Beijing Law Review, 2012, 3, 137-144
http://dx.doi.org/10.4236/blr.2012.33019 Published Online September 2012 (http://www.SciRP.org/journal/blr)
The Freedom of Navigation in the South China Sea: An
Ideal or a Reality?*
Zewei Yang
Law School, Wuhan University, Wuhan, China.
Received May 11th, 2012; revised June 13th, 2012; accepted June 25th, 2012
ABSTRACT
The freedom of navigation in the South China Sea has drawn an extensive international concern in recent years. The
main reasons leading to skepticism are the disputes in the South China Sea over islands sovereignty and maritime de-
limitation, extra-reg ional state’s interven tion , and some ASEAN member states’ wish to countervail China with the help
of extra-regional states. In fact there is no problem at all with the freedom of navigation in the South China Sea: on one
hand, there are legal regimes to ensure all states’ freedom of navigation in different seas according to United Nations
Convention on the Law of the Sea; on the other hand, no state impedes the freedom of navigation in the South China
Sea. Currently, factors actually affecting the safety of navigation in the South China Sea include piracy, maritime ter-
rorism and so on. Relevant states must take confidence-building measures as well as regional and bilateral cooperation
so as to promote the safety of navigation in the region
Keywords: Freedom of Navigation; United Nations Convention on the Law of the Sea; The South China Sea
1. Introduction
In recent years, some states in different situations raised
the freedom of navigation in the South China Sea as a
problem, which drew an extensive international concern.
The freedom of navigation in the South China Sea is an
ideal or a reality? The article will make a thorough
analysis about the crux of this problem. The article com-
prises four sections: the first section focuses on the rea-
sons for the skepticism of the freedom of navigation in
the South China Sea, such as the disputes among relevant
states, the interventions by extra-regional states, and so
on; the second section expounds and proves that there is
no problem at all with the freedom of navigation in the
region, because, on one hand, there are legal regimes to
ensure all states’ freedom of navigation in different seas
according to United Nations Convention on the Law of
the Sea (UNCLOS); on the other hand, no state impedes
the freedom of navigation in the South China Sea; the
third section looks into factors actually affecting the
safety of navigation in the South China Sea, such as pi-
racy, maritime terrorism and so on; the last section pro-
poses some tentative suggestions for the enhancement of
regional and bilateral cooperation in the South China
Sea.
2. Reasons for the Skepticism of the
Freedom of Navigation in the South China
Sea
The skepticism of th e freedom of navigation in the South
China Sea in recent years is due to the following reasons:
2.1. Disputes over Islands Sovereignty and
Maritime Delimitation [1-3]
As the first country that has discovered and managed the
islands in the South China Sea, China has an indisputable
sovereignty over these islands and jurisdiction over wa-
ters surrounding these islands [4-6]. With the discovery
of huge oil and gas reserves beneath its seabed in the
1960s [7] and the formulation of UNCLOS in 1982,
some Southeast Asian states, namely the Philippines,
Vietnam, Malaysia and Brunei, have claimed sovereignty
rights over some islands an d its surrounding waters, later
on occupied with troops part or all islands which they
claimed. Currently, the disputes over island sovereignty
are mainly concentrated in the Nansha Islands (the
Spratly Islands), involving seven parties, in cluding China,
the Philippines, Vietnam, Malaysia, Indonesia, Brunei
and China’s Taiwan province; as to maritime delimita-
tion, the exclusive economic zone (EEZ) and continental
*This article is a part of the results of the research project—“Territorial
Disputes Settlement Mechanism in International Law—China’s
Choice” (Project No.: NCET-08-0426), sponsored by the “Program for
N
ew Century Excellen t Talents”, the Ministry of Education, China.

