US Navy Commander Jonathan Odom's article is a critique of Dr. Jin Kai's 20 February 2016 piece "Five myths about China's missile deployment on Woody Island" in the Diplomat. In it, Odom focuses on the issue of "freedom of navigation". This is not a defense of Jin Kai's opinion on that issue but rather a critique of the logic and argument used in Odom's critique.

 

It is challenging to try to follow Odom's tired and tortured logic and rhetoric. I am not sure whether he 'just doesn't get it' or if as a serving US naval judge advocate (lawyer) he is simply doing his duty in defending the US policy and positon--no matter how contorted and  duplicitous it may be.

 

Let's look at a few fallacies in his screed that China probably considers as propaganda. He starts off repeating the often-stated generality that "... [the South China Sea] is a strategic corridor for maritime trade carried throughout the globe...".  In the context of his later argument regarding "freedom of navigation", he is apparently establishing the background for the false premise that China is a threat to that seaborne trade. China has never threatened commercial navigation. Moreover it is unlikely to do so in peacetime because much of that trade is to and from China. Odom may cite a litany of incidents involving China but if one examines each carefully one finds that either they involved unilateral resource- related activities in waters claimed by China or military probes by the US  To cut to the chase, the US is really concerned with "freedom of navigation" for its warships and aircraft engaged in intelligence, surveillance and reconnaissance (ISR) off China's coast. It is conflating this concern with freedom of commercial navigation to garner support for its position and opposition to China's attempts to constrain these probes.

 

China certainly does object by word and deed to what it perceives as US abuse of the right of freedom of navigation and a threat to use force - a possible violation of the United Nations Charter - let alone UNCLOS. The activities of ISR aircraft like the infamous EP-3 incident in 2001, and the Poseidon 8A just this past August, as well as other incidents involving the US navy ships Bowditch, Impeccable and Cowpens, may have collectively included active "tickling" of China's coastal defences to provoke and observe a response, interference with shore to ship and submarine communications, abusing the consent regime for marine scientific research, or tracking China's new nuclear submarines for potential targeting. These are not passive intelligence collection activities commonly undertaken and usually tolerated by many states, but intrusive, provocative and controversial practices.

 

A second fundamental problem with Odom's argument is the supporting rationale that  "... US policy has long regarded much of UNCLOS to generally confirm existing maritime law" and that the US government "...[ considers ] much of the Convention to reflect customary law binding on all states. This is misleading.  First of all, he uses the key word "much" --that is, not "all". What Odom neglects to mention is because the Convention was a 'package deal',  non-ratifiers like the US can not credibly or legitimately  pick and choose which UNCLOS provisions they wish to abide by, deem them customary law, and unilaterally interpret them to their benefit. This is especially so regarding the EEZ regime which the Convention introduces as sui generis and which, despite Odom's opinions does have some restrictions on “freedom of navigation” such as the duty to pay "due regard" to the rights of the coastal state including its marine scientific research consent and environmental protection regimes.

 

A third fallacy is Odom's assumption that China and the US have the same interpretation of the meaning of freedom of navigation and other terms in UNCLOS relevant to it that are not defined in the Convention. These terms include  "other internationally lawful uses of the sea", "abuse of rights", "due regard", "peaceful use/purpose", and "marine scientific research". China and other ratifiers differ with the US on their meaning and these differences are quite relevant to the limits of "freedom of navigation", particularly for warships.

 

A fourth fallacy of Odom's argument is that he ignores the dynamism of international law. It is not static, and the meaning of its terms changes over time in response to advances in technology and the practice of nations. As I think Odom well knows, China is not the only country that places restrictions on some foreign military activities in its EEZ and territorial sea. Indeed in Asia alone, India, Malaysia, and US ally Thailand do not allow foreign military activities in their EEZs, and Indonesia, Taiwan and Vietnam require permission for foreign warships to enter their territorial seas. In Odom's view, these restrictions may not be consonant with UNCLOS. But they are a political reality and will not be resolved by some legal argument or process.

 

Indeed, it is clear that the debate will continue.  However, without ratification of the Convention and therefore access to its arbitration mechanisms, the US voice has little relevance in the international legal arena.  Indeed the US is relegated to threats, shows of force (gunboat diplomacy) and perhaps eventually even use of force. This 'might makes right' approach is not a shining example of international behavior for others to follow—including China.

Mark J. Valencia is an Adjunct Research Professor at the National Institute for South China Sea Studies, Haikou, China.

Note:

Jonathan Odom's "South China Sea and Freedom of Navigation" is available at:  http://thediplomat.com/2016/03/south-china-sea-and-freedom-of-navigation/