Abstract
This chapter considers how the negotiations over the United Nations Convention on the Law of the Sea (UNCLOS) in 1973–1982 exacerbated the unsettled status of the islands, and since then, how it has given room for regional states to lay claims to them under the protection of international law. While UNCLOS introduces the notion and practice of the exclusive economic zone (EEZ) and extends continental shelf rights, allowing littoral states, including China, to exercise extended control over the seas beyond their borders, it makes no reference to historic rights and cognate rights, which are, however, at the heart of China’s territorial claims. In the midst of the UNCLOS III negotiations, the US began to take steps to enforce freedom of navigation and overflight unilaterally. Its Freedom of Navigation Operations programme was set up in 1979 to prevent states from making ‘excessive maritime claims’.
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Notes
- 1.
John E. Noyes, “The United States, the Law of the Sea Convention, and Freedom of Navigation,” Suffolk Transnational Law Review 29, no. 1 (2005): 1–24 at 11.
- 2.
Noyes, “The United States, the Law of the Sea Convention, and Freedom of Navigation,” 11.
- 3.
Ash Carter, “The Rebalance and Asia-Pacific Security: Building a Principled Security Network,” Foreign Affairs 95, no. 6 (2016): 65–75 at 66.
- 4.
Hunt, Ideology and U.S. Foreign Policy, 171.
- 5.
Sarah De Geest, “Freedom of Navigation and the Liberal World Order,” Human Security Centre, July 25, 2016, http://www.hscentre.org/policy-unit/freedom-navigation-liberal-world-order/ (accessed August 21, 2017).
- 6.
For some partners, the challenge is in maintaining relations with both China and the US and to avoid becoming embroiled in Sino-US rivalry.
- 7.
See J. Ashley Roach for US diplomatic protests and FON assertions against states in contravention of UNCLOS. Examples are: J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?” Ocean Development & International Law 49, no. 2 (2018): 176–202; J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims (Leiden: Martinus Nijhoff Publishers, 2012).
- 8.
Robert S. Ross, “The End of US Naval Dominance in Asia,” Lawfare, November 18, 2018, https://www.lawfareblog.com/end-us-naval-dominance-asia (accessed July 3, 2019).
- 9.
US assertions of freedom of navigation directly contravene China’s domestic laws: The Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, and the Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea, thereby undermining the authority of the Chinese government on its maritime rights. Liu Xiaobao, “How China Can Resolve the FON Deadlock in the South China Sea,” Asia Maritime Transparency Initiative, March 1, 2019. https://amti.csis.org/how-china-can-resolve-fonop-deadlock/ (accessed July 3, 2019).
- 10.
The principle enshrined in Part XI of UNCLOS is known as the ‘common heritage of mankind’. It is argued to be an ‘antithesis against the principle of sovereignty and the principle of freedom’. Tanaka, The International Law of the Sea, 19.
- 11.
Booth, Law, Force and Diplomacy at Sea, 12.
- 12.
Booth, Law, Force and Diplomacy at Sea, 13.
- 13.
Booth, Law, Force and Diplomacy at Sea, 12–13.
- 14.
Hedley Bull, “Sea Power and Political Influence,” Adelphi Papers 16, no. 122 (1976): 1–9 at 2.
- 15.
Booth, Law, Force and Diplomacy at Sea, 18.
- 16.
Bull, “Sea Power and Political Influence,” 3.
- 17.
Tommy Koh, “The Negotiating Process of UNCLOS III,” UN Audio-visual Library of International Law, 2019, http://legal.un.org/avl/ls/Koh_T_LS.html; http://legal.un.org/avl/pdf/ls/Koh_T_outline_2.pdf (accessed May 2, 2019).
- 18.
Elliot L. Richardson, “The United States Posture toward the Law of the Sea Convention: Awkward but Not Irreparable,” San Diego Law Review 20, no. 3 (1983): 505–519 at 505.
- 19.
Booth, Law, Force and Diplomacy at Sea, 29.
- 20.
