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fter the USS Decatur navigated through the Paracel Islands on Oct. 21, the Chinese Ministry of National Defense stated that the United States warship had entered Chinese territorial waters without authorization — a serious violation and intentional provocation according to China.

Although the US Navy claimed that the USS Decatur navigated outside the territorial sea limit of 12 nautical miles from each of the Paracel features, the Chinese claim the baseline surrounding the Paracel as a whole. A claim squarely rejected by the arbitral tribunal.

Indeed, it was not the first time the US has conducted its “Freedom of Navigation Program” in the South China Sea. Overall, China has persistently protested the program and considers “freedom of navigation” a threat to its security.

As a maritime power, China seemingly practices freedom of navigation quite extensively. All states, including China, are the beneficiaries of navigational freedom. The Chinese People’s Liberation Army-Navy (PLA-N), as well as merchant vessels have all travelled well beyond its immediate waters, i.e. the South China Sea and East China Sea.

In 2014, various reports showed that over 20 Chinese nuclear submarines had enjoyed freedom of navigation, sailing from their base near Hainan through Indonesian archipelagic waters and maneuvered in the Indian Ocean, including making stops in the famously Chinese-built port of Hambantota, Sri Lanka.

Chinese frigates have also made similar trips through Indonesian waters as seen by Indonesian authorities from several choke points controlled by it. These trips would be impossible without freedom of navigation.

A similar PLA-N operation to surround Indonesia and the Philippines from Hainan to Hainan via the South China Sea, Sunda Strait, Indian Ocean, Lombok Strait, Pacific Ocean and Philippines Sea can only be exercised under a freedom of navigation regime.

Freedom of navigation is not exclusively for government ships, but also for commercial vessels. With a plan to expand PLA-N fleet to over 350 warships by 2020, and operation of almost 5,000 merchant vessels, China will exercise freedom of navigation more than any country in the world does.

If China insists that freedom of navigation is a threat to its interests, maybe other countries need to emulate China when it deployed hundreds of warship across the world in the name of freedom of navigation.

Freedom of navigation is a neutral tool. It is actually one of the landmarks of the law of the sea as codified in the United Nations Convention on the Law of the Sea (UNCLOS). It is with this freedom that different parts of the world can be connected.

UNCLOS, as the constitution of the oceans, tries to find balance between navigation interests and other legitimate state interests in the oceans, including security interest of the coastal state.

In this case, UNCLOS regulates the regime of innocent passage, which was created within the territorial sea. Under this regime, all ships, including warships, may pass through without notification on the condition that the passage not prejudice the peace, good order or security of the coastal state.

UNCLOS even provided a list of activities that are not considered “innocent”. UNCLOS also provides a set of rules on how a coastal state may draw its baseline and determine the outer limit of its territorial sea. This is to prevent excessive claims of coastal states to the ocean.

UNCLOS also provides a different regime of passage to accommodate different geographic settings, such as the right of archipelagic sea lane passages. In exchange for the acknowledgement of territorial unity of an archipelagic state, and the acknowledgment that waters within the archipelago belong to the archipelagic state, the right of the archipelagic sea lane passages was created to preserve the rights of navigation of other states to pass through the archipelago.

Indonesia, as the largest archipelagic state in the world, is the poster child of this beneficiary. Indonesia’s right to draw a baseline system that connects the outermost points of the outermost islands, and enclose the waters inside its baseline as Indonesian archipelagic waters are guaranteed by international law.

Consequently, Indonesia bears a legal obligation to allow navigation of other states to pass through its archipelagic waters.

Navigational interest applies for all states, and it is the duty for all states to uphold the freedom in accordance with international law.

Therefore, it is understandable that the US would affirm its rights through the “Freedom of Navigation Program”. However, the US cannot merely refer to the UNCLOS to justify its actions; it must accept UNCLOS as a package and ratify it first. However, with Trump at the helm of American policymaking, it is unlikely that the US will ratify UNCLOS.

On the other hand, China needs to align its position with UNCLOS in drawing its baseline and assessing other states’ activities. China should stop its cherry-picking attitude in its position about the freedom of navigation by limiting freedom of other states in its waters while simultaneously exercising its freedom in other states’ waters.
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The writer reads law of the sea at the doctorate program of Ocean Law and Policy, Virginia Law School.