Sea Control 100 – South China Sea, Freedom of Navigation and the problem of innocent passage

The dispute in the South China Sea has been an already well covered topic here on offiziere.ch. In short: China claims most of the waters within its “nine dash line” forming almost 80% of the South China Sea. At a regional level, the South China Sea dispute boils down to the issue of territory and sovereignty between the claimant nations. the international community, however, it is the right to freedom of navigation in high seas that brings attention to the South China Sea (Darshana M. Baruah, “US-China dispute in the South China Sea: the issue of EEZ“, offiziere.ch, 01.05.2015).

In order to strengthen its territorial claims, China dredges sand onto the coral reefs in the region of Spratly Island, to create artificial islands which are then concreted to make permanent structures (“Great Wall of Sand“). Although, there is not much to read about it, the other claimants — for example Vietnam and the Philippines — did that even before.

But this doesn’t change the fact that according to the United Nations Convention on the Law of the Sea (UNCLOS) man-made islands and underwater features like reefs are not eligible for the 12 NM zone (territorial waters) granted to more robust geographic features, such as rocks or naturally-formed islands capable of sustaining human habitation or economic life; the latter of these are also eligible for the prized 200 NM Exclusive Economic Zone (Timothy Choi, “Why the US Navy’s first South China Sea FONOP wasn’t a FONOP“, CIMSEC, 03.11.2015).

Accordingly the US insists on freedom of navigation through the disputed area. To underline its position the Arleigh Burke-class guided missile destroyer USS Lassen (DDG-82) came, end of October 2015, within 12 NM of Subi Reef — one of these artificial raised islands. The US is calling this type of operation “freedom of navigation mission” — and most likely, it will not be the last of this kind.

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During episode 100 of Sea Control, Matthew Hipple discussed with Timothy Choi, a PhD student at the University of Calgary’s Centre for Military & Strategic Studies and with Ankit Panda, Editor at the Diplomat, about the passage of the USS Lassen and about US Navy’s “freedom of navigation missions” in general.

Very interesting is Choi’s explanation that the passage of the USS Lassen could be counterproductive. Under UNCLOS Part II, Article 19 (innocent passage), a ship has the right to pass through a 12 NM zone, if it abstains from certain activities (for example exercise or practice with weapons of any kind; launch, land or take on board of any aircraft or military device; fishing …). If the USS Lassen did, in fact, exercise an innocent passage (as stated here) and didn’t carry out one of the prohibited activities, then it would actually reinforce the Chinese 12 NM zone around Subi Reef instead of contesting it. This would be highly problematic then this could be interpreted as customary law. In this regard, it is important to know that international law is not only created through treaties, but also by practice (for more see “Sea Control 27 – International Law, Crimea, and China“, offiziere.ch, 01.04.2014).

Listen to episode #100 immediately

 
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CIMSECThe Center for International Maritime Security (CIMSEC) is a non-profit, non-partisan think tank. It was formed in 2012 to bring together forward-thinkers from a variety of fields to examine the capabilities, threats, hotspots, and opportunities for security in the maritime domain. Check out the NextWar blog to join the discussion. CIMSEC encourages a diversity of views and is currently accepting membership applications here.

This entry was posted in China, English, International law, Sea Control, Sea Powers, Security Policy.

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