Booth, Law, Force and Diplomacy at Sea, 29.
- 21.
James Malone, “The United States and the Law of the Sea after UNCLOS III,” Law and Contemporary Problems 46, no. 2 (1983): 29–37 at 34–35.
- 22.
See, for example, Tommy Koh, Elliot Richardson and Bernard Zuleta. Bernard Zuleta, “The Law of the Sea after Montego Bay,” San Diego Law Review 20, no. 3 (1983): 475–488.
- 23.
Booth, Law, Force and Diplomacy at Sea, 33–34.
- 24.
Zuleta, “The Law of the Sea after Montego Bay,” 477–78.
- 25.
Tommy Koh, Tommy Koh Reader: The Favourite Essays and Lectures (Singapore: World Scientific Publishing, 2013), 55.
- 26.
Booth, Law, Force and Diplomacy at Sea, 34–35.
- 27.
Jonathan Charney, “The United States and the Law of the Sea after UNCLOS III: The Impact of General International Law,” Law and Contemporary Problems 46, no. 2 (1983): 37–54 at 40–41.
- 28.
Charney, “The United States and the Law of the Sea after UNCLOS III,” 45–46.
- 29.
Cited in Charney, “The United States and the Law of the Sea after UNCLOS III,” 47. Emphasis added.
- 30.
Charney, “The United States and the Law of the Sea after UNCLOS III,” 47.
- 31.
The United Nations Conference on the Law of the Sea was convened three times: I (1958), II (1960) and III (1973–1982). Four conventions were adopted by UNCLOS I, namely, the Convention on the Territorial Sea and the Contiguous Zone (effective from September 1964), the Convention on the High Seas (effective from September 1962), the Convention on Fishing and Conservation of the Living Resources of the High Seas (effective from March 1966) and the Convention on the Continental Shelf (effective from June 1964). UNCLOS II discussed the breadth of the territorial sea and fishing limits without making decisive conclusions. For details, see the United Nations Diplomatic Conferences websites at http://legal.un.org/diplomaticconferences/1958_los/ and http://legal.un.org/diplomaticconferences/1960_los/ (accessed May 2, 2019). Throughout this book, UNCLOS I, II and III refer to the ‘Conferences’, while UNCLOS is about the ‘Convention’, which was adopted in April 1982 after 130 states (76.5%) among 170 participating states voted for it. Tanaka, The International Law of the Sea, 29.
- 32.
Booth, Law, Force and Diplomacy at Sea, 38.
- 33.
Booth, Law, Force and Diplomacy at Sea, 38.
- 34.
Booth, Law, Force and Diplomacy at Sea, 38. According to a Department of Defense report published in August 2015, EEZs covered by PACOM presented 38 percent of the world’s oceans, and thus unchallenged excessive maritime claims would impede US naval activity in over one-third of the world’s oceans and restrict the freedom of the seas. US Department of Defense, “Asia-Pacific Maritime Security Strategy” (2015), 23–24, https://apps.dtic.mil/dtic/tr/fulltext/u2/a627122.pdf (accessed December 30, 2018).
- 35.
Bull, “Sea Power and Political Influence,” 4.
- 36.
Bull, “Sea Power and Political Influence,” 3.
- 37.
Alfred T. Mahan, The Influence of Seapower upon History, 1660–1783 (London: Methuen, 1965), chapter 1; cited in Bull, “Sea Power and Political Influence,” 4.
- 38.
Booth, Law, Force and Diplomacy at Sea, 40.
- 39.
D.P. O’Connell, “Transit Rights and Maritime Strategy,” RUSI Journal 123, no. 2 (1978): 11–18 at 13.
- 40.
Elizabeth Young, “New Laws for Old Navies: Military implications of the Law of the Sea,” Survival 16, no. 6 (1974): 262–267 at 263; Robert Osgood, “Military Implications of the New Ocean Politics,” Adelphi Papers 16, no. 122 (1976): 10–16.
- 41.
