Freedom of Navigation in the High Seas: Implication for Economic, Political and Military Security in the South China Sea
By: Nihonjin051, Ph.D-c, L.P, P.H.R.
Introduction
In the current global paradigm, maritime security is a global issue with numerous stakeholders having various interests. The need for cooperation and the need to coordinate with one another is prerequisite on multilateral and bilateral basis along with international organizations and nongovernmental organizations. Imperative among these groups is the International Maritime Organization amongst various organizations that are concerned on the status of Piracy and Vessel Tracking. Piracy, particularly off the coast of Somalia, has become an urgent maritime security matter. Attacks on shipping vessels can be expected to increase without enhanced international efforts. Pirates have received million dollar ransoms for the release of hostages, Somali-based riates have disrupted critical humanitarian aid deliveries to Somalia is an example of a case basis example of how piracy in a strategically important region can affect trade and humanitarian missions. Pertinent for nations is the issue of vessel tracking, specifically known as LRIT or Long Range Identification and Tracking of Vessels and the MSSIS or Maritime Security and Safety Information System which both contribute to maritime security.
This paper will examine the international agreements regarding maritime security through observance of freedom of navigation, shall observe current and past arbitrations of nations who have submitted to the International Court of Justice regarding maritime delimitation and observe the results of said rulings. The analysis of these case studies shall be pertinent for our attempt to examine the potential solution to the current South China Sea paradigm wherein there are multiple claimants including The People’s Republic of China, the Republic of China (Taiwan), The Republic of the Philippines, The Federation of Malaysia, The Sultanate of Brunei, The Socialist Republic of Vietnam, The Republic of Indonesia can go about to find resolution or at least agree upon a framework to work with each other either bilaterally or multilaterally to maintain Freedom of Navigation in the aforementioned maritime zone.
Japan’s Vested Interest
The South China Sea region is a critically important region for the Association of Southeast Asian Nations, a membership that includes The Philippines, Indonesia, Malaysia, Brunei, Vietnam, Laos, Cambodia, Myanmar, and Thailand. In addition to ASEAN, Japan is also vested in the surrounding region due to the fact that most of Japan’s maritime trade traverses through the strategically vital Malaccas Straits , as well as the South China Seas. The region is a vital choke point for Japanese exports that include electronics, automobiles and imports that include raw natural resources such as liquefied natural gas, hydrogen gas, petroleum, coal. As the third largest economy in the world and with billions worth in investments in around the countries of Southeast Asia, specifically in the countries that are claimants to the South China Sea, the observation of law and order through maintenance of freedom of navigation is critical for Japan and its partners.
The leaders from Japan and the Association of the Southeast Asian Nations had agreed in December 2014 to work together to protect Freedom of Air and Sea Navigation as they wrapped up a summit in Tokyo amid China’s growing assertiveness over territorial disputes (Japan and Asean, 2014). At the Summit between Japan and the 10 member ASEAN, the Prime Minister of Japan – Shinzo Abe – had elaborated his security policy to proactively contribute to even further the peace and stability of the region and the international community from the perspective of Proactive Contribution to Peace based on Japan’s long-standing principle of international cooperation (Japan and Asean, 2014). In a sign of good will and Japan’s commitment in the region, Japan had pledged up to $20 Billion in aid and loans to Southeast Asian countries over the next five years to support the creation of what is to be called the ASEAN Economic Community by 2015. In a sign of good hope, Japan had also agreed to expand the bilateral currency swaps deals with Indonesia and the Philippines as a safeguard against a financial crisis.
