The US quot;Excessive Maritime Claimsquot;:A Critical Analysis

Bao Yinan

The US quot;Excessive Maritime Claimsquot;:A Critical Analysis

Bao Yinan

Since the Freedom of Navigation Program was proposed in 1979,1J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd edition, Leiden: Martinus Nijhoff Publishers, 2012, p.6.successive governments of the United States have continued to strengthen their position through a series of official documents, put forward the so-called quot;excessive maritime claimsquot; theory and, in practice,took the quot;two-pronged approach,quot; using both diplomatic channels and regular quot;Freedom of Navigation operationsquot; to protest and challenge other countries' quot;excessive maritime claims.quot; It has been proved that this set of theories and practices of the United States, which is not a party to the United Nations Convention on the Law of the Sea, cannot really maintain the authority and integrity of the Convention. At present, the domestic academia has yielded rich research on several theoretical and practical issues of international maritime law involving the quot;freedom of navigation.quot;Researchers have had some preliminary analysis on the practice of the US Freedom of Navigation Program and related issues of international law and international politics. However, the Chinese academia's analysis on thequot;excessive maritime claims,quot; which is the theoretical basis for quot;Freedom of Navigation operations,quot; has not been deep enough, and studies on the characteristics and essence of these operations has not been sufficient.quot;Freedom of Navigation operationsquot; is the practice of the quot;excessive maritime claimsquot; theory, thus the two are inseparable. It is necessary to combineinternational maritime law and the system and rules of general international law to comprehensively unveil the problems of the two from theoretical and practical perspectives.

Main Contents and Defects of quot;Excessive Maritime Claimsquot;

The proposal of quot;excessive maritime claimsquot; as the theoretical basis for the United States' quot;Freedom of Navigation operationsquot; is inseparable from the cautious and skeptical attitude of the US towards the Convention before and after the birth of the international accord, and its reserved position concerning some articles to expand the jurisdiction of coastal states and restrict the quot;freedom of navigation.quot; With the adoption and entry into force of the Convention, some of the provisions have been gradually established as recognized rules of international law. And the United States has, in accordance with its objectives to maintain its national interests, enriched, updated and expanded the specific contents of its quot;excessive maritime claimsquot; theory.

Background of quot;excessive maritime claimsquot;

According to the document issued by the US government in February 2017, the so-called quot;excessive maritime claimsquot; refers to quot;claims to maritime zones or jurisdiction that are inconsistent with the international law of the sea and, if left unchallenged, could impinge on the rights, freedoms, and uses of the sea and airspace guaranteed to all States under international law.quot;2US Department of Defense, quot;Freedom of Navigation (FON) Program Fact Sheet,quot; February 28, 2017,http://policy.defense.gov/Portals/11/DoD%20FON%20Program%20Summary%2016.pdf?ver=2017-03-03-141350-380.And in the book Excessive Maritime Claims co-written by J. Ashley Roach, a US scholar who was Navy Captain and worked at the State Department Office of the Legal Adviser, and Robert W. Smith, who was a geographic expert on maritime boundary and jurisdictional issues at the State Department, quot;excessive maritime claimsquot; is defined as quot;Claims by coastal States to sovereignty, sovereign rights or jurisdiction over ocean areas that are inconsistent with the terms of the LOS Convention.quot;3J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, p.17.

In fact, quot;excessive maritime claimsquot; is not a newly proposed concept by the US government and academics, but rather one born in the early 1980s, or the period from the end of the Third Conference on the Law of the Sea to the final adoption of the Convention. The US government has always emphasized the importance of freedom of navigation, and challenged the claims of other countries that may restrict quot;freedom of navigationquot; through naval operations.The direct purpose of this challenge is to maintain the quot;freedom of navigationquot;in the traditional sense that the United States has consistently adhered to,that is, all vessels, including warships, enjoy quot;high seas freedomquot; in the waters beyond the territorial waters of coastal states, including the high seas per se.Obviously, the fundamental aim of the US to uphold such traditional quot;high seas freedomquot; is to preserve its core interests.4Ibid. See also Dale Stephens, quot;The Legal Efficacy of Freedom of Navigation Assertions,quot; International Law Studies, Vol.80, 2004, No.1, p.241.As early as 1979, when the US government initially proposed the quot;Freedom of Navigation Program,quot;Ambassador Elliot L. Richardson, the Special Representative of the President for the Third UN Conference on the Law of the Sea, pointed out the importance of freedom of navigation, especially the freedom of operations of the US Navy in global oceans, to maintaining the core interests of the United States: quot;Our economic well-being is continually more dependent on overseas trade and vulnerable to distant political developments. The combined result is to compel increased reliance on the strength, mobility, and versatility of the US Navy. To fulfill its deterrent and protective missions, our Navy must have the manifest capacity either to maintain a presence in farflung areas of the globe or to assemble such a presence rapidly…Our strategic objectives cannot be achieved unless the legitimacy of these principles (freedom of navigation and overflight) is sufficiently accepted by the world at large so that their observance can be carried out on a routine operational basis.quot;5US Department of State Office of the Legal Adviser, quot;Freedom of Navigation,quot; in Marian Lloyd Nash,Digest of US Practice in International Law 1979, Washington: Government Printing Office, 1979, pp.1066,1067-1068.

