China isn't seeking to limit freedom of navigation in South China Sea

Luo Jia questions the Philippines' own motives regarding South China Sea

PUBLISHED : Monday, 24 September, 2012, 12:00am
UPDATED : Friday, 20 May, 2016, 1:59pm

The Philippine Department of Foreign Affairs issued a statement this month on the freedom of navigation in the so-called "West Philippine Sea". It said that "the freedom of navigation is a customary right under international law" and "its existence does not depend solely on the will or assurance of one or any individual state".

The department noted that "no state can arrogate unto itself the unilateral right to determine or assure the existence or non-existence of the freedom of navigation in the West Philippine Sea". Rather, it said, "the freedom of navigation is an established right … as a matter of international obligation".

It is true that freedom of navigation is a right under international law rather than a privilege endowed by any individual state. The flaw in the statement is that readers have to spend a few seconds to realise that the "West Philippine Sea" is actually a term recently coined by the Philippines in an attempt to replace the "South China Sea", a name which has been used globally for centuries.

The statement contained yet more errors.

Referring to a recent statement by China which said that "the freedom and safety of navigation in the South China Sea is assured", the Philippines made the assumption that China is "making it appear that it is the sole guarantor of freedom of navigation" in the South China Sea. Then the department very comfortably blamed China for creating a "cause of serious concern".

One may need a top English linguist to determine whether such an assumption could be extracted from the Chinese statement, on the condition that what the department got was the faithful English translation of what China had said.

We can make the job easier by looking for a more authoritative version of China's announcements on the subject.

One of the most recent comments was made by Foreign Minister Yang Jiechi during the Asean Regional Forum in July. He said: "China will continue to work closely with the littoral countries to ensure smooth sea lanes in the South China Sea. Countries in the region should make better use of the convenience brought about by the freedom of navigation in the South China Sea to strengthen connectivity and facilitate trade and mutually beneficial co-operation between regional countries and countries outside the region." Does it contain the slightest trace of a desire to be the sole guarantor of the freedom of navigation?

It's likely that Philippine Foreign Affairs Secretary Albert del Rosario was present when Yang made that remark. But the Philippine department simply chose to ignore it when interpreting China's intentions.

The Chinese statement should be welcomed, according to the Philippine department, only when it "recognises and will abide by its obligation under international law … with regard to the exercise of freedom of navigation in the high seas, and accordingly respect the exclusive economic zones of all the littoral states in the West Philippine Sea".

Under the United Nations Convention on the Law of the Sea, freedom of navigation in the high seas and rights and jurisdiction of coastal states in their exclusive economic zones are two separate legal regimes. For example, when a state is exploiting natural resources in its zone, it cannot label the act as exercising freedom of navigation. By the same reason, a state cannot use freedom of navigation as an excuse to defend its unilateral oil drillings in a disputed area.

In accordance with article 58 of the convention, freedom of navigation in a state's exclusive economic zone shall be enjoyed by all states rather than by the coastal state alone. In other words, freedom of navigation does not fall within the exclusive rights of the coastal state. Chaining the two together is a misreading of the convention.

By doing so, is the Philippines really concerned about freedom of navigation in the South China Sea, or does it only want to take care of its own interests? Is freedom of navigation used as a cover for the Philippines to impose and reinforce its own claims in the South China Sea? Now we may better understand why the Philippines is so insistent that the South China Sea be called the "West Philippine Sea".

Luo Jia is a researcher from Wuhan University's China Institute of Boundary and Ocean Studies.