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Foreign Policy

Whose “International Law” Are We Talking About?

May 27 , 2016

On May 10, the US warship illegally entered waters near the controversial reefs of China’s islands in the South China Sea for the third time. It is true that the US Freedom of Navigation (FON) Program has been in place for many years, and it does not purport to target China alone. However, the lawfulness of the FON operations warrant examination in light of the 1982 International Law of the Sea Convention so as to know the role and intent of the FON Program in building a US-dominated world oceans legal order and in carrying out the “Pivot to Asia” policy.

A full analysis of the lawfulness of the FON operations necessitates a look back upon the program’s historical background. It was formally instituted during the Carter administration in 1979 before the adoption of the convention. According to a fact sheet of the US Department of Defense, the FON program aims to preserve American national interest and demonstrate a non-acquiescence to excessive maritime claims asserted by coastal states. It includes both diplomatic communications and operational assertions. The US asserts that the Program impartially targets excessive claims of allied, friendly, neutral, and unfriendly states alike.

Despite the US claim “to uphold rights and freedoms of all states under international law”, the legality of the US FON operations can be challenged on several fronts. First and foremost, the program violated the general principle of international law to settle disputes peacefully. This principle is enshrined in both Article 2(3) of the UN Charter and Article 279 of the convention, both of which mandate that all international disputes are to be settled in a peaceful manner. It is not uncommon that states have different understandings with regard to interpretation and application of the convention. While most states choose to settle their disputes through peaceful means of negotiation, mediation and consultation, the US is the only country that habitually enforce its own will with warships and military aircrafts with blithe disregard for its international obligations.

Then, the confrontational FON program constitutes an “abuse of right” contrary to both Article 300 of UNCLOS and more generally under general principles of international law. The freedom of navigation does not mean absolute freedom without any restriction. Under the convention, the world’s oceans are divided into various jurisdictional zones where different navigational regimes apply, such as innocent passage applied in territorial seas, transit passage applied in straits used for international navigation, archipelagic sea lanes passage applied in archipelagic waters, etc. The freedom of navigation comprises those various navigational regimes, the rights and obligations of which are quite different. Based on its own understanding of the terms of those regimes instead of those shared by international community, the US operations have often abused those navigational rights in defiance of international obligations.

For more apparent reasons, the US FON operations violated the principle of “peaceful purpose” or “peaceful uses” of the seas and oceans, which is stipulated in the Preamble,Article 301 and as well many provisions of the convention in relation to the various uses of seas. When advanced US warships and aircrafts travel across thousands of miles to the threshold of the territorial seas and EEZs of coastal states to conduct daily intelligence gathering activities and routine show of force, it is hard for anyone to take those threatening behaviors as being for peaceful purposes. The FON operations in this regard constitute a flagrant threat to coastal states’ sovereignty and security. Depending on the seriousness of cases at issue, the US FON operations could simultaneously violate the fundamental principle of prohibition against the threat or use of force in international relations as embodied in Article 2(4) of UN Charter.

From the perspective of jurisdiction of coastal states, the FON operations also violated coastal states’ national laws applied in various jurisdictional zones. Take the most controversial issue of exercise of innocent passage by warships for instance, while the US has always argued that the right of warships to innocent passage is generally recognized international law, it is typically American perspective shared by only a small group of major maritime powers in stead of by the international community as a whole. Based on the database provided by the Division for Ocean Affairs and the Law of the Sea of the UN Office of Legal Affairs, there are altogether at least 52 states that enact laws putting restrictions on the exercise of the right of innocent passage by warships, including prior notice, permission, approval or authorization. This figure of 52 states does speak for itself. The violation of coastal states’ national laws with regard to innocent passage by FON operations cannot be tolerated by virtue of America’s own understanding of the convention.

The FON operations are also inconsistent with the “due regard” obligation under the Preamble of the convention, which emphasizes “due regard for the sovereignty of all States”, and as well under Article 68, which requires the user states in the EEZ to have “due regard to the rights and duties of the coastal State”. For FON operations conducted in the EEZs, the warships and aircrafts shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State, in particular with regard to MSRs and marine environment protection. In fact, many of the US military activities have been prohibited in the US EEZ so as to protect the marine mammals from harms done by advanced military sonars. It is disgraceful to move those environmentally harmful military activities to the EEZs of other coastal states.

One may argue that UNCLOS could not be applied to judge the US FON operations since the US is not a party to the convention. The answer to this question could be easily found in the American stance with the convention, which has longed viewed the navigational and overflight rights it contains as reflecting customary international law. One cannot only pick up those articles of the convention to one’s advantage as reflecting customary law and disregard inconvenient articles as not reflecting customary law. In terms of the high number of state parties to the convention and uniform state practice in this regard, the aforementioned obligations can be said to have become customary international law so as to also bind non-party states like the US.

On its face, the US FON program is an effort to assert US desires upon the world oceans for the sole purpose of affording its naval and air forces the maximum degree of mobility and flexibility. In essence, through enforcing American perspective of international law in defiance of shared international perspectives of international law, the apparent provocative nature of such assertions exposes the FON operations as exercises of hegemonic power projection so as to establish a US-dominated maritime legal order beyond a world ocean legal order guaranteed under the convention. As for the FON operations conducted in the South China Sea, they are no more than a tool to carry out the US “Pivot to Asia” strategy.

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