On the Term of International Waters Used by the United States and Self-Claimed Legal Grounds for Its Conducts at Sea

MOU Wenfu

Abstract: “International waters” is a spatial concept powerfully pushed by the United States,a concept connoting an entire undifferentiated maritime space,one by which the United States (the U.S.) disregards the zonal division in modern law of the sea.This article aims to employ Carl Schmitt’s Grossraum to interpretate U.S.’s concept of international waters in its maritime strategy.Based on the concept of international waters,the U.S.has maximized the right to freedom of navigation at each part of the ocean,and intended to constrain the maritime jurisdiction of coastal States.It is argued that the U.S.has been constructing a Schmittian maritime Grossraum order,a variant of Schmittian Grossraum in that it is extended to the whole maritime space,in which freedom of navigation is the dominating ideology.Just as what Schmitt’s Grossraum embodies,the U.S.’ maritime Grossraum order is essentially to maintain its maritime hegemony.The U.S.’ unilateral interpretation of the law of the sea,its Freedom of Navigation Program and its recent turn in its Arctic policy can better be understood within this framework.However,the concept of international waters and relevant U.S.conducts are incompatible with modern law of the sea and the fundamental principles of international law embodied in the United Nations Charter.

Key Words:International waters;Freedom of navigation;Law of the sea;Carl Schmitt;The Arctic;Grossraum

to refer to ocean areas not subject to the territorial sovereignty of any State,including all waters on seaward side of the territorial sea.1J.Ashley Roach &Robert W.Smith,Excessive Maritime Claims: Third Edition,Martinus Nijhoff Publishers,2012,p.4,8;U.S.Navy,U.S.Marine Corps &U.S.Coast Guard,The Commander’s Handbook on the Law of Naval Operations,July 2007,Chapter 1.6.This concept appears nowhere in the 1982United Nations Convention on the Law of the Sea(UNCLOS)or in the recognized general international law.Notwithstanding this,for a long time,the U.S.has frequently used the concept of international waters in its maritime policy and diplomacy.The U.S.Navy also relies upon it when demonstrating its maritime power and showing off its force.In fact,the concept of international waters distorts the zonal delimitation of the ocean established by the international law of the sea.2According to the UNCLOS,on the basis of baselines of territorial seas,the ocean is legally divided into internal waters,territorial seas,contiguous zones,exclusive economic zones and high seas,and there is no such concept as international waters.The U.S.even refers to the Taiwan Strait as international waters.In response,China has made it clear that “according to UNCLOS and Chinese domestic laws,the waters of the Taiwan Strait,extending from both shores toward the middle of the Strait,are divided into several zones including China’s internal waters,territorial sea,contiguous zone,and the exclusive economic zone.China has sovereignty,sovereign rights and jurisdiction over the Taiwan Strait.At the same time,we respect the lawful rights of other countries in relevant sea areas”.“There is no such a term as ‘international waters’ in the international law of the sea.Some countries mean to find a pretext for manipulating Taiwan question and threaten China’s sovereignty and security by referring to the Taiwan Strait as ‘international waters’”.3Foreign Ministry Spokesperson WANG Wenbin’s Regular Press Conference on 13 June,2022,MFAPRC (13 Jun 2022),http://rokembassy.fmprc.gov.cn/web/fyrbt_673021/jzhsl_673025/202206/t20220613_10702387.shtml.China’s position is completely consistent with the provisions of the contemporary international law of the sea.

Why does the U.S.rely heavily on a concept with no presence in international law?4The U.S.also recognizes to some extent that international waters is not a legal concept,but this has not affected its use this concept in numerous diplomatic protests.This is what makes the U.S.’ use of the concept of international waters unique.See Office of the Legal Advisor,U.S.Department of State,Digest of United States Practice in International Law 1989-1990,International Law Institute,2003,p.451.The U.S.uses international waters not as a purely geospatial concept,but rather as a consciously constructed geopolitical spatial concept underpinned by its self-proclaimed law of the sea.By propagandizing this concept,the U.S.means to have the freedom of conducting military activities such as military exercises,military reconnaissance,weapons testing,and hydrological surveys at the maximum part of the sea,5James Kraska &Raul Pedrozo,International Maritime Security Law,Martinus Nijhoff Publishers,2013,p.336.and at the same time constrains the maritime jurisdiction and other legitimate interests of coastal States.This paper argues that the U.S.is in fact constructing a Schmittian maritimeGrossraumorder.TheGrossraum/Großraumconcept was proposed by Carl Schmitt to observe and interpret hegemonic politics.It is essentially a regional order dominated by the hegemonic power,a mixture of geopolitics and the international law unilaterally claimed by the hegemonic power.In its attempt to unilaterally normalize international waters,a concept of geopolitics and maritime strategy,the U.S.is seeking its military and geopolitical advantage and at the same time trying to legitimize its behavior.This is the point of departure for this paper’s exploration of the roots of the U.S.maritime behavior.

This paper uses Schmitt’s concept ofGrossraumin a critical sense without considering it as having any positive normative value in international law.There are several points that need to be clarified here.First,the concept ofGrossraum,orGrossraumorder,does not exist in contemporary international law.Second,Schmitt’sGrossraumorder is linked to power politics,hegemony and the struggle for spheres of influence in history,and the U.S.’ use of the concept of international waters is driven by the same logic.The U.S.shapes its ownGrossraumorder through the concept of international waters,which merely reflects its pursuit of maritime hegemony in world politics,and this does not mean the paper recognizes its legitimacy in accepted international law.Third,when considering the connection between the concept of international waters and Schmidt’sGrossraumorder,the advantageous position of U.S.maritime military power is a reality that cannot be ignored.Without such power,it is difficult to imagine the meaning the concept of international waters for the U.S.Even if the U.S.resorted to the concept of international waters,it would be unable to push forward with and maintain it.In brief,the concept of international waters is a product of the U.S.maritime hegemony.

The discussion of this paper is organized as follows.Although the U.S.’ use of the concept of international waters is intended to shape the legal order that maintans its maritime power,it is in fact engaged in a kind of legal argument,namely the process Martti Koskenniemi defines as “persuading target audiences… about the legal correctness of the position one defends”.6Martti Koskenniemi,Methodology of International Law,in Rüdiger Wolfrum ed.,The Max Planck Encyclopedia of Public International Law,Vol.VII,Oxford University Press,2012,p.124-125.To make an argument persuasive,it should embrace both normativity and concreteness.The former involves normative narratives about justice or normative appeals to sources of international law,while the latter involves “responsiveness to the facts of the international life”,including viewing international law as an instrument for shaping a kind of world order (i.e.,policy-oriented jurisprudence).7Id,p.128.If the argument of the U.S.satisfies that requirement,this argument should also contain both normativity and concreteness.In fact,the U.S.has resorted to customary international law for its normativity,and to the concept of compatible community interests and public order at sea in policy-oriented jurisprudence for its concreteness.8An important work by American scholars using policy-oriented jurisprudence to study the law of the sea,See Myres S.McDougal &William T.Burke,The Public Order of the Oceans-A Contemporary International Law of the Sea,Yale University Press,1962,p.1-88.However,the main idea of this paper is not to reveal the argumentation process of the U.S.in using the term of international waters;otherwise,it would be merely a statement of the logic of the U.S.argument.This paper aims to reveal another dimension behind the U.S.argument,that is,the normativity and concreteness of the U.S.argument reinforces the legal basis for its exercise of maritime power.It also illustrates how the U.S.’ reinforcement of specific rules can take on a universal face.

The first part of this paper investigates the normative argument for the term of international waters by the U.S.and the second part reveals the nature of the order it shapes.Specifically,the first part mainly investigates the specific circumstances in which the concept of international waters has emerged in the U.S.’ international law practice and summarizes the functions of the said concept as applied by the U.S.The second part presents Schmitt’s concept ofGrossraumas a tool for analyzing the U.S.’ concept of international waters,pointing out that the concept of international waters in U.S.maritime policy exposes the U.S.’ intention to shape theGrossraumorder at sea.This part views the U.S.’ shaping of theGrossraumorder at sea as a hegemonic act,and meanwhile points out that it lacks the normativity under international law.In addition,this part explains the interpretation of UNCLOS by the U.S.,its Freedom of Navigation (FON) Program,and the2019 DoD Arctic Strategyshift in the context of its shaping of theGrossraumorder at sea.Given that international waters is a concept used unilaterally by the U.S.,it is necessary to assess relevant U.S.strategies and behaviors in the context of the law of the sea and other relevant bodies of international law,which constitutes the content of the third part.The final part draws a brief conclusion.