Booth uses this term, ‘territorialisation’ in Law, Force and Diplomacy at Sea, 42.
- 42.
Bull, “Sea Power and Political Influence,” 8.
- 43.
O’Connell, “Transit Rights and Maritime Strategy,” 16.
- 44.
Rüdiger Wolfrum, “Freedom of Navigation: New Challenges,” in Freedom of the Seas, Passage Rights and the 1982 Law of the Sea Convention, eds. Myron H. Nordquist, Tommy T. B. Koh and John Norton Moore (Leiden: Martinus Nijhoff Publishers, 2009), 79–94 at 90.
- 45.
Politically diverse states including Vietnam, Brazil, Malaysia and Iran, as well as China, demand prior consent for military activities in the EEZ. Domestic legislation often conflicts with, or aims to supercede, international maritime law. See Iskander Rehman, “India, China and Differing Conceptions of the Maritime Order,” Brookings Institution, June 2017, 4. https://www.brookings.edu/wp-content/uploads/2017/06/rehman-india_china_and_differing_conceptions_of_the_maritime_order.pdf (accessed July 4, 2019).
- 46.
George V. Galdorisi and Alan G. Kaufman, “Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict,” California Western International Law Journal 32, no. 2 (2002): 253–302 at 283–6.
- 47.
Booth, Law, Force and Diplomacy at Sea, 48.
- 48.
Booth, Law, Force and Diplomacy at Sea, 45.
- 49.
Booth, Law, Force and Diplomacy at Sea, 43.
- 50.
The ambiguities in UNCLOS that draw particular attention in this book relate to Article 56 (rights, jurisdiction and duties of the coastal state in the exclusive economic zone), to Article 87 (Freedom of the High Seas) and to Article 77 (rights of the coastal states over the continental shelf).
- 51.
Dennis Mandsager, “U.S. Freedom of Navigation Program: Policy, Procedure, and Future,” in The Law of Military Operations: Liber Amicorum Professor Jack Grunawalt, ed. Michael N. Schmitt (International Law Studies Volume 72) (Newport, RI: Naval War College Press, 1998): 113–127 at 116.
- 52.
Peter A. Dutton and Isaac B. Kardon, “Forget the FONOPs — Just Fly, Sail and Operate Wherever International Law Allows,” Lawfare, June 10, 2017, https://www.lawfareblog.com/forget-fonops-%E2%80%94-just-fly-sail-and-operate-wherever-international-law-allows (accessed February 20, 2019).
- 53.
Dutton and Kardon, “Forget the FONOPs.”
- 54.
Dutton and Kardon, “Forget the FONOPs.”
- 55.
William J. Aceves, “The Freedom of Navigation Program: A Study of the Relationship between Law and Politics,” Hastings International and Comparative Law Review 19, no. 2 (1996): 259–326.
- 56.
The US had been informally operating FON operations since at least 1948. Before the formalisation of its FON programme in 1979, it had already filed approximately 30 diplomatic protests. Negroponte, “Who Will Protect the Oceans?” Department of State Bulletin, Washington DC, October 1986: 41; cited in George Galdorisi, “The US Freedom of Navigation Program: Preserving the Law of the Sea,” Ocean and Coastal Management 25, no. 3 (1994): 179–188 at 181.
- 57.
O’Rourke, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China, 65.
- 58.
Lynn Kuok, The US FON Program in the South China Sea: A Lawful and Necessary Response to China’s Strategic Ambiguity. East Asia Policy Paper 9, Center for East Asia Policy Studies, Brookings Institute, June 2016, executive summary, https://www.brookings.edu/wp-content/uploads/2016/07/The-US-FON-Program-in-the-South-China-Sea.pdf (accessed June 11, 2017).
- 59.
Galdorisi, “The United States Freedom of Navigation Program,” 402.
- 60.
