Freedom Of Navigation Pits Japan, U.S. Against China

With Japan and the United States in one corner, and China in the other, the issue of freedom of navigation is taking center stage as China’s growing maritime presence continues to set off alarm bells.

While Japan and the United States differ slightly in their interpretation of the issue, they are adamant that China must tow the line in what essentially boils down to international law.

Japanese Prime Minister Shinzo Abe was determined to use the Oct. 9 summit in Bandar Seri Begawan, Brunei, with members of the Association of Southeast Asian Nations to press the issue. Right up to the last moment, Abe was pushing senior Foreign Ministry officials to lobby their foreign counterparts over the wording of the chairman’s statement.

“Use whatever means are necessary to ensure that ‘freedom of navigation’ appears in the text,” Abe told senior diplomats.

Since December last year when he returned to serve a second stint as prime minister, Abe has emphasized the importance of freedom of navigation during his meetings with foreign leaders and on other occasions.

His intention clearly is to send a strong message to China, which continues to intimidate its neighbors by sending fishing fleets to the East China Sea and the South China Sea, where it has territorial disputes.

Abe managed to get “freedom of navigation” slipped into the chairman’s statement in Brunei, although some pro-Beijing countries flinched at the idea.

“Freedom of navigation” was again spelled out expressly, and at more length, in a joint statement during a Japan-ASEAN commemorative summit meeting in Tokyo on Dec. 14. A joint statement is considered to carry more weight than a chairman’s statement.

“The groundwork had been laid in Brunei,” said one senior Foreign Ministry official.

Freedom of navigation is a central concept in the U.N. Convention on the Law of the Sea, which sets comprehensive rules on conduct at sea. Often dubbed the Constitution for the oceans, the convention has been ratified by 166 nations and organizations.

The UNCLOS divides maritime areas into the “territorial sea,” where the coastal state has sovereign rights; the “exclusive economic zone,” which lies outside the territorial sea but within 200 nautical miles (370 kilometers) of the coast; and the “high seas,” which are not part of the territorial sea or the EEZ of any country. The convention grants the coastal state sovereign rights to develop and exploit marine resources in its EEZ.

Freedom of navigation is also a golden rule championed by the United States, which counts the Pacific Ocean as its backyard. Washington has yet to ratify the UNCLOS, but has said it will respect and abide by the convention just as it would in any international common law.

Tokyo and Washington are slightly at odds over the interpretation of freedom of navigation.

The United States asserts that noncoastal states should in principle be allowed to conduct military activity in an EEZ. But Japan has stopped short of asserting in public that noncoastal states should be allowed to do so.

In 2003, the then director-general of the North American Affairs Bureau in the Japanese Foreign Ministry told the Upper House that “all states enjoy freedoms (in exclusive economic zones), but shall have due regard to the rights and duties of the coastal state.”

His remark mirrored the corresponding provision in the UNCLOS, and has been Tokyo’s official position on the matter ever since.

Tokyo’s nuanced position reflects its desire to keep negotiation cards up its sleeve during diplomatic dealings with Beijing.

“There is a profit to be gained from ambiguity,” said Kazumine Akimoto, a senior researcher with the Ocean Policy Research Foundation who is well-versed in maritime affairs.

Beijing has argued that Okinotorishima, Japan’s southernmost point, is not an “island” but “rocks.”

In the event agreement was reached that Okinotorishima is indeed an island, China would have no choice but to refrain from naval activity in Japan’s EEZ around Okinotorishima, given its stance that noncoastal states should not be allowed to conduct military activity without permission in an EEZ. That would make it more difficult for China to gather intelligence on U.S. military establishments in Guam and elsewhere.

China Aims To Set Up New Rules

The history of confrontation between the United States and China over EEZs is short. It started only after the UNCLOS was adopted in 1982.

After World War II ended in 1945, countries began to establish full-fledged rules on conduct in the seas. In 1958, the international community adopted a convention that applied to territorial waters and high seas.

In the 1960s, confrontations occurred between developed and developing countries, prompting newly independent nations to claim rights over marine resources.

In 1973, countries began negotiations to create the UNCLOS by reviewing and unifying conventions related to the sea. The talks led to the UNCLOS being adopted and EEZs being established.

During the talks, the United States and the Soviet Union, both maritime powers, agreed that areas designated as territorial waters should not be expanded too greatly.

