Tag Archives: UNCLOS

Russia-Ukraine War

A Russian Lake: Has the West Ceded the Black Sea to Russia?

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By Charles P. (Chuck) Ridgway, Jr.

In 2016, Turkish President Recep Tayyip Erdoğan called the Black Sea a “Russian Lake” and encouraged NATO to do more to counter Russia’s efforts to exert control over it.1 Never was that control shown to be more complete than last August, when the Russian Federation Navy stopped and boarded Palau-flagged freighter Şükrü Okan in the southwest portion of the Black Sea, about as far from the Russian coast as you can get, delaying its journey and menacing its crew at gunpoint before determining that it was not carrying contraband and allowing it to proceed. This incident may be seen as the canary in the coalmine indicating imminent suffocation of freedom of navigation in the Black Sea.

The Need for Sea Control

Much has been made of Ukraine’s successful and impressive efforts at sea denial, forcing the Russian Black Sea Fleet to stay well out of coastal missile range and even destroying major units in their homeports as well as at sea. But in what is quite obviously a largely maritime war,2 Russia appears to be achieving its strategic aims despite these tactical setbacks. The Sea of Azov is completely controlled by Russia and a look at MarineTraffic shows that few vessels dare come within 100 nm of Odessa. While the boarding cannot be said to have taken place as part of a blockade, since Russia has not formally declared a blockade, only issued various warning areas3 and vague threats about targeting ships across the Black Sea,4 and is not attempting to enforce a blockade in the manner prescribed by international law, it is telling that the boarding took place where it did, putting the world on notice that ships anywhere in the Black Sea even vaguely suspected of heading towards Ukraine may be boarded, and possibly seized or sunk. While at the same time, President Putin protests when a US warship calls at Istanbul.5 For all intents and purposes, there exists a de facto long-distance blockade, for no other word adequately describes what Russia is doing in the Black Sea. This blockade’s legality may be questionable at best,6 but its effectiveness cannot be doubted. NATO nations, as well as the rest of the world interested in freedom of navigation—including, seemingly, Palau—are doing little to challenge this situation, effectively ceding the maritime domain of the Black Sea to Russia’s bullying and bluster. It seems the Black Sea has indeed become a Russian lake.

The international law of naval warfare covering belligerent interference with merchant shipping, such as blockades and the prevention of the carrying of war contraband, has always represented a compromise between the objectives of the belligerent and the harm neutrals are willing to absorb in losing a certain amount of freedom of navigation.7 The US Military Academy’s Lieber Institute for Law and Warfare has pointed out that the boarding of the Şükrü Okan was legal under “Belligerent Right of Visit and Search.”8 On the other hand, Russia is a signatory to UNCLOS and there are no circumstances permitted by UNCLOS where this boarding could be said to fall under the right of visit of warships. In boarding Şükrü Okan, the Russian navy clearly violated the terms of UNLCOS to which it is bound.

Admittedly, UNLCOS does not address any aspect of naval conflict. But can interference with freedom of the seas be considered legal when the war under which the boarding was conducted is both undeclared and itself illegal? Does UNCLOS cease to apply because one signatory decides to lay mines or stop by force another country’s merchant ships? Are neutral nations willing to accept that UNCLOS can be suspended unilaterally and without formal warning? Most countries, especially those that adhere to the principle of Qualified Neutrality,9 should tend to think not. If the world stands by and does nothing, then Russia’s actions become the new status quo, UNCLOS loses much of its meaning, and the Black Sea—along with any other maritime region where the world persistently acquiesces in the face of aggression—risks losing its status as an international body of water.

With the collapse of the Black Sea Grain Initiative last summer, Ukraine created the “Ukraine Humanitarian Grain Corridor” by which ships transit through the territorial waters of Bulgaria and Romania, and mainly use Ukrainian ports on the Danube to load grain. The corridor has allowed a certain number of ships to carry grain out of the Black Sea over the past few months,10 though questions remain about the sustainability of insurance costs, especially after a Liberian-flagged vessel was hit by a Russian missile in Odessa on November 9, 2023.11

Grain shipping routes in the aftermath of the Ukraine invasion. (Graphic via BBC, based on United Nations data)

While Ukraine’s national bank has recently brokered a deal through Lloyd’s of London and other insurers to cut costs12 and many are calling the corridor successful, reports indicate that the grain exported is just a fraction of pre-war quantities: 700,000 tons from August to the end of October versus around 6 million tons a month before the Russian invasion.13 By December, a total of 200 ships had used the corridor carrying an estimated 5 millions tons of agricultural product14 — still well short of prewar levels. From a more strategic viewpoint, the fact remains that in order to export even this amount of grain, merchant ships must hug NATO nations’ coasts, reinforcing the point that the international waters of this part of the Black Sea are not open to shipping. If the shipping industry is unwilling to use the international route, can it still be considered international?

This situation brings up two interesting and related questions: What can be learned from this? And, what can be done about it?

Some Notable Lessons

The first thing that becomes apparent is that sea denial is insufficient when a country depends on open sea-lanes for its basic economic livelihood. While nearly all nations are dependent on the sea for their economic wellbeing, Ukraine’s dependence is stronger than most. A significant portion of its economy rides on its ability to export its grain. And the only efficient, indeed feasible, way to export the majority of it is by ocean-going cargo vessels transiting the Black Sea.

Ukraine’s sea denial efforts offer no help in escorting these vessels or otherwise reducing the perceived risk and, in some ways have enhanced it. Pushing the Russian Black Sea Fleet out of the immediate environs of the Ukrainian coast has had the odd effect of causing Russia’s blockade to expand from a close blockade to one that covers essentially the entire Black Sea minus the territorial waters of the three NATO nations there. And laying defensive mines might have prevented a Russian amphibious assault on Odessa, but has added to the perceived risk to shipping while also allowing political cover for Russia to lay its own mines.

Second, a flag of convenience is no more than that: convenient, until it no longer is. After the Şükrü Okan incident in August, Türkiye waited several days before issuing a warning to Moscow about the boarding of the Turkish-owned and operated ship, with President Erdoğan stating that it was a matter for the flag state.15 An important duty of a flag state is to provide security to vessels on its registry and represent vessel owners’ interests in freedom of the seas on the international stage. Except for a few brief and very localized exceptions, this has not been an important consideration since the end of World War II, though Houthi actions in the southern Red Sea seem to be changing this calculus. None of the world’s leading flag states of convenience—not Liberia, Panama, Marshall Islands, or even Malta—are in much of a position to actively defend their merchant vessels, or even to apply any meaningful diplomatic pressure on a state aggressor as Russia has become in the Black Sea. It is not likely that President Putin will bat an eye at a protest filed by Palau in either the International Maritime Organization (IMO) or UN General Assembly. It is equally unlikely that the Russian Federation Navy would have chosen to board a ship flagged to a NATO member nation or, say, China at this stage of the conflict. Since vessel owners and operators, like the Turkish owners of the Şükrü Okan, cannot count on the support of their own governments when they choose a flag of convenience, it will be interesting to see if they, as the conflict at sea continues, or even expands, reconsider their choice of flag, perhaps preferring one with the naval and diplomatic might to protect their ships.

Third, a blockade no longer requires “effective enforcement”16 to be effective. Apparently, a single boarding, in which the boarded vessel was allowed to proceed, coupled with a few floating mines, is enough to warn off other neutral ships from heading to Ukraine, thereby allowing Russia’s “distant blockade” to expand across the entire Black Sea even while much of the Black Sea Fleet is now holed up in Novorossiysk. It may be a “paper blockade” but that seems to be enough in this conflict.

Fourth, the reason such limited means can produce so effective a blockade is that insurance considerations drive risk assessments in shipping. This is especially true in the Black Sea. Increased war risk premiums during the heyday of Somali piracy did not greatly affect traffic through the Gulf of Aden for a variety of reasons, mainly that relatively few ships of the total traffic through the area were actually attacked and there was no economically alternative route. Instead, the shipping industry and the international community adapted their behavior to increase security and deter attacks. During World War II, though merchant crews obviously faced great physical risk, governments assumed almost all the financial risk for ship and cargo loss (many of the ships and most of the cargo being government owned). The calculus appears to be different in the Black Sea: shipping grain does not offer a profit substantial enough to offset the war risk costs, maritime trade union concerns, and potential losses to either seizure or sinking. Merchant ship operators will begin carrying large quantities of Ukrainian grain when it again becomes profitable.

