OPINION | South China Sea Conflict: An Outcome of Unresolved Issues in UNCLOS and “Freedom of the Seas” Principle
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OPINION | South China Sea Conflict: An Outcome of Unresolved Issues in UNCLOS and “Freedom of the Seas” Principle

By Ji Guoxing

The principle of the “freedom of the seas” was first enunciated by a Dutch lawyer Hugo Grotius in the early 17th century.  He set out the legal principle that ''Navigation was free to all and no one country could lay claim to the seas on the basis that their navigators were the first to sail on it.''   His intention was to contest the right which Portugal took upon itself to prohibit all others from engaging in seaborne commerce with the East Indies.  In fact, during the history of maritime affairs, the Portuguese practice is no exception; maritime powers usually sought freedom for their own commerce and trade and a restriction on others.  ''Even those who espouse freedom in shipping today, often really mean freedom for themselves on the back of restrictions on others.''   Nowadays, in theory, every country has the freedom of the seas; in practice, those developed economies and maritime powers are enjoying mostly the freedom of the seas.

OPINION | South China Sea Conflict: An Outcome of Unresolved Issues in UNCLOS and “Freedom of the Seas” Principle

Image Attribute: A reef under construction in South China Sea / Source:China Defense Blog

The freedom of the seas principle today is set out in UNCLOS (UN Convention on the Law of the Sea) in 1982, which came into force on November 16, 1994.  UNCLOS codifies the legal regime governing virtually every aspect in, over or under the seas, contributes to the building of a stable maritime regime, including navigation regime, and makes a significant development in the law of navigation.  ''Counterbalancing the adoption of distended national jurisdiction toward the seas, the UNCLOS established three important regimes in securing the freedom of navigation, namely, 'innocent passage' through territorial waters, 'transit passage' through international straits, and 'archipelagic sea-lanes passage' through archipelagos’ in addition to freedom of navigation in the contiguous zone, in the exclusive economic zone, and on the high seas.

Image Attribute: Sam Galope's Info-graphic on UNCLOS as per South China Sea's Context

Image Attribute: Sam Galope's Info-graphic on UNCLOS as per South China Sea's Context

However, UNCLOS does not resolve all issues and many problems exist.  As UNCLOS ''marked a fundamental compromise between the preservation of freedom of navigation in return for a preferential share of high seas mineral resources for the developing world,'' and is designed ''to balance the rights of users or maritime states to a reasonable degree of freedom of the seas, with the interests of coastal states to protect and safeguard their sovereignty, marine resources and environment.'', it is ambiguous on many issues, and only offers general rules and principles.  Difference in understanding and interpretation is prevalent in the world community.  General State practice remains conflicting as well.  

Image Attribute: UNCLOS Schematic / Source: C Schofield, 'Maritime Zones & Jurisdictions', p. 18,

Image Attribute: UNCLOS Schematic/ Source: C Schofield,'Maritime Zones & Jurisdictions', p. 18, 

The unresolved issues regarding navigation which might be potential sources of current and future conflicts includes:   

Firstly, regarding the innocent passage through the territorial waters, it has been a much debated issue for long in the international community as to whether the right of innocent passage applies to warships.  Coastal states have been reluctant to permit passage to warships without prior authorization or notification.  ''The history of foreign invasion and traditionally sensitive security concern in the Asia Pacific caused many littoral states in the region to have strong reservations on the right of foreign warships to innocent passage through their coastal waters.''   Regional countries like Bangladesh, Myanmar, China, India, Indonesia, South Korea, North Korea, and Pakistan require authorization or notification for the innocent passage of foreign warships.

The interpretation of the innocent passage norms becomes an issue in respect of the Java Sea.  For years, Indonesia wants to impose some rules to regulate the movements of foreign warships using the Java Sea.  They say warships sailing outside designated sea-lanes should abide by the norms that govern the rights of innocent passage.  “Under the Indonesian interpretation of these norms, submarines must sail on the surface, weapons and surveillance radars must be switched off and aircraft-carriers must keep their planes deck-bound.”   But Indonesia’s dictates are unacceptable to the US.  The Americans have pointed out that, “Under the proposed rules, US navy ships sailing out of Singapore would have to wait until they neared the Sunda Strait before they could go into operational mode.  The prospect of its ships sailing more than 300 kilometers in less than battle-readiness doesn't appeal to the US navy.”

For the avoidance of misunderstanding regarding this controversial issue, the US and the former Soviet Union signed in 1989 a joint statement on innocent passage of warships in each other's territorial seas and set forth in more details their interpretation of the Convention governing innocent passage in the territorial seas.  Other countries probably need to follow suit.

