Freedom of the seas

Freedom of the seas

Geopolitics of the oceans

Rear Admiral Chris Parry CBE PhD considers the present and future challenges facing the ‘watery World Wide Web’

All of us who have an interest in the sea or who make our living in the maritime and marine sectors appreciate the advantages of the freedom of the seas. The sea is the primary medium of access and exchange in an interconnected world and represents the physical equivalent of the Internet, the critical enabler for globalisation and free trade. The freedom to use the sea underpins an international rules-based system that is reinforced by international law, common interests and the willingness and ability of states to enforce shared values. In particular, the Western democracies, in being strong at sea and in protecting their national interests, have sought to maintain the integrity of the watery World Wide Web.

It is easy to take that integrity for granted. In the second decade of the twenty-first century, geopolitical forces, new power dynamics and the assertion of other countries’ national interests represent significant threats to the freedom of the seas and to the international rules-based system. The challenges centre on two main issues: the extension of state control and jurisdiction into exclusive economic zones (EEZs) and encroachment by states on the high seas.

Littoral control

Over three-quarters of the world’s population, over 80 per cent of the world’s capital cities and most significant hubs of international trade and military power are concentrated in the littorals: the territorial seas and up to 100 miles inland. Critical air and sea routes from oceanic areas pass through coastal regions, and important sources of offshore oil, natural gas and seabed minerals are located in the adjacent waters. The offshore zone is increasingly used for extensive land reclamation schemes, energy platforms and offshore construction projects, while the seabed hosts progressively more fishing, resource extraction and power distribution arrangements, as well as submarine cables. All these activities are likely to require increased coordination, surveillance and security capacity to prevent interference by terrorists, criminals and hostile states. On the one hand, this intensifying trend represents a distinct commercial opportunity, in the delivery of infrastructure, specialised skills and technological innovation; on the other, it represents a distinct threat to the freedom of the seas and, in particular, to innocent passage.

This is because we are likely to see the creeping territorialisation of these littoral regions as states seek to extend their control and jurisdictions further out to sea, right up to and, in some cases, beyond their current EEZ limits. They will wish to exploit the resources that lie on and below the seabed and in the water column, and they will seek to ensure the security of their maritime borders, in response to what are likely to be increasing levels of migration, illicit exploitation of resources and bursts of criminality and terrorism. There are indications that states will also seek progressively to limit foreign maritime military activities and control the passage of commercial shipping in their actual or claimed EEZs. All these factors will have implications for the freedom of navigation.

Several states already seek to impose limitations on traffic in their EEZs, for security, environmental or navigational safety reasons. In future, a variety of pretexts will be used, such as ‘green’ (environmentally protected) seaways, commercial exclusion zones or traffic control schemes that ostensibly have a justification under the UN Convention on the Law of the Sea (UNCLOS), which will effectively limit access to offshore zones. In some cases, as in the Maldives and the Seychelles, where there are justifiable limits on the courses by which the islands can be approached in the interests of fragile ecosystems, these will seem reasonable; in others, they are likely to be attempts to control legitimate movement on the high seas. Malaysia, for example, has sought to exclude military exercises by foreign powers in its EEZ, while seeking to prevent the passage of nuclear-powered ships through international straits that are contained within its archipelagos. China is attempting to exclude the passage of foreign warships within certain distances from its illegal artificial structures in the South and East China Seas. Others will use the pretext of dealing with criminality, migration, terrorism and other threats in extending their jurisdictions. As a result, there is a very real risk that exclusive economic zones will become de facto exclusive zones and challenge existing international law and conventions.

Oceanic encroachment

For now, the integrity of the rules-based system on the high seas is maintained by the power of the free world’s maritime forces. Russia and China have recognised the importance of the sea in relation to their status as great powers, both in promoting commercial growth and in incorporating further means of influence and coercion into their diplomacy. In China’s case, its investment in its maritime ‘Silk Road’ through the Indian Ocean, to Africa, the Gulf and beyond, is central to the expansion of its geopolitical influence and economic prosperity.