I.U.S.’ Resort to the Term of International Waters for Its Conducts at Sea and the Spatial Politics of Sea Power

The U.S.’ practice of the law of the sea is mainly documented in theDigest of International Law,a series compiled by American public jurists and officials.From what is recorded therein,no use of the term of international waters by the U.S.was found during the period from the second half of the nineteenth century to 1945,and it was only after World War II that the U.S.employed the concept.In theDigest of International Lawcompiled by Marjorie Whiteman from the Office of the Legal Adviser of the U.S.Department of State,which presents the U.S.’ practice of international law from 1945 to 1973,the term of international waters is used 31 times,9Marjorie M.Whiteman,Digest of International Law,Vol.4,U.S.Government Printing Office,1968,p.233-1150.followed by less frequent use between 1974 and 1980.In theCumulative Digest of United States Practice in International Lawcompiled by Marian Nash,which documents the U.S.’ practice of international law during 1981-1988,10Marian Nash,Cumulative Digest of United States Practice in International Law 1981-1988,Vol.II,William S.Hein &Co.,Inc.,1994.the term of international waters was used 227 times,a significantly high frequency indicating the U.S.’ heavy reliance on the term of international waters after the conclusion of UNCLOS in 1982.In theDigest of United States Practice in International Law(1989-1990)compiled by Margaret S.Pickering,et al,the said concept was used 14 times.11Supra note 4,Digest of United States Practice in International Law Series 1989-1990.And in the following period from 1991 to 2018,theDigest of United States Practice in International Lawused the term 74 times.12According to the statistics of the Digest of International Law in the years since 1991,the U.S.has used the term of international waters approximately 3 times in 1991-1999,3 times in 2000,3 times in 2001,1 time in 2002,12 times in 2003,8 times in 2004,4 times in 2005,2 times in 2006,2 times in 2007,12 times in 2008,9 times in 2009,3 times in 2010,2 times in 2011,0 times in 2012,5 times in 2013,0 times in 2014,1 time in 2015,0 times in 2016,3 times in 2017 and 1 time in 2018.Given that the Digest of United States Practice in International Law for years after 1981 were compiled by the Office of the Legal Adviser of the U.S.Department of State,only the year and page number of each volume are indicated when citing the Digest of United States Practice in International Law after 1981 below.This section provides a summary of the functions that the U.S.intends to realize by using the term of international waters.

A.International Waters as an Alternative Term for High Sea Regime

Prior to the 1958Geneva Convention on the Law of Sea,the only recognized division of maritime zones was between the territorial sea and the high seas.At that time,the U.S.used the term of international waters to refer mainly to the high seas in a narrow sense,but at a rare frequency.During the period between the 1958Geneva Convention on the Law of Seaand the UNCLOS,maritime zones were divided into territorial sea,contiguous zone and high seas.Since then,there has been an increase in the U.S.’ use of international waters,mainly referring to the waters beyond the territorial sea,with the aim of considering the contiguous zone and high seas beyond the territorial sea as an integral space for free navigation.In the 1960s and 1970s when confrontations took place between the U.S.and the Soviet Union in the Mediterranean and the Black Sea,and between the U.S.and Cuba in the Caribbean Sea,13Supra note 9,Marjorie Whiteman,p.516-517,520-521,529,668-669;Supra note10,Marian Nash,p.1789;Digest of United States Practice in International Law 2004,p.699.the U.S.resorted to the term of international waters to justify its actions in an effort to use it to replace the legal status of high seas and to counteract the effects of the expanded jurisdiction of coastal States (the effect of the declaration of the contiguous zone);in essence,it attempted to use international waters as an alternative concept for the continuation of the high seas regime.

After the UNCLOS,the U.S.adopted the term of international waters to describe sea areas beyond territorial seas and archipelagic waters.Under the framework of UNCLOS,the ocean is divided into internal waters,territorial seas,contiguous zones,exclusive economic zones,continental shelves,high seas,seabed areas under high seas,international straits,and archipelagic waters.With respect to the navigation of ships and overflight of aircraft,relevant laws of different sea areas have different regulations,and the requirements for the navigation of civilian and military ships are also divided.In most cases,the U.S.uses the term of international waters to refer to all sea areas other than territorial seas and archipelagic waters,including parts of contiguous zones and exclusive economic zones beyond territorial waters,and the said concept is used with great frequency in this sense.Regarding contiguous zones and exclusive economic zones beyond the territorial seas of coastal States,the U.S.emphasizes the attribute of “international

waters” with the intent to restrict the rights of coastal States in contiguous zones to specific functions and rights in the exclusive economic zones to those related to natural resources and environmental protection.For example,the U.S.has resorted to the term of international waters in the following circumstances to achieve such ends: the scope of application of bilateral agreements under the Proliferation Security Initiative,14In February 2004,the U.S.and Liberia signed the Boarding Agreement under the Proliferation Security Initiative,which provides in Article 4 for matters such as information access to and boarding by one party on a suspected vessel of the other party’s nationality in international waters.“International waters” means all parts of the sea not included in the territorial sea,internal waters and archipelagic waters of a State,consistent with international law.See Digest of United States Practice in International Law 2004,p.1081-1089.the National Strategy for Maritime Security (employing the term of international waters to erase differences between legal systems in different sea areas),15In 2005,President George W.Bush approved The National Strategy for Maritime Security.The strategy has three guiding principles,the first of which is “preserving the freedom of the seas is a top national priority”: The right of vessels to travel freely in international waters,engage in innocent and transit passage,and have access to ports is an essential element of national security.See Digest of United States Practice in International Law 2005,p.690.hydrographic surveys in the exclusive economic zones of other States,16Digest of United States Practice in International Law 2007,p.649.the scope of jurisdiction for combatting piracy and maritime crime,the scope of maritime interdiction and maritime law enforcement,17Digest of United States Practice in International Law 2011,p.412.the scope of jurisdiction arising from ship collisions,18Supra note 11,Office of the Legal Advisor,U.S.Department of State,p.447-448.opposition to the establishment of a maritime military demarcation line by North Korea,19Id,p.468-469.the location of underwater rescue operation area(in relation to the right to restrict or prohibit passage),20Elihu Lauterpacht,Digest of Practice of International Law of the United States 1975,American Journal of International Law,Vol.72:2,p.428-429 (1978).the application of freedom of navigation in the “international waters” of the Arctic Ocean,21Supra note 10,Marian Nash,p.1816.and so on.Occasionally,the U.S.resorts to international waters to refer to narrowly defined high seas under UNCLOS.Although this is a rhetorically alternative concept,using the term of international waters,which has the same content as the high seas regime,can limit the scope of rights of coastal States in the contiguous zones and exclusive economic zones and reinforce the conception of navigation freedom on the high seas within these sea areas.This way of using international waters by the U.S.is intended to offset the restrictions on U.S.warship activities arising from the expanded jurisdiction of coastal States.

