South China Sea "Lawfare": Fighting over the Freedom of Navigation

Abstract

China's expanding military presence and assertive conduct provoked strong concerns among Western nations about the freedom of navigation in the South China Sea. United States-led naval operations in contested areas have emerged as the preferred countermeasure thereto. However, diverging legal positions, complex territorial and maritime disputes, and growing aspirations to enlarged national spheres of influence have resulted in unintended outcomes. Recently, a flurry of diplomatic statements and several large-scale naval exercises have further elevated tensions. A series of controversies over oceanographic surveying and military-surveillance activities in the South China Sea have brought to the fore the long-standing struggle between coastal states and naval powers as it shaped the United Nations Convention on the Law of the Sea (UNCLOS). The US and China hold diametrically opposed views on the rights and freedoms of warships to navigate through territorial seas and operate in exclusive economic zones (EEZs). While China has been instrumentalising UNCLOS provisions and claims to historic rights as a security-political shield, the US has been striving to safeguard its armed forces' freedom to manoeuver in East Asian seas. China's attempt to control almost the entire South China Sea and US-led efforts to push back against the former's generally rising global influence have politicised the US Navy's Freedom of Navigation Operations and obscured their objectives. Never designed to counter territorial claims, these have come to re­present "shows of force." To put a halt to the accelerating militarisation of the South China Sea, the US and China need to overcome geopolitical tunnel visions regarding one another. Also, all coastal states have to recast their claims in conformity with UNCLOS and seek cooperative arrangements as the basis for future settlements. European diplomats and defence officials should encourage Southeast Asian governments to reduce, delimit, and regulate their overlapping territorial sovereignty, EEZ, and continental shelf claims. Unlike extra-regional powers' blunt shows of force, such an alignment would put pressure on China and further the rule of international law. Europe should also encourage the US to ratify UNCLOS so as to increase the credibility of its position.