Japan’s pledge has materialized in active policy this past June 2015 with the Japanese Maritime Self Defense Force actively cooperating with several member nations in ASEAN such as the Philippines, Indonesia, Vietnam, Malaysia and Thailand as the JMSDF conducted necessary naval exercises with neighboring navies in ASEAN, in an attempt to encourage and cultivate a culture of collectivism, mutual security awareness, and to champion the 2014 Tokyo Summit that had called for Freedom of Navigation. The Japanese Maritime Self Defense Force, which has recently started flying P-3 Orions from its 18th Maritime Air Squadrons to help fly with and patrol with the Vietnamese air continents has been a sign of mutual development, with the recent JMSDF’s P-3 Orion flying with the Philippine Air Force on islands that are disputed in the South China Sea. The development of active patrols between the Japanese Self Defense Forces with the Armed Forces of the Philippines, Indonesia, Vietnam, Malaysia as well as the United States is the very thesis of collectivism, multilateralism and concerted involvement in the international sense to maintain Freedom of Navigation for all parties and to resist the instance and actions of any power to implement hegemony.
Freedom of Navigation
Famously referred to as a constitution for the oceans, the United Nations Convention on the Law of the Sea (UNCLOS) endeavors to coherently bring together the multitude of issues concerning the world’s oceans into a single framework international instrument. The concention’s preamble is evidence of the careful balance required to bring together parties with often divergent priorities as it states:
“[E]stablishing through this convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.” (Womble, 2012).
The balance between peaceful uses, such as commercial shipping and the preservation of marine environment is particularly difficult to maintain. One of the innovations of UNCLOS is the regime of transit passage through straits used for international navigation. Straits used for international navigation are a focal point for both environmental and freedom of navigation concerns. The transit passage regime in these straits has been and will likely continue to be an international friction point as coastal states, maritime powers, and the International Maritime Organization struggle with finding the correct balance between freedom of navigation, the regime of transit passage, and the conflicting interpretations of applicable UNCLOS provisions governing navigation through straits used for international navigation (Womble, 2012).
Let us analyze how inter-national disputes of maritime and land territories were solved through international arbitration as modus operandi of mitigating differences and finding lasting solution, shall we? I will present four cases for qualitative analysis.
Case Study: India and Bangladesh
The most recent example of international arbitration was the India-Bangladesh Case in the United Nations regarding the Bay of Bengal. A United Nations court drew a new maritime border in the Bay of Bengal , thereby awarding over three quarters of said disputed area to Bangladesh , and one quarter to India. This demarcation will thereby promulgate a delineation for both nations and for more effective bilateral energy exploration and joint patrols. The result of the ruling will enable both India and Bangladesh to adequately and properly patrol their respective sides of the maritime border in the Bay of Bengal, thereby reducing instance of maritime clash.
Case Study: Peru and Chile
The International Court of Justice had fixed a new maritime boundary between the Republics of Chile and Peru, thereby concluding what was a six year case. The case started 6 years earlier when Peru instituted legal proceedings against Chile in the ICJ , the ICJ had initiated its analysis by reviewing the relevant agreements of both countries including the 1952 Declaration that established a maritime boundary. The use of proportionality analysis as well as equidistance claims of both parties were taken into consideration in the final ruling.
Case Study: Japan and China
Back in June of 2008 there were positive results of Japanese-Chinese Multilayered Intergovernmetalist approach to bridging differences in regards to territory in the East China Sea. After over three years of direct leadership consultation, Japan and China reached a Principled Consensus on the East China Sea. The Consensus consisted of three parts:
1. Cooperation between Japan and China in the East China Sea
2. Understanding Between China and Japan on Joint Development of the East China Sea
3. Understanding on the Participation of Japanese Legal Person in the Development of Chunxiao Oil and Gas Field in Accordance with Chinese Laws.
The Sino-Japanese cooperation; both sides had agreed to cooperation during the transitional period pending delimitation of their overlapping claims on the basis of not prejudicing the legal positions of either side. Both sides had also agreed to select, by mutual agreement, areas for joint development in the block under the principle of reciprocity. Shirakaba – Chunxiao oil and gas field was the area of contention for both sides. What should be known is that the Chinese side had invited Japan in developing the existing oil and gas field in accordance with Chinese Laws and granted reciprocity for Japan.