In parallel, both Russia and China are challenging the current rules-based international system, citing the need to ‘de-Americanise’ the world and its institutions. They claim sovereign rights across several areas of strategic interest, which they complain were lost when they were in positions of inferiority or weakness. There are calls for ‘new rules or no rules’ and attempts to avoid or override international or national obligations, especially in relation to UNCLOS.

At the practical level, Russia is busily extending its military reach and capability to dominate the Black Sea, the Baltic Sea and the Arctic, with the deployment of increasingly capable area-denial weapons and systems. Its occupation of Crimea has seen a significant re-fortification of the peninsula, characterised by anti-surface and anti-air weapons, backed up by powerful aviation, surveillance and offshore-zone patrol forces. A similar process is under way in the Baltic, and the Arctic has also been significantly reinforced, while Russia has imposed rigorous conditions and costs on those vessels using the Northern Sea Route. Current practice suggests that Russia will continue to enforce them even outside its twelve-mile territorial sea, once the ice recedes further offshore.

Military might and sovereign right

Meanwhile, China has adopted a territorial ‘land grab’ approach to the South and East China Seas, overriding the claims of its neighbours to their own economic zones and gradually extending its grip out to its so-called nine- or ten-dash line, almost 1500 nautical miles from China. The systematic construction of infrastructure and military facilities, as well as the basing of combat aircraft and surveillance systems on the reefs of the Spratly and Paracel island groups, is evidence of the use of might to assert sovereign right, with the possibility that China will seek to impose restrictions (and possibly charges) on the passage of merchant vessels and on the operations of foreign warships.

These measures by China and Russia strengthen their relative advantage in times of tension and war, and implicitly coerce and influence their neighbours in peacetime as well. Strategically, if Russia and China could routinely exclude the US and its allies from areas of sea (and the associated airspace) that represent their ‘near abroad’ they would increase their ability to dominate their regions both commercially and strategically, while weakening the assurances and links between the US and its major allies and treaty partners.

Consequently, the first half of the twenty-first century is likely to witness a series of tests of will and resolve as both the US and its allies and China and Russia probe and assess each other’s responses to incidents on the ragged edge between ‘territorial’ claims and the continuation of the freedom of the seas. As long as China and Russia have more to lose than to gain from a breakdown of the international system of law and trade, the current grudging acceptance of the overall status quo seems set to continue, punctuated by a sequence of encounters and disputes in the margins of UNCLOS, which, if not resolved, have the potential for confrontation and conflict.

Maintaining the freedom of the seas

Both littoral control and oceanic encroachment have serious implications for trading patterns and the universal access to the sea currently afforded to the international community. The fundamental issue at stake is whether UNCLOS will remain the basis for the international order at sea. In this regard, a comparison with the British system of public footpaths may be instructive. Britain has an extensive network of freely accessible footpaths across private and public land. As long as these footpaths are walked at intervals of not less than a year and a day, the landowner may not deny access to them. Seafarers would do well to remember the analogy – because, unless responsible states continue to assert the rights of innocent passage and the freedom of the seas, the conventions that have underpinned world economic growth and globalisation for the past 400 years are likely to be severely compromised. At present, only the US is prepared seriously to challenge the blatant ‘land grab’ at sea by China, the various attempts at encroachment across the world, and maritime coercion by Russia. In order to prevent the freedom of the seas being replaced by a patchwork of controlled and exclusive sea-space, other countries will need to assist the US in ensuring that the seas of the world remain open to those who proceed ‘on their lawful occasions’.

Rear Admiral Chris Parry CBE PhD served 36 years in the Royal Navy and was, subsequently, the first Chair of the UK’s Marine Management Organisation. Today, he runs a strategic forecasting company. He is the author of Down South: a Falklands War Diary (Viking, 2012) and Super Highway: Sea Power in the 21st Century (Elliott & Thompson, 2014). In 2015, he was the winner of the Desmond Wettern Media Award.