In December 1982, the same year that the Convention was adopted,the United States issued a National Security Decision Directive, which concisely stated the significance of establishing the Freedom of Navigation Program for challenging the quot;excessive maritime claimsquot; of other countries:quot;The current uncertainty in the law of the sea and the US decision not to become a party to the Law of the Sea (LOS) Convention make all the more necessary a clear assertion of our rights and a revitalized and more effective navigation and overflight program.quot;6The White House, National Security Decision Directive 72, p.1, https://fas.org/irp/offdocs/nsdd/nsdd-72.pdf.On March 8, 1983, the US delegation to the Third UN Conference on the Law of the Sea made a statement regarding the concept of the exclusive economic zone in the Convention: quot;This concept, as set forth in the Convention, recognizes the interest of the coastal State in the resources of the zone and authorizes it to assert jurisdiction over resource-related activities therein. At the same time, all States continue to enjoy in the zone traditional high seas freedoms of navigation and overflight... Military operations, exercises and activities have always been regarded as internationally lawful uses of the sea. The right to conduct such activities will continue to be enjoyed by all States in the exclusive economic zone.quot;7See quot;Statement of the United States of America, 8 March 1983,quot; in quot;Note by the Secretariat,quot; UN Doc.A/CONF.62/WS/37, Official Records of the Third United Nations Conference on the Law of the Sea, Volume XVII, p. 244, http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/english/vol_17/a_conf62_ws_37_and_add1_2.pdfamp;lang=E.Then, in the President's Ocean Policy Statement issued on the 10th the same month, President Reagan further emphasized that quot;The United States will not, however, acquiescence in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.quot;8quot;President's Ocean Policy Statement, March 10, 1983,quot; reprinted in J. Ashley Roach and Robert W.Smith, Excessive Maritime Claims, p.648.

It can be seen that, before and after the adoption of the Convention,the top US government officials had realized that some of the newly enacted rules of the Convention have adjusted the traditional principles of quot;freedom of navigationquot; and, to a certain extent, reduced the scope of applicable waters for quot;freedom of navigationquot; while expanding the jurisdiction of coastal states.For example, Ambassador Richardson argues that complicating factors, such as the Convention's expansion of maximum width of the territorial seas to 12 nautical miles and the emergence of a 200-mile exclusive economic zone, will have an unintended impact on the freedom of navigation that the United States has always upheld.9US Department of State Office of the Legal Adviser, quot;Freedom of Navigation,quot; in Digest of US Practice in International Law 1979, p.1068.It was in this context that the theory of quot;excessive maritime claimsquot; came into being. It not only reflects the US government's cautious attitude towards several new rules of the Convention,but also provides theoretical support and guarantee of domestic legal system for making its overseas naval operations free from interference from other countries.

Specific contents and nature of quot;excessive maritime claimsquot;

In the National Security Decision Directive of 1982, the US government listed for the first time the main categories of excessive maritime claims that it needs to identify and challenge:

1. Those historic bay/historic water claims not recognized by the United States.

2. Those continental territorial sea baseline claims not drawn in conformance with the LOS Convention.

3. Those territorial seas claims exceeding three miles but not exceeding twelve miles in breadth that:

a. overlap straits used for international navigation and do not permit transit passage in conformance with the LOS Convention,including submerged transit of submarines, overflight of military aircraft, and surface transit of warships/naval auxiliaries, without prior notification or authorization; or

b. contain requirements for advance notification or authorization for warships/naval auxiliaries of [sic] apply discriminatory requirements to such vessels; or

c. apply special requirements, not recognized by international law, to nuclear-powered warships or to warships/naval auxiliaries carrying nuclear weapons or specific cargoes.

4. Territorial sea claims in excess of twelve miles.

5. Other claims to jurisdiction over maritime areas in excess of twelve miles, such as exclusive economic zones or security zones, which purport to restrict non-resource related high seas freedoms.

6. Those archipelagic claims that either:

a. are not in conformance with the LOS Convention; or

b. do not permit archipelagic sea lanes passage in conformance with the LOS Convention, including submerged passage of submarines and overflight of military aircraft, and including transit in a manner of deployment consistent with the security of the forces involved.10The White House, National Security Decision Directive 72, pp.1-2.