This was because they feared it would threaten freedom of navigation, which is indispensable for military activities. Having reached agreement between themselves, they led the negotiations.

“In the talks, developed countries that did not want their freedom of navigation and flights to be restricted clashed with developing countries which wanted to reduce threats (from other countries),” said Shigeki Sakamoto, a professor of international law at Doshisha University. “Because of that, countries took a long hard look at the influence the UNCLOS could have on military activities.”

That was also why countries were only granted economic rights in their EEZs.

China, however, was a late entrant in making its stance clear on the UNCLOS.

“In those days, China’s studies on laws related to the sea were insufficient. In the early years of the negotiations, China’s team (for the talks) did not include experts on laws,” said Jin Yongming, director at the Shanghai Academy of Social Sciences’ Center for China Marine Strategy Studies.

Feeling left out, China came round to the idea that countries can restrict the military activities of other countries in their own EEZs.

As the concept of an EEZ is legally new, “UNCLOS’s articles on EEZs have ambiguous portions,” Jin said. “Because of that, countries can interpret those parts in ways that are advantageous for themselves.”

China is among 20 or so countries that oppose freedom of navigation in EEZs. Like-minded nations include India and Brazil.

“I do believe that as China continues to rise and continues to grow, it will develop a greater appreciation for freedom of navigation,” said Carleton Cramer, a former U.S. Navy captain.

Many other U.S. experts on maritime issues feel the same way.

However, Jeffrey Hornung, an associate professor at the Asia-Pacific Center for Security Studies in Hawaii, is not optimistic.

“It is not easy to expect China to change,” he said. “China wants to strengthen control on its EEZ because of the historical background that it was colonized by Western countries. It aims to establish a new maritime order that is different from the rules created under the initiative of the United States and Europe.”

Friction Spreads To Airspace

At 10 a.m. on Nov. 23 (11 a.m. in Japan), the Chinese National Defense Ministry announced without warning the establishment of an air defense identification zone (ADIZ) over the Senkaku Islands in the East China Sea. The islands, which are controlled by Japan but also claimed by China, are at the center of a bitter row between the two countries.

At a stroke, strained relations between Japan and China expanded from the sea to airspace.

U.S. Secretary of State John Kerry immediately lashed out at China, saying, “This unilateral action constitutes an attempt to change the status quo in the East China Sea.”

Japanese Foreign Minister Fumio Kishida bluntly stated, “We cannot accept this unilateral step.”

Japan and the United States also have their own ADIZs.

But in China’s case, the action was unilateral and mandatory.

China made it a requirement that aircraft with routes through the ADIZ submit their flight plans to Chinese authorities in advance. China also warned that failure to do so could result in its military forces taking emergency measures.

The Chinese National Defense Ministry took the position that its establishment of the ADIZ was in line with international law.

“The ADIZ is not a territorial airspace,” it said.

The United States asserts that EEZs should not be used to restrict the military activities of other countries.

However, China takes a different view.

“The United States has established its ADIZ over high seas that are far from its mainland and has required aircraft of other countries to submit their flight plans, including their destinations, in advance if they plan to fly through the ADIZ,” said Xue Guifang, a professor of law at Shanghai Jiao Tong University.

In what amounts to a convenient justification, China has decided that its ADIZ is airspace over which it has sole jurisdiction. By lumping sea and airspace collectively, it has tried to counter the United States.

The ADIZ announced by China on Nov. 23 is basically a China-style airspace version of its EEZ.

China has yet to agree to the maritime rules created under the initiative of the United States and the Soviet Union.

“The problem of ADIZs is similar to that of EEZs. China is trying to make a new order in the sky, too,” said Hornung.

As far as the Chinese National Defense Ministry is concerned, it said, “We made the announcement (of the ADIZ) at an appropriate moment after giving full consideration to our military capabilities and our country’s political situation.”

China also plans to establish an ADIZ in the South China Sea, where it also has territorial disputes.

But unlike the East China Sea, the South China Sea is far from China’s mainland. This will likely limit the ability of air surveillance facilities on the mainland to cover the entire area. The Chinese air force is expected to encounter a similar difficulty in carrying out surveillance and reconnaissance activities.

For this reason, many experts believe that China will not be able to establish its ADIZ in the South China Sea soon.

This article was written by Kazuo Teranishi, Makoto Oda in Tokyo, Nanae Kurashige in Beijing, and Atsushi Okudera in Washington.