The Freedom of Navigation in the South China Sea: An Ideal or a Reality? 138
shelf claimed by relevant states have overlapped with
China’s U-Shape Line demarcating the South China Sea,
and caused a huge disputing area. Especially in the
southern South China Sea, China’s U-Shape Line is
overlapping with the EEZ claimed by the Philippines,
Vietnam, Malaysia, and Brunei, and overlapping with
Indonesia’s claims to the EEZ and continental shelf in
the northeast of Natuna Islands. Therefore China needs to
negotiate with Vietnam, the Philippines, Malaysia, Indo-
nesia and Brunei to solve the disputes over maritime de-
limitation. No doubt that the disputes over island sover-
eignty and maritime delimitation in the South China Sea
has become the most complex disputes involving more
countries than any other disputes in the world. The esca-
lating disputes increase the risk of more contradictions
and conflicts, thus threatening the safety of maritime
navigation [8].
2.2. Extra-Regional State’s Interventions
Intervention by extra-regional states, such as the USA,
Japan and India, have become the important factor influ-
encing its development, and in consequence led to the
increasing complexity, persistency and internationalize-
tion of the South China Sea issue.
1) The United States of America. During the Cold War,
due to its need to fight against the Sov iet Union, the U.S.
took a neutral and non-intervention policy in the South
China Sea. However, since the 21st century, the U.S. be-
gins to “seriously concern” [9] of this problem. Espe-
cially after its access to the Treaty of Amity and Coop-
eration in Southeast Asia in July 2009, the U.S. takes up
a position of interventio n in the South China Sea. For ex-
ample, Scot Marciel, Deputy Assistant Secretary of State
for East Asian and Pacific Affairs, “remain(ed) con-
cerned about tension between China and Vietnam”, and
pledged to defend U.S. oil companies operating in the
region [10]. In 2009, there were two incidents happened
between the U.S. and China in the South China Sea1 in
June 2010, the U.S. Defens e Secretary Robert Gates, said
in the Ninth Asia Pacific Security Conference, held in
Singapore, that the territorial dispute as an “area of
growing concern” threatened the freedom of navigation
in the sea and economic development. He urged free ac-
cess to the South China Sea and claimed that Washington
was against any action that tried to deter American and
other’s economic activities in the region [11]. On 23rd
July 2010, Hillary Clinton, Secretary of the U.S. State
Department, stated at the ASEAN Regional Forum For-
eign Ministers’ Meeting in Hanoi that America is con-
cerned about the dispute over the Nansha Islands (the
Spratly Islands) and the Xisha Islands (the Paracel Is-
lands) between China and ASEAN member states be-
cause it impedes the maritime trade and the access to the
international waters against the International Law of the
Sea [12]. Furthermore, in a Press Statement issued on 22
July 2011 on the South China Sea, Hillary Clinton also
stated: “We also call on all parties to clarify their claims
in the South China Sea in terms consistent with custom-
ary international law, including as reflected in the Law of
the Sea Convention. Consistent with international law,
claims to maritime space in the South China Sea should
be derived solely from legitimate claims to land fea-
tures.”2
2) Japan. As early as the late Qing Dynasty, Japan be-
gan to invade the South China Sea by plundering natural
resources and seizing islands; until its defeat by the end
of World War II that Japan had withdrawn from these
islands. When it became a hot spot after the Cold War,
Japan then showed its concern about the South China Sea
again. To Japan, “it’s hard to be neutral” in the dispute
over the region; Japan stresses “the stability of waters
surrounding these islands in the South China Sea is in-
dispensible of Asian stability” [13]. Japan has strength-
ened its “non-traditional security” cooperation with
ASEAN states, and taken strenuous efforts to infiltrate
into the region. In recent years, Japan has participated in
military drills and frequently sent warships in the South
China Sea in the name of fighting against transnational
crimes, such as piracy, drug smuggling, and illegal im-
migration and so on. It should be noted that recently
Japanese Prime Minister Yoshihiko Noda has worked to
join hands with the Philippines and Vietnam, both of
which have escalating disputes with China. On Septem-
ber 27, 2011, Noda and Philippine President Corazon
Aquino III and signed a Japan-Philippines Joint State-
ment during Aquino III’s official working visit to Japan,
including the strengthening of maritime cooperation. On
October 24, 2011, Noda shook hands with Minister of
National Defense of Vietnam General Phung Quang at
the Prime Minister’s Office and claimed that Japan has
the same concern as the states in the South China Sea. He
said, “Since we have the same concern, we should make
rules and invite China into the discussion. The promotion
of observance of rules should be a task fulfilled by coop-
eration of all states in the region [14].”
