Freedoms of Navigation in the Asia-Pacific Region

Strategic, Political and Legal Factors

Sam Bateman

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367189730
• eBook ISBN: 9780429557088
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The need for freedoms of navigation in regional waters is frequently mentioned in statements from regional forums, but a common understanding of what constitutes a particular freedom of navigation or the relevant law is lacking.

This book discusses how law, politics and strategy intersect to provide different perspectives of freedoms on navigation in the Asia-Pacific region. These freedoms are very important in this distinctively maritime region, but problems arise over interpreting the navigational regimes under the law of the sea, especially with regard to the rights of foreign warships to transit another country's territorial sea without prior notification or authorisation of the coastal state, and with determining the availability of high seas freedoms of navigation and overflight in an exclusive economic zone. The book explores these issues, referring in particular to the position of the main protagonists on these issues in Asian waters – the United States and China – with their strongly opposing views. The book concludes with a discussion of the prospects for either resolving these different perspectives or for developing confidence-building measures that would reduce the risks of maritime incidents.

Providing a comprehensive yet concise overview of the various different factors affecting freedom of navigation, this book will be a valuable resource for those working or studying in the fields of international relations, maritime security and the law of the sea.

1 Introduction

Introduction

This book examines vexed issues with freedoms of navigation in the Asia-Pacific region.¹ Freedoms of navigation and the law of the sea more generally have become important strategic issues in this region. They are political tools that countries use as ‘sticks’ to beat each other with. China is usually the recipient of such attacks with calls for it to adhere more closely to a ‘rules-based’ order at sea with accusations that it is threatening the freedoms of navigation of other nations. Political use of the law of the sea, or what might be termed ‘lawfare’, is also evident in the sovereignty disputes in the region with arguments between the supporters of each side of the dispute claiming the law is on their side.

Politics provide the basic rationale for state action. Developments with the law of the sea over the years have shown a persistent interaction between law and politics. This is clearly the present situation in the Asia-Pacific region. While the interests of countries in the sea can coincide, they often also conflict. Maritime powers have a vested interest in the freedoms of navigation through archipelagos and international straits and elsewhere in regional seas, but many regional countries believe that unrestricted freedoms of navigation compromise their national security and threaten their marine environment. While the law of the sea sets the framework for resolving disputes, and potentially provides a dispute settlement mechanism, the solution to resolving these conflicts of interest will likely be a political one. This has been evident in the way in which under the influence of politics, the arbitral ruling in the case brought by the Philippines against China in the South China Sea has not had the impact that may have been anticipated.²

Historically, the politics of the law of the sea involved a clash of interests between coastal states and maritime user states, but the situation is now more complex. It is no longer sufficient to think simply of coastal state interests because coastal states might also be straits states,³ archipelagic states, geographically disadvantaged states,⁴ leading shipping or fishing countries, industrialised or developing countries, and so on with very different priorities in the law of the sea. For example, Singapore is both a straits state and a major maritime user state with mostly different interests in freedoms of navigation to those of its large neighbours, Indonesia and Malaysia.

This book explores the intersection of politics and the law with freedoms of navigation in the Asia-Pacific region. It draws heavily on concepts of international law, but of themselves, these are an excessively rigid framework in which to view freedoms of navigation in the region. Account should also be taken of powerful cultural, social and political values, as well as fundamental economic and strategic factors that influence law of the sea interests in the region. Some regional countries, notably Indonesia with its concept of wawasan nusantara (the ‘archipelagic outlook’),⁵ have a professed cultural affinity with the sea that leads them to seek maximum control over their adjacent waters.

A major ‘stumbling block’ to a broader common understanding of freedoms of navigation, and the law of the sea more generally, lies in domestic politics. Nationalism has become a major factor that prevents constructive negotiations to resolve differences of opinion and disputes in the region. It underpins the desire of many regional countries to place restrictions on the movements of foreign naval vessels in their adjacent waters.

Developments in the law of the sea affect political attitudes, strategic perceptions and regional relations throughout the Asia-Pacific, but particularly so in the narrow seas of East Asia. In turn, developments and political attitudes in the region have influenced the evolution of the law of the sea more generally. This is likely to be even more so in the future with the growing economic, political and maritime influence of the region. Considerations from the Asia-Pacific, East Asia in particular, will likely play a major role in the future development of ocean law at the global level.