Since then, as the United States continues to change its understanding and attitudes towards the Convention, and considering the practice of other countries that have acceded to the Convention, the US has been enriching and expanding the contents of quot;excessive maritime claims,quot; particularly strengthening and prioritizing its concerns on issues related to the exclusive economic zone. A review of the enumeration in the 2012 edition of the Excessive Maritime Claims shows that the US government has added the following items on the basis of the above six categories of quot;excessive maritime claimsquot;: contiguous zone claims at variance with article 33 of the LOS Convention; exclusive economic zone (EEZ) claims inconsistent with Part V of the LOS Convention; continental shelf claims inconsistent with Part VI of the LOS Convention; claims that the quot;peaceful purposesquot; provisions of the Convention preclude military activities consistent with article 51 of the UN Charter; claims that military activities including military surveys, hydrographic surveys, operational oceanography, prospecting and exploration of natural resources, environmental monitoring and assessment pursuant to articles 204–206 of the LOS Convention, and activities related to underwater cultural heritage, in the EEZ are maritime scientific research requiring coastal State consent; claims to restrict the laying and maintenance of submarine cables and to impose compulsory pilotage in straits used for international navigation.11J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, pp.17-18. For an inductive analysis of these claims, please see pp.18-32 of the book.

For the nature of the quot;excessive maritime claimsquot; by other countries from the US government's perspective, Roach and Smith argue bluntly thatquot;they are illegal in international lawquot; and quot;threaten the rights of other States to use the oceans.quot;12J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, p.17.

Theoretical defects of quot;excessive maritime claimsquot;

The quot;excessive maritime claimsquot; theory reflects the unilateral interpretation of the provisions of the Convention by the United States, which at best represents the US position and is not the only valid interpretation of the Convention. Moreover, the interpretation for relevant provisions provided by the theory is not comprehensive and correct. The word quot;excessivequot; may be reasonable to some extent in some issues clearly defined by the Convention,13Some States (such as Iran and Oman) provide that only States parties to the Law of the Sea Convention shall be entitled to benefit from … the right of transit passage through straits used for international navigation.The quot;excessive maritime claimsquot; theory considers such declaration as a violation to the Convention. In principle, such identification is correct and reasonable. See J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, pp.294-296.but for those not clearly defined, quot;excessivequot; only represents the position of the US on those issues. Therefore its interpretation cannot be considered an international consensus. For example, the Convention does not explicitly address such issues as quot;whether foreign warships enjoy the same right of innocent passage in the territorial sea of a coastal State as commercial ships,quot;quot;whether the military survey activities of foreign warships in a coastal State's exclusive economic zone are subject to prior authorization of the coastal State,quot; and the implications of quot;military activities.quot; In fact, they are all issues not clearly defined by the Convention. Since the adoption of the Convention,the practices of countries on these issues have been in conflict with each other.14For example, on the question of whether foreign warships enjoy the right of innocent passage in the territorial sea of a coastal State, so far there are nearly 40 countries that have domestic laws requiring prior notification or authorization for foreign warships to pass their territorial seas. See J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, pp.250-251, 258-259.And the community of international maritime law has never had ultimate answers or conclusions on these controversial issues. Thus, it is biased for the American government and scholars with official backgrounds to make the assertion that the domestic legislation and related claims of other countries are quot;excessive,quot; quot;do not conform to the Convention,quot; and quot;violate the international lawquot; based on such unilateral interpretation. It is not difficult to find that there are many obvious defects in the theory by summarizing the background and specific contents of quot;excessive maritime claims,quot; and then analyzing from the perspective of international legal principles, especially from the principles of the Convention.

quot;Excessivequot; may be reasonable to some extent in some issues clearly defined by the Convention, but for those not clearly defined, quot;excessivequot; only represents the position of the US on those issues.

