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Freedom of Navigation in the South China Sea: a Chinese perspective

2017-03-07 22:42:55       source:NISCSS

This is a speech delivered by NISCSS President Wu Shicun at the RSIS Maritime Security Workshop on Understanding Freedom of Navigation – ASEAN Perspectives, which was organized by the S. Rajaratnam School of International Studies (RSIS) in Singapore on 7 March 2017.


Ladies and gentlemen,

Good morning! Although my presentation is under the legal panel, I won’t discuss the concept of “freedom of navigation” or “navigational regime” from a purely legal perspective. Because when we are talking about our differences in navigational right in the South China Sea, especially those differences that are likely to turn into regional flashpoints, we are often referring to different understandings of the navigational rights of military vessels. And in a highly disputed, complicated and sensitive area like the South China Sea, activities of military vessels have a lot of political and security implications in this region. Thus, to discuss the navigation regime in the South China Sea, it is necessary to fully look at what is happening in the South China Sea first.


Since the last quarter of 2016, the South China Sea has seen several positive trends. With the closing of the South China Sea arbitration case, the parties concerned gradually returned to the normal track of bilateral talks and consultations for resolving the South China Sea disputes. The leaders of countries such as Vietnam, the Philippines, and Malaysia visited Beijing in succession and a series of new consensuses have been made, such as resolving disputes through talks and consultations, managing crises, promoting cooperation, and speeding up consultations on the Code of Conduct (COC) for issues in the South China Sea.


However, there are still uncertainties and possibly negative features that would categorize the South China Sea situation. Given that the South China Sea has become primarily a crux of China-US competition in the Asia-Pacific, how those uncertainties and negative features would affect the South China Sea is also closely related to what the US would do, and how the US-China dynamics would be in this region.


First, the main dispute of the South China Sea between and among the parties directly concerned has evolved from controversies on territorial sovereignty over islands and reefs into complex competition over maritime space, resources development, and power to dominate the formulation of rules. The South China Sea arbitration award has changed the rules of the game. Disputant countries may shift their focus to effective control and jurisdiction over maritime zones by improving their maritime presence, either by military or civilian means, strengthening maritime law enforcement, and unilaterally exploring resources. With the deepening of the COC consultation, disputes may loom larger over key terms of the COC, especially whether the COC should be legally binding, the scope of COC application, and whether a compulsory enforcement mechanism should be established, among many other issues. If the consultation process comes to a deadlock, the international community may put blames and impose pressure on China through various multilateral mechanisms. Outside powers, such as the US and Japan, may seize the opportunity, and have more excuses to meddle with the COC consultation process.


Second, Japan and Taiwan’s readjustments of their respective South China Sea policies may become new variables. For Japan, it is likely that it will be abetted by the US and driven by its own ambitions to be a major political and military power, and join the US in the so-called “freedom of navigation operations”, expand financial support and arms sale to the Philippines and Vietnam, and promote consultations with Vietnam and the Philippines on military intelligence protection agreements (Japan began to discuss this possibility with the two countries in January 2016).


As for Taiwan, since the concept and thinking of "Taiwan’s independence" will continue to be the guiding principle for the policies of Tsai Ing-wen authorities. In the foreseeable future, Tsai authorities cannot avoid South China Sea issues in the process of seeking Taiwan’s independence. Under the concept of "Taiwan’s independence" and the “New Southbound Policy”, Tsai’s South China Sea policy may go backward and drift away from that of the Chinese mainland. Yet, similar to Japan, Taiwan’s South China Sea policy, to a large extent, would be shaped by the influence from the US.


Third, the South China Sea arbitration case has closed for now, yet the Award may be raked up from time to time in the future. Extra-regional players (such as Japan, Australia and the US) and relevant claimants may challenge China’s rights and use the Award to support their unilateral actions in the South China Sea.


Last but not least, the competition between China and the US will continue to be a salient feature in the South China Sea, encompassing various fields such as geopolitical strategic advantages, sea power and dominance over the order in East Asia. Such competition will continue to intensify as China’s rise, both economically and militarily, continues to be seen by the US as an increasing challenge to its dominance in the Asia-Pacific.


Given such competition as backdrop, China’s deployment of facilities (including ports, wharfs, hangars, etc.) on the South China Sea islands would be a major concern for the US, though other claimant states, such as Vietnam and the Philippines, have been doing similar things. The COC consultation would be another major concern for the US, since it has a lot of implications for regional order.


Although the Trump administration has not clearly expressed its South China Sea policy up to the present, it has sent signals that the US would bolster its military presence in the Asia Pacific, and maintain its advantages over China. The recent entry of Carl Vinson Carrier Strike Group (CSG) into the South China Sea has further proved such a case. Before operating in the South China Sea, the CSG had conducted training off the islands of Hawaii and Guam to improve its effectiveness and readiness. Interestingly, the CSG remains under the command and control of U.S. 3rd Fleet, which is in charge of the East Pacific and North Pacific region. Such design reportedly would increase the complementarity of the 3red Fleet and the 7th fleet, and leverage more capabilities for Pacific Fleet commander.


Along with increased military presence, the US would continue to conduct FONOPs in a more provocative way. As the new Defense Secretary Jim Mattis told Japanese officials during his visit in Tokyo early February that “the US would take a more aggressive stance in defending the freedom of navigation” regarding China’s claimed and occupied features and their territorial waters in the South China Sea. It is also reported that Carl Vinson CSG will conduct the so-called freedom of navigation operations in the South China Sea by entering into 12 nautical miles of Paracels and/or reclaimed features of the Spratly Islands; and that it is waiting for the approval of the Trump administration. In addition, the US may try to pull Japan, Australia and other allies into joint operations.