3) India. India initiated the “Lo ok East” Policy in 1991,
marked its strategic shift that boosts its economic reform
through economic cooperation with Southeast Asian
states, and at the same time expands its strategic space in
the Asia-Pacific region. In April 2000, India Defense
Minister George Fernandes said India’s sphere of interest
1On March 9, 2009, the survey ship USNS Impeccable confronted with
Chinese ships in the South China Sea; on June 11, the U.S. destroyer
USS John McCain’s towed sonar array collided with a Chinese subma-
rine near Subic Bay, t h e P h i li p p i ne s . 2Available at http://www.state.gov/secretary/rm/2011/07/168989.htm

The Freedom of Navigation in the South China Sea: An Ideal or a Reality? 139
is extending “from the North of the Arabian Sea to the
South China Sea” [15]. After the “9·11” accident, India
has sped up its pace of the “Look East” policy. For ex-
ample, India joined Treaty of Amity and Cooperation in
Southeast Asia in 2003; India signed ASEAN-India Part-
nership for Peace, Progress and Shared Prosperity in
2004; the ASEAN-India Free Trade Area (AIFTA) has
been built up to promote their all-around political and
economic relations in 2005. In recent years Indian mili-
tary forces entered the South China Sea in the name of
joint military drills with some states in the region . Ind ia’s
breakthrough with its military cooperation with relevant
states makes India able to exert its continuous influence
on ASEAN states, not only frequently holding bilateral
or multilateral military drills, but also reaching agree-
ments, covering military cooperation, piracy, weapons
purchasing, information exchange, military training, re-
gular high-level military contacts and so on.
2.3. Some ASEAN Member States’ Wish to
Countervail China with the Help of
Extra-Regional States
Some ASEAN member states’ strategy is to invite extra-
regional states and “internationalize” the dispute over the
South China Sea, thus arousing international concern.
Some even claim that they will submit the dispute to the
United Nations. They believe that “the most important is
to attract international attention; and at the same time, to
expect the advent of the day of internationalizing the
dispute over the South China Sea [16].”
These states are anxious about China’s development
and worry about its possible military threat to them in the
future. Therefore, they wish to countervail powerful
China’s action in the region with the help of the U.S. and
Japan. That’s why ASEAN, while building up their
strength and a united policy ag ainst China, welcomes the
U.S. military presence in the Asia-Pacific region, and has
established and developed various cooperative relations
in military and defense. The U.S. president Obama’s an-
nouncement of its return to Asia in 2009 was welcomed
and responded positively by ASEAN states. For example,
the Philippines government explicitly expressed that
Mutual Defense Treaty between the Republic of Philip-
pines and the U. S would be applied to the dispute over
the Nansha Islands (the Spratly Islands). Vietnam has
been trying to build a mutual defense relationship with
the U.S., with a purpose to constraint China’s action in
the area, by renting its Cam Ranh Bay to the U.S. Pacific
fleet. Besides, ASEAN hopes that Japan can play a more
important and constructive role in the regional political,
economic and security affairs, thus balancing between
the U.S. and China.
3. There Is No Problem with the Freedom of
Navigation in the South China Sea at All
3.1. United Nations Convention on the Law of
the Sea3
The South China Sea is a “semi-enclosed sea”, “entirely
or primarily of the territorial seas and exclusive eco-
nomic zones of two or more coastal States”4 (Article
122). Therefore, according to the stipulation of Article 17,
“ships of all states enjoy the right of innocent passage
through the territorial sea”. As to the right of navigation
in the EEZ, there is clear statements in Article 58 as well,
“In the exclusive economic zone, all States, whether
coastal or land-locked, enjoy, subj ect to the relevant pro-
visions of this Convention, the freedoms referred to in
article 87 of navigation and overflight and of the laying
of submarine cables and pipelines, and other internation-
ally lawful uses of the sea related to these freed oms, such
as those associated with the operation of ships, aircraft
and submarine cables and pipelines, and compatible with
the other provision s of this Convention.”
