W

hen the US Navy deployed its ships to the South China Sea to exercise '€œfreedom of navigation'€, China responded that such action violated Chinese law and was counterproductive to regional peace and stability. Some believe that such an operation is a form of containment policy against China, or even siding toward other claimants in the South China Sea dispute.

Generally, it raises the idea that freedom of navigation is something to be feared. Some quarters in many Southeast Asian countries have also privately expressed such sentiments.

Freedom of navigation is part of many customary international laws codified in the 1982 UN Convention on the Law of the Sea (UNCLOS). This principle is very much related to the idea of connectivity.

Without freedom of navigation, ships that are designed to connect people and goods will lose their function as they can no longer serve as conduits of connectivity without freedom of movement at sea.

Almost all nations, including Indonesia, enjoy this freedom on a daily basis. Indonesian private and government vessels have plied regional and global oceans to serve economic, political and security interests.

Without freedom of navigation, Indonesia'€™s warship KRI Banjarmasin would never have sailed to Milan on a friendly mission and KRI Dewa Ruci would have never sailed the world for training and friendly port calls. Neither would we have had numerous warships sent to Lebanon to be part of UN peacekeeping missions or sent to disrupt sea piracy in the waters off Somalia.

China has also enjoyed freedom of navigation when it deployed dozens of submarines in the Indian Ocean for unspecified purposes via Indonesian waters without Indonesia lodging complaints.

The UNCLOS, as the constitution of the ocean, regulates how states can exercise navigational rights without jeopardizing the interests of coastal states. It creates a zonal approach, specifying the rights and obligations of the coastal state as well as other states. The passage must be continuous and expeditious. It must not be prejudicial to the peace, order or security of the costal state that it passes. Notification is not required prior to conducting such passage.

Furthermore, such passage is not equal to support toward any claimant state of the waters passed. The ownership of islands, reefs and other features in the Spratly Islands is still disputed. Nevertheless, whoever owns the features will have the obligation to honor the right of passage to other states.

Indonesia, as part of the region, as well as a part of the international community, should be wise in reacting to allegations that naval ship deployment means a provocative action; it must look further to what the actual operation entails.

Similarly, as opposed to the generalization of interpreting America'€™s freedom of navigation as the exercise of unlimited freedom regardless of maritime zones, analysis should consider whether such a program conforms with the UNCLOS.

Finally, upholding the law does not equal siding with a certain claimant'€™s position. Asia cannot pick and choose which laws it prefers to uphold. Asia cannot state that it is willing to submit disputes to a private arbitration system as seen by hundreds of cases in the arbitration building in Singapore, and then refuse to resort to the International Tribunal on sea laws.

Nor can Asia state that some parts of the law of the sea are acceptable while others are not. Equally, the US cannot just state that we all need to abide by freedom of navigation as enshrined by UNCLOS 1982 '€” while the country itself refuses to ratify it.

The rule of international law is for every country to follow, including the two mighty permanent members of the UN Security Council in this region, the US and China.
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The writer is deputy assistant to the special envoy to the President for maritime delimitation, who acquired a doctorate in ocean law and policy from Virginia Law School. The views expressed are his own.