First, the quot;excessive maritime claimsquot; theory is based on the concepts of quot;international watersquot; and quot;international airspace,quot; which are created by the US itself, so it lacks the foundation compared with provisions in the Convention. In order to strengthen the theoretical basis of quot;excessive maritime claimsquot; and to justify the theory, the US government and scholars have covertly switched the articles and terms in the Convention and created the so-called concepts of quot;international watersquot; and quot;international airspace.quot;According to the description of The Commander's Handbook on the Law of Naval Operations (2007), quot;For operational purposes, the world's oceans are divided into two parts. The first includes internal waters, territorial seas,and archipelagic waters. These national waters are subject to the territorial sovereignty of coastal nations, with certain navigational rights reserved to the international community. The second part includes contiguous zones, waters of the exclusive economic zone, and the high seas. These are international waters in which all nations enjoy the high seas freedoms of navigation and overflight ... International waters include all ocean areas not subject to the territorial sovereignty of any nation. All waters seaward of the territorial sea are international waters in which the high seas freedoms of navigation and overflight are preserved to the international community.quot;15US Navy, US Marine Corps amp; US Coast Guard, The Commander's Handbook on the Law of Naval Operations, Edition July 2007, pp.1-7 amp; 1-9.The two concepts proposed by the United States, at first glance, appear to be based on the Convention's division of the world's oceans and are in conformity, at least compatible with the Convention. However, it is not difficult to find out after close scrutiny that, in fact, both quot;international watersquot; and quot;international airspacequot; are short of solid basis in the international law. These two concepts are neither seen nor implied in any of the provisions of the Convention.Therefore, they are at best just fabricated terms outside the Convention system. It is noteworthy that the Handbook clearly states that the division of the world's seas into national waters and international waters is quot;for operational purposes,quot; rather than quot;establishing through this Convention,with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceansquot; as stated in the preamble of the Convention (in other words, the division of the world's waters by the Convention). The US way of division is primarily for military purposes,based on the consideration to facilitate its naval operations.

Second, the quot;excessive maritime claimsquot; have to some extent misinterpreted the provisions of the Convention. The restrictions by some coastal States on the military activities of other countries in their exclusive economic zone are considered by the United States as violation of the freedom of the high seas; the US argues that military activities belong to the rights of other States in the exclusive economic zone under Article 58 of the Convention.16J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, p.377; Ivan Shearer, quot;Military Activities in the Exclusive Economic Zone: The Case of Aerial Surveillance,quot; pp.557-558.And it also applies the freedom of the high seas provided by Article 87 to the exclusive economic zone. However, paragraph 1 of Article 58 has expressly provided that the rights of high seas enjoyed by other States are quot;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.quot; It is noteworthy that paragraph 3 of Article 58 expressly provides that quot;In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.quot; While these provisions of the Convention do not explicitly exclude the right of the Navy or Air Force of other States to carry out ship operations or aircraft activities (such as military exercises or military survey) peacefully within the exclusive economic zone of the coastal State, the obligation toquot;have due regardquot; means that the exercise of the rights of other States shall not be malicious, shall not circumvent the corresponding laws enacted by the coastal State, and shall not affect the normal exercise of rights of the coastal State in its exclusive economic zone.17Zhang Weihua, quot;The Obligation of 'Having Due Regard' in Exclusive Economic Zone,quot; Chinese Review of International Law, No.5, 2015, pp.52-55.If a State deliberately violates the laws and regulations concerning the exclusive economic zone enacted by the coastal State and operates ships or military aircraft out of provocation or for non-peaceful purposes as threat or use of force, or the activities of its ships and military aircrafts affect the normal activities of the coastal State in the exclusive economic zone, such acts do not comply with the provisions in Article 58 of the Convention. In this sense, the Convention does not endorse the quot;freedomquot; that the United States has advocated, which carries out various military operations at will without regard to the rights of coastal States in their exclusive economic zones.

The Convention does not endorse the US-advocatedquot;freedomquot; of carrying out various military operations at will without regard to the rights of coastal States in their exclusive economic zones.

Third, the theory of quot;excessive maritime claimsquot; has not fully taken into account customary international law or the customary international legal principles in the making, and even ignores the objective fact that general international law, including customary international law, continues to be effective after the entry into force of the Convention. While the Convention has included most customary legal rules in international maritime law and demonstrates, to a considerable extent, the development of customary international law, it must be recognized that the Convention does not incorporate all rules of customary international law in the maritime domain.This means that in the LOS system, there are still many customary legal rules and principles recognized by the international community that continue to play a role outside the Convention. In fact,the preamble to the Convention clearly states that quot;Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.quot; Many international legal scholars have recognized the important complementary role of customary international law in the contemporary LOS system, which is centered on the Convention. Thus, important issues such as the criteria for historic waters,the specific content of historic title, and the legal status of distant islands of continental States, which are not clearly defined in the Convention,should continue to be determined by the rules of general international law including customary international law and the customary international legal principles in the making. However, the quot;excessive maritime claimsquot; theory has identified the historic waters claimed by other countries and the drawing of straight baselines for distant islands of continental States as violation of the Convention and international law, ignoring the fact that these issues are not expressly provided by the Convention and shall be adjusted by general international law, including customary international law. Such arbitrary assertions are clearly incompatible with the Convention's preamble that recognizes the validity of general international law.