Besides, given the fact that the South China Sea is the
traffic artery connecting the Pacific Ocean and the Indian
Ocean [8], nearly all airlines or shipping routes through
the South China Sea must go thro ugh the Nansha Islands
(the Spratly Islands), with numerous islands and reefs
spreading throughout international sea lanes. For these
reasons, in accordance with the spirit of “innocent pas-
sage” (Article 45), “straits used for international naviga-
tion” (Article 34) and “right of archipelagic sea lanes
passage” (Article 53), states must be given the right of
transit passage in order to ensure freedom of navigation
and the openness of sea lanes.
3.2. No State Impedes the Freedom of Navigation
in the South China Sea
1) China’s constant position. The South China Sea is an
important maritime waterway, and China always respects
the freedom of navigation and overflight in the South
China Sea as provided for by the universally recognized
principles of international law [17]. In response to con-
cerns expressed by the U. S State Department in May,
1995, the spokesperson of the Ministry of Foreign Af-
fairs of China Chen Jian stated that China while safe-
guarding its sovereignty over the Nansha Islands, and its
marine rights and interests, China will fulfill its duty of
guaranteeing freedom of navigation and overflight in the
31833 UNTS 397, adopted in Montego Bay, Jamaica, on 10 December
1982, entered into force on 16 November 1994.
4Article 122, “the 1982 UN Convention on the Law of the Sea,” “en-
closed or semi-enclosed sea” means a gulf, basin or sea surrounded by
two or more States and connected to another sea or the ocean by a
narrow outlet or consisting entirely or primarily of the territorial seas
and exclusive economic zones of two or more coastal States.

The Freedom of Navigation in the South China Sea: An Ideal or a Reality? 140
South China Sea according to international law [18].
Furthermore, Yang Jiechi, the Chinese Foreign Minister
has made an objective evaluation of this issue at the
ASEAN Regional Forum Foreign Ministers’ Meeting in
Hanoi in July 2010, and pointed out that the dispute over
the South China Sea is a dispute over territorial sover-
eignty and maritime interests between China and a few
ASEAN member states, not between China and ASEAN
[19]. China reiterated this position as recently as 29 Sep-
tember 2011. Hong Lei, the spokesp erson of the Ministr y
of Foreign Affairs of China, spoke at the regular press
conference, stated that “China’s position on the South
China Sea is clear and consistent. China safeguards its
sovereignty and maritime rights and interests in the
South China Sea, which does not affect freedom of navi-
gation in the South China Sea enjoyed by countries ac-
cording to international law. In fact, there is no problem
with the freedom and safety of navigation in the South
China Sea; all countries within the region and out of the
region are beneficiaries of free and safe navigation in the
South China Sea, which is also the common view of all
relevant states [20].” In fact, 70,000 vessels passed peace-
fully through the South C hina Sea every year [21].