April 10, 2023 – Bulk carrier ARGO I docked at the grain terminal of the port of Odessa, Ukraine. (Photo via Bo Amstrup/AFP/Ritzau Scanpix)

Finally, the key to pushing Russian control of the Black Sea back towards the Russian coast lies with Türkiye. In the first place, Türkiye is a naval power in its own right and, should it come to it, is fully capable of taking on the Russian Black Sea fleet on more than equal terms. The Turkish fleet is in the best position to reassert control over, at the very least, the southern Black Sea including, for lack of a better demarcation, Türkiye’s EEZ17, and it is Türkiye, as a maritime nation, that has the greatest direct interest in doing so. Second, Türkiye’s control of the entrance to the Black Sea makes it the most important partner for those nations who wish to increase non-Black Sea naval presence there. In recognizing this, one must also recognize that the Montreux Convention, as it currently stands, serves Türkiye’s interests and Türkiye is unlikely to want to renegotiate it: any actions by non-Black Sea states will have to be in accordance with Montreux. Third, Türkiye, more than any other NATO Nation, has both working diplomatic relationships and economic ties (such as TURKSTREAM) with Russia that could allow for useful dialog with respect to Black Sea maritime control but which could also complicate such dialog.

The Way Ahead

Is there anything to be done about this situation? A variety of suggestions have been made, from establishing convoys of merchants ships through the blockade—and mine-infested—zone escorted by NATO’s Standing Naval Forces, to getting Russia to end the conflict. The former suggestion was soundly refuted by RUSI18 on the grounds that the economic/insurance considerations, the Montreux convention, and the nature of the current threat would make such escort impracticable to maintain and not very effective; the latter is clearly a pipedream—until Russia is ready to end the conflict, whether because Russia has achieved all its aims or because it has been defeated, the conflict will go on. So the question really becomes, what constraints is the rest of the world willing to accept on freedom of navigation in the Black Sea and what can they do to push back against the ones they don’t accept.

Here are some practical suggestions, arranged more or less from least to most provocative to Russia, and thereby in order of what would take the most backbone to implement.

First, improve maritime domain awareness (MDA) of the region. A September symposium in Greece highlighted the deficiencies in Black Sea MDA.19 While it is highly probable that no Russian surface ship or submarine of the Baltic fleet gets underway without being actively tracked by one or more NATO nations, and the same is likely true in most cases for the Northern fleet, this probably cannot be said for Black Sea assets. When a Black Sea Fleet Kilo-class submarine leaves Sevastopol and submerges, it is most likely immediately lost to sight until it returns. Improved MDA would allow for greater analysis of trends and recognition of changes in the situation sooner, such as new threats (recently laid mines) or evolution of broader diplomatic conditions (e.g. identifying what changed to make Russia no longer want to participate in the grain deal). It would also allow for better enforcement of sanctions on Russian oil, tracking of individuals of interest, and detection of Russian gray zone maritime operations.

Second, maritime air patrol should be enhanced. There is a significant shortfall of MPA assets and actual patrols over the Black Sea. Of the NATO Black Sea nations, only Türkiye has an MPA component. NATO AWACS aircraft have been reported operating over Poland along the Ukrainian border but not over the Black Sea. There is also reporting that US MPA aircraft are conducting missions over the Black Sea, but it is not clear with whom the information gathered is being shared.20 More MPA coverage would contribute to freedom of navigation, enhanced MDA, intelligence collection, and order of battle development.

Third, governments interested in supporting Ukraine’s ability to export grain should subsidize war risk costs. While subsidies to shipping to offset increased insurance and other war risk costs would not reduce the physical risk to crews or ships, they could make the carrying of Ukrainian grain more attractive. With the end of the Black Sea Grain Initiative, Ukraine began offering subsidies for this purpose but it remains to be seen if this, combined with the new Lloyd’s deal, will be enough to offset costs adequately or if it will be financially sustainable for Ukraine or the insurers over the long term.21

Fourth, ship owners should consider reflagging their grain ships to registries that can offer naval protection and diplomatic gravitas. Palau, like Liberia or Panama, may not be in a position to impede Russian interference with ships of their registry, but all NATO nations are. Russia would need to be willing to risk significant escalation if it wanted to board, say, a German-flagged bulk carrier 30 miles out from the Istanbul Straight. It is not necessary to escort merchant ships—and probably not particularly effective as long as the main threat remains mines22—when the flag carries the weight of Article V with it. It may even be worth considering employing (appropriately-flagged) government-owned ships in the trade, which could also contribute to avoiding war risk costs.

Ship operators should harden merchant ships to prevent boardings. The world’s maritime polity learned a great deal about preventing boardings during the days of Somali piracy and many of the steps developed under “Best Management Practices”23 would serve equally well in repelling unwanted boardings in the Black Sea. Shipping operators or flag states may even wish to embark security teams, generally considered the most effective means at preventing piracy attacks. It is highly unlikely ship owners would choose to do this, but the possibility that a boarding could be opposed would force Russia to determine how far they want to go the next time they attempt a boarding. Is the Russian Navy really willing to sink a neutral flagged merchant ship with naval gunfire?

Navies should be conducting freedom of navigation operations (FONOPS) in the Black Sea. Neutral nation warships, and especially NATO Nation warships, whether under NATO or national operational control, should be operating and patrolling in all the international waters of the Black Sea. There is no legal or diplomatic reason why a group of neutral frigates should not be conducting routine exercises 20 nautical miles off Novorossiysk or shadowing every Russian Federation Navy ship that leaves Russian territorial waters. While the three Black Sea NATO nations are fully capable of this,24 the diplomatic effect would be greater if there were non-Black Sea-based ships involved, even if just a token and occasional involvement. Diplomatic work with Türkiye should focus on allowing non-belligerent warships into the Black Sea in accordance with Montreux for this purpose. FONOPS is a much better use of surface assets than convoy escort given current conditions in the Black Sea. Aircraft can do FONOPS too.

And, obviously something will need to be done about mines. The recent agreement among the Bulgaria, Romania, and Türkiye to create a mine-countermeasures task group is welcome news on this front.25

Many would argue that these steps are provocative and risk escalating the conflict in Ukraine.26 No one wants a World War III, but the simple fact is that it is up to Russia whether or not to start one by firing on NATO warships, or NATO nation-flagged merchant vessels. Excessive worry about provocation should not hinder warships of neutral or non-belligerent nations from operating wherever in international waters their governments should wish or from ensuring the free flow of goods to the world’s markets in accordance with established international law. Operating in international waters is no more an act of aggression than it is to walk down a dangerous alley at night ready for the worst. Such operations may well complicate operational freedom of movement and rules of engagement for the Russian Black Sea Fleet, for surely they wish to avoid unintended escalation as well, but not conducting them simply makes it excessively easy for Russia not to have to account for such possibilities in planning and executing its naval operations. And there is no reason to make it easy for Russia—especially when doing so cedes effective control over this important maritime space and hurts the world’s economy.

But principle is an even stronger argument for wresting back maritime dominance in the Black Sea from Russia: the principle of freedom of the seas, of the free flow of goods, and of the schoolyard principle that a bully shouldn’t be allowed to get away with it. And, of course, the principle of sea power. Every violation of UNCLOS, every loss of international access to any body of water, every impediment by force of arms to free trade hurts the sovereignty of other nations and chips away at the post-war international order that benefits the free countries of the world. The reason navies exist is to keep the seas open for the benefit of their citizens, but navies have to be willing to go into harm’s way to do so. For all of history, from the Peloponnesian War, through both world wars, to the Falklands conflict, war has been decided by sea power. The Ukraine War is no different. Russia appears to recognize this. Will the rest of the world?

