Over the years, the US has challenged the so-called “excessive maritime claims” of countries around the world through its “freedom of navigation” (FON) operations. Lately, China’s islands and waters in the South China Sea have become a main target of those operations. In contrast, the US seems to have no problem with Japan’s much criticized claim to an EEZ, continental shelf and outer continental shelf of Okinotorishima. What is the reason behind the apparent contradiction?
I. “Freedom of Navigation” — a convenient excuse to challenge China’s lawful rights and interests in the South China Sea
Since 1979, through its FON operations, the US has been challenging “excessive maritime claims” of other countries globally. The aim is to ensure that US warships and aircraft are free to cross the seas and skies of other countries, deemed essential to its global military prowess and dominance. To date, the US has launched over 100 protests and more than 350 military operations in other countries’ waters and against their maritime entitlement claims. A great number of countries — both its allies and enemies — came under such protest and action, including Australia, Canada, Columbia, Japan, China (including Taiwan), Italy, Brazil, Egypt, Finland, India, Iran, Libya, Malaysia, Russia, the Philippines, Thailand, Myanmar, Vietnam, Cambodia, the ROK and the DPRK. The FON Report for Fiscal Year 2015 issued by the US Department of Defense named 13 countries and regions, including China, for “prior permission required for innocent passage of foreign military ships through the territorial sea”, considering such requirement an excessive exercise of maritime rights.
In the past six months, without permission from the Chinese government, US warships conducted three FON operations in the South China Sea. Despite repeated warnings from China of the seriously provocative nature of these operations, the US dispatched the guided-missile destroyer USS William P. Lawrence on May10 on a patrol mission less than 12 nautical miles from China’s Yongshu Reef (or Fiery Cross Reef). The goal of the mission, said US Defense Department spokesman Bill Urban, is to challenge the “excessive maritime claims of some claimants in the South China Sea.”
Even till this day, the US has yet to ratify the 1982 UNCLOS and has kept intruding in China’s waters within 12 nautical miles off its islands and reefs in the South China Sea. Still, it considers itself in a position to challenge China’s law on territorial sea and contiguous zone, which stipulates that foreign military ships must have prior permission for innocent passage. “At this stage, the United States is almost concocting an excuse to project itself militarily in that area, South China Sea, East China Sea, whatever,” said US international law expert Bruce Fein, “and maybe make conflict where it otherwise wouldn’t exist.”//since Fein obviously is a native speaker, let’s fix this bad translation copied from Xinhua// US FON operations in the South China Sea constitute militarization in its true sense and have only escalated tensions in the region.
II. Why has the US made an exception of Japan’s illegal claim regarding Okinotorishima?
Okinotorishima is an atoll in West Pacific, more than 1,000 kilometers away from Japan’s main islands. Only two rocks with an area of less than 10 m2, or the size of a mattress, are above water at high tide. Since 1987, Japan has been expanding and reinforcing the reefs to turn them into artificial islands. Japan claims an EEZ of 470,000 km2 and around 255,000 km2 of outer continental shelf stemming from Okinotorishima. The claim was submitted to the Commission on the Limites of the Continental Shelf in 2008.
According to UNCLOS Article 121.3, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Okinotorishima apparently fits this description. Based on that, China and the ROK have opposed Japan’s claim. The commission therefore did not take up Japan’s claim for review. Unexamined by the commission, Japan’s claim to continental shelf beyond 200 nautical miles off Okinotorishima is unrecognized and invalid. The waters and seabed beyond the territorial sea and contiguous zone of Okinotorishima thus remain international domain. Nevertheless, Japan insists on the legitimacy of the claim and its jurisdiction over a self-proclaimed EEZ and the continental shelf. It has even carried out enforcement activities based on this claim. Starting in 2002, Japan has intensified monitoring of the waters surrounding Okinotorishima to secure its unlawful objective of delimiting the EEZ. Last March, the Japan Coast Guard followed and warned the Chinese research vessel Haida after accusing it of “illegal operation in Okinotorishima’s EEZ”. Last April, the Taiwanese fishing boat Dong Sheng Ji No. l6 was detained by the Japan Coast Guard while conducting normal fishing activities in that area.
Japan’s claim to EEZ and continental shelf stemming from Okinotorishima has no basis in international law. Its related legislation and law-enforcement activities are illegal. The US, however, has remained reticent about it. A main reason is that if Japan’s claim gets accepted, the atoll and its waters lying east of Taiwan will be of strategic importance in encircling China in West Pacific.
III. US FON program — nothing but double-standards and selective enforcement
Last month, at the Shangri-La Dialogue, US Defense Secretary Ash Carter and Japanese Defense Minister Gen Nakatani criticized China’s construction in and policy on the South China Sea. The US calls China’s construction, sovereignty, claims to sovereign rights and normal enforcement activities to defend its rights in line with international law and UNCLOS “excessive maritime claims”, whereas nothing is said and done about Japan’s much criticized EEZ and continental-shelf claim. The US challenged Japan’s straight baselines of territorial sea once, only to undo their impact on the scope of activities of massive numbers of US warships and fighter jets stationed in Japan. Facts show that the US FON operations are nothing but an exercise of double-standards and selective enforcement. The operations’ real purpose is to ensure American interests. The professed aim of upholding international law or UNCLOS is just a façade.
Wang Hanling, Director of the Center for Ocean Affairs and the Law of the Sea of the Chinese Academy of Social Sciences, and research fellow of China South China Sea Research Coordination and Innovation Center.
Zheng Yaran, post-graduate from the Department of Law of the Graduate School of the Chinese Academy of Social Sciences.