B.International Waters as a Term for Describing the Legal Status of International Straits

Prior to UNCLOS,the U.S.also applied international waters to define vital communication lines such as the Strait of Hormuz,a use that emphasized the freedom of navigation enjoyed by its warships and military aircraft regardless of the legal difficulties arising from the existence of territorial seas within the Strait.The U.S.also frequently used the term “international waterways”22Lewis M.Alexander,Navigational Restriction within UNCLOS: Geographical Implications for the United States,Brill Nijhoff,2017,p.2.that carried the same meaning as international waters.Since UNCLOS was opened for signature,there has been a special regime of transit passage through straits provided for therein in relation to straits such as the Strait of Hormuz that is less than 24 nautical miles in breadth—straits that do not contain the high seas or exclusive economic zones.The U.S.referred to these straits by international waters,but thereafter the U.S.has more often used the term “international strait” to specifically refer to such straits.Nevertheless,as the U.S.is not a State party to UNCLOS,it insists on the right of transit passage in international straits as a rule of customary international law,23American Institute of Law,Restatement of the Law,Third: The Foreign Relations Law of the United States,Vol.II,American Institute of Law Publishers,1987,p.50;Alexander Proelß ed.,The United Nations Convention on the Law of the Sea: A Commentary,Beck/Hart,2017,p.294.primarily to avoid compromising its freedom of action in the absence of its accession to UNCLOS.For example,with respect to the legal status of the Strait of Hormuz,the U.S.firmly rejects Iran’s claim that the right of transit passage is a contractual right,i.e.,a treaty right based on UNCLOS.24Supra note 10,Marian Nash,p.2017;Digest of United States Practice in International Law 2008,p.862;Martin Wählisch,The Iran-U.S.Dispute,the Strait of Hormuz,and International Law,Yale Journal of International Law,Vol.37,Line 22,25 (2012);Susan Simpson,Is the Strait of Hormuz Governed by Treaty or by Customary International Law?,viewfromll2 (7 Jan 2012),https://viewfromll2.com/2012/01/07/is-the-strait-of-hormuzgoverned-by-treaty-or-by-customary-international-law/.

C.International Waters as a Spatial Concept for Carrying out Military Activities

In the event that U.S.warships and military aircraft are questioned by coastal States about the legality of their actions when sailing in and overflying various waters,to counteract this,the U.S.would resort to the term of international waters,which is a further manifestation of its unique maritime strategic thinking.In 1958,the U.S.resorted to the concept of international waters at the Conference of the Parties to theGeneva Convention on the Law of Seato maintain the military value of the high seas.25Supra note 9,Marjorie M.Whiteman,p.549.In its various editions,the U.S.Commander’s Handbook on The Law of Naval Operationsdefine international waters as “for [military maritime] operational purposes,international waters include all ocean areas not subject to the sovereignty of a coastal State”,26U.S.Navy,U.S.Marine Corps &U.S.Coast Guard,The Commander’s Handbook on the Law of Naval Operations,March 2022,Chapter 1.6.which translates international waters as encompassing the vast majority of the earth’s ocean and seas that are available as a whole to the U.S.Navy for freedom of activity.This handbook series has consistently stressed that coastal States have no right to restrict freedom of navigation and overflight on international waters.

The U.S.has always included military activities in the concept of navigation and overflight within exclusive economic zones,27Efthymios Papastavridis,Intelligence Gathering in the Exclusive Economic Zone,International Law Studies,Vol.93,p.470-472 (2017);Mori-taka Hayashi,Military and Intelligence Gathering Activities in the EEZ: Definition of Key Terms,Marine Policy,Vol.29:2,p.123,130 (2005);Walter F.Doran,An Operational Commander’s Perspective on the 1982 LOS Convention,International Journal of Marine and Coastal Law,Vol.10:3,p.335,335-347 (1995).rather than limiting the concept of navigation and overflight to the movement and presence of ships at sea,a narrow sense.In other words,military activities of warships and aircraft characterize the essence of navigation and overflight the U.S.claims.In practice,the U.S.Navy has long been engaged in a wide range of military activities in other States’ exclusive economic zones,such as reconnaissance,exercises,intelligence gathering and hydrographic surveys.They want to conduct such activities without any restriction,and any claims and actions of coastal States that impede its operations are termed illegal by the U.S..28Raul (Pete) Pedrozo,Military Activities in the Exclusive Economic Zone: East Asia Focus,International Law Studies,Vol.90,p.514,524 (2014).

The U.S.frequently resorts to the term of international waters to oppose coastal States’ national security measures for the waters beyond their territorial seas,and counters coastal States’ efforts to restrict other States in conducting hydrographic surveys in their exclusive economic zones,all in the service of its naval freedom of movement.

D.The Spatial Politics of Sea Power and a Borderless Maritime Space as a Whole

The term of international waters provides a space in which U.S.maritime power can be exercised,but it is not the maximum range.The U.S.also consistently asserts the right of innocent passage for warships in territorial seas.Hence,the entire ocean,in the U.S.’ conception of sea power,is in principle a place for the presence of U.S.naval forces.From the view that “space is power”,space means the extent in which a State can extend its power,and also a resource of power.29John Hickman,Space is Power: The Seven Rules of Territory,Lexington Books,2016,p.2,5,62.French maritime jurist Gilbert Gidel has asserted that “the greater the maritime strength of a nation,the greater is its tendency to limit the breadth of territorial seas”.30René-Jean Dupuy,The Law of the Sea: Current Problems,Sijthoff,1974,p.62.René-Jean Dupuy also noted that while technology has improved tremendously since World War II,the strategic interests of the major maritime powers have not changed—they still insist on a territorial sea breadth of not more than 12 nautical miles,because that is where their political ambitions lie.In contrast,other coastal States have chosen the opposite attitude for security reasons.31Ibid.After World War II,influenced by the Truman Proclamations of the U.S.,some Latin American countries claimed that they should exercise full sovereignty over exclusive maritime zones extending 200 nautical miles,or even territorial seas.32René-Jean Dupuy &Daniel Vignes,eds., A Handbook on the New Law of the Sea,Vol.I,Nijhoff,1991,p.263;Official Records of the Third United Nations Conference on the Law of the Sea,Volume III,p.189,Volume IV,p.75,195.During the negotiations of the Third United Nations Conference on the Law of the Sea,the U.S.(especially the U.S.Department of Defense) was most concerned with ensuring their freedom of navigation and limiting the jurisdictional expansion of coastal States to keep the freedom of movement of their maritime forces from being diminished,which was a “non-negotiable position” of the U.S.33James K.Sebenius,Negotiating the Law of the Sea,Harvard University Press,1984,p.75,81.Through complex bargaining,the compromise reached was a regime of exclusive economic zones that separated the sovereign rights of coastal States over resources from the rights of navigation enjoyed by all States.34Supra note 32,René-Jean Dupuy &Daniel Vignes,eds.,p.263,275-279.This provided certain room for the subsequent use of the term of international waters by the U.S.Suffice it to say that the Third United Nations Conference on the Law of the Sea saw the maritime powers,led by the U.S.,succeed in restricting the tendency for the expansion of the breadth of territorial seas,and at the same time,a navigation regime that suited their maritime interests was reached.

Viewing the term of international waters against the backdrop of the U.S.’strategy of domination at sea,the ocean space the U.S.has sought is an entirety without boundary lines.The term of international waters has weakened the delimitation of territorial seas,contiguous zones,exclusive economic zones,and high seas under UNCLOS,which is a distortion of the recognized legal order of the ocean.By using the term of international waters,the U.S.shapes a unique spatial concept that is similar to the concept of sphere of influence in realist international politics,and in which hegemonic States often define the concept of sphere of influence in normative forms in international law.35Paul Keal,Unspoken Rules and Superpower Dominance,St.Martin’s Press,1983,p.161-193.This phenomenon reveals the core function of the U.S.’ use of the term of international waters: there is a process of interconstruction between the U.S.’ sea power and the sea order it intends to shape,which also coincides with the construction process of Carl Schmitt’sGrossraumorder.

II.International Waters,U.S.’ Maritime Grossraum and an Inquiry of U.S.’ Self-Claimed Legal Grounds for its Conducts at Sea

Carl Schmitt introduced the concept ofGrossrauminto international law,referring to the existence of a normative spatial order dominated by the dominant State in the region,not subject to the intervention of external forces,which is the core of theGrossraumorder.36Carl Schmitt,The Großraum Order of International Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law,in Carl Schmitt,Writings on War,translated and edited by Timothy Nunan,Polity Press,2011,p.75-124.The concept ofGrossraumoriginated from Schmitt’s interpretation of the American Monroe Doctrine and its transplantation in the geopolitical conflicts in Europe.Schmitt emphasized that the concept ofGrossraumshould be viewed from the perspective of the relationship between space and political ideas.Schmitt argued that there were no spaceless political ideas,and conversely,there were no spaces without ideas,or principles of space without ideas.The relationship between space and political ideas implies the conflict between different spatial orders,giving rise to the sense of opponent,which is the quality of the political.37Id,Carl Schmitt,p.87.Schmitt’s international law was constructed on the basis of this friend-enemy distinction.

