14 May 2021
The United Kingdom, among many other nations, has recently decided to increase their military presence in the Indo-Pacific in face of the security challenges that China has been posing to these Western nations (Sengputa, 2021). The deployment of a Navy fleet of this dimension has notoriously been deployed last in the 1982 Falklands War, demonstrating the importance of this military action and the significant geopolitical challenges that China’s expansion strategy presents.
The UK’s fleet will not only be represented on the surface, as the HMS Queen Elizabeth will be accompanied by an advanced submarine together with significant aircraft support, including F-35 jets. Furthermore, it will have significant weaponry on board, including three Phalanx CIWS (Close-in weapon systems), four 30-mm DS30M Mk2 automatic cannons and six Miniguns. (Naval News, 2021)
The British Navy will be joined by the American Marines and a frigate belonging to the Dutch Navy. (Sengputa, 2021) Britain intends to use this journey not solely to increase its regional presence in the area for defence and security purposes. They also intend to use this expedition to visit the 40 nations along the way and strengthen their political ties and ensure that their economic and trade agenda is well underway (Naval News April, 2020).
As mentioned above, during its journey, the warships will be stopping over the 40 nations along the way, including Japan, India, South Korea, and Singapore (Naval News, April 2021). Many of these nations are currently in legal disputes with the Chinese government over existent land and sea borders (Sengputa, 2021). The UK had also received reports by Japan and Australia over concerns on the encroachment of the independence of Taiwan by China (Aljazeera, 2021). Indeed, China is strongly pursuing its ambitions in the South China Sea as analysts have already predicted that it will attempt to invade Taiwan in the next six years (Hale, 2021). In this vein, China has established a nine-dot-line claiming most of the South China Sea. China firstly justifies its claim on historical grounds, which can be traced back to the Western Han Dynasty. (Mastro, 2021) Secondly, China underpins its entitlement to these territories, including land and sea borders, by claiming that it possesses archipelagic rights derived from the United Nations Conference on the Law of the Sea (UNCLOS). (Mastro, 2021) However, it is doubtful whether international legislation and UNCLOS supports this claim.
Overseas, the UK fleet will participate in a series of NATO drills, including the Exercise Steadfast Defender, as well as assist and reinforce security operations in the Black Sea. Importantly, however, the deployment of a fleet of this dimension to the Black Sea would be contrary to the Montreux Convention and therefore legally inadvisable. These exercises will also demonstrate to China that Britain, as well as other nations, are not standing down in face of legal breaches and are more than prepared to act if necessary.
Regarding the legality of China’s expansion strategy, Beijing has already promoted its territorial claim, arguing that nearly all waters in the South China Sea belong to China. However, the United States refute this claim by saying that there is no coherent legal basis being used by China. (Kato, 2021) There have also been claims that China has been breaching the United Nations Convention on the Law of the Sea (UNCLOS). This legal framework was developed in 1982 with the purpose of stabilizing the economic and security interests of coastal states and larger maritime nations (Lowy Institute, 2021). Article 57 of this Convention states that a country’s territorial water extends 200 miles off its shore, which, once again, undermines China’s plead.