J. Ashley Roach, “Excessive Maritime Claims,” Proceedings of the 84th Annual Meeting of the American Society of International Law, Washington DC, March 28–31, 1990, 288–295 at 289, http://www.jstor.org/stable/25658546 (accessed May 3, 2019). Since 1991, an annual Freedom of Navigation report for the fiscal year (October to the following September) is produced by the Department of Defense for Congress, which is an unclassified summary of the freedom of navigation operational assertions made under the FON programme. The first recorded FON assertion made against China was in FY 2006–2007, challenging China’s ban on survey activities in the EEZ. See, for instance, Steven Stashwick, “US Freedom of Navigation Challenges in South China Sea on Hold,” The Diplomat, May 8, 2017, https://thediplomat.com/2017/05/us-freedom-of-navigation-challenges-in-south-china-sea-on-hold/ (accessed February 20, 2019)
- 61.
Mandsager, “U.S. Freedom of Navigation Program,” 115.
- 62.
Roach, “Excessive Maritime Claims,” 290–292.
- 63.
Kuok, The US FON Program in the South China Sea, executive summary.
- 64.
The Chinese argument will be discussed in Chap. 5. In May 1996, China unilaterally declared that it had drawn straight baselines around the Paracel Islands and claimed the enclosed area as its sovereign internal waters and the 12 nm waters surrounding the enclosed areas as its territorial sea. ‘The total land area of all insular features in the Paracel Group is only 665 square kilometres, and the waters enclosed by the straight baselines amount to 17,375 square kilometres; the water-to-land ratio would be more than 26:1, far exceeding the ceiling of 9:1, as stipulated in Article 47(1) of UNCLOS’. See Bureau of Oceans and International Environmental and Scientific Affairs, US Department of State, Limits in the Seas No. 117 – Straight Baseline Claim: China, July 9, 1996, 8, https://www.state.gov/documents/organization/57692.pdf (accessed November 12, 2018).
- 65.
Kuok, The US FON Program in the South China Sea, 2.
- 66.
Mandsager, “U.S. Freedom of Navigation Program,” 115.
- 67.
Jonathan G. Odom, “How the US FON Program Is Lawful and Legitimate,” Asia Maritime Transparency Initiative, Centre for Strategic and International Studies, October 30, 2015, https://amti.csis.org/how-the-u-s-fon-program-is-lawful-and-legitimate/ (accessed August 21, 2017).
- 68.
Mandsager, “U.S. Freedom of Navigation Program,” 118.
- 69.
This position was put forward by the Group of 77, consisting of approximately 120 developing countries; cited in Aceves, “The Freedom of Navigation Program,” 285.
- 70.
Aceves, “The Freedom of Navigation Program,” 285; Tommy T. B. Koh, “A Constitution for the Oceans,” December 1982, xxxiv–xxxv, http://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf (accessed August 21, 2017).
- 71.
Tommy T. B. Koh, “Remarks on the Legal Status of the Exclusive Economic Zone,” in Freedom of the Seas, Passage Rights and the 1982 Law of the Sea Convention, eds. Nordquist et al., 53–55 at 54.
- 72.
Tanaka, The International Law of the Sea, 130.
- 73.
Aceves, “The Freedom of Navigation Program,” 283.
- 74.
Aceves, “The Freedom of Navigation Program,” 283.
- 75.
Ronald Reagan Presidential Library and Museum, “Statement on United States Oceans Policy,” March 10, 1983. https://www.reaganlibrary.gov/research/speeches/31083c (accessed July 4, 2019).
- 76.
US Department of Defense, “Annual Report to the President and the Congress,” January 1994, Appendix G, https://apps.dtic.mil/dtic/tr/fulltext/u2/a285188.pdf (accessed February 5, 2019). Emphasis added.
- 77.
“Statement on the Signing of an Agreement on the U.N. Convention on the Law of the Sea,” Office of the Assistant Secretary of Defense News Release, July 29, 1994; cited in Mandsager, “The U.S. Freedom of Navigation Program,” 118–19.
- 78.
Galdorisi, “The US Freedom of Navigation Program,” 181.
- 79.
Campbell, Writing Security, 138.
- 80.