Schmitt spoke of the concept ofGrossraumas the Großraum principle of international law,38Id,p.83-84.rather than merely as a geopolitical concept.39Spheres of influence in modern history are often delimited by international treaties.This reflects the integrated and two-sided relationship between spheres of influence and international law.Supra note 35,Paul Keal,p.71;Roberto Orsi,On the Relevance of Carl Schmitt’s Concept of Großraum in Contemporary International Politics,Journal of International Political Theory,Vol.17:3,p.13 (2021).Based on his observation of the relationship between the American Monroe Doctrine and Europe it was aimed at,Schmitt held that international law needed to recognize spheres of influence,and that international law was in fact composed of a number of specificGrossraumorders.In Schmidt’s mind,the best world order consists of several coexistingGrossraumorders,each of which pursues a particular political philosophy and the political is inevitably different.Schmidt’s international law in ideal state can accommodate multipleGrossraum.40Id,Roberto Orsi,p.12.In the sense of combining spheres of influence with international law to gain legitimacy,the U.S.uses the term of international waters to create a SchmittianGrossraumorder.

A.International Waters and U.S.’ Maritime Grossraum Order

The U.S.is constructing a maritimeGrossraumorder,whose essence is to transplant the SchmittianGrossraumorder on land to the ocean.

First,the U.S.indeed treats international waters as an overall space and is constructing a Schmittian maritimeGrossraumorder.In his description of the two different spatial orders of maritime and terrestrial countries,Schmitt introduced a pair of opposing concepts,namely,terrestrial existence and maritime existence.A typical maritime existence in Schmitt’s mind is the UK,whose possession of the sea is a singularly great sea-appropriation,by which he meant the longstanding absolute dominance of UK’s sea power.The same analysis applies to the U.S.after World War II.As the most powerful maritime power ever,the U.S.has made it a key strategy to treat the ocean as a whole.Differences exist,of course,because the Ocean Enclosure Movement in the post-World War II era brought about a dramatic change in the legal status of the ocean,which was divided into a variety of areas of varying legal status.However,despite the fact that UNCLOS establishes a maritime order with various maritime zones and boundary lines,the use of international waters by the U.S.seeks to maintain a unified space,and its FON Program ignores these zones and boundary lines to a maximum extent.41For details of the U.S.Freedom of Navigation Program,please refer to Part II.This takes to an extreme Schmitt’s notion that “the sea knows no limits”.42Carl Schmitt,Staat,Grossraum,Nomos: Arbeiten Aus Den Jahren 1916-1969,Duncker &Humblot,1995,p.407.

Certainly,Schmitt’s reference to the UK’s “singularly great sea-appropriation”and by analogy to the U.S.is not a description of the facts consistent with international law,but of sea power relations.The so-called British monopoly of the sea refers to the overwhelming dominance of UK’s sea power.Similarly,the U.S.,with its superior maritime force,has shaped a maritime order outside of UNCLOS to maintain and support its sea power,43MOU Wenfu,The United States’ Strategies in Shaping a Legal Order for the Seas Outside the United Nations Convention on the Law of the Sea,China Oceans Law Review,Vol.10:2,p.183-217 (2014).(in Chinese)and has constantly reinforced the rules reflecting its sea power needs on the basis of its self-claimed universality,thus reinforcing the legitimacy of its maritime behaviors.

Second,Schmitt’s Grossraum order is regional,while the term of international waters asserted by the U.S.is the global ocean.Can international waters be considered as a regionalGrossraumwith specific range? The international waters claimed by the U.S.encompasses a definable geographic space,which embodies a legal concept (freedom of navigation/overflight as broadly understood and claimed by the U.S.) asserted by the U.S.,and this space is intrinsically Schmittian.Schmitt also associated empire withGrossraum,with the central idea thatGrossraumis inseparable from empire,and that “there is never an empire withoutGrossraum”,or aGrossraumbased solely on a State.44Supra note 36,Carl Schmitt,p.114;Supra note 39,Roberto Orsi,p.15.In his paper Illusions of Empire published inForeign Affairsin 2004,G.John Ikenberry asserted that the U.S.fits the profile of an empire if an empire is broadly defined as a hierarchy of political relations in which the most powerful State has decisive influence.45G.John Ikenberry,Illusions of Empire: Defining the New American Order,Foreign Affairs,Vol.83:2,p.146 (2004).For quite some time after the end of the Cold War,the U.S.made no secret of its imperial status,46After 9/11,the U.S.launched the war on terror and invaded Iraq,which also made the analogy between the U.S.and the Roman Empire straightforward.See Margaret Malamud,Ancient Rome and Modern America,Wiley-Blackwell,2008,p.256.and it was also the period when the U.S.leveraged the term of international waters to reinforce the legitimacy of its maritime behaviors most frequently.In this sense,international waters is the Schmittian order pursued by the U.S.Nevertheless,according to Schmitt’s logic ofGrossraum-empire relations,an international landscape that evolves towards multi-polarization will render the so-called empire at the top of the power hierarchy unable to maintain its hegemony,and theGrossraumorder it attempts to shape and maintain will also collapse.As such,the U.S.has great anxiety about the rise of other nations’ maritime power,the decline of its own shipbuilding capacity,and the relative shrinkage of its navy.47Alexander Wooley,Float,Move,and Fight-How the U.S.Navy Lost the Shipbuilding Race,Foreign Policy,Fall 2021,p.30-35;Jerry Hendrix,Sea Power Makes Great Powers -A Country’s Rise is Directly Related to the Size of its Martime Forces,Foreign Policy,Fall 2021,p.36-41.

Given that the SchmittianGrossraumis regional and limited while the maritime order asserted by the U.S.is universal,the two do not belong to the same category,and it seems impossible to describe the maritime order shaped by the U.S.with the SchmittianGrossraumconcept in the strict sense.This doubt is based on the presupposition that the SchmittianGrossraumis an archetype and that there can only be a SchmittianGrossraumorder in such archetypal sense.However,in understanding the SchmittianGrossraumconcept,the two points below should also be kept in mind.First,the SchmittianGrossraumorder conceptualizes the sphere of influence and geopolitics associated with the imperial phenomena in world politics.Second,the age of Schmitt did not yet see the emergence of a global hegemonic power with overwhelming power,but rather the coexistence of several regional empires.During the period from the late Cold War to the early 21st century when the U.S.resorted to the concept of international waters to shape the maritime order,a notable change occurred in that the U.S.became the dominant power in the unipolar international landscape after the dissolution of the Soviet Union.Taking Ikenberry’s analogy,the empire phenomenon has not disappeared,in which case the corresponding spheres of influence and geopolitical policies will still persist.Consequently,it is comprehensible that a SchmittianGrossraumorder exists even in a unipolar world pattern,but there are two differences.First,the U.S.is shaping the maritime order in a strategic vision of maintaining its global maritime hegemony,making the entire ocean the scope of its maritimeGrossraumorder.Second,The ocean has different characteristics from the land.While Schmitt’s favored pattern is one in which severalGrossraumorders co-exist and the land can be carved up by several empires,the ocean is in fact occupied as a whole by the sole maritime hegemonic power.This is also the key to understanding how the U.S.’ maritimeGrossraumorder encompasses the entire ocean,and its legal dimension is understood and interpreted by the U.S.as universal.In this sense,the U.S.’ maritimeGrossraumorder is a variant of SchmittianGrossraum.

Third,as mentioned earlier,the sphere of influence andGrossraumorder are expressed in the language of international law.In his paper Forms of Modern Imperialism in International Law,Schmitt stated,“[Every extension of power]requires a principle of legitimacy,an entire inventory of legal concepts and formulae,of modes of speech,of slogans.”48Carl Schmitt,Forms of Modern Imperialism in International Law,in Stephen Legg,ed.,Spatiality,Sovereignty and Carl Schmitt: Geographies of the nomos,Routledge,2011,p.30It is this kind of legal concept and formulae that the U.S.has employed to reinforce freedom of navigation/overflight for the purpose of dominating the ocean and showing off its force.Notwithstanding the fact that international waters is not a recognized concept of international law,the U.S.has attempted to construct it in the direction of international law,just in the way Schmitt defined theGrossraumorder.While geographically larger and more global in scope than the limited spheres of influence in terrestrial space pursued by some States in history,the maritimeGrossraumstill has the characteristics of theGrossraumorder described by Schmitt.