Concerning Britain’s rights to navigate these waters with warships, we can look at the International Maritime Law and the freedom of access to International Waterways. (Kato, 2021) According to Article 29 of UNCLOS, the fleet of navy ships qualify as warships. Additionally, despite that they will roam foreign waters, these warships still enjoy jurisdictional immunities. Indeed, Article 8 and 9 of the Geneva Convention on the High Seas states that warships on the high seas have complete immunity from the jurisdiction of another state. (Geneva Convention on the High Seas). Furthermore, when concerning territorial waters, UNCLOS provides all governmental ships with the right to enjoy innocent passage through other states territorial seas. (UNCLOS, 1982)
In December 2021, the French, together with the American and the Japanese, conducted anti-submarine exercises in the Indo-Pacific. A Japanese Commander legitimised these military drills under the assertion that they contribute to the ‘freedom of the Indo-Pacific’. These actions were based on the rule of law and freedom of navigation (Kato, 2021). Japan has also come to the aid of the Philippines and Vietnam by selling them maritime equipment to secure their land and deter potential Chinese influence (Council on Foreign Relations, 2021). Furthermore, America has initiated operations called ‘freedom-of-navigation’ (FONOPOS) to send a signal to China that the US is not accepting its claim on the South China Sea (Mastro. O. S., 2021). However, the fact that the US has yet to ratify UNCLOS somewhat undermines the success of its plead and particularly limits the available legal tools. China, however, is a party to UNCLOS. (Mastro. O. S., 2021). In 2016, The International Tribunal for the Law of the Sea (ITLOS) in The Hague dismissed China’s claims against the Philippines and judged that the Chinese historical argument lacked legal force and that China’s actions are incompatible with UNCLOS. The European Union has also shown some concern in the area and China’s intentions as it is intended to adopt a Comprehensive European Strategy towards the Indo-Pacific, reflecting further the security challenges posed by China on the West. (Lau & Barigazzi, 2021)
Conclusively, it is important to remain vigilant of China’s actions and to take these seriously. Indeed, China’s encroachment of Hong Kong’s independence has shown the world that Beijing is ready and able to go to great lengths to achieve its expansion goals. Noteworthy as well is that Taiwan has been registered as China’s number one foreign policy priority. In this light, the importance of the presence of other nations, such as the UK, in this region must not be underestimated. From a legal perspective, if China fails to diplomatically resolve these disputes and/or retains from threatening the independence of neighbouring states land and sea borders, then the effectiveness of International Maritime law and, in particular, of UNCLOS, which governs maritime disputes, will be greatly undermined.
Written by Rita BARBOSA LOBO, Researcher at Finabel – European Army Interoperability Centre
Sources
Sengupta, Kim. “HMS Queen Elizabeth to lead carrier fleet to Indo Pacific region over tensions with China.” Independent. April 26, 2021. (online) Available at: https://www.independent.co.uk/news/uk/home-news/hms-queen-elizabeth-carrier-fleet-china-defence-b1837235.html.
Aljazeera. “UK to send Queen Elizabeth aircraft carrier to Japan, S Korea.” (April 27, 2021). Aljazeera. (online) Available at: https://www.aljazeera.com/news/2021/4/27/uks-queen-elizabeth-aircraft-carrier-to-deploy-to-japan-s-korea.
Kato, Masaya (2021). “European Navies build Indo-Pacific presence as China concerns mount.” Nikkei Asia. (online) Available at: https://asia.nikkei.com/Politics/International-relations/Indo-Pacific/European-navies-build-Indo-Pacific-presence-as-China-concerns-mount.
Lau, Stuart and Jacopo, Barigazzi (2021). “Europe’s Strategic long-Shot: More Warships in the Indo-Pacific.” Politico. (online) Available at: https://www.politico.eu/article/europes-strategic-long-shot-more-warships-in-the-indo-pacific/
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Mastro, Oriana Skylar “How China is bending the rules in the South China Sea” The Interpreter. February 17, 2021. (online) Available at: https://www.lowyinstitute.org/the-interpreter/how-china-bending-rules-south-china-sea.
Lowy Institute. “South China Sea.”. The Interpreter. (May, 2021). (online) Available at: https://www.lowyinstitute.org/issues/south-china-sea.
Center for Preventive Action (2021). “Territorial Disputes in the South China Sea.” Council on Foreign Relations. (online) Available at: https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea.
Hale, Erin. “Is China Really about to invade Taiwan?” Aljazeera. April 14, 2021. (online) Available at: https://www.aljazeera.com/news/2021/4/14/is-there-really-a-risk-that-china-will-go-to-war-with-taiwan.
United Nations Convention on the Law of the Seas (10 December 1982). (online) Available at: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
