in the case of innocent passage through Alaska, the U.S. was consistent in recognizing China’s rights to do so, and even welcomed the RIMPAC surveillance as an implicit acceptance of the U.S. interpretation that permits its activities in the Chinese EEZ. In later statements however, China maintained its opposition to the U.S. operations. These statements highlighted a difficult logic whereby China takes advantage of more liberal interpretations of international law outside its waters while circumscribing that law within its own waters.

This position is similar to the USSR’s double standard on innocent passage that the U.S. successfully challenged in the Black Sea during the 1980s. Compared to the U.S.’s wide permissiveness in accordance with UNCLOS, China’s complicated argument attempting to exercise expansive international rights while asserting sovereign enforcement powers over its EEZ seems the more difficult to maintain, whether legally or in practice. As each tries to exert de facto what they claim de jure, the argument seems destined to be fought as much in the seas and skies as in legal and diplomatic arbitration. This probably means we are similarly destined to see more incidents between the U.S. and China, which some thoughtful analysts worry may be too inherently risky or even counterproductive. Though as I have argued, those destabilizing risks are probably overstated.

Steven Stashwick spent 10 years on active duty as a U.S. naval officer, made several deployments to the Western Pacific, and completed graduate studies in international relations at the University of Chicago. He is a Lieutenant Commander in the U.S. Navy Reserve. The views expressed here are his own.