In many ways, the outstanding problems of the freedoms of navigation and the law of the sea more generally now facing the international community are focused in the East Asian seas. These are perhaps the most disputed areas of maritime space in the world.⁶ The perspectives of the law of the sea held by regional countries reflect political, economic, cultural and strategic considerations that are very different to those of the major Western powers that have dominated the law of the sea in the past. Interpretations of the relevant law can vary between countries, and these differences can constitute a potentially destabilising factor in regional relations and maritime security. They are evident when China and some other countries are accused of threatening the rules-based order of the seas that has applied for many years.⁷ These countries may become increasingly assertive in pursuing their views against the traditional precepts of the rules-based order that have prevailed for many years.

Setting the scene

The maritime environment dominates the strategic geography of the Asia-Pacific region.⁸ The sea and maritime issues are a major part of international relations in the region both between regional countries and between these countries and the rest of the world. Regional countries, historically more concerned about terrestrial issues and internal security, have become more strongly nationalistic about their offshore sovereignty and maritime security.

The significance of the sea to East Asian nations, in particular, is reflected in the size of their merchant shipping fleets, their dependence on seaborne trade and seafood, the emphasis on maritime capabilities in their defence forces, and the attention given to offshore sovereignty.

Most East Asian countries depend on the sea for foodstuffs, trade and longer-term economic prosperity and security, but there is growing concern over the depletion of fish stocks, the degradation of the marine environment and the destruction of habitats, such as seagrass beds, mangroves and coral reefs. With increased concern for energy security, many regional countries are investing heavily in offshore oil and gas exploration and exploitation.

Although the broader Asia-Pacific region is the overall strategic and political context for this book, the marginal seas of East Asia are its main focus. Northeast Asia and Southeast Asia are often regarded as separate strategic regions but, while their problems may be different, they are, in fact, closely entwined with each other. This is particularly so with maritime issues due to the linkages through seaborne trade, resource exploitation, the inherent mobility of naval forces, and the influence of China as a major maritime power in both sub-regions.

The countries of Northeast Asia face a major security issue with their dependence on the free movement of shipping through the confined waters of Southeast Asia. The phrase ‘Malacca Dilemma’ has been coined by China to refer to the potential for China to be greatly and adversely affected by blockages of key maritime trade routes, especially the Malacca Straits.⁹ On the other hand, the straits states of Indonesia and Malaysia are aware of the potential strategic leverage than gain by their proximity to, and potential control over these strategic waterways.

This chapter provides the local knowledge of regional maritime issues that is an important basis for later chapters. It reviews significant issues with the contemporary regional maritime environment. These factors may be classified as either enduring features of the contemporary scene or as dynamic ones. Enduring features comprise the maritime geography of the region, especially features such as archipelagos, international straits, land-locked and geographically disadvantaged states, and enclosed and semi-enclosed seas. All these features figure prominently in the strategic geography of East Asia. Dynamic features include changes in regional relations, the rapid growth in regional seaborne trade, the growing scarcity of marine resources, increasing risks of marine pollution, the expansion of regional maritime forces (ships, submarines and aircraft), and changes in the regulatory regimes for maritime activities.

The maritime geography of East Asia is shown in Figure 1.1. It is very complex – perhaps the largest and most complicated area of maritime geography in the world. As a consequence of the extended maritime jurisdiction allowed by the 1982 UN Convention on the Law of the Sea (UNCLOS),¹⁰ much of the maritime domain in this area is enclosed as the exclusive economic zones (EEZs) or archipelagic waters of coastal and archipelagic states. Some regional countries, notably Japan, Indonesia and the Philippines, which are mainly composed of islands, have very large areas of maritime jurisdiction. There are relatively few areas of high seas.

Table 1.1 shows the size of the maritime zones of East Asian countries (with maritime zones comprising EEZs, archipelagic waters and territorial sea), along with the ratio of maritime zones to land area. The latter ratio provides a crude indicator of a maritime state if this ratio is comfortably above 1 : 1. In absolute terms, Indonesia, Philippines, Japan and China have gained the largest maritime zones under UNCLOS although the ratio of maritime jurisdiction to land area for China is quite small being distorted by China’s continental nature and very large land area.

The data in Table 1.1 also suggests the major ‘winners’ under UNCLOS in terms of additional maritime jurisdiction. The big ‘winners’ have clearly been the archipelagic and island states: Japan, Philippines, Indonesia and, to a lesser extent, Taiwan, with their large maritime/land ratios. Singapore is the exception here as, despite being an island state, it is a...

Table of contents

• Cover Page
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Author’s biography
• Preface
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Navigational regimes
• 3 Exclusive economic zone issues
• 4 Building understandings and confidence
• Index