by Darshana M. Baruah. She is a Junior Fellow at the New Delhi based think tank, Observer Research Foundation, is working on the South China Sea and has completed her Masters in International Relations from Cardiff University in 2012.

It is well established and known that the South China Sea is an important trading route connecting some of the Asian powerhouses to the rest of the world. Home to critical Sea Lanes of Communications, the strategic importance of this waterway connecting the Malacca Strait to the Indian Ocean cannot be overstated. Therefore, it is no surprise that the global community insists on keeping the South China Sea free of conflict in order to guarantee freedom of navigation. Increasing tension between China, Vietnam, Malaysia, Philippines, Taiwan and Brunei makes the South China Sea a hostile maritime hotspot. China claims most of the waters within its “nine dash line” (the green dashes in the image on the right side) forming almost 80% of the South China Sea. Changing Asian geo-politics and an emerging security architecture in the Indo-Pacific only adds to the geo-strategic dimension of the waters.

At a regional level, the South China Sea disputes boils down to the issue of territory and sovereignty between the claimant nations. For the international community however, it is the right to freedom of navigation in high seas that brings attention to the South China Sea. Apart from being a critical commercial route, access to the South China Sea is strategically important for key actors in the Indo-Pacific. Furthermore, underlying the freedom of navigation issue is the real issue of freedom of military navigation that concerns nations like the United States leading Washington to closely monitor the developments in the South China Sea.

Beijing asserts that foreign militaries must acquire China’s permission before operating in its Exclusive Economic Zone (EEZ). This account is opposed by the US and many other European nations stating that freedom of navigation (for both military and commercial ships) in high seas is applicable to functioning within an EEZ. Underpinning the US position on rights within an EEZ, a report prepared by the US Congressional Research Service states that:

The position of the United States and most countries is that while the United Nations Convention on the Law of the Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical-mile territorial waters. — Ronald O’Rourke, “Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress“, Congressional Research Service, 24.12.2014, p. 3f.

Article 56.1 of the UNCLOS (Rights, jurisdiction and duties of the coastal State in the Exclusive Economic Zone), states that

In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; […].

Additionally, Article 58 of the UNCLOS talking about “Rights and duties of other States in the exclusive economic zone”, states that

In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention […].

While the issue of territorial disputes is separate from the issue of China’s rights within its EEZ, it ultimately converges should the international community recognise China’s claims in the South and East China Seas. Control over various islands within its “nine dash line” enables Beijing to expand its EEZ and regulate military activities in large parts of the South China Sea. Article 56.1 [(b), (i)] of the UNCLOS allows coastal state to establish artificial islands and structures, further complicating the issue. As pointed out by various news reports, Beijing is constructing artificial islands in waters claimed to be within its sovereignty, which otherwise is disputed and considered as international waters. Creating strategically located artificial islands in the South China Sea, Beijing is consolidating its assertions in those waters subjecting all military activities in the region to future regulations. This difference in interpreting the rights of a coastal state in its EEZ has led to incidents between US and Chinese ships in international waters such as USNS Bowditch, USNS Impeccable and USNS Victorious.

Beijing’s unilateral action in creating artificial islands to expand its EEZ affects other regional powers beyond the US. Such activities aim to alter the current power dynamics increasing geo-political regional tension. However, despite major concerns regarding this dispute over rights in the EEZ, the issue attracts little attention. Most countries including the US refer to freedom of navigation as a right and avoid using the term “freedom of military navigation”. Beijing in response maintains that China has never interfered in innocent passage of ships and that “freedom of navigation and over flight there [South China Sea] has never seen any problem and will never see any in the future with the concerted efforts of China and relevant ASEAN countries” (Ministry of Foreign Affairs, the People’s Republic of China, “Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on January 27, 2015“, 27.01.2015). There are two main reasons for US to maintain its distance from talking about freedom of military passage in international forums.

One, many regional countries such as Bangladesh, Cambodia, India, Malaysia, Maldives, Mauritius, Myanmar, North Korea, Pakistan, Sri Lanka, Thailand and Vietnam subscribe to the Chinese school of thought as far as regulating foreign military vessels in its own EEZ is concerned. Washington perhaps realises that the issue will not garner as much support in the region since these nations too reserve the right to monitor foreign military activities in its own EEZ. It is although important to note that most of these nations are not perceived as hostile and assertive as the People’s Liberation Army Navy. For instance, India and Bangladesh too had a maritime territorial dispute which was resolved through the Permanent Court of Arbitration. Philippines took the same approach and Beijing refused to participate in the proceedings. Two, Washington’s inability to ratify to the UNCLOS is a massive challenge in putting forward its position on the EEZ issue to the international community.

Therefore, while it is true that the territorial disputes in the South China Sea should be resolved at a bilateral level; its outcome has great strategic implications. Without being in any territorial dispute with China in the South China Sea, Washington is embroiled in a serious conflict with Beijing over the issue of rights within an EEZ. Recognising China’s claims in the waters would mean that Beijing would be able to create islands and further strengthen its claims leading to imposition of domestic laws in international waters. The South China Sea is an important and busy route and no one country should have the power to control or alter existing international norms and customary laws.