Fourth,according to Schmitt’s original meaning ofGrossraum,it is a relatively closed concept of space with relatively clear internal and external relations,in which the dominant State prohibits the intervention of external forces.In contrast,international waters is an open space,for which freedom of navigation/overflight is fundamental,according to the assertion of the U.S.On the surface,the two concepts are irreconcilable.However,such characteristics of international waters as openness,non-interference,and freedom need to be viewed in the context of the U.S.’ maritime superiority.They are invoked to ensure that U.S.maritime military forces can navigate throughout the sea without being hindered and can freely choose their battlefields.It is therefore clear that the prohibition of intervention in theGrossraumorder and the freedom of navigation in international waters are both aimed at the same goal—the U.S.’ freedom of movement at sea.In this case,the prohibition of intervention is represented by the U.S.’ freedom of navigation without intervention from any State,and openness refers to the openness to U.S.naval and air forces,in particular,the contiguous zones,exclusive economic zones,archipelagic waters and international straits of other States.On the other hand,the prohibition of intervention also manifests itself in the U.S.’ containment of other emerging maritime forces,such as close-in reconnaissance and forward deployment against China,even though China does not question the normal navigation rights of the U.S.Schmitt holds that theGrossraumorder is an international legal order that the dominant State seeks to shape,and in the view of the dominant State in thatGrossraum,States outside theGrossraummust comply with this order.By analogy,the international law espoused by the U.S.that advocates freedom of navigation is in principle applicable to all States.This is precisely the strategy by which the U.S.seeks to dominate the international waters.Given that the U.S.has far greater maritime power than any other State in the world,surely the U.S.has the most to gain from freedom of navigation for military purpose.The U.S.’concept of international waters can be fully examined in the conceptual framework of SchmittianGrossraum: the freedom of navigation is a dominant concept and rule in the maritimeGrossraumasserted by the U.S.,meaning that the U.S.will vehemently suppress the behaviors of other States that impede the presence and deployment of U.S.naval forces everywhere in the ocean.This is how the element of prohibition of intervention of external forces inGrossraumis reflected in the U.S.’ maritimeGrossraum.

Fifth,Schmitt’s concept ofGrossraumdefines an inside-outside relationship,and the boundary between thisGrossraumand another one is the boundary for peaceful coexistence or the friend-enemy boundary.49Supra note 36,Carl Schmitt,p.88,100.So,is there a friend-enemy relationship along the inside-outside line of international waters promoted by the U.S.? In fact,the friend-enemy relationship constructed by the sense of opponent is an indispensable factor for the U.S.to resort to the concept of international waters and construct the maritimeGrossraumorder.According to Schmitt’s theory ofGrossraum,such friend-enemy relationship is intrinsic to the concept ofGrossraum.There is no difficulty in judging that China is considered as the biggest maritime competitor of the U.S.from the Trump administration to the Biden administration,and that China’s maritime power building in recent years has invariably been seen as a threat by the U.S.,as reflected in theUnited StatesInnovation and Competition Act of 2021(USICA).More generally,the U.S.is in opposition to coastal States when they deny the U.S.’ concept of international waters under international law or oppose U.S.’ FON Program and maritime military activities from the national security perspective.This fact falls within the category of inside-outside relationship of Schmitt’sGrossraum.

Taken as a whole,the concept of international waters promoted by the U.S.meets the following elements of a SchmittianGrossraumorder.First,theGrossraumorder is not limited to ocean or land.The U.S.applies the concept of international waters to the ocean as a whole to the greatest extent,but generally the spatial scope can be determined.Second,there is a body of international law asserted by itself that belongs to the element of political idea in the SchmittianGrossraumorder,including extensive contents such as freedom of navigation/overflight,especially those in relation to military activities.Third,the prohibition of intervention of external forces is reflected in the U.S.’ attempt to prohibit any States from restricting and interfering with its freedom of military activities at sea.It does not completely deny the legal entitlement of other States to maritime rights.Instead,in the view of the U.S.,not any other State can interfere with,or obstruct,the U.S.Navy’s freedom of maritime operations in terms of law and practice.Fourth,there is the element of power that supports the implementation of the international law proposed by the U.S.throughout the international waters(Grossraum),i.e.,the powerful naval and air power of the U.S.Simply put,just like the SchmittianGrossraumorder,the U.S.’ shaping of the maritimeGrossraumorder also embodies its attempt at exclusive dominance,which is essentially to maintain its maritime hegemony.

B.An Inquiry of U.S.’ Self-Claimed Legal Grounds for its Conducts at Sea

According to Schmitt,it was not until the rise of its economic and military power in the late 19th and early 20th centuries that the U.S.had the power to implement the Monroe Doctrine in its diplomacy.Only after World War I did the U.S.successfully cram the Monroe Doctrine into treaties through its participation in the negotiations of the League of Nations at the Paris Peace Conference in an attempt to give it a universal value status.50Id,p.86;Art.21 of the Covenant of the League of Nations: Nothing in this Covenant shall be deemed to affect the validity of international engagements,such as treaties of arbitration or regional understandings like the Monroe doctrine,for securing the maintenance of peace.See Word Affairs Press ed.,International Treaty Collection (1917-1923),Word Affairs Press,1961,p.272.(in Chinese)The U.S.’ unilateral interpretation of UNCLOS as a non-State party,launch and implementation of the FON Program,and the turn of the Arctic Policy can all be interpreted in the context of the U.S.’shaping of the maritimeGrossraumorder.The above three behaviors all take the concept of international waters as the starting point for their policies and actions,and in turn they legally reinforce this concept.

1.Strengthening the Concept of International Waters through Unilateral Interpreting UNCLOS

As described by Schmitt,theGrossraumorder is articulated by hegemonic States through the language of international law asserted by themselves.In this aspect,a typical practice of the U.S.is to resort to the interpretation of UNCLOS in diplomatic notes from time to time for the purpose of reinforcing the concept of international waters.Below are some typical examples.In response to the concepts of “sovereignty” and “exclusive rights” used in Djibouti’s domestic law for the exclusive economic zone,the U.S.required the government of Djibouti to interpret and apply Djibouti’s law in accordance with international law reflected in UNCLOS.As further noted by the U.S.,while Article 56 of UNCLOS provides coastal States with jurisdiction over artificial islands,facilities,and structures in exclusive economic zones,UNCLOS does not recognize the “sovereignty”of coastal States in exclusive economic zones,but rather the “sovereign rights”of an economic nature to exploit and explore natural resources;and UNCLOS gives coastal States jurisdiction over “marine scientific research” rather than over broad “scientific research”.According to the U.S.,activities such as hydrographic surveys are intended to obtain information for the production of nautical charts.The information collected for military purposes,whether confidential or not,falls outside of marine scientific research and is not subject to the jurisdiction of coastal States.51Supra note 11,Office of the Legal Advisor,U.S.Department of State,p.463-464.Notably,in interpreting and applying UNCLOS,the U.S.has consistently distinguished between marine scientific research and scientific research by separating hydrographic surveys from marine scientific research.52In addition to the category of “marine scientific research”,the U.S.has also proposed other relevant categories and argued that UNCLOS only regulates “marine scientific research”,but the following contents do not fall within the said category: (a) prospecting and exploration of natural resources;(b) hydrographic survey;(c) military activities,including military investigations;(d) environmental monitoring and assessment under Part XII,Section 4 (Arts.204-206);(e) activities relating to underwater wrecks or objects of an archaeological or historical nature.Supra note 1,J.Ashley Roach &Robert W.Smith,p.414-415.