To further add to the complexity of US presence in the South China Sea, there is also a domestic proposal in the US about sending coast guards to the South China Sea. On November 29, 2016, the USCG Commandant Admiral Paul Zukunft spoke at the Brookings Institution about sending USCG ships to the South China Sea to maintain regional order. From the US perspective, as USCG Vice Commandant Charles Michel has argued that, China might respond more positively to USCG white hulls than US Navy cruisers and destroyers, and that the coast guard can more easily maneuver the “narrow door of diplomacy.” US experts have also suggested in Track 2 settings that USCG activity in the South China Sea is not prohibited by domestic law; and it would be up to the Congress to ratify this proposal if doing so would enhance the security of maritime trade routes.


The presence of US coast guard in the South China Sea, if really happens, could be another point of friction between the US and China. Given the lack of strategic trust between China and the US in the South China Sea, it is likely that such presence would be seen by China as another means of the US to balance against China from the sea. Furthermore, the absence of rules of encounter between Chinese navy and civilian forces and US coast guard would increase the chance of incidents involving the two sides. 


Against such a background, it is particularly important to talk about the navigation regime in the South China Sea, not only from a legal point of view, but also taking political and security issues into consideration. 


From the legal sense, the difference between China and the US mainly covers two aspects. First, they disagree on whether certain types of military activities in coastal states’ exclusive economic zones (EEZ) fall within the scope of freedom of navigation. The categories of military activities that have proved controversial include those potentially having an impact on the marine environment and those that could be categorized as marine scientific research requiring prior permission from coastal states. For example, about the 2009 Impeccable incident, there are debates related to whether the use of ultrasound monitors by the Impeccable violated China’s Marine Environmental Protection Law, and whether activities this US surveillance vessel was conducting belonged to scientific research.    


The divergence between China and US involves different interpretations of key UNCLOS concepts and phrases, such as “freedom” of navigation and overflight in and above the EEZ, “other international lawful uses,” “peaceful use of the ocean,” and “due regard.” For example, with regard to the “freedom” of navigation and overflight in and above the EEZ, there are specific differences in whether such freedoms can be limited by certain regulations, be it national, regional or international, or whether they should be absolute. Given this context, differences further arise with regard to whether some military and intelligence gathering activities are lawful uses of the freedom of navigation and overflight, whether they consist non-abuse of rights, whether they pay “due regard” to the rights of coastal states, and whether they are a threat to peace, stability as well as interests of other coastal countries. Both the Impeccable and EP-3 Spy Airplane incident in 2001 were typical representations of such differences.


Second, while China and the US do not contest the existence of a right of innocent passage in territorial seas under the 1982 UNCLOS, they differ on the specific rights of warships. The US believes that warships enjoy the same right to innocent passage as commercial vessels, whereas China specifies in its domestic law that foreign warships exercising innocent passage must obtain prior permission. China’s position has its legal base, since Article 30 of UNCLOS stipulates that a coastal state may require warships to leave territorial seas immediately if the warship does not comply with the laws and regulations of the coastal state.


From the political sense, given the commonly perceived China-US competition in the Asia-Pacific, the US involvement in the South China Sea issues, no matter what US rhetoric is, has been profound security concern for China. The US should be aware that, no matter how legitimate it sees its military presence and activities in the South China Sea from a legal perspective, those activities, including FONOPs, would have political and security implications and ramifications. While the U.S. claims to be not taking sides in the sovereignty disputes of the South China islands, its military and paramilitary presence and activities could easily send a political signal that the US is taking sides, because all claimant states understand that they are targeted at China. Meanwhile, with perceived intensified competition and threats, those presence and activities are likely to lead to further militarization of the South China Sea, as well as the downward spiral of mutual trust between China and the US. If we go down this path, regional stability would surely be at risk.


Since legal differences would not be bridged in short term, China and US should develop bilateral rules of behavior for mil-to-mil, mil-to-civilian and coast guard-to-coast guard engagement. The Code for Unplanned Encounters at Sea agreed to at the 2014 Western Pacific Naval Symposium sets a possible model that non-naval vessels can follow when navigating the South China Sea. Likewise, the U.S.-China Memorandum of Understanding on the Rules of Behavior for the Safety of Air and Maritime Encounters, announced after the summit between Xi Jinping and Barack Obama in 2014, is also a step forward.


From a more political and security perspective, the US should take China’s concern into consideration, and refrain from excessive military presence and activities, including provocative freedom of navigation operations, conducting FONOPs in the waters of Xisha, Nansha or Huangyan Island, frequent close-in reconnaissance, and joint patrols with its allies such Japan and Australia.


The US along with other outside powers, should refrain from getting involved with COC, and give room to China and ASEAN countries to conduct COC consultation. As a confidence building and crisis management mechanism, the COC is important for China and the ASEAN parties concerned to bolster political trust, manage maritime conflicts, avoid potential crises and escalation of conflicts, as well as stabilize the situation in the South China Sea. The US and Japan should also refrain from using the arbitration decision to put pressure on China.


China, in return, should ensure that user states in the South China Sea enjoy freedom of navigation in accordance with international law. It should also avoid over-militarizing the construction of reefs and islands, or announcing the establishment of an air defense identification zone (ADIZ) above the South China Sea at this moment.


In the long run, China and the US should endeavor to curb rising trust deficit by enhancing mil-to-mil cooperation. Joint antipiracy efforts in the Gulf of Aden provide an example of successful cooperation. China and the US could try to build on such kind of cooperation, and jointly deal with other low-sensitivity security issues such as search and rescue, disaster relief, and expand their cooperation to other sea areas. 

This is the end of my speech.Thank you for your attention.