Fourth, the theory of quot;excessive maritime claimsquot; has not taken into account the practical significance of quot;persistent objectorquot; in international law.If a State opposes from the date on which a rule of customary international law existed and continues to object to it in the formation process of the rule,the State would not be bound by that rule.18Malcolm N. Shaw, International Law, 7th edition, Cambridge: Cambridge University Press, p.64;James Crawford, ed., Brownlie's Principles of Public International Law, 8th edition, Oxford: Oxford University Press, 2012, p.28.In the case of international maritime law, there are a number of such quot;persistent objectors.quot; For example,the rule that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines,was not formally established until Article 3 of the Convention made clear provisions.19Some scholars have pointed out that in the early days of the Third United Nations Conference on the Law of the Sea, most countries reached consensus on the rule of breadth of territorial sea up to a limit not exceeding 12 nautical miles. After the adoption of the Convention, national practices broadly supported the rule. The International Court of Justice also confirmed the customary international law status of the rule in the 2012 Nicaragua v. Colombia case.It is noteworthy that there had been more than 20 countries that established their territorial seas beyond 12 nautical miles from the baselines before the Convention's adoption, and there are still 7 insisting such claims (Benin, Ecuador, El Salvador, Peru, the Philippines, Somalia and Togo).20See quot;Table of Claims to Maritime Jurisdiction (as at 15 July 2011),quot; http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf.Among them, Peru and El Salvador are not parties to the Convention. They have insisted on the 200-mile territorial sea since the mid-20th century, but the United States considers it quot;excessive maritime claimsquot;and has repeatedly challenged the territorial claims of the two countries through naval operations. In view of the fact that Peru and El Salvador claimed as early as several decades before the adoption of the Convention that their territorial seas cover 200 nautical miles from their baselines, and have never changed their positions in the making of the rule, and have been long insisting their claims after the adoption and entry into force of the Convention, although quot;the breadth of territorial sea up to a limit not exceeding 12 nautical milesquot; has become a rule of customary international law, the two countries could be considered quot;persistent objectorsquot; to the 12-mile rule.21It must be pointed out that, from the development of international maritime law, after the establishment of the exclusive economic zone system, most countries have renounced the 12-mile rule. In practice,although the 200-mile claims of Peru and El Salvador do not directly violate the international law, they are short of rationality from a legal perspective.While it is not very reasonable for Peru and El Salvador to continue insisting their claims, the ignorance of the two quot;persistent objectorsquot; by the US theory of quot;excessive maritime claimsquot; is contrary to the rules of international law.

To sum up, the theory of quot;excessive maritime claimsquot; created and advocated by the US government and academics in a particular political context is not in full conformity with the rules of the Convention. The basis,content and application of the theory at best reflect only the position of the United States itself, which is not a party to the Convention. And the various defects of the theory make it impossible to maintain the Convention and the system and order of contemporary international maritime law.

quot;Freedom of Navigation Operationsquot; and the quot;Excessive Maritime Claimsquot; Theory

The quot;excessive maritime claimsquot; theory and the quot;Freedom of Navigation operationsquot; conducted by the US Navy for consecutive years are inextricably linked with each other. From the very origin, the two have not come into being to really safeguard the contemporary LOS system with the Convention at its core. The fundamental purpose of them is to serve the US maritime strategy, in particular to defend the US Navy's freedom of overseas operations.

The theory of quot;excessive maritime claimsquot; provides the so-called international legal basis for the US quot;Freedom of Navigation operations.quot;The United States has always advertised its respect for international law. In particular, it takes its maintenance of global quot;freedom of navigationquot; as an important proof of its earnest observance and maintenance of international law.22See US Department of Defense, quot;Freedom of Navigation (FON) Program Fact Sheet,quot; February 28,2017; J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, pp.1-8. See also The Commander's Handbook on the Law of Naval Operations, p.6.Therefore, in order to give legitimacy to its quot;Freedom of Navigation operations,quot; it has to seek support from the theories of international law. As mentioned above, the Convention does not have clear provisions regarding such issues as quot;innocent passage of foreign warships in the territorial sea of a coastal State,quot; quot;military activities of other countries in the exclusive economic zone of a coastal State,quot; and the quot;legal status of distant islands of continental States.quot; And these questions remain controversial in the academic circle. In such circumstances, the United States unilaterally put forward the quot;excessive maritime claimsquot; theory, which has quot;clarifiedquot; the unclear issues in the Convention. This move has quot;de-legitimizedquot; the maritime claims of other States that have not significantly violated the provisions of the Convention,so as to provide theoretical basis of international law for the quot;Freedom of Navigation operationsquot; of the US Navy.