North Korea announced the establishment of a 50-nautical-mile military demarcation line in the Sea of Japan and a military demarcation line in the Yellow Sea,in line with its area of exclusive economic zone.The U.S.protested that the customary international law reflected in the UNCLOS does not recognize the authority of coastal States to restrict freedom of navigation on the high seas for security purposes in peacetime,and that the 1953 Armistice Agreement cannot be regarded as legitimizing such a claims,as it does not stipulate that any party may unilaterally extend rights or privileges into international waters.53Supra note 11,Office of the Legal Advisor,U.S.Department of State,p.468-469.

When Romania enacted rules to ensure the safety of navigation in its exclusive economic zone,the U.S.required that the intent of such rules should be consistent with Article 60 and paragraph 1 of Article 211 of UNCLOS.54Id,p.465.When Namibia claimed the application of its fiscal,health,customs,and immigration laws throughout its exclusive economic zone,the U.S.required that Namibia should ensure its laws governing the contiguous zone in compliance with the requirements of UNCLOS.55Id,p.470.

The U.S.’ unilateral interpretation of UNCLOS is also found in the following scenarios: when Sudan established a security zone six nautical miles beyond its territorial sea;56Id,p.465-466.when Venezuela established a three-nautical-mile security contiguous zone adjacent to its territorial sea for maritime surveillance,policing and security purposes;57Id,p.467.when Oman announced the establishment of a temporary naval protection zone,covering part of the high seas,for the protection of heads of States of the Gulf Cooperation Council during their meetings;58Id,p.467-468.when Haiti and Syria established security zones outside their territorial seas.59Supra note 57.

TheUnited States Innovation and Competition Act of 2021,adopted by the U.S.Senate in 2021,proposes to make a significant financial investment to publicize the U.S.’ unilateral interpretation of international law regarding freedom of the seas,encompassing matters such as the operations of warships in exclusive economic zones,innocent passage through territorial seas,and transit passage through international straits.60See Sec.3230 of United States Innovation and Competition Act of 2021,website of U.S.Congress,https://www.congress.gov/117/bills/s1260/BILLS-117s1260es.pdf.

It can be seen from its emphasis on interpreting UNCLOS that the U.S.relies on the interpretation of UNCLOS to reinforce its core position.Coastal States’ rights and interests in military and national security are limited only to the territorial sea,their jurisdiction in the contiguous zone is limited to the areas of finance,immigration,customs and health,and their rights in the exclusive economic zone are limited to the exploitation and conservation of natural resources.Meanwhile,the U.S.has the right to engage in various military activities in the waters surrounding coastal States,including the right of innocent passage in territorial seas.This is the essence of the concept of international waters shaped by the U.S.“It is unfair for all of the coastal States that the United States,which has yet to ratify the Convention,is raising an argument on the interpretation of the Convention”,Chinese scholar ZHANG Haiwen commented on the U.S.’ repeated attempts to impose its unilateral interpretation of UNCLOS on other nations in some bilateral negotiations.61ZHANG Haiwen,Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? — Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ,Chinese Journal of International Law,Vol.9:1,p.35 (2010).

2.The U.S.Freedom of Navigation Program

The Freedom of Navigation (FON) Program is a unilateral act of the U.S.to ensure its freedom of movement at sea,with a considerable portion relying on the concept of international waters,which is closely related to its status as a maritime power.The FON Program was a policy introduced by the Carter Administration in 1979 for the U.S.Department of Defense to take regular action to challenge what the U.S.perceived to be unlawful restrictions imposed on freedom of navigation.At that time,the Third United Nations Conference on the Law of the Sea was drawing to a close,and the U.S.launched the FON Program to prevent the forthcoming UNCLOS from interfering with the U.S.maritime hegemony.The FON Program is twofold.The first is the operations of the U.S.Armed Forces,which the Carter Administration’s National Security Advisor Brzezinski called “protest sailings” in his memo.62James Kraska &Raul Pedrozo,International Maritime Security Law,Martinus Nijhoff,2013.The specific arrangements for implementation of the FON Program are managed by the U.S.Department of Defense,specifically targeting what the U.S.considers to be the excessive maritime claims of coastal States.The second is the representations and protests by U.S.diplomats to foreign governments.

The two aspects of the FON Program embody the specific operational actions performed by the U.S.navy and the U.S.position on international law,respectively.In the former case,the U.S.dispatches warships and military aircraft to sea areas over which other coastal States claim jurisdiction and where the U.S.believes that the relevant laws and policies of coastal States are inconsistent with international law as understood by the U.S.,in order to demonstrate that it has the right to do so.In the latter case,the U.S.mainly expresses the its position on international law through diplomatic protests and representations,as well as oppositions to the legal position of coastal States,such as opposition to continental States’ (namely non-archipelagic States by the U.S.) claim of archipelagic status for groups of offshore independent islands,opposition to non-archipelagic States’ application of archipelagic baselines or straight baselines to their offshore independent islands,63The U.S.has consistently opposed the application of straight baselines to offshore islands of continental States and the characterization of such offshore islands as archipelagos in the sense of archipelagic States.See International Law Association,Baselines under the International Law of the Sea,Report of the 76th Conference,International Law Association,2014,p.215-216;Supra note 1,J.Ashley Roach &Robert W.Smith,p.23-24,108-115.opposition to the drawing of extra-long straight territorial sea baselines,opposition to the need for prior approval by coastal States for warships to exercise the right of innocent passage in territorial seas,and opposition to coastal States claiming security interests in their exclusive economic zones.64Id,J.Ashley Roach &Robert W.Smith,p.19-24.The FON Program is motivated by the U.S.’ desire to shape the legal order of the ocean that serves its national interest.This is because the U.S.is not a State party to UNCLOS,and if relevant practices of the States Parties thereto change the original law,the U.S.’actions may serve as a persistent objector,seeking to prevent new international law against the U.S.from coming into force.65Id,p.9.

The legal effect of the FON Program of the U.S.is to minimize the scope of jurisdiction of coastal States while maximizing the rights of the U.S.throughout the ocean.This reflects not only the prohibition of intervention of external forces,as Schmitt put it,but also the fact that the dominant State in theGrossraumorder put on a cloak of international law for their sphere of influence.

3.Turn of U.S.’ Arctic Policy

The U.S.’ maritimeGrossraumorder treats the ocean as a whole,which naturally includes the Arctic.The initial attitude and position of the U.S.towards the Arctic was nothing new;it held that the law of the sea applied to the Arctic/Arctic Ocean and that the said law provided a broad legal framework for Arctic issues.66Digest of United States Practice in International Law 2008,p.625-626.

The 2013National Strategy for the Arctic Regionof the U.S.sees the Arctic as America’s last great frontier,expressing a desire to advance U.S.security interests in the Arctic and enable its vessels and aircraft to operate in the airspace and on the waters of the Arctic in accordance with international law.67National Strategy for the Arctic Region,ObamaWhiteHouse (10 May 2013),https://obamawhitehouse.archives.gov/sites/default/files/docs/nat_arctic_strategy.pd.This heralds a turn in U.S.’ Arctic Policy to close the Arctic loophole left unintentionally in the maritimeGrossraumorder.The 2019Department of Defense (DoD) Arctic Strategylists three goals: building Arctic awareness,enhancing Arctic operations,and strengthening the rules-based order in the Arctic.Regarding the legal status of the Arctic Sea Routes,the report argues that Russia and Canada claim the right to regulate Arctic waters in excess of the authority permitted by international law.The 2019DoD Arctic Strategyidentifies three strategic interests in the Arctic for the U.S.: As the U.S.homeland,as a shared region,and as a potential corridor for strategic competition.The 2019DoD Arctic Strategyalso focuses on the competition between powers in the Arctic,with an eye to eroding the competitive edge of China and Russia in the region.682019 Department of Defense Arctic Strategy,USDoD (June 2019),https://media.defense.gov/2019/Jun/06/2002141657/-1/-1/1/2019-DOD-ARCTIC-STRATEGY.PDF,p.2.In the report,the U.S.argues that its interests lie in maintaining flexibility for global power projection,including ensuring freedom of navigation and overflight,limiting the ability of China and Russia to leverage the region,and limiting the latter’s use of the region as a corridor for competition to advance their strategic objectives through malign or coercive behaviors.The 2019DoD Arctic Strategyplans to implement the FON Program in the Arctic.It states that the freedom of navigation and overflight is critical to ensuring that the Arctic remains a free and open domain and that U.S.forces retain the global mobility only under international law.The U.S.Department of Defense will continue to perform flying,sailing,and operations wherever international law allows.When necessary and appropriate,the U.S.will challenge the excessive maritime claims in the Arctic to preserve the rules-based international order and the rights and freedom of the international community in navigation and overflight,as well as use of high seas.69Id,p.13.The implementation of the FON Program in the Arctic is a new trend of the U.S.Arctic Policy.

