Since the EP-3 Hainan Island Incident in 2001, several rows have broken out between China and the U.S. over the navigational rights of military vessels in China’s offshore areas, the East China Sea and South China Sea. Both China and the U.S. have invoked international law in general and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in particular to claim that what their flagged vessels have done is in line with international law. This reflects the strategic concerns of both countries and the conflict of their relevant strategic interests.
The first legal issue is whether military activities in China’s exclusive economic zone (EEZ) are within the freedom of navigation domain. The U.S. believes that in the EEZ user States enjoy unqualified freedom of navigation and over flight as on the high seas. The U.S. argues that by combining Articles 58 and 87 of UNCLOS, all States enjoy in the EEZ the pre-existing navigational and over flight freedoms from when the zone was part of the high seas. These include military activities, such as operating military devices, intelligence gathering, surveillance and reconnaissance activities, exercises, operations, and conducting military surveys. China argues that the freedoms implied in Article 58 have some qualifications, including “due regard” for the rights of all other States and the overarching principle of “for peaceful purpose/use.” According to China’s line of argument, “freedom of navigation and over flight’’ in the EEZ should not include the freedom to conduct military and reconnaissance activities, to perform military deterrence or battlefield preparation, or intelligence gathering. China maintains these activities infringe on the coastal state’s national security interests and can be considered a use of force, or a threat to use force, against the state, particularly with the advanced technologies used by the vessels.
There is also conjecture whether some military activities like hydrographic and military surveys belong to marine scientific research (MSR). The U.S. maintains these are freedom of navigation exercises and “other internationally lawful uses of the sea” for which consent is not necessary. China has long sought to prevent other countries from carrying out surveillance or surveying operations, including military surveys, within its EEZ. It argues that since data collected from these activities can be used for scientific purposes, such surveillance belongs to MSR. In particular, MSR activities are very diverse and many expeditions collect data at sea for later separation for different purposes and uses.
“Due regard” is a reciprocal obligation between coastal States and user-States under UNCLOS. The U.S. considers that it is within the discretion of sovereign-immune vessels to take, or not to take, any measures, taking into consideration whether it is reasonable and practical and that “due regard” is not the right of the coastal State. Some Chinese scholars argue that although there are restrictions on the sovereign rights and exclusive jurisdiction enjoyed by coastal States in their EEZs, this does not necessarily degrade the superiority of the rights of coastal States.
Need to regulate certain EEC activities
Under UNCLOS, “peaceful uses” is an over-arching principle and requirement of all ocean activities. The U.S. maintains that the principle of “peaceful uses/purposes of the seas” should not be inferred as “new rights” for any country or “new obligations” on naval powers. It considers that peacetime military activities, including military surveys and intelligence, surveillance and reconnaissance, are not acts of aggression without “additional indicia of hostile intent or commitment of a hostile act.” Also, that the conduct of military activities for peaceful purposes is in full accord with the Charter of the United Nations and the principles of international law. China argues that the collection of such data is a “preparation of the battlefield” and thus a threat of use of force. With the rapid technological development of military equipment, it is necessary for the international community to regulate certain activities in the EEZ and its superjacent airspace.
Since there are no clear cut definitions for the identified terms in UNCLOS, China and the U.S. follow their own logic in explaining ambiguity to suit their own strategic interests. Therefore rows over the incidents are more than a legal matter.
With the center of the globe moving from the Atlantic to the fast-developing Pacific, it is natural that the only superpower “returns” to the Asia Pacific. Such U.S. strategy does not target any particular country but its goal of maintaining global leadership and dealing with multi-challenges may overlap in time and space with that of China’s “rise.” The disruption of sea lanes in the East China Sea and South China Sea would disrupt the economies of the U.S. and its important Asian alliances. It is also believed that U.S. military surveying activities could enhance the U.S.’s capability to use nearby waters, like the South China Sea, to monitor China’s coastal regions. To protect its extended economic interests abroad and cope with increasing non-traditional challenges at sea, China accordingly increases its military power and develops new “disruptive” technologies which are interpreted to have shifted the military balance in the region and may intensify a sense of insecurity. China’s economic and military growth makes the U.S. feel increasingly vulnerable. To retain its present military superiority, the U.S. needs to consolidate its forward military bases, invest in missile defense and submarines and counter China’s capacity in asymmetric electronic, cyber and space warfare. This inevitably adds to Chinese insecurity and increases China’s feelings of being “hedged” by the U.S.
China and the U.S. share common interests in economic development, promotion of maritime security and battles against non-traditional threats, such as terrorists and piracy. There is a strong necessity and temptation for both countries to engage each other. However, lack of trust overshadows strategic reassurances and the key is for each to accommodate equally the other’s strategic interests in the region. The situation seems to have a long way to go, but the wills are there and dialogues at different levels have been opened and consolidated. Light is at the end of the tunnel.
Jianwei Li is Deputy Director of Research Center for Maritime Economy of National Institute for South China Sea Studies and Ramses Amer is Associate Professor and Senior Research Fellow of Center for Pacific Asia Studies of Stockholm University.