The quot;excessive maritime claimsquot; theory has set clear targets for thequot;Freedom of Navigation operations.quot;On February 28, 2017, the website of the US Department of Defense released the Freedom of Navigation(FON) Report for Fiscal Year (FY) 2016.23US Department of Defense, quot;Freedom of Navigation (FON) Report for Fiscal Year (FY)2016,quot; February 28, 2017, http://policy.defense.gov/Portals/11/FY16%20DOD%20FON%20Report.pdf?ver=2017-03-03-141349-943.This is the 24th consecutive report published since 1992.24These 24 reports span the period from FY 1991-2016, of which the 2000-2003 reports have been compiled as one. See US Department of Defense, quot;DoD Annual Freedom of Navigation (FON) Reports,quot;http://policy.defense.gov/OUSDP-Offices/FON.Through a review of these reports, it is not difficult to find that the targets challenged by the US Navy through the quot;Freedom of Navigation operationsquot; are, without exception, quot;excessive maritime claimsquot;by other States as recognized by the US. The Freedom of Navigation (FON)Report for Fiscal Year (FY) 2016 may serve as an example. According to this report, the US challenged a total of 22 countries and regions, including China. Challenged quot;excessive maritime claimsquot; include quot;prior authorization required for foreign warships to enter the territorial sea (TTS),quot; quot;excessive straight baselines,quot; quot;security jurisdiction claimed in the contiguous zone,quot;quot;consent required for military exercises or maneuvers in the exclusive economic zone (EEZ),quot; quot;jurisdiction over airspace above the EEZ,quot; andquot;claimed historic bay status.quot; In addition, since 1970, the United States Department of State has published a review of other countries' maritime claims called Limits in the Seas. It is not only a comprehensive US official review of maritime legislation and policies of other countries, but also, and more importantly, a review that gives special focus on the quot;excessive maritime claimsquot; of other countries. It attaches importance to the analysis of domestic legislation and policies of other countries that quot;violate international lawquot;identified by the US government, and thus provides targets for the quot;Freedom of Navigation operations.quot; For example, the Limits in the Seas, No. 117 Straight Baselines Claim: China issued by the US Department of State on July 9, 1996 criticized China's Law on the Territorial Sea and the Contiguous Zone in 1992 and a declaration on May 15, 1996 delimiting straight baselines along parts of China's coast.25US Department of State, Office of Ocean Affairs, Limits in the Seas, No. 117 Straight Baselines Claim:China, https://www.state.gov/documents/organization/57692.pdf.And according to FY 1996 FON report issued in April 1997, the US Navy conducted operational assertions against China's requirement in domestic law of prior permission for foreign warships to enter its territorial sea.26US Department of Defense, quot;Freedom of Navigation: FY 1996 DoD Operational Assertions,quot; http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FY1996%20DOD%20Annual%20FON%20Report.pdfTherefore, it can be understood that the criticism against China in Limits in the Seas, No. 117 provided direct target and so-called theoretical support for the US Navy's FON operations that challenge China's domestic law in 1996.

The quot;Freedom of Navigation operationsquot; provides a wealth of materials for analysis for the theory of quot;excessive maritime claims,quot; and helps revise and improve the theory in a timely manner. This reaction is reflected by the fact that the implementation of quot;Freedom of Navigation operationsquot; objectively has a certain effect on the challenged States that have quot;excessive maritime claims.quot; And in some cases, some countries are even forced to modify their original claims under US military deterrence.For example, the United States protested as early as 1986 against the Philippines, which declared the archipelagic waters as its internal waters, and for many years had challenged the Philippine claims. In 2009, the Philippine government, through Act No. 9522 of the Republic of the Philippines,published a renewed territorial sea baseline, and introduced the archipelagic sea channel passage system in domestic legislation in 2011. The United States expressed recognition and appreciation for the Philippines' legislative amendment.27US Department of State, Office of Ocean Affairs, Limits in the Seas, No. 142 Philippines: Archipelagic and Other Maritime Claims and Boundaries, https://www.state.gov/documents/organization/231914.pdf.Such changes have encouraged the US to constantly revise The Commander's Handbook on the Law of Naval Operations as well as the Limits in the Seas reports, so as to improve its theory of quot;excessive maritime claims.quot;Sometimes, the US also revises the criteria for quot;excessive maritime claimsquot;based on the changes of its national priorities in different periods.

Criticism on the US quot;Freedom of Navigation Operationsquot;

Similar with the quot;excessive maritime claimsquot; theory, the quot;Freedom of Navigation operations,quot; in essence, also have obvious defects, specifically in the following four areas.