The U.S.,noting China’s white paper onChina’s Arctic Policy,explicitly disavowed China’s claim of being a “Near Arctic State”.As for China’s economic activities in the Arctic within the framework of the Belt and Road Initiative,the U.S.is also concerned that as China’s economic and scientific research investments in Arctic States grow,so does its military presence.70Id,p.4-5.TheUnited States Coast Guard Arctic Strategic Outlook,2019sounded an alarm about China’s Arctic activities: “China’s attempts to expand its influence could impede U.S.access and freedom of navigation in the Arctic as similar attempts have been made to impede U.S.access to the South China Sea.”71United States Coast Guard Arctic Strategic Outlook 2019,USCG (22 Apr 2019),https://www.uscg.mil/Portals/0/Images/arctic/Arctic_Strategic_Outlook_APR_2019.pdf,p.9.China’s claims in the South China Sea are completely different from those in the Arctic.The U.S.portraying China’s South China Sea and Arctic policies as impeding its access is an entirely deliberate distortion of China’s position.The U.S.’ view of the Arctic as an integral part of the entire ocean can explain its Arctic policy in the context of shaping the maritimeGrossraumorder: the inherent consistency of the U.S.’ behaviors lies in its attempt to have exclusive dominance over ocean space.

The turn of the U.S.’ Arctic policy is a typical policy choice guided by the maritimeGrossraumorder.The U.S.’ inclusion of the Arctic into the maritimeGrossraumreflects the U.S.’ disallowance of external forces to prevent it from shaping the Arctic as part of the maritimeGrossraumand also what Schmitt calls a pervasive sense of friend-enemy relationship.

III.Assessment under Contemporary International Law

Schmitt’s concept ofGrossraumorder takes sphere of influence,geopolitics and the concept of empire as the basis of reality for international law,and he believes that the deep structure of international law is closely related to empire.In the Post-Cold War era,scholars responded intensively to Schmitt’s such thought,and these responses were particularly pertinent to the post-Cold War unipolar landscape.They believed that Schmitt’s thought provides a good insight into the current situation.72L.Odysseos &F.Petito,eds.,The International Political Thought of Carl Schmitt: Terror,Liberal War and the Crisis of Global Order,translated by GUO Xiaoyu,Huaxia Publishing House,2021;LIU Xiaofeng,Nomos of the Earth and Modern International Politics,Joint Publishing,2021.Although this can explain many post-Cold War foreign policies of the U.S.,especially its maritime behaviors,the explanatory power of the concept ofGrossraumorder does not imply that it is legitimate and positively normative in the contemporary system of international law.In terms of reflecting the sphere of influence and geopolitical essence,the second part of this paper is a sociological description of the process by which the U.S.shapes the maritimeGrossraumorder.According to Martti Koskenniemi,such a description risks downgrading international law to a defense of power politics.73Martti Koskenniemi,From Apology to Utopia — The Structure of International Legal Argument,Cambridge University Press,2006,p.17.This is certainly not the purpose and the intended effect of this paper.Below,it will be pointed out that in the contemporary international law system with the United Nations as the core,the U.S.’ recourse to the concept of international waters to construct the concept ofGrossraumorder seems anachronistic;particularly,the series of legal claims and acts related to the concept of international waters are incompatible with the basic principles of international law embodied in theUnited Nations Charterand the aims and purposes of the law of the sea.

First,the law of the sea,with UNCLOS at its core,is a system that forms the basic outline of the maritime order.However,the U.S.has consistently refused to accede to UNCLOS,but chose provisions thereof on freedom of navigation and overflight as leverage to build its maritime strategy in order to support its exercise of maritime power/hegemony.The 1983 U.S.President’s Ocean Policy Statementenunciated its basic position on UNCLOS.It divided the content of UNCLOS into two parts based on the pros and cons for the U.S.: “Convention’s deep seabed mining provisions are contrary to the interests and principles of industrialized nations”,and “provisions with respect to traditional uses of the oceans […]generally confirm existing maritime law and practice and fairly balance the interests of all States”.It is in the interest of the U.S.to treat the provisions related to navigation and overflight as customary international law,and its policy is “to accept and act in accordance with the balance of interests relating to traditional uses of the oceans -such as navigation and overflight”;“the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Convention.”74Supra note 10,Marian Nash,p.1736.This position divides the content of UNCLOS into two parts favorable and unfavorable to the U.S.,and selectively accepts the favorable parts.Even though theAgreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982adjusted the regime for the exploitation of the seabed on the high seas,the U.S.has remained outside UNCLOS.A considerable part of the U.S.government officials believe that the rules of customary international law contained therein alone can also preserve their rights of navigation and overflight.75James W.Houck,Alone on a Wide Wide Sea: A National Security Rationale for Joining the Law of the Sea Convention,Penn State Journal of Law and International Affairs,Vol.1:1,p.3 (2012).

As noted in Paragraph 3 of the preamble of UNCLOS,“the problems of ocean space are closely interrelated and need to be considered as a whole”,which means that “the legal problems of ocean space are also closely interrelated”.UNCLOS pursues an integrated approach,whereby “problems of ocean space should not be considered under the Convention as isolated form any other problems of this space”.76Supra note 23,Alexander Proelß,ed.,p.9.This attitude and position of the U.S.towards UNCLOS is an opportunistic use of the law of the sea.Despite its selective use of UNCLOS,the U.S.is still bound by customary international law,general State rules and principles,which cannot be evaded.

Second,along with the process of shaping a maritimeGrossraumorder by resorting to the concept of international waters,the U.S.pursues absolute security with its superior military power,exercises deterrence against other States as its security strategy,ignores the differences in various sea areas stipulated by maritime laws,and conducts close-in reconnaissance against other States in the name of freedom of navigation and overflight,establishing its own security on the basis of other States’ insecurity.This is,first and foremost,contrary to the international obligation to cooperate in the field of international security,as required by the fundamental principles of international law.The terms in Paragraph 1 of the preamble of UNCLOS,“the desire to settle,in a spirit of mutual understanding and cooperation,all issues relating to the law of the sea”,reflects the principle of cooperation on which UNCLOS is based.Principle IV of theDeclaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nationsprescribes that “States shall co-operate with other States in the maintenance of international peace and security”.UNCLOS regulates the obligations of Contracting Parties to cooperate in a number of provisions.Although the U.S.is not a State party to UNCLOS,cooperation between States is “a cornerstone principle of contemporary international law”,77Laurance Boisson de Chazournes &Jason.Rudall,Co-Operation,in Jorge E.Viñuales,ed.,The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law,Cambridge University Press,2020,p.105.and the duty to cooperate it implies binds all States.The security interests of coastal States are reflected in two provisions of Article 19 of UNCLOS concerning non-innocent passage -“(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State” and“(d) any act of propaganda aimed at affecting the defence or security of the coastal State”.Furthermore,Article 58 thereof,with regard to freedom of navigation and overflight within exclusive economic zones,provides that States “shall have due regard to the rights and duties of the coastal State”,which does not exclude the security rights and interests of coastal States.78Sienho Yee,Sketching the Debate on Military Activities in the EEZ: An Editorial Comment,Chinese Journal of International Law,Vol.9:1,p.2-3 (2010).The U.S.’ military activities in the name of freedom of navigation and overflight cover declarative operations,presence operations,reconnaissance and intelligence gathering activities,exercises,battlefield construction and operational proof of concept,and deterrence operations.The FON Program is only related to declarative operations.79HU Bo,What has the US military been doing in the South China Sea these years,Haiwainet(29 Aug 2019),http://nanhai.haiwainet.cn/n/2019/0829/c3542184-31619639.html.In accordance with the principle of “cooperation in the maintenance of international peace and security”of theDeclaration on Principles of International Law,other States should respond actively to the security concerns of coastal States.The U.S.’ military activities,on the other hand,are always in pursuit of unilateral security,which is inconsistent with the obligation to cooperate in the field of international peace and security,and is contrary to the principles of general international law on the abuse of rights.