Chuck Ridgway is a retired US Navy surface warfare and reserve Africa foreign area officer. After leaving active duty, he worked for ten years as a NATO international civilian at the NATO Joint Analysis and Lessons Learned Centre in Portugal. Since then he has consulted with a variety of organizations, including One Earth Future Foundation’s Oceans Beyond Piracy and Stable Seas programs, the United Nation Office of Drugs and Crime’s Global Maritime Crime Program, and the US Defense Security Cooperation Agency’s Institute for Security Governance. A native of Colorado, he lives in Denver. This is his first piece for CIMSEC.

References

1. https://eurasianet.org/erdogan-plea-nato-says-black-sea-has-become-russian-lake

2. Midrats Podcast, Episode 662: Grain, Oil and the Unfreeing of the Seas, 23 July 2023

3. https://www.nato.int/cps/en/natohq/news_217835.htm

4. https://www.lloydslist.com/LL1145965/Russia-warns-that-ships-heading-to-Ukraine-are-now-a-military-target

5. https://www.stripes.com/branches/navy/2023-08-21/black-sea-russia-ukraine-turkey-us-navy-11114380.html

6. See Fraunces, M. G. (1992). The International Law of Blockade: New Guiding Principles in Contemporary State Practice. The Yale Law Journal, 101(4), 893–918, and https://lieber.westpoint.edu/russia-ukraine-war-naval-blockades-visit-search-targeting-war-sustaining-objects/ for discussions of the legal principles of modern blockades and an interpretation of Russia’s blockade of Ukraine.

7. It is debatable if NATO Nations can be considered strictly neutral in the Ukraine conflict, given that nearly all of them are providing war material to one of the belligerents.

8. https://lieber.westpoint.edu/russia-ukraine-war-naval-blockades-visit-search-targeting-war-sustaining-objects/

9. Commander’s Handbook on the Law of the Sea, § 7.2.1 (https://usnwc.libguides.com/ld.php?content_id=66281931)

10. https://www.reuters.com/world/europe/ukraine-alternative-black-sea-export-corridor-is-working-despite-attack-2023-11-09/

11. https://apnews.com/article/russia-ukraine-war-freighter-odesa-9f87d96cc6064094463fd2ecb0828b36

12. https://www.reuters.com/business/marsh-lloyds-launch-ukraine-war-risk-ship-insurance-cut-grain-costs-2023-11-15/

13. https://www.usnews.com/news/world/articles/2023-10-26/ukraine-suspends-new-black-sea-grain-corridor-due-to-threat-from-russian-warplanes-consultancy

14. https://maritime-executive.com/article/ukraine-marks-shipping-milestone-as-imo-pledges-more-assistance

15. https://www.arabnews.com/node/2356936/middle-east and https://turkishminute.com/2023/08/18/analysis-putin-navigated-dangerous-water-test-turkey-red-line/

16. Fraunces, M. G. (1992), page 897.

17. https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/RUS-TUR1987EZ.PDF

18. https://rusi.org/explore-our-research/publications/commentary/how-can-nato-overcome-russias-black-sea-blockade

19. https://geetha.mil.gr/diexagogi-synedrioy-maritime-domain-awareness-in-the-black-sea-sto-kenap-nmiotc/

20. US Navy P-8As are evidently “providing security” to vessels using the Ukraine Grain Corridor (https://www.i24news.tv/en/news/ukraine-conflict/1690835345-ship-sailing-from-israel-becomes-the-first-to-break-russia-s-grain-blockade) and there is reporting that they have also provided targeting information to Ukrainian forces (https://news.usni.org/2022/05/05/warship-moskva-was-blind-to-ukrainian-missile-attack-analysis-shows)

21. UATV Report: “Russia’s Grain Manipulations Failed: Ukraine’s Grain Corridor Resumed Operating Despite Threat”; https://www.youtube.com/watch?v=YLY9-k96CuU

22. If Kalibr missiles start flying into the sides of merchant ships at sea, the need for escorts obviously changes, as would many other aspects of this conflict.

23. https://www.ics-shipping.org/publication/bmp5/#:~:text=Piracy%2Dspecific%20Best%20Management%20Practice,and%20other%20maritime%20security%20threats.

24. Information on where the Turkish Navy operates, in what strength, and if these patrols contribute to NATO-wide MDA, intelligence collection or deterrence is not publicly available.

25. https://www.tagesschau.de/ausland/europa/seeminen-schwarzes-meer-100.html

26. Some, but not all, of these steps may be included in the U.S. State Department’s work on a Black Sea security strategy. For example, in testimony before the U.S. Senate Subcommittee on Europe and Regional Security Cooperation, James O’Brien, U.S. Assistant Secretary, European and Eurasian Affairs, stated that enhanced maritime air patrol had not been considered (https://www.foreign.senate.gov/hearings/assessing-the-department-of-states-strategy-for-security-in-the-black-sea-region). Publicly available information on this strategy and other efforts directed by the Black Sea Security Act (2024 U.S. National Defense Authorization Act § 1247) is still too vague to allow speculation on what specific actions could be taken.

Law of Warfare

Rules of Engagement and Undersea Incursions: Reacting to Foreign Submarines in Territorial Waters

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This article is part of a series that will explore the use and legal issues surrounding military zones employed during peace and war to control the entry, exit, and activities of forces operating in these zones. These works build on the previous Maritime Operational Zones Manual published by the Stockton Center for International Law predecessor’s, the International Law Department, of the U.S. Naval War College. A new Maritime Operational Zones Manual is forthcoming.

By LtCol Brent Stricker

“We have attacked, fired upon, and dropped depth charges on a submarine operating in defensive sea area.”–USS Ward (DD-139) December 7, 1941, Pearl Harbor, Hawaii.

Submerged foreign submarines in a nation’s territorial sea pose a unique situation that is inconsistent with the rule of innocent passage. Under certain circumstances, their concealed presence without the consent of the coastal state could be considered a threat to the territorial integrity or political independence of the coastal state. A modern submarine fulfills its peacetime mission and combat role while submerged. If the coastal state detects a submerged submarine in the territorial sea, it is faced with a dilemma on the appropriate measures that can be used to force the submarine to surface or leave the territorial sea. The recent sabotage of the Nord Stream pipeline and the vulnerability of the world’s vast subsea network of electricity and network cables highlights the danger posed by unknown submersibles.

Norway and Sweden have faced this problem for more than 50 years from suspected Soviet and later Russian submarines. Both countries have used warning shots in an attempt to signal the submerged contacts to surface or leave the area. Use of explosives in this manner, however, could be misinterpreted as an attack on the submarine. Balancing the protection of territorial sovereignty with avoiding escalation poses a predicament.

Innocent Passage

All ships, including warships, enjoy the right of innocent passage through the territorial seas of a coastal state without prior notification or consent. This rule was discussed in detail in the Corfu Channel case before becoming codified in the United Nations Convention on the Law of the Sea. The Corfu Channel is a narrow passage between Albania and the Greek island of Corfu. The United Kingdom’s Royal Navy was confronted by Albanian coastal artillery fire when transiting the channel in May 1946. In October 1946, two Royal Navy destroyers transited the channel while at action stations to be prepared to respond to coastal artillery fire or other threat posed by the Albanians. These destroyers struck naval mines laid in the channel. As a result, in November 1946, the Royal Navy conducted minesweeping operations to clear the channel.

The United Kingdom brought a case against Albania in the International Court of Justice seeking reparations for the loss of life and damages to its warships. The ICJ upheld the Royal Navy’s right of innocent passage through Albanian territorial waters, rejecting Albania’s arguments that the ships were not in innocent passage because they were sailing in formation and the sailors on board were at action stations. Rather, the Court found that sailing in formation and running at action stations were appropriate defensive measures. The Court found that the minesweeping operation was inconsistent with innocent passage and a violation of Albanian sovereignty, rejecting the British arguments that this was a measure of “self-protection.” Corfu Channel illustrates how innocent passage may include defensive measures. The case has long presented a conundrum because it determined that states are entitled to innocent passage, yet are restrained from taking defensive action, such as minesweeping, to exercise their right.  