First, the essence of quot;Freedom of Navigation operationsquot; is the violation against the spirit of the Convention in the name of safeguarding it. The quot;excessive maritime claimsquot; theory is the international legal basis of the quot;Freedom of Navigation operations,quot; but this theory, as stated above,is not free from defects, which include misinterpretation of the provisions of the Convention, ignorance of principles and rules of customary international law, forced interpretation of unclear issues in the Convention,and regard related claims of other States as a violation of the Convention and international law. The defects in the theoretical basis determine that the quot;Freedom of Navigation operationsquot; cannot really play a positive role in safeguarding the Convention. In fact, the concept of the so-calledquot;international watersquot; coined by the US government and academics is itself something established outside the Convention system. However, the US takes this as a justification to send its naval force in Freedom of Navigation operations, conducting military exercises and military surveys, among other activities, in the exclusive economic zone of other States. All these are contrary to such spirits enshrined in the preamble of the Convention as quot;mutual understanding and cooperation,quot; quot;with due regard for the sovereignty of all States,quot; quot;realization of a just and equitable international economic order,quot; and quot;takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries.quot;

Second, the quot;Freedom of Navigation operationsquot; is the misinterpretation and misuse of quot;freedom of navigation,quot; and its essence is to give the US quot;a license to do whatever they want.quot;28Chinese Ministry of Foreign Affairs, quot;Foreign Minister Wang Yi Meets the Press,quot; March 9, 2016,http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1346238.shtml.The essence of freedom of navigation,as one of the basic principles and core systems of international maritime law,29Yoshifumi Tanaka, The International Law of the Sea, 2nd edition, Cambridge: Cambridge University Press, 2015, pp.16-17.is to safeguard the peaceful use of the oceans by all countries and to promote trade and economic cooperation.30S. Jayakumar, quot;Navigational Freedom and Other Contemporary Oceans Issues,quot; in Myron H.Nordquist, Tommy Koh and John Norton Moore, eds., Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention, Leiden: Martinus Nijhoff Publishers, 2009, pp.18-19.Although the principle of freedom of navigation itself is equally applicable to warships, looking at the implementation of the US quot;Freedom of Navigation operations,quot; there is no necessary connection between such operations and the normal carriage of goods and the promotion of commerce. Such operations are downright military activities. In essence, they are not necessary for international shipping, and their nature is also unrelated to economy. In many cases,these operations even threaten the security of coastal States. Hasjim Djalal,Senior Adviser to the Indonesian Ministry of Marine Affairs and Fisheries,has pointed out that the concept of freedom of navigation in the traditional(absolute) sense is already out of date. States have reason to limit the freedom of navigation in the traditional sense on grounds of national security.31Hasjim Djalal, quot;Remarks on the Concept of 'Freedom of Navigation',quot; in Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention, p.74.The purpose of the United States to carry out the quot;Freedom of Navigation operationsquot; is to support its diplomatic protests, challenging the quot;excessive maritime claimsquot; by other States as identified by the US. This determines that when the United States conducts quot;Freedom of Navigation operations,quot;it will use, almost without exception, warships and military aircrafts. Its purpose is not to normally exercise fast passage as right of freedom of navigation. Rather, it would deliberately, abnormally enter the territorial sea or the exclusive economic zone of coastal States, which actually has very obvious implications of provocation and threat against the coastal States.On May 25, 2017, the US destroyer USS Dewey was within 12 nautical miles of Mischief Reef for about 90 minutes. And during the operation, the ship's crew conducted a man overboard drill.32quot;U.S. Warship Came Within 6 Miles of Chinese Artificial Island in Toughest Challenge Yet to Beijing South China Sea Claims,quot; USNI News, May 25, 2017, https://news.usni.org/2017/05/25/u-s-warship-camebeijing-south-china-sea-claims.This is a typical example of the US Navy's quot;freedom of arbitrary actions,quot; which is not for the purpose of passage, but conducts military training and exercises of warships in the waters under the jurisdiction of a coastal State.

Third, the quot;Freedom of Navigation operationsquot; is essentially quot;longarm jurisdiction.quot; The United States itself is not a party to the Convention.It certainly has the right to make its own position and opinion on the provisions of the Convention, but it is without doubt that it has conductedquot;long-arm jurisdictionquot; by denouncing the domestic laws enacted by other States according to the Convention, and accusing some parties to the Convention as quot;violators.quot; The dangers of such quot;long-arm jurisdictionquot;lie in the fact that the United States replaces the terms expressly provided for in the Convention with its own standards (such as quot;international watersquot;), interprets not clearly defined matters in the Convention by its own understanding of quot;freedom of navigation,quot; and upgrades this unilateral interpretation to international law so as to accuse at will the domestic legislation of other States. Seriously speaking, such quot;long-arm jurisdictionquot;is a move to replace the Convention with the US official opinion on the international law, seizing the rights to interpretation of the Convention and the discourse regarding international maritime law, which will severely endanger the authority of the Convention.

The United States' quot;longarm jurisdictionquot; seizes the rights to interpretation of the Convention and the discourse regarding international maritime law, which will severely endanger the authority of the Convention.