Secondly, regarding the transit passage through international straits, it is defined as the exercise of the freedom of navigation and over flight solely for the purpose of continuous and expeditious transit in the normal modes of operation utilized by ships and aircrafts for such passage.  But it has been controversial as to whether submarines are free to transit international straits submerged.  Besides, controversy lies in the rights of a strait state to interfere with transit passage due to suspected pollution incidents, and the scope of regulatory responsive measures to accidents and pollution taken by a strait state.  Moreover, there are various proposals by regional strait states ''to go beyond the IMO safety regulations and traffic-lane demarcations and to impose additional restrictions on passing ships, including even tolls for the use of these recognized straits'', which have been resisted by other countries.

Thirdly, regarding archipelagic sea-lanes passage, ''Under the LOS Convention an archipelagic state may designate sea lanes and air routes suitable for the continuous and expeditious passage of foreign ships and aircrafts through or above its archipelagic waters.  Such archipelagic sea lanes must include all normal passage routes and all normal navigational channels. On the other hand, innocent passage applies in other archipelagic waters seaward of the internal waters of the islands of the archipelago.'' Different interpretations of these stipulations exist between maritime powers and archipelagic states.

The Convention assigns archipelagic states for designating sea lanes in coordination with the IMO (International Maritime Organization).  But uncertainty exists regarding it.  Indonesia believes it alone has the right to decide on such matters.  Indonesia recognizes the authority of the IMO only on matters relating to navigational aids and the safety of shipping--not on the delineation of sea lanes.  Indonesia, in declaring her new archipelagic sea-lanes, proposed to limit passage to only three north-south sea-lanes.   This attempt to restrict avenues and methods of routine naval passage through the Indonesian archipelago has even been resisted by the US Pentagon. Washington opposes proposed sea-lane rules by Indonesia, ''Establishing sea lanes without concurrence would set a dangerous precedent.''   To utilize its geo-strategic leverage, Indonesia did try in 1978 and 1988 ''to close the Lombok and Sunda Straits as a way of asserting its sovereignty over two of the world's most important maritime choke points.''

Fourthly, regarding naval activities in EEZ, the EEZ regime in UNCLOS attempts to accommodate the competing interests of coastal states for greater control over offshore resources, and those of maritime powers for maintaining traditional freedom of action in waters beyond territorial seas.  But the restrictive regime of the EEZ might pose a threat to the mobility of navies and the ongoing controversy over the EEZ regime includes the freedom of action of foreign navies within EEZ.  The issues are whether foreign navy is free to conduct military maneuvers within EEZ without requiring prior notification or authorization from the coastal state; and whether a state is free to place non-economic installations, such as submarine detection devices in the EEZ of foreign state, which do not interfere with coastal enjoyment of its EEZ rights.

The restrictions over freedom of the seas raised by the wording of the Southeast Asia Nuclear Weapons Free Zone (SEANWFZ) Treaty signed by the ASEAN countries at the Bangkok Summit in December 1995 had caused concerns in the US and some major powers.  The treaty includes a protocol, open to signature by the five declared nuclear weapon states.  The US issued a statement on 15 December 1995, saying, ''One of the most significant issues preventing us from supporting the treaty at this point is the inclusion of exclusive economic zones (EEZs) and continental shelves in the zone, which we believe is inconsistent with internationally recognized high seas freedoms of navigation and over flight.  We feel that, to the extent that the SEANWFZ Treaty imposes security obligations on non-treaty parties without their consent in areas where high seas freedom exist, the treaty is inconsistent with the UN Law of the Sea Convention and sets an unfortunate precedent.''

Fifthly, there are the legal issues relating to the shipment of nuclear wastes through certain ocean areas such as EEZs, territorial seas and straits.  Those nations supporting the shipments assert that the shipments are free to navigate through any part of the ocean under the traditional doctrines of innocent passage, transit passage, and freedom of the high seas.  Many of those nations concerned about the shipments argue instead that the environmental provisions in the 1982 UNCLOS and the 1989 Basel Convention on the Control of Tran boundary Movements of Hazardous Wastes and their Disposal ''require nations shipping these wastes to prepare environmental assessments and then to provide notification to and seek authorization of affected nations before passing through their territorial seas and exclusive economic zones.''  The issue of restricting the passage of vessels carrying nuclear or other hazardous cargoes through the Malacca Strait has often been raised by states littoral to the Strait.

About The Author:

Ji Guoxing (季国兴) is a Chinese academic, author, political scientist and professor at Shanghai Jiaotong University