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Freedom of Navigation: An Old Issue and New Approaches

Oct 24 , 2014
  • Zhou Bo

    Honorary Fellow, PLA Academy of Military Science

When China and the US talk about freedom of navigation – a fundamental principle of international maritime law, both countries agree to the principle, but interpret it in different ways.

China believes that military activities, such as the US Navy reconnaissance in China’s Exclusive Economic Zone (EEZ), cannot be simply categorized as freedom of navigation, and cannot infringe on the coastal states' national security interests. However, the US maintains that military activities fall within the freedom of navigation and over-flight and other internationally lawful uses of the sea.

Such differences in interpretation are not surprising. Although the United Nations Convention on the Law of the Sea (UNCLOS) is the most important international maritime law in human history, it is not impeccable. The final text is not without controversies. On the EEZ alone, China and the US never cease to debate what “freedom of navigation”, “peaceful purposes”, “maritime scientific research” and “due regard” really mean.

China protests against the US reconnaissance in its EEZ and it is not alone in doing so. Reportedly more than 20 countries including India, Malaysia and Thailand oppose foreign military activities in their EEZs. For China, the US Navy is an intruder breaking into its courtyard every day without permission. In this regard, China won’t interpret the UNCLOS in a way that will “legalize” US reconnaissance in China’s EEZ.

Quite a few incidents have occurred, from an aircraft collision in 2001, to the standoff of the USNS Impeccable and the USS Cowpens with Chinese ships in 2009 and 2013, to the dangerous encounter between a Chinese J-11B fighter jet with an American P-8 surveillance plane on August 19, 2014. Given that the Chinese military is growing in strength, the chances of air and maritime frictions are looming large. The only question is when it will happen.

Could there be a way out? Neither of the two giants wishes for another incident, let alone conflict. The irony is that although China believes that the UNCLOS is not perfect, it has ratified it. The US claims that they abide by the principles of the law, but it has not ratified the convention. So when Americans quote UNCLOS to justify their positions, the Chinese can simply ask: when will you ratify it, like us?

A possible solution is to look beyond the law and cooperate by integrating both strategic decisions and a pragmatic approach. Here are some suggestions:

1. Reduce the frequency of US reconnaissance as a good-will gesture to China. It would be difficult for the US Navy to stop all its reconnaissance now, but reducing the frequency won’t severely affect the US capacity in information gathering. The US military has been conducting such reconnaissance against China by ships, aircraft and UAVs for decades. What are the real needs for such reconnaissance on a daily basis? Is it more politically motivated that the US wants to show its credibility to its allies, and warn China against its “assertiveness”?

2. Speed up negotiations on rules over military, air and maritime activities. This is on-going and holds out a hope that the two countries might eventually agree on some tangible rules that they will abide by in the future. Here, history provides a useful lesson. During the cold war, the US and the Soviet Union concluded an Incident at Sea Agreement (INSEA), which significantly reduced the frequency of incidents. The US and the Soviet Union relationship was hostile, but the Sino-US relationship is not. So, rules of behavior between China and the US militaries are not only possible, but should also be easier to make and honor than INSEA.

3. Make the best use of Code for Unplanned Encounters at Sea (CUES) and practice them as much as possible. At the 14th Western Pacific Naval Symposium held in Tsingtao on 22 April, 2014, 21 member states unanimously voted for a new edition of CUES. In principle, CUES provides safety and communication procedures for naval ships or naval aircraft to avoid collision. The Chinese and American officers and sailors, airmen should have more joint familiarization exercises, as they did in US-led RIMPAC 2014. China and Japan, as well as the claimants of the South China Sea, should conduct similar exercises.

4. Make better use of the hot line. There are two hotlines between China and the US – one between heads of state, and another between the top military officers/ defense officials. It is critically important for the decision-maker to talk to his counterpart on the other side during crisis or in an emergency. The hotline can also be used to exchange views on major issues. Right now the military hotline between China and the US is used more frequently than before. This is a healthy development that should be encouraged by all means.

5. Strengthen cooperation elsewhere. Like it or not, the Chinese military will only get stronger. The US should recognize this and welcome China providing more security to the world. The cooperation between China and the US in the Gulf of Aden and Somali Basin is a good example: it is counter-piracy, as well as the maintenance of sea lines of communication, and the perseverance of freedom of navigation.

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