The dispute over the freedom of the ocean is as old as the history of seafaring itself. At least since the 17th century, the idea of the freedom of the ocean has prevailed. Yet, what was permitted to whom and when in front of foreign coast remained controversial for a long time. With its entry into force in 1982, the Convention on the Law of the Sea seemed to have regulated these issues thoroughly. To a great extent, this is the case. But unfortunately not in its entirety. Behind this superficial agreement lies an unsolved conflict on the questions, what rights warships are ought to have in front of foreign coast.
While the dispute on the interpretation of relevant articles of the Convention remained still for a long time, the last years have revealed a growing potential for conflict. In front of China’s coast, dangerous encounters between the USA and China are on the agenda. American ships patrol and China responds with provocations and risky manoeuvres. Both conflict parties seek to enforce their particular interpretation of the international Law of the Sea. While China aims to displace the USA as a military force from its backyard in order to maximize their own needs for safety within the claimed area, the USA intends to maintain their power projection ability. Only this way, they remain able to enforce their global order claims in the future.
In the latest HSFK-Standpunkt 5/2015 “Freie Schifffahrt oder „Kanonenbootpolitik”. Der Konflikt zwischen den USA und China im Südchinesischen Meer muss rechtlich geklärt werden”, Peter Kreuzer illustrates that these incidents were not about the general freedom of the sea, but about the questions how close military ships are allowed to come to foreign coasts. The author recommends a rule-governed process on the international level within the framework of the United Nations, giving advices on how to initiate such processes.
The HSFK-Standpunkt is available as a free PDF download (German only).