The Clinton administration negotiated a series of modifications to the deep seabed mining provisions between 1990 and 1994 in the hope that the US would become a signatory of UNCLOS. Consequently, in June 1994, Secretary of State, Warren Christopher, announced that the Clinton administration intended to sign up to the Convention and submit to Senate for its approval. Galdorisi, “The US Freedom of Navigation Program,” 180. Senatorial approval, however, was not obtained, as expected, by the summer of 1995, and has not been obtained by any subsequent president. The George W. Bush and Obama administrations tried, and both failed, to gain Senate approval to ratify UNCLOS. The G. W. Bush administration urged the Senate to ratify UNCLOS in May 2007, and the Obama administration tried again to acquire Senate approval in July 2009.
- 81.
Galdorisi, “The US Freedom of Navigation Program,” 180.
- 82.
Roach, “Excessive Maritime Claims,” 292–293.
- 83.
Aceves, “The Freedom of Navigation Program,” 302–303.
- 84.
Aceves, “The Freedom of Navigation Program,” 307.
- 85.
Before the introduction of the notion of the exclusive economic zone, ‘high seas’ was defined by the Convention on the High Seas, adopted by UNCLOS I in 1958, as ‘all parts of the sea that are not included in the territorial sea or in the internal waters’ of a state (Article 1). In other words, the ocean was divided into three categories only: internal waters, territorial waters and high seas. In contrast, UNCLOS does not explicitly define high seas; its Article 86 implies that high seas are ‘all parts of the sea which are not included in the EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’. To a certain extent, the scope of the high seas depends on whether a coastal state claims its EEZ. Tanaka, The International Law of the Sea, 22–23, 155. As will be discussed in Chap. 5, the EEZ is believed to be a sui generis zone.
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Aceves, “The Freedom of Navigation Program,” 313.
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Koh, “Remarks on the Legal Status of the Exclusive Economic Zone,” 54–55.
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- 90.
The number of incidents between Chinese and US vessels and aircraft before 2009 was relatively low (March 2001, April 2001 and September 2002) but increased to two incidents in March 2009, and May 2009, in which Chinese ships and aircraft confronted and harassed the US naval ships Bowditch, Impeccable and Victorious as they were conducting survey and ocean surveillance operations in China’s EEZ. Since then, the number of incidents and the level of risk taken by Chinese naval vessels and aircraft have increased: risk of collision on December 5, 2013, in which a Chinese navy ship put itself in the path of the US Navy cruiser Cowpens as it was operating 30 or more miles from China’s aircraft carrier Liaoning; ‘dangerous’ intercept on August 19, 2014, in which a Chinese fighter conducted an ‘aggressive and risky’ intercept of a US Navy P-8 maritime patrol aircraft that was flying in international airspace about 135 miles east of Hainan Island; an ‘unsafe’ manoeuvre on May 17, 2016, in which Chinese fighters flew within 50 feet of a Navy EP-3 electronic surveillance aircraft in international airspace in the South China Sea (O’Rourke, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China, 9–11). Also note the September 2018 close encounter between USS Decatur and Chinese destroyer, Lanzhou, in the South China Sea, described later.
- 91.
Sarah Raine and Christian Le Mière, Regional Disorder: The South China Sea Disputes (Abingdon: Routledge, 2013), 15. Raine and Le Mière note that the use of paramilitary (e.g., coast guard) and civilian vessels to harass military vessels avoids legal complexity for China. There is no interpretation of UNCLOS that would restrict the activities of civilian vessels, including state-owned non-military vessels, in the 200-nm EEZ, while there is objection by some, including China, to military surveillance activities in its own EEZ (69).
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Heritage, A., Lee, P.K. (2020). Developments in Regional Maritime Order from the 1970s: UNCLOS and the US Principle of Freedom of Navigation. In: Order, Contestation and Ontological Security-Seeking in the South China Sea. Governance, Security and Development. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-34807-6_4
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Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-34806-9
Online ISBN: 978-3-030-34807-6
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)