Innocent passage is governed by the United Nations Convention on the Law of the Sea (UNCLOS). Norway and Sweden are signatories to UNCLOS, and the United States, while not a signatory, recognizes much of it as customary international law. UNCLOS codified the right of innocent passage in Articles 17-21. Innocent passage must “not be prejudicial to the peace, good order, or security of the coastal state.” A foreign vessel’s passage is not innocent if its actions constitute “any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State.” A special provision for submarines, Article 20, requires submarines engaged in innocent passage to “navigate on the surface and to show their flag.”

A coastal state that discovers an unknown submerged contact in its territorial sea is faced with a dilemma. Examples from Norway and Sweden of submerged contacts lingering in their territorial waters are inconsistent with the definitions of both passage and innocent passage. The coastal state, under Article 25 of UNCLOS, may “take the necessary steps in its territorial sea to prevent passage which is not innocent.” There is no agreement on exactly what steps are deemed necessary. Furthermore, these measures are limited when applied to sovereign immune warships. Thus, while an unknown submerged contact is not exercising innocent passage, it is unclear what measures a coastal state can apply to exercise its rights under Article 25. Articles 30 and 31 of UNCLOS allow a coastal state to require the submerged contact to leave its territorial sea and places liability for any damages on the flag state of the submerged contact. Armed force against an unknown submerged contact, however, may only be used in self-defense under Article 51 of the UN Charter. In most cases, use of force would not be justified simply because the submarine is submerged or refuses to surface and the mere presence of the submarine does is not tantamount to an “armed attack.” This determination is complicated when the submerged contact’s intensions cannot be ascertained.

Norway

Norway has been dealing with suspected intrusions by foreign submarines for more than 50 years. These contacts in Norwegian fjords are difficult to track due to the mixing of fresh water runoff and salt water in the fjords which can provide cover for submarines from sonar detection. Acoustic detection is complicated by the fjord’s subsurface structure, currents, and civilian surface traffic. For two weeks in November 1972, Norwegian vessels aided by Norwegian and British aircraft attempted to locate and force to the surface an unknown underwater contact, believed to be of Soviet or Warsaw Pact origin, in the Sogne Fjord using depth charges. Hand grenades and then depth charges were used to signal to the underwater contact to surface. Ultimately, the Ministry of Defense was given permission to sink the contact if it did not surface and identify itself.

For the Norwegians to use force against the unknown submerged contact, they would need to articulate how an otherwise benign submerged vessel posed an imminent threat that would justify the use of force in self-defense. Violating Article 21 of UNCLOS in and of itself does not constitute such a threat of imminent attack, even if the submarine is engaged in an intelligence or reconnaissance mission. Such a mission may be illegal under Norway’s domestic law, but it does not imply an illegal use of force, let alone an armed attack.

In limited situations, the location and duration of the unknown submarine in territorial waters could be considered as a threat, as noted in the radio transmission of the USS Ward when it engaged an unknown submarine in a defensive sea area. The Norwegians would be more concerned by the location of the unknown submersible if it were in such an area or in close proximity to another sensitive military exercise or base. The longer the submarine remained at depth, the greater potential one might consider it laying in wait to attack. Nonetheless, the Norwegians employed an escalating use of force in 1972 with attempts to signal with hand grenades and ultimately culminating with firing anti-submarine missiles at the suspected target. The Norwegians were ultimately unable to force the contact to the surface, identify it, or sink it.

Norwegian experiences with unknown submarine contacts continued over the decades. The official Norwegian policy on the use of force remained somewhat ambiguous. In 1983, Brigadier Asbjorn V. Lerheim stated on the use of force, “It is a tough decision, it is still peacetime, and you can’t really destroy a submarine . . . it is not an attack on Norwegian soil.” Norway seems to have adopted a set of measures to escalate the use of force against these intrusions. The first measure is to signal the submarine to surface. If the submarine complies, it would be taken under escort. If not, depth charges would be dropped within 300 meters from the submarine with a two-minute interval to indicate this was a signaling measure, not an attack. If this failed to surface the submarine, Norwegian captains were authorized to attack with depth charges, but torpedoes were prohibited in the attack because of the potential of catastrophic damage to the boat and loss of the entire crew. It is speculated that the anti-submarine missiles fired in 1972 used homing devices and proximity fuses and were not a real attempt to hit the submarine.

Suspected Soviet incursions into Norwegian territorial waters continued as late as 1990. Norwegian authorities received reports of suspected submarines in the summer of 1990 at Skipton, a Norwegian bay twenty-five miles from the Russian border. The area was put under surveillance when, in November 1990, a mini-submarine was observed briefly on the surface. The sea floor was examined and a series of tracks were found that indicated a submersible crawler had been deployed. Similar tracks were discovered elsewhere in Sweden and Norway near military installations. The Soviet Northern Fleet possessed such miniature submarines at the time. It was speculated that the miniature submarine was launched from a nearby mother ship to conduct a Spetsnaz training or reconnaissance mission.

As late as 2021, Norway was subjected to an undersea intrusion by unknown submersibles. The Norwegian Institute of Marine Research operates a network of undersea sensors in northern Norway to monitor the marine environment. It can also be used to monitor submarines in the area. These sensors are interconnected by a series of fiber optic cables. In April 2021, it was discovered that 2.5 miles of fiber optic cable had been cut and stolen. Several of the sensors had been tampered with and moved. The reason for the intrusion is speculative but includes the potential for reverse engineering.

Sweden

Like Norway, Sweden has been troubled by intrusions of foreign submarines in its territorial waters for a similar period of time. Unlike Norway, Sweden has actually caught one submarine on the surface in the infamous “Whiskey on the Rocks” incident in 1981. This incident noted increased intrusions throughout the 1980s that have continued as late as the 2010s. To date, the Whiskey is the only foreign submarine caught on the surface in Swedish territorial waters.

On October 27, 1981, a Soviet Whiskey class submarine, the U-137, was found grounded on a rock in Swedish territorial waters. The Whiskey was an early Cold War diesel electric submarine, not a nuclear-powered submarine. The Swedish Navy contacted the submarine’s captain, Captain Second Rank A. M. Gushchin, who claimed a navigational error. Captain Gushchin claimed he thought he was 20 miles off the Polish coast when the collision occurred. This claim is rather dubious considering the submarine had transited submerged through a “perilous series of narrow straits infested with rocks and islands” before the grounding. The submarine’s grounding within ten kilometers of the Swedish naval base at Karlskrona while a major naval exercise was being conducted was certainly not just a coincidence brought about by a navigational error. Upon inspection, Swedish officials found no problems with the boat’s navigational equipment and noted its logbook had been altered.

The boat remained grounded for eleven days while the Swedish authorities inspected the submarine and questioned the captain. The Soviet Union responded by sending a flotilla of warships that stayed just outside Swedish waters. The Swedish Prime Minister made a shocking announcement on November 5, 1981, that the submarine was suspected of carrying nuclear weapons. The Swedish government made demands to the Soviets before releasing the submarine. However, weather intervened and Sweden released the submarine before these demands were met. The submarine was exposed to gale force winds and was listing 17 degrees. Swedish authorities were concerned that the boat’s battery acid could spill and cause a fire or release chlorine gas that could kill the crew. Swedish authorities stopped the captain’s interrogation and boat inspection, refloated the boat, and the submarine left on November 6, 1981.

Following this incident, the Swedish government released the Submarine Defense Commission Report in 1983, which detailed the history of foreign submarines intruding into Swedish waters. Prior to the Whiskey incident, and even subsequently, critics had claimed these submarine scares were an excuse to increase the Navy’s budget. The report detailed how foreign submarines entered Swedish waters typically one to two times a year in the 1970s before a dramatic increase during the 1980s. These incursions were concentrated around naval facilities such as coastal defense points, ports, sensor networks, and minefields.

The Report and increased submarine intrusions led to a change in Swedish Rules of Engagement (ROE) applicable to submarine contacts. Prior rules prohibited a commander from firing on an unknown contact without authorization from the civilian leadership. The Swedish Navy was only allowed to make contact with the submarine to identify it and escort it out of Swedish waters. The new ROE allowed the submarine to be fired upon without warning. Initially, warning shots were to be used, either through the employment of depth charges or missiles. The ROE were intended to prevent the damage or destruction of the submarine, but the ROE made a distinction on the location and behavior of the contact. If the submarine was located in Sweden’s outer waters, these are waters beyond the internal archipelago to the 12-mile limit, it would be warned and escorted out. If the submarine was found in internal waters, these are waters of Sweden’s internal archipelago, and refused to leave or proceeded further, it could be treated as hostile and force designed to damage or destroy the submarine could be used.