If we look at the diplomatic history of both China and Japan , in regards to maritime boundary, we see a very positive and collaborative spirit. One has to remember that Japan and China had passed the Provisional Measure Zone, which was established by the China-Japan 1997 Fisheries Agreement, and is bounded by straight lines joining seven points roughly rectangular in shape.
I want to reiterate that the 2008 China-Japan Consensus on the East China Sea Issue is very significant for both nations because it eases the maritime disputes that existed between both Japan and China. And it is conducive to peace and stability in the East China Sea. The recent maritime row between Japan and China is due to the Japan’s Nationalization of the Senkaku Islands and territories that were included in the 2008 China-Japan Consensus of the East China Sea. The 1997 Fisheries Agreement between Japan and China as well as the recent 2008 China-Japan Consensus of the East China Sea were all products of the Multilayered Intergovernmentalist approach, which allowed both Chinese Leadership and Japanese Leadership to find consensual agreement on areas of contention. And it has largely been quite successful, given the paucity of disagreements between Bejing and Tokyo prior to 2012. It is apparent that when both leaderships are affixed on resolving issues, they are readily addressed.
One thing that Japan has to understand is the sensitivity of the Chinese side in regards to any unilateral action on the Japanese side. In fact, prior to the Nationalization of the Senkakus, there were practically no violent protests or official Chinese government response lambasting Japanese policy on said islands. The Chinese leadership was insulted on the Japanese side of nationalizing the islands , despite the fact that Japan already had de-facto control and administration of the area. The recent flyover of Chinese maritime spy planes into the Senkakus, and sporadic intrusion of Chinese Maritime Surveillance Ships are a recent phenomenon , and were a reaction to Tokyo’s unilateral proclamation. So, in this regard, Japanese Leadership needs to understand that the Chinese response is a reactive formation and thus it should be the Japanese side to approach China and bridge these differences.
Case Study: Norway and Denmark
In regards to the arctic, the intervention of the ICJ was effective in enabling conclusion to the claims of both Norway and Denmark. This was seen in the agreement between Denmark and Norway relating to the delimitation of the continental shelf effective in 1966, then again the exchange of notes constituting an agreement amending, then again finalization of said agreement. The international arbitration of the UN and ICJ and cultivated a culture of communication and bilateral intergovernmentalism between Norway and Denmark that would culminate and the impetus for the basis of the Baltic Group in the NATO sphere years later.
Conclusion
From analyzing the four case studies of how international arbitration has led to effective delineation of maritime and land boundaries, we can see how that has led to reduction in military confrontation, as well as led to increase in regional and bilateral cooperation, research, and development. This can be seen in the recent ruling between Bangladesh and India per the Bay of Bengal, to the agreements between Norway and Denmark regarding the delimitation and regulation of the continental shelf and arctic regions.
This enables us to have a better understanding how the international court paradigm comes into context to the South China Sea dispute between China, The Republic of the Philippines, Malaysia, Indonesia, Brunei, Vietnam and how solutions can be calculated. The paradigm of intergovernmentalism and internationalism comes into play in possible solutions to this sensitive yet vital region of the world.
References:
Houck, J. W., & Anderson, N. M. (2014). The United States, China, And Freedom Of Navigation In The South China Sea. Washington University Global Studies Law Review, 13(3), 441-452.
Japan, ASEAN Pledge Freedom of Navigation. (2013). Arabia 2000,
Thomas, T. V. (2009). The Proliferation Security Initiative: Towards Relegation of Navigational Freedoms in UNCLOS? An Indian Perspective. Chinese Journal Of International Law, 8(3), 657-680. doi:10.1093/chinesejil/jmp027
Womble, J. B. (2012). Freedom of Navigation, Environmental Protection, and Compulsory Pilotage in Straits Used for International Navigation [article]. Naval Law Review, 134.
Wolfrum, Rudiger. (2008). International Tribunal for the Law of the Sea.
Zewei, Y. (2012). The Freedom of Navigation in the South China Sea: An Ideal or a Reality?. Beijing Law Review, (03), 137.
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