When it comes to freedom of navigation (FON) in the South China Sea (SCS), one has to ask: Do we really have problems with FON in the South China Sea? After all, maritime trade, and the ordinary passage and transit of warships has never been affected. The question shows the necessity of addressing maritime security issues in the region using legal tools.
Another set of questions come to mind: Do we have appropriate laws to regulate these maritime security issues? Or is there a legal vacuum here? Given the 1982 United Nations Convention on the Law of the Sea (UNCLOS), along with many other multilateral and bilateral treaties, it’s hard to say yes. However, not all concerned states are parties to UNCLOS. Most states are parties to this maritime constitution, but a few states are not—notably the United States. This may lead to differing interpretations and application of the relevant laws.
In fact, this legal problem also crops up even among states that are party to the same treaties. Here I would like to discuss three key issues affecting how law is interpreted and applied in the SCS.
First, are states using the same benchmark? There is a question of “international” international law versus American international law. The former refers to universally applied international norms among the international community. The latter refers to rules of international law as interpreted and applied unilaterally by the US according its own understanding and by its own benchmarks.
Second, who interprets and applies international law, and how? Do states normally operate through diplomatic talks and communication? Or must they go to court for a third-party settlement? It is quite normal that states have all kinds of disputes, but how often do states resort to the legal process? Article 33 of the UN Charter stipulates that “[t]he parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” For all those peaceful settlement mechanisms, does there exist a priority among them? One more thing worth mentioning here is that overlapping international judicial organs leads to the fragmentation of international law.
Third, among the issues pertaining to international maritime law, the distinction between warships and merchant ships—as highlighted by the right of warships to innocent passage through territorial waters — has been the most controversial aspect of UNCLOS. This point is clearly acknowledged in classical western readings by R.L. O’Connell, R.R. Churchill, and A.V. Lowe, to name just a few. However, there are a few scholars who disagree with this interpretation and even claim that the reverse interpretation better reflects customary international law. The argument against warships’ enjoying this right was succinctly put a century ago by Elihu Root, former US Secretary of State and US counsel in the Atlantic Coast Fisheries arbitration. Root had this to say in 1910: “Warships may not pass without consent into this zone, because they threaten. Merchant ships may pass and repass because they do not threaten.”
States do change their positions to meet changes in national interests, and international law does allow them to do so in a lawful way. However, as indicated by the Maritime Claims Reference Manual issued by the US Defense Department, there are at least 55 states which restrict in one way or another the innocent passage of warships through their territorial waters. The right of those countries as stipulated in their national laws, if adopted in conformity with the provisions of UNCLOS and other international laws and rules, should be respected.
How to find a way out of this discrepancy? There are hostile and military (“hard”) approaches, as exemplified by FON operations in the SCS and elsewhere throughout the world’s oceans. Questions arise, such as: 1) Is this approach a kind of peaceful settlement of disputes, as embodied in the UN Charter? 2) Does it comply with the requirement of “peaceful purposes and peaceful uses of the sea” as set forth in article 88 and 301 of UNCLOS? 3) Do members of the international community enjoy equal freedom through this approach, or are these freedoms enjoyed by just a few states? 4) What exactly is meant by the “militarization” of the SCS? Does it mean the defense of sovereign islands that lie on a country’s doorstep? Or does it more properly refer to sending fleets and aircraft thousand miles away to conduct intelligence-gathering and other military activities?
On the other hand, there are friendly and peaceful (“soft”) approaches: for instance, building a rules-based maritime order reflecting Asian values through collaboration, cooperation and coordination (often called C3). A few points should be emphasized. First, the rules in the “rule-based order” should be universally applied rules of international law in conjunction with tailor-made arrangements that cater to each region’s particularities. They should not be rules of international law as interpreted preferentially and imposed forcefully upon the Asia-Pacific region by a single outside state’s unilateral actions.
Second, the doctrine of the freedom of the seas — as the bulk and essence of the law of the sea—should be interpreted and applied in a way that also reflects Asian values and embraces Asian legal culture and traditions. The freedom of the seas is a living principle. Asian countries have a long history of freedom-of-the-seas practice even long before Portuguese explorer Vasco da Gama made his first landing at Calicut, India in 1498. But Asians’ contributions have been completely neglected during the evolution of international law, merely because they were not taken as “civilized.” Having gained their independence and international legal personhood, the contributions of Asian nations should be acknowledged and their voices heard. The eurocentrism historically surrounding both the evolution and application of the law of the sea should no longer be allowed in our present era.
Third, concrete measures following the principle of C3 could consist of joint military patrols, trainings, and exercises among Asia-Pacific states, or economical programs under the China-led Maritime Silk Road Initiative to revitalize the economic livelihood of the region’s people.
To conclude, an inclusive maritime regional framework, founded upon universally applied international rules and norms that also embraces Asian legal culture and traditions would lay the foundation for safe and secure seas — a crucial requirement for the region’s continued growth and prosperity.
（Based on a speech delivered at the 6th International Maritime Security Conference held at Singapore on 15 May 2019.）