The Swedish ROE may have contributed to their inability to force submarines to the surface. If they employed depth charges or other devices with an eye toward avoiding damaging the detected submarines, the submarines could simply ignore these attempts. There is evidence that the Swedish ASW may have damaged a submarine. In the summer of 1988, eight pieces of unknown foreign submarine rescue equipment were recovered in the Stockholm archipelago. Similar equipment had been recovered in the 1970s and 80s.

The Swedish Navy continued to deal with foreign submarines intruding into Swedish waters throughout the 1980s. The government stopped providing statistics on these incursions in 1987. Subsequent reports have been vague in their descriptions. This may be to avoid highlighting their inability to stop or deter these incursions.

There is evidence that these incursions did occur. The Swedish Navy noted that these incursions have become more sophisticated with the use of multiple submarines, miniature submarines, and divers. The evidence for these incursions comes from sightings, sonar, and magnetic detection from Swedish sensor networks. There has also been evidence of keel marks and track marks on the sea floor similar to the Norwegian miniature submarine event noted above.

The miniature submarines may have also allowed military forces to surreptitiously land on Swedish territory. Between 3 to 6 March 1984, Swedish forces fired at swimmers on the island of Almo. The island was searched and food caches were located. The Swedes have also noted attacks on their “submarine nets, break-ins ashore, to the disruption and destruction of underwater mine lines.” In one case, they were blamed for the theft of a naval mine. Most shockingly, in 1985 fisherman pulled a drowned swimmer up in their nets. The nets had been placed illegally near a naval mine. It is presumed the diver was scouting the mine when he became entangled and drowned. The fisherman did not recover the body and abandoned their nets. When Swedish authorities investigated, the body had been cut out of the net and removed by unknown persons.

Conclusion

This historic submarine incursions remain relevant today, particularly considering heightened tensions from the Russian invasion of Ukraine and the recent application of Finland and Sweden to join the North Atlantic Treaty Organization. Much like the Norwegian fjords, the Swedish archipelago would be an area for these submarines to operate. The reasons for the incursions remain relevant today for any NATO-Russian conflict whether it be to conduct reconnaissance or the insertion of Special Forces. If there is a repeat of one of these Cold War examples such as a stranded submarine like the Whiskey, or more concerning, NATO forces hunting a submarine contact, the consequences could be manifold. First, NATO forces chasing a submarine contact trying to force it to surface might be viewed as an attack on the submarine. The use of explosives to signal a submarine might accidentally damage it or injure the crew. These signals could be misinterpreted as an attack allowing or even requiring a submarine to respond in self-defense. Second, any hostilities in territorial waters directly implicates the collective self-defense clause of Article 5 of the North Atlantic Treaty.

The conduct of Russian submarine espionage in the territorial seas of its neighbors presents one of the greatest challenges to avoiding conflict in the Baltic Sea. These incidents reveal the gap between the law of the sea and the use of force in self-defense against an armed attack. The Nordic coastal states must walk a fine line between protecting their territorial integrity and avoiding escalation of an incident that might quickly spin out of control.

LtCol Brent Stricker, U.S. Marine Corps, serves as the Director for Expeditionary Operations and as a military professor of international law at the Stockton Center for International Law, U.S. Naval War College. The views presented are those of the author and do not necessarily reflect the policy or position of the U.S. Marine Corps, the U.S. Navy, the Naval War College, or the Department of Defense.

Featured Image: Russian Kilo-class submarine in the English Channel. (UK Ministry of Defence photo via Wikimedia Commons)

Strategy

Maritime Order and America’s Indo-Pacific Strategy

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By Dr. Patrick M. Cronin

America as a Seapower

The United States is a “seapower” in all senses of the word. Its history, prosperity, and security are inseparable from the oceans. Even U.S. states without coastlines depend on global supply chains and markets that move primarily through the oceans.

The United States neglects its Navy at its peril. But military power must be accompanied by other types of power, both hard and soft. In his analysis of five maritime great powers, Professor Andrew Lambert explains how might and identity derive not exclusively from naval power, but also from the aptitude for using the seas cooperatively.1 The crucial distinction between seapowers and more insular continental powers is the art of perpetuating profitable economic and political ties with others. “A seapower, the ancient Greek thalassokratia,” writes Lambert, “was a state that consciously chose to create and sustain a fundamental engagement between nation and ocean, from political inclusion to the rule of law, across the entire spectrum of national life, in order to achieve great power status.”2

The oceans are not just the cradle of life, but vital arteries to tomorrow’s world centers of power. The continuous body of water that facilitates 90 percent of global trade and comprises about 72 percent of the Earth’s surface joins the United States with two major oceans and connects it to the dynamic Indo-Pacific region where the majority of twenty-first century wealth, trade, and population are concentrated.3

Because America’s peace and well-being depend on unhampered access and use of the oceans, order at sea is indispensable for U.S. global strategy and its vision of preserving and adapting a “free and open Indo-Pacific,” the Trump administration’s vision for an expanded regional policy announced during the president’s first trip to Asia.4

The post-World War II international system enshrined the idea of “freedom of the high seas” in the 1945 United Nations Charter.5 Postwar challenges to commercial and military freedom of navigation, however, demanded further protection.6

In the midst of the Cold War, both Western and Eastern blocs along with nonaligned nations came together to support the multilateral negotiations that resulted in the 1982 UN Convention on the Law of the Sea (UNCLOS). The Third United Nations Conference on the Law of the Sea does not conform with the revisionist notion that the United States imposed its rules on others.7 Instead, as Singapore Ambassador Tommy Koh, who later served as president of the conference, put it, “You will find countries allied here that you will not find working together in any other international forum, such as Mongolia and Swaziland, or Jamaica and Iraq.”8 As U.S. Ambassador John Norton Moore said, freedom of navigation is the original “common heritage” of all humankind.9 

From the signing of UNCLOS, the United States accepted all of its provisions as customary international law. The sole exception was Part XI regarding seabed exploration and mining in international waters, outside countries’ territorial waters and Exclusive Economic Zones (EEZs).10 In short, the United States helped to establish international law of the sea, and despite not ratifying UNCLOS, seeks to ensure its relevance, survival, and enforcement.

So, freedom of seas has been and remains essential for all Americans. However, maritime order is increasingly at risk and from both traditional and nontraditional threats. A critical question is whether we can sustain freedom of the seas into the future.

Rising Challenges for Maritime Order

Maritime order is a larger concept than maritime security. The maritime domain is defined as “all areas and things of, on, under, relating to, adjacent to, or bordering on a sea, ocean, or other navigable waterway including all maritime-related activities, infrastructure, people, cargo, and vessels and other conveyances.”11 Although security is the sine qua non for order, there is a symbiotic relationship between freedom of navigation on the oceans, for instance, and sustainable coastal communities where almost two-thirds of the world’s mega-cities are situated.12

There are at least four significant challenges to maritime order broadly conceived: over the international rules governing maritime behavior; from pirates, terrorists, traffickers, and other non-state actors and transnational criminal organizations; from mounting human exploitation of ocean resources; and from natural disasters and climate change. This essay focuses on the first but touches on all four risks, as a comprehensive policy for maritime order requires addressing the full panoply of challenges.

First, the seas are at risk from a growing competition over international rules and rule-making.