Fourth, the quot;Freedom of Navigation operationsquot; has, to a certain extent,exacerbated the disputes between States concerning the interpretation and application of the Convention,and has violated the principle of peaceful settlement of disputes in the international law. Since the birth of the Convention, uncertain matters and disputes related to freedom of navigation in the Convention have never been eliminated, but the United States has consistently disregarded these uncertainties and disputes. For example, it has repeatedly challenged, in the name of freedom of navigation, Iran and Oman's position that the right of transit passage in the Strait of Hormuz is limited to parties to the Convention. Although some countries have in recent years revised their domestic laws on prior permission for foreign warships to enter their territorial seas, with certain restrictions abolished, there are still nearly 40 countries which insist on their original positions.33The six countries of Russia, Bulgaria, Sweden, Slovenia, Finland and Turkey have cancelled such restrictions by amending domestic legislation, but there are still nearly 40 countries keeping their original stance. See J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, pp. 250-251, 258-259.The quot;Freedom of Navigation operationsquot; have led to frequent accidents in the waters and airspace near the coast of some countries. A typical case is the multiple diplomatic conflicts between the two major countries of China and America due to unexpected incidents in the South China Sea. This is more or less intensified by the persisted unilateral quot;Freedom of Navigation operationsquot; by the US. From the perspective of the Convention and general international law, the dispute arising from the different interpretations of the freedom of navigation between China and the United States should seek solutions based on the provisions of Article 279 of the Convention, paragraph 3 of Article 2 of the UN Charter, as well as the peaceful means enumerated in Article 33 of the Charter.34These means include negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement,resort to regional agencies or arrangements, or other peaceful means of the parties' own choice.However, the United States does not consider these peaceful approaches at all, ignoring the obligations stipulated in the Convention, the UN Charter and the rules of customary international law, taking various arbitrary and dangerous moves of challenge with its warships and military aircrafts. These dangerous actions of the United States are clearly not conducive to the settlement of disputes, but will only aggravate them.

Conclusion

By reviewing the quot;excessive maritime claimsquot; theory and analyzing the implementation of the quot;Freedom of Navigation operations,quot; the following conclusions can be drawn:

First, the quot;excessive maritime claimsquot; theory was proposed by the US government and scholars with official backgrounds based on the core interests of the United States. The theory reflects that the American government has always attached importance to quot;freedom of navigation,quot;especially its position that the US Navy is not restricted by any coastal State in their maritime operations throughout the world. It shows the doubts and concerns of the US government and scholars before and after the adoption of the Convention, which entitles coastal States with jurisdiction rights over more waters. Since there are multifaceted defects in this theory, which reflects only the unilateral position of the US, it does not benefit the healthy development of the Convention and the order of international maritime law.

Second, the quot;Freedom of Navigation operationsquot; based on the quot;excessive maritime claimsquot; theory embody a unilateral strong response from the United States to the quot;excessive maritime claimsquot; by other States as identified by the US itself. Looking at the characteristics in the implementation ofquot;Freedom of Navigation operations,quot; such operations appear to be objective and impartial, but it cannot be ignored that they are random and highly selective in terms of both regions and countries targeted.

Third, the essence of quot;Freedom of Navigation operationsquot; is the violation against the spirit of the Convention in the name of safeguarding it. The United States intends to use this to replace normal quot;freedom of navigationquot; with quot;freedom of arbitrary actions,quot; exercising quot;long-arm jurisdictionquot; with such concepts as quot;international watersquot; coined by itself.The United States' quot;Freedom of Navigation operationsquot; will not only do no good to the settlement of controversy concerning the Convention, but will also affect regional security and intensify maritime disputes.

To sum up, the quot;excessive maritime claimsquot; put forward by the US government and academics as well as the quot;Freedom of Navigation operationsquot; based on the theory can only represent and maintain the interests of the United States itself. They can never solve the disputes concerning the undetermined matters in the Convention about freedom of navigation, nor can they safeguard the Convention and the order of international maritime law. Instead, they will seriously affect the authority of the Convention. It is foreseeable that before the academic community of international law reaches consensus on such heated questions of innocent passage of foreign warships in the territorial sea and military activities in the exclusive economic zone, the unilateral quot;Freedom of Navigation operationsquot;against domestic legislation and related claims of other States involving the undetermined issues of the Convention will never be widely supported by the international community. The theory of quot;excessive maritime claimsquot;and the practice of quot;Freedom of Navigation operationsquot; will also continue to be criticized by the international community and the community of international law.

Bao Yinan is a post-doctoral fellow at the Center for Rule of Law Strategy Studies, East China University of Political Science and Law.