Third,the U.S.violates the principles of international law of good faith in the performance of international obligations,due diligence to the legal rights of other States,and prohibition of abuse of rights.The principle of good faith belongs to the principles of general international law as set forth in Paragraph 8 of the preamble of UNCLOS,“Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.”80The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations includes the principle of good faith.Article 300 of the Convention,“Good Faith and Abuse of Rights”,provides that “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights,jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right”.There are many provisions in UNCLOS,whether classified as treaty provisions or customary international law,that confer discretion on States,and the principle of good faith is a tool to control the excessive use of such discretion.81Supra note 23,Alexander Proelß,ed.,p.1938.The principle of good faith requires cooperation in the performance of obligations without prejudice to the object and purpose served by the relevant rules of international law.82Robert Kolb,Good Faith in International Law,Hart Publishing,2017,p.67-73.

In the adjudication practice of international tribunals,such as the International Court of Justice,the duty of due diligence is associated with the concepts of “good faith” and “abuse of rights”,which remind States that they should avoid causing arbitrary and disproportionate harm to other States when exercising their rights.83Evan J.Criddle &Evan Fox-Decent,Mandatory Multilateralism,American Journal of International Law,Vol.113,p.272,302-303 (2019);Id,Robert Kolb,p.133.In the performance of treaty obligations,the treaty may grant a certain margin of discretion to a State party thereto,and that is when the principle of good faith applies,i.e.,the discretion should be properly and reasonably exercised.For example,a treaty cannot be considered to confer the self-identification right on one State party.The abuse of rights,which is related to the concept of good faith,means that a State exercises its right in a manner that interferes with other States’ exercise of their rights or with the intent to impair the rights of other States,or in a manner that is substantially different from the purpose for which the right was created,or in a manner that causes disproportionate harm to other States,or in an arbitrary manner.84Guillaume Futhazar &Anne Peters,Good Faith,in J.Viñuales,ed.,The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law,Cambridge University Press,2020,p.200-201;Alexandre Kiss,Abuse of Rights,in Rüdiger Wolfrum,ed.,The Max Planck Encyclopedia of Public International Law,Vol.I,Oxford University Press,2012;Supra note 82,Robert Kolb p.133.

Freedom of navigation is a right that is prone to abuse.85Supra note 23,Alexander Proelß ed.,p.1942.Article 87 of UNCLOS,invoked by Article 58 thereof,does not clearly define freedom of navigation and freedom of overflight.This has no significant legal implications for the high seas,but it does have implications for exclusive economic zones.86Supra note 32,Rene-Jean Dupuy &Daniel Vignes ed., p.845.In exercising the right to the freedom of navigation and overflight invoked by Article 58 of UNCLOS,other States are subject to stricter restrictions.Moreover,the presumption in favor of coastal States shall be recognized in the event of a conflict between the sovereign rights and jurisdiction of coastal States and the freedom of other States.87Supra note 23,Alexander Proelß ed.,p.449.The U.S.relies on the right of freedom of navigation and overflight as the legal basis for all its declarative operations,presence operations,reconnaissance and intelligence gathering activities,exercises,battlefield construction and operational proof of concept,and deterrence operations.This in effect amounts to the belief that the treaty gives the U.S.the right to self-identification,88The U.S.,though not a state party to UNCLOS,often invokes UNCLOS as a legal justification for its actions.The U.S.’ invocation of the provisions of UNCLOS in its capacity as a non-state party thereto to defend rights not explicitly defined in UNCLOS and undermine the security interests of coastal states undoubtedly constitutes an abuse of rights.See the Digest of United States Practice in International Law series for U.S.’ invocation of UNCLOS;Supra note 1,J.Ashley Roach &Robert W.Smith,that reflects the official U.S.position.which is a typical abuse of rights.It is well-founded for China to criticize the U.S.for exercising “absolute military hegemony at sea” in the name of freedom of navigation.89The US’s so-called freedom of navigation aims at absolute military hegemony at sea,GovCN (23 Feb 2016),http://www.gov.cn/xinwen/2016-02/23/content_5045273.htm；the Hegemonic Essence under the Cloak of Freedom of Navigation,GovCN (31 Jan 2016),http://www.gov.cn/zhengce/2016-01/31/content_5037673.htm;ZHAO Cheng,The US Freedom of Navigation impinges on international maritime order,People (27 July 2016),http://world.people.com.cn/n1/2016/0727/c1002-28587086.html.(in Chinese)The U.S.’ exercise of the right of freedom of navigation constitutes an abuse of rights because such exercise is aimed at impeding other States’ exercise of their rights,including challenging the territorial sovereignty and other entitlements of the States concerned,undermining regional peace and security,and conducting military deterrence.These actions run counter to the object and purpose of the creation of the right of freedom of navigation,i.e.,for the peaceful use of the seas.90“Peaceful uses” and “for peaceful purposes” are the most important purposes served by UNCLOS.The preamble to UNCLOS clearly states that “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...” To be specific,Freedom of the high seas (Art.87),Use of the Area exclusively for peaceful purposes (Art.141),Marine scientific research (Art.143),Accommodation of activities in the Area and in the marine environment (Art.147),General principles for the conduct of marine scientific research (art 240),Promotion of international cooperation (Art.242),Marine scientific research in the exclusive economic zone and on the continental shelf (Art.246) and other clauses set forth the object and purpose of peaceful uses.In particular,Article 301 of UNCLOS regulates in general terms the peaceful uses of the seas and oceans: “In exercising their rights and performing their duties under this Convention,States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State,or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”

IV.Conclusion

The key point of Schmitt’s concept ofGrossraumorder lies in the dominant State’s advancement of its international strategy and ideology in the direction of international law.The same is true of the U.S.’ attempts at shaping a maritimeGrossraum.Its construction of a Schmittian maritimeGrossraumis a reality,be it inspired by Schmitt or not,planned intentionally in accordance with Schmitt’s concept ofGrossraumorder,or in the name of a SchmittianGrossraumorder or not.This gives us a conceptual framework for understanding U.S.’ movements at sea.

However,from the perspective of recognized international law,the U.S.relies heavily on the concept of international waters as its legal tool,which is not in line with the recognized law of the sea.Moreover,the U.S.’ relevant actions deliberately challenge the legitimate and lawful security interests of coastal States and violate the international norm of prohibition against threats under theUnited Nations Charter.As China has clearly pointed out,“Out of self-interest,the U.S.frequently distorted rules of international law at will,coined concepts such as ‘international waters’,sent warships and military aircraft to show off its power in the sea areas around the world,and leveraged its power to define and push the so-called ‘rulesbased international maritime order’.What it has done gravely undermines the maritime order established by international law including UNCLOS.”91China Stays Committed to Peace,Stability and Order in The South China Sea,MFAPRC(23 Mar 2022),http://new.fmprc.gov.cn/web/wjb_673085/zzjg_673183/bjhysws_674671/bhzcyfllc/202203/t20220323_10654451.shtml.(in Chinese)

In a multi-polar landscape,China stands for “building a world of common security”,that “a country cannot have security while others are in turmoil”,and that“all countries should pursue common,comprehensive,cooperative and sustainable security”,92President XI JinPing’s Speech at United Nations Headquarters in Geneva: To jointly build a community with a shared future for mankind,Xinhuanet (19 Jan 2017),http://www.xinhuanet.com/world/2017-01/19/c_1120340081.htm.(in Chinese)and advocates building a maritime community with a shared future.93To jointly build a maritime community with a shared future,GovCN (23 Apr 2019),http://www.gov.cn/xinwen/2019-04/23/content_5385580.htm;FAN HengShan,To actively promote the building of a maritime community with a shared future,People (24 Dec 2019),http://opinion.people.com.cn/n1/2019/1224/c1003-31519239.html.(in Chinese)This provides a good solution to restrain and correct the U.S.’ actions that seriously undermine the maritime order established by international law such as UNCLOS.