Revisionist major powers like Russia and China, but also regional states such as Iran and North Korea, increasingly pose challenges to traditional maritime security. Iran’s shootdown of a U.S. surveillance drone in international airspace constitutes a direct threat to freedom of navigation and overflight around the globe and could lead other aggressors to miscalculate by challenging the U.S. interpretation of international law.13 

In the Indo-Pacific, the most pressing challenge to existing maritime rules and norms is being posed by China.14 For example, China’s willful disregard of the 2016 international arbitral tribunal judgment regarding the South China Sea is a direct assault on the postwar system and UNCLOS, the so-called constitution of the oceans.15

But brushing aside awards handed down from The Hague is not the only challenge to postwar maritime order. Revisionist powers are challenging accepted rules and norms in various ways. Reckless behavior at sea that endangers other ships is a direct violation of the 1972 International Regulations for Preventing Collisions at Sea (COLREGs).16 Yet in early June 2019, a Russian destroyer deliberately endangered a U.S. guided-missile cruiser, USS Chancellorsville, an incident that occurred on the heels of an unsafe air maneuver by a Russian fighter jet against a U.S. patrol aircraft.17 Chinese ships and aircraft have periodically conducted similar dangerous maneuvers to prevent lawful U.S. freedom of navigation and overflight in maritime Asia.18

As with North Korea prior to the signing of UNCLOS, China wants to ignore the right of military freedom of navigation and overflight, as suggested by Beijing’s increasingly assertive behavior toward U.S. and other naval vessels operating peacefully within its Exclusive Economic Zone (EEZ).

The EEZ was designed by UNCLOS negotiators to grant coastal states control over resources adjacent to their coasts; it was not designed to grant sovereignty, which extends only in the 12-nautical mile territorial sea.19 Yet China has repeatedly violated this broadly accepted interpretation of UNCLOS.

From the 2001 incident in which a Chinese fighter jet collided with a U.S. EP-3 aircraft 80 miles south of Hainan Island to the more recent unlawful seizure of an unmanned underwater vehicle (UUV) 50 miles from Subic Bay in the South China Sea, to repeated harassment of Navy Military Sealift Command oceanographic and hydrographic survey vessels, China seeks to alter the rules through provocative actions.20 Admittedly, the issues involving certain types of Marine Scientific Research activities are more complicated (and UNCLOS interpretations have generally become more restrictive of some activities within a coastal nation’s EEZ). China wants it both ways: to preclude any military activities by claiming more limited rights of “peaceful navigation” not derived from UNCLOS within its EEZ, while conducting its own military maneuvers in the EEZs of other countries.21 In addition, while Beijing condemns every U.S. transit with warships, it lavishes praise on its proprietary and state-run mapping and measuring of the South China Sea and world oceans.22 

While states seeking to revise international rules at sea constitute a severe and growing threat to maritime order, there are other acute and chronic challenges.

A second source concerns non-traditional security threats from piracy, terrorism, and illegal trafficking by non-state actors, including transnational criminal syndicates.23  Illegal, Unreported, and Unregulated (IUU) Fishing alone “results in global losses in the tens of billions of dollars each year.”24 The cost and irreparable human and environmental damage of illicit trafficking in people, drugs, wildlife, and other commodities is enormous.

But there is an area where traditional and non-traditional threats such as transnational crime converge: lethal technology. Non-state actors are gaining access to more disruptive and deadly technologies. Acting either alone or as proxies of states, they are likely to pose increased risks to maritime shipping, navigation and overflight. The Houthi rebels who allegedly shot down a U.S. MQ-9 Reaper drone over Yemen and the plausible deniability about attacks on oil tankers in the Persian Gulf in June 2019 suggest how non-state actors could significantly disrupt maritime order in years to come.25   

Thirdly, maritime order in the oceans is at severe risk from a growing global population’s use of the oceans, as we face problems such as massive overfishing. The oceans face multiple stressors, including increased human use of maritime resources as global population approaches an anticipated 9.8 billion people by 2050. As Greg Poling observes, in the South China Sea alone there is “a series of catastrophes piling on top of one another.”26 China’s island-building reclamation was enormously destructive to coral reefs, and a resurgence in giant clam digging is causing additional damage.27 This environmental damage comes on top of overfishing.

Finally, humanity is at greater risk from the seas themselves, including the impact of natural disasters on built-up coastal areas and the effects of climate change.

Littoral regions, where roughly 40 percent of the world’s population lives, are especially vulnerable to tsunamis and rising sea levels. But the entire world is dependent on the oceans in many ways: for instance, 25 percent of all species on the planet are thought to live in the biodiverse tropical coral reefs, even though these reefs comprise less than 1 percent of the Earth’s surface. Sadly, warming oceans resulting from periodic El Niño heat waves are leading to large-scale bleaching and destruction of many coral reefs. Climate change projections suggest most coral reefs may cease to exist by the middle of the century, although some will be able to adapt because of local conditions such as internal waves.28

Faced with all of these risks, we must do more to find ways of cooperating on our maritime commons, while not flinching from protecting both freedom of the seas and the survival of our shared marine environment.

Maritime Order in the Indo-Pacific

Maritime order is indispensable for preserving a free and open Indo-Pacific region. The United States is approaching these issues within the vision for a free and open Indo-Pacific, as most recently described in the June Indo-Pacific Strategy Report.29 Although released by the Department of Defense, the report adopts a comprehensive approach.

The report’s introduction underscores the Indo-Pacific region’s economic centrality for the world and the United States: “The Indo-Pacific contributes two-thirds of global growth in gross domestic product (GDP) and accounts for 60% of global GDP.”30  Moreover, “nine of the world’s 10 busiest seaports are in the region, and 60 percent of global maritime trade transits through Asia, with roughly one-third of global shipping passing through the South China Sea alone.”31 Moreover, with five Pacific states and Pacific territories on both sides of the International Date Line, “America’s annual two-way trade with the region is $2.3 trillion, with U.S. foreign direct investment of $1.3 trillion in the region—more than China’s, Japan’s, and South Korea’s combined.”32 

Despite its significant economic holdings, the United States is worried by powers seeking to unilaterally revise agreed-upon rules and norms, especially in the maritime domain. The U.S. strategic vision sets forth principles congruent with ASEAN centrality and norms, including seeking the peaceful resolution of disputes, supporting a rules-based approach, and expanding cooperation. The goal of the United States is to help independent actors protect their interests while not allowing any one nation to dominate the Indo-Pacific.

At the recent Shangri-La Dialogue in Singapore, concern over the consequential U.S.-China relationship took center stage. Then Acting Secretary of Defense Patrick Shanahan said the United States cannot stand aside when smaller actors face pressure and coercion (and that includes the Cross-Strait issue, too), nor can the U.S. fail to respond when revisionist powers seek to unilaterally change a rules-based system. The Law of the Sea and marine policy are caught up in the larger global resurgence of major power rivalry in which the basic contest centers on rules and rule-making.

However, big powers can pursue what Joseph Nye has called “cooperative rivalry” at sea—a reason why Acting Secretary Shanahan used his one-on-one discussion with his Chinese counterpart, General Wei Fenghe, to advance ideas for cracking down on North Korea’s illicit trading and strengthening mechanisms for avoiding unintended catalytic war.33   

The United States can also benefit from fashioning a larger bipartisan majority around halting IUU fishing—something the Obama administration elevated and which the Trump administration has recently shown stronger support for in the Pacific Islands and in its work with ASEAN. The same goes for the global challenge of slowing climate change and building resilient coastlines and islands.

In thinking about a more integrated approach, the United States should take note of what Taiwan has created. In 2018, Taiwan established a single cabinet-level agency, the Ocean Affairs Council, headquartered in the southern city of Kaohsiung, to help coordinate all policies affecting the oceans, sea-based resources, and the maritime environment.34 To mark this concerted effort to step up its oceans policy, Taiwan hosted a small, international group of scholars to visit Dongsha Island, the northernmost part of the South China Sea which is only an 80-minute plane ride from Taiwan’s second-largest city, Kaohsiung. The inaugural Dongsha International Conference followed, and this author was one of two American participants. In his opening remarks, Ocean Affairs Council Minister Chung-Wei Lee noted that the United Nations has proclaimed the decade beginning in 2021 a “Decade of Ocean Science for Sustainable Development.”35 By hosting the 2019 Dongsha International Conference, Taiwan demonstrated that it, too, is a seapower in its own right, and it should be fully permitted to join in efforts to protect our global maritime commons.36

The United States should also prepare to harness and enhance existing contributions for maritime order—an appropriate priority for a major seapower state like the United States. As the Indo-Pacific Strategy Report makes clear, the United States is in the fourth year of an Indo-Pacific Maritime Security Initiative (MSI) designed to bolster the security of littoral states in Southeast and South Asia, especially near the South China Sea.37 The MSI represents only a portion of the activities the United States is undertaking to ensure that the oceans continue to support prosperity and peace. Existing investments in building a common operating picture, as well as plans to create interoperability and strengthen maritime capacity of regional partners, might be augmented with new public-private partnerships designed to foster the marine science and culture of the oceans which will be required to withstand the myriad challenges to maritime order now and in the future. These extant and new investments in time and money can ensure that future generations enjoy freedom of the seas and a sustainable ocean environment.

The bottom line is that security and maritime order are intertwined, rather than in opposition to one another.

Dr. Patrick M. Cronin is Senior Fellow and Chair for Asia-Pacific Security at Hudson Institute and is available at pcronin@hudson.org.

References

[1] Andrew Lambert, Seapower States: Maritime Culture, Continental Empires and the Conflict That Made the Modern World (New Haven and London: Yale University Press, 2018).

[2] Ibid., p. 323.

[3] “Factsheet: People and Oceans,” The United Nations Oceans Conference, June 5-9, 2017, https://www.un.org/sustainabledevelopment/wp-content/uploads/2017/05/Ocean-fact-sheet-package.pdf.

[4] “Remarks by President Trump on His Trip to Asia,” Whitehouse.gov, November 15, 2017, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-trip-asia/.

[5] James Kraska and Raul Pedrozo, The Free Sea: The American Fight for Freedom of Navigation (Annapolis, MD: Naval Institute Press, 2018).

[6] Ibid., p. 5.

[7] Few revisionists surpass the successful polemics of Noam Chomsky, who sees the United States as the root of all the world’s ills. For instance, see Noam Chomsky, Who Rules the World? (New York: Metropolitan Books, 2016); and for an informed critique of this book, see Adam Lebor, “US vs Them: A One-Sided Attempt to Blame the United States for Everything,” Times Literary Supplement, July 20, 2016, https://www.the-tls.co.uk/articles/private/us-vs-them/.

[8] “’Common Heritage of Mankind’—Interview: Tommy Koh,” Newsweek, September 25, 1978, p. 64, quoted in Vivek Viswanathan, “Crafting the Law of the Sea: Elliot Richardson and the Search for Order on the Oceans (1977-1980),” (Cambridge, MA: Harvard College 2009), p. 30, https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/files/Viswanathan_2009.pdf.

[9] Ibid., p. 4.

[10] Ibid., p. 6.

[11] This definition is used in the U.S. National Security Presidential Directive-41 (NSPD-41)/Homeland Security Presidential Directive-13 (HSPD-13) (Maritime Security Policy, December 21, 2004), quoted in National Plan to Achieve Maritime Domain Awareness for the National Security for Maritime Security (Washington, DC: Department of Homeland Security, October 2005), p. i., https://www.dhs.gov/sites/default/files/publications/HSPD_MDAPlan_0.pdf.

[12] “Factsheet: Climate Change,” The United Nations Oceans Conference, June 5-9, 2017, https://www.un.org/sustainabledevelopment/wp-content/uploads/2017/05/Ocean-fact-sheet-package.pdf.

[13] Some saw the precedent as so dangerous that they advocated proportionate military strikes; see Michael G. Vickers, “To Avoid a Wider War, Iran Must be Deterred with Limited U.S, Military Strikes,” Washington Post, June 21, 2019, https://www.washingtonpost.com/opinions/2019/06/21/avoid-wider-war-iran-must-be-deterred-with-limited-us-military-strikes/?utm_term=.4ab54725dc3e.

[14] For instance, see James R. Holmes, “When China Rules the Sea,” Foreign Policy, September 23, 2015, https://foreignpolicy.com/2015/09/23/when-china-rules-the-sea-navy-xi-jinping-visit/; more authoritatively and recently, see Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2019 (Washington, DC: Department of Defense, May 2019), p. 7-8, passim.

[15] See “In the Matter of the South China Sea Arbitration before An Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China,” July 12, 2016, https://pca-cpa.org/wp-content/uploads/sites/6/2016/07/PH-CN-20160712-Award.pdf.

[16] “Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS),” International Maritime Organization, October 20, 1972, http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/COLREG.aspx.

[17] See Mark D. Faram, “Both Russia and the United States Point the Fingers After Warships Almost Collide,” Navy Times, June 7, 2019, https://www.navytimes.com/news/your-navy/2019/06/07/both-russia-and-us-point-fingers-after-warships-almost-collide/.

[18] For instance, see Brad Lendon, “Photos Show How Close Chinese Warship Came to Colliding with US Destroyer,” CNN, October 4, 2018, https://edition.cnn.com/2018/10/02/politics/us-china-destroyers-confrontation-south-china-sea-intl/index.html.

[19] James Kraska and Raul Pedrozo, The Free Sea: The American Fight for Freedom of Navigation, (Annapolis, MD: Naval Institute Press, 2018), p. 248-249.

[20] Ibid., p. 248-260.

[21] Ibid., p. 261.

[22] China’s propaganda is pervasive on this issue. For instance, see “Chinese Research Vessel Departs for Seamounts in Mariana Trench,” Global Times, May 15, 2019, http://www.globaltimes.cn/content/1150514.shtml; and more generally, “Vision for Maritime Cooperation Under the Belt and Road Initiative,” Xinhua, June 20, 2017, http://www.xinhuanet.com/english/2017-06/20/c_136380414.htm. Meanwhile, China’s surveys of the oceans have specific military implications; see Steven Stashwick, “New Chinese Ocean Network Collecting Data to Target Submarines, The Diplomat, January 2, 2018, https://thediplomat.com/2018/01/new-chinese-ocean-network-collecting-data-to-target-submarines/; and Andrew Greene, “China Increases Surveillance Near PNG Expanding as Australia and US Begin Manus Island Naval Upgrades,” ABC, April 20, 2019,  https://www.abc.net.au/news/2019-04-21/china-increases-surveillance-near-png/11028192.

[23] For instance, see Joshua Tallis, The War for Muddy Waters: Pirates, Terrorists, Traffickers and Maritime Insecurity (Annapolis, MD: Naval Institute Press, 2019).

[24] “Illegal, Unreported, and Unregulated Fishing,” U.S. Department of State, Office of Marine Conservation, https://www.state.gov/key-topics-office-of-marine-conservation/illegal-unreported-and-unregulated-fishing/.

[25] David S. Cloud and Laura King, “Pentagon Accuses Iran of Shooting Missiles at U.S. Drones,” Los Angeles Times, June 16, 2019, https://www.latimes.com/politics/la-na-pol-iran-drone-attack-20190616-story.html.

[26]  “South China Sea Threatened by ‘a Series of Catastrophes’,”PBS Newshour, May 18, 2019, https://www.pbs.org/newshour/show/south-china-sea-threatened-by-a-series-of-catastrophes.

[27] See Viola Zhou, “China Puts a Stop to Commercial Land Reclamation After Damning Environment Reports: But Key Defence and Infrastructure Projects Likely to Get Green Light,” South China Morning Post, January 2, 2018, https://www.scmp.com/news/china/policies-politics/article/2126567/china-puts-stop-commercial-land-reclamation-after; and John W. McManus, “Massively Destructive Coral Reef Damage from Giant Clam Shell Digging in the South China Sea: Birth, Death and Rebirth,” Webinar published on OpenChannels.org, June 13, 2019, https://www.openchannels.org/webinars/2019/massively-destructive-coral-reef-damage-giant-clam-shell-digging-south-china-sea-birth.

[28] Dr. Anne Cohen, Associate Scientist with Tenure, at the Woods Hole Oceanographic Institution, has brought attention to “Super Reefs” that appear poised to be better able to withstand temperature changes than most coral reefs. For an overview of her recent research, see “Super Reefs” on the Woods Hole website: https://superreefs.whoi.edu/quest-for-super-reefs/.

[29] The Department of Defense Indo-Pacific Strategy Report: Preparedness, Partnerships, and Promoting a Networked Region (Washington, D.C.: DoD, June 1, 2019), https://media.defense.gov/2019/May/31/2002139210/-1/-1/1/DOD_INDO_PACIFIC_STRATEGY_REPORT_JUNE_2019.PDF.

[30] Ibid., p. 2.

[31] Ibid., p. 1.

[32] Ibid., p. 2.

[33] Speaking to the press after meeting Iranian President Hassan Rouhani in Tehran, Japanese Prime Minister Shinzo Abe warned of a possible “accidental conflict” breaking out from rising tensions, mutual suspicions, miscalculation, and the possible role of third parties, including non-state actors. See Amir Vahdat, Aya Batrawy and Jon Gambrell, “Japan Premier Warns US, Iran ‘Accidental Conflict’ Possible,” The Washington Post, June 12, 2019, https://www.washingtonpost.com/world/asia_pacific/iran-newspaper-to-japan-how-can-you-trust-a-war-criminal/2019/06/12/d538abc8-8cdd-11e9-b6f4-033356502dce_story.html?utm_term=.aa9d9e1e401d.

[34] See Duncan DeAeth, “Taiwan’s New ‘Ocean Affairs Council’ to be Headquartered in Kaohsiung,” Taiwan News, April 26, 2018, https://www.taiwannews.com.tw/en/news/3415182.

[35] “United Nations Decade of Ocean Science for Sustainable Development (2021-2030),” United Nations Educational, Scientific, and Cultural Organization (UNESCO), 2018, https://en.unesco.org/ocean-decade.

[36] See Lin Chia-nan, “Dongsha Meeting Urges Conservation, Cooperation,” Taipei Times, June 15, 2019, http://www.taipeitimes.com/News/taiwan/archives/2019/06/15/2003716964.

[37] The Department of Defense Indo-Pacific Strategy Report: Preparedness, Partnerships, and Promoting a Networked Security, p. 49.

Featured Image: SANTA RITA, Guam (May 24, 2019) The Arleigh Burke-class guided missile destroyer USS Curtis Wilbur (DDG-54) departs Guam for exercise Pacific Vanguard (PACVAN). PACVAN is the first of its kind quadrilateral exercise between Australia, Japan, Republic of Korea, and U.S. naval forces. (U.S. Navy photo by Lt. j.g. Emily Bull)

Indo-Asia-Pacific

False Assumptions May Lead to Counterproductive U.S. Policy in the South China Sea

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By Mark J. Valencia

In his piece, Mr. Pham “lays out recommended ways and means that Washington can regain and maintain the strategic initiative in the Indo-Pacific.” However many of his recommendations are based on false assumptions and if implemented are likely to be ineffective and counterproductive.

Mr. Pham fears that “years of American acquiescence and accommodation may have eroded the international rule of law and global norms; diminished the regional trust and confidence in U.S. preeminence, presence, and constancy; weakened some of the U.S. regional alliances and partnerships; undermined Washington’s traditional role as the guarantor of the global economy and provider of regional security, stability, and leadership; and perhaps even emboldened Beijing to expand its global power and influence and accelerate the pace of its deliberate march toward regional preeminence and ultimately global preeminence.” But the rapid decline of U.S. soft power in the region is not due as much to “American acquiescence and accommodation” to China as it is to American political arrogance, cultural chauvinism, and a general lack of respect for its allies and ‘friends’ in the region  and their peoples. Its hypocrisy, interference in domestic politics, and support of brutal dictators did not help. It is now beginning to experience the inevitable blowback from this attitude and behavior and its reign as regional hegemon may be coming to an end. It may well eventually be replaced by China in the region, but for Mr. Pham to assert that China will attain “global preeminence” is premature at best. Indeed, if China does not learn from the American experience, it may well repeat its mistakes and suffer a similar fate.

Mr. Pham asserts that “Washington cannot back down now in the SCS. To do so would further embolden Beijing to expand and accelerate its desperate campaign to control the disputed and contested strategic waterway through which trillions of dollars of global trade flows each year…”  He assumes first that China can ‘control’ the South China Sea and two that such ‘control’ would threaten commercial freedom of navigation. But as Ralph Cossa, President of Pacific Forum CSIS, says, there is little to worry about, at least for the U.S. :“The South China Sea is not and will not be a Chinese lake and the Chinese, even with artificial islands, cannot dominate the sea or keep the U.S. Navy out of it.”  According to retired Admiral and former Director of U.S. National Intelligence Dennis Blair, “The Spratlys are 900 miles away from China for God’s sake. Those things have no ability to defend themselves in any sort of military sense. The Philippines and the Vietnamese could put them out of action, much less us.” More to the point, retired Admiral Michael McDevitt of the center for Naval Analyses asks skeptically, “What vital U.S. interest has been compromised? Shipping continues uninterrupted, the U.S. continues to ignore… their requirement for prior approval, our MDT with Manila remains in force…”

Regarding freedom of navigation, Mr. Pham and I have debated this before. I will only reiterate here that the two countries – one a ratifier of the 1982 UN Convention on the Law of the Sea – which elaborates the concept – and one not – differ on what activities are and are not encompassed by the term. China has not threatened commercial freedom of navigation nor is it likely to do so in peacetime. But the U.S. and Mr. Pham cleverly conflate the freedom of commercial navigation with the freedom to conduct provocative intelligence, surveillance, and reconnaissance (ISR) probes and then argues that when China challenges these probes it is violating “freedom of navigation.” Mr. Pham ignores the problem that because the Convention was a “package deal,” non-ratifiers like the U.S. cannot credibly or legitimately  pick and choose which provisions they wish to abide by, deem them customary law, and unilaterally interpret and enforce them to their benefit. This is especially so regarding the EEZ regime which UNCLOS introduces as sui generis, and which –contrary to U.S. military advice given to its naval officers – does have some restrictions on “freedom of navigation.” They include the duty to pay “due regard” to the rights of the coastal state including its marine scientific research consent and environmental protection regimes protecting as well as its national security. Moreover, China and the U.S. disagree on the meaning of key terms in UNCLOS relevant to the freedom of navigation and which are not defined in the Convention. Besides “due regard” these terms include  “other internationally lawful uses of the sea”, “abuse of rights”, “peaceful use/purpose”, and “marine scientific research.” The point is that the UNCLOS “rules” regarding freedom of navigation are not “agreed.” 

Another of Mr. Pham’s major assumptions is that “Washington has a moral and global obligation of leadership to further encourage and challenge China to become a more responsible global stakeholder…” The U.S. is no longer the world’s moral leader – if it ever was – certainly not from the perspective of China and much of Asia – if not the world. Moreover Mr. Pham’s statement reflects the cultural arrogance that has drawn the U.S. into endless wars—and should be disregarded on that basis alone.

These false assumptions are accompanied by several misleading statements. For example Mr. Pham alleges that China broke  “a 2002 agreement with the ASEAN not to change any geographic features in the SCS”,  and “…the 2015 agreement between Xi Jinping and Barack Obama to not militarize these Chinese-occupied features.”

First, the 2002 Declaration on the Conduct of the Parties in the South China Sea (DOC) does not contain such language and Mr. Pham is apparently interpreting its language for his own purposes. His interpretation is not shared by China, Vietnam, Malaysia, the Philippines, and Taiwan. All have altered the features they occupy to some degree since the agreement on the DOC. Second, according to China, President Xi Jinping agreed to no such thing. This statement repeats a biased interpretation of China’s President Xi Jinping statement regarding the “militarization” of the features. The original quote in Chinese was translated into English as “Relevant construction activities that China are (sic) undertaking in the island of South (sic)–Nansha (Spratly) Islands do not target or impact any country, and China does not intend [emphasis added] to pursue militarization.” That is considerably more ambiguous than Mr. Pham’s interpretation. Chinese spokespersons have since implied that if the U.S. continues its ISR probes, exercises, and Freedom of Navigation Operations challenging China’s claims there, China will prepare to defend itself. Given that the U.S. has continued these missions, it should come as no surprise that China has responded as it said it would.

Based on false assumptions, Mr. Pham essentially recommends U.S. military confrontation of China in the South China Sea. Such confrontation could lead to war—on behalf of others’ disputed claims to ownership of tiny features and resources there. That would not be in the core national security interest of the U.S.

Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies.

Featured Image: Vietnam’s flag flies over the fortified Da Tay Islands in the Spratlys Archipelago. (Reuters)