2) Attitudes of other relevant states. So far, other rele-
vant states have expressed no explicit objection to the
freedom of navigation in the South China Sea. It should
be noted that China and the ASEAN Member States have
signed the Declaration on the Conduct of Parties in the
South China Sea (DOC) in November 2002. “The Parties
reaffirm their respect for and commitment to the freedom
of navigation and overflight in the South China Sea as
provided for by the universally recognized principles of
international law, including the 1982 UN Convention on
the Law of the Sea”. In July 2011, the China-ASEAN
foreign ministers’ meeting have also adopted Guidelines
for the Implementation of the DOC, “Reaffirming that the
DOC is a milestone document signed between the
ASEAN Member States and China, embodying their col-
lective commitment to promoting peace, stability and
mutual trust and to ensuring the peaceful resolution of
disputes in the South China Sea”; “The decision to im-
plement concrete measures or activities of the DOC
should be based on consensus among parties concerned,
and lead to the eventual realization of a Code of Con-
duct”.5
3.3. The Freedom of Navigation in the South
China Sea is Not an Absolute Right
The freedom of navigation in the South China Sea is not
an absolute freedom without any restriction; instead each
state must perform certain internation al obligations while
enjoying free navigation. In other words, the navigation
through the territo rial sea under the jurisdiction of a state
should be a peaceful navigation and comply with the
rights and duties of the coastal state as well as respect
their security interests and sovereign rights. These rights
and duties have stipulated in Article 21 and Article 58,
United Nations Convention on the Law of the Sea, which
reads:
Foreign ships exercising the right of innocent pas-
sage through the territorial sea shall comply with all
such laws and regulations and all generally accepted
international regulations relating to the prevention of
collisions at sea. (Article 21)
In exercising their rights and performing their duties
under this Convention in the exclusive economic zone,
States shall have due regard to the rights and duties of
the coastal State and shall comply with the laws and
regulations adopted by the coastal State in accordance
with the provisions of this Convention and other rules of
international law in so far as they are not incompatible
with this Part. (Article 58)
Besides, there is no absolute freedom in modern mari-
time legal regimes. Even in high seas, each ship in exer-
cising its freedom of navigation must abide by interna-
tional navigation regulations according to international
law and generally acknowledged international customs,
for example, “collision regulation”; each must respect
other’s freedom of navigation; at the same time all ships
are under the related international obligations, such as
preventing, reducing and controlling marine pollution,
protect and preserve marine environment, keeping safe
navigation and observing maritime traffic rules and so
on.
Guidelines for Navigation and Overflight in the Exclu-
sive Economic Zone (EEZ), developed by the EEZ Group
21 composed by senior officials and analysts primarily
from countries of the Asia-Pacific region from 2002-
2005, stated explicitly:
III a) While exercising the freedoms of navigation and
overflight in an EEZ, States should avoid activities that
unreasonably prejudice the peace, good order or security
of the coastal state.
b) States’ exercise of the freedoms of navigation and
overflight should not interfere with or endanger the
rights of the coastal State to protect and manage its own
resources and their environment.
c) The exercise by other States of the freedoms of navi-
gation and overflight should not interfere with the rights
of the coastal State with regard to its establishment and
use of artificial islands, installations and structures in its
EEZ.
V b). Ships and aircraft of a State undertaking military
activities in the EEZ of another State have the obligation
5Preface and Article 6, Guidelines for the Implementation of the DOC.

The Freedom of Navigation in the South China Sea: An Ideal or a Reality? 141
to use the ocean for peaceful purposes only, and to re-
frain from the threat or use of force, or provocative acts,
such as stimulating or exciting the defensive systems of
the coastal State; collecting information to support the
use of force against the coastal State; or establishing a
“sea base” within another State’s EEZ without its consent.
The user State should have due regard for the rights of
others to use the sea including the coastal State and
comply with its obligation s under interna tional law [22].
4. Factors Actually Affecting the Safety of
Navigation in the South China Sea
There are three key factors now actually affecting the
safety of navigation in the South China Sea:
4.1. Increasingly Rampant Piracy
The South China Sea is one of the areas that are famous
for the most rampant piracy, and the Strait of Malacca in
its southwest was regarded as the most dangerous waters
for pirate activities [23] in the 1990s. However, with the
joint maritime patrol by Malaysia, Singapore and Indo-
nesia in combating against piracy in Malacca Strait, the
main battlefield for anti-piracy has moved to the South
China Sea, especially the waters surrounded by Hong
Kong, Luzon Island and Hainan Island [24]. In the 21st
century, piracy seems to have run wilder given the fact
that pirates have attacked more and more fishing and
merchant ships in the region, which makes piracy the
biggest threat to the safety of navigation in the South
China Sea.
Pirates in the South China Sea have advanced naviga-
tional equipments and weapons. Fishing boats from
China’s Hainan Province have been attacked by pirates
frequently. Statistics shows, from 2000-2006, the fish-
ing boats from Qionghai Prefecture, Hainan Province,
while operating in the region, had experienced 88 rob-
beries, 144 fishing boats and more than 400 fishermen
had been attacked, including 5 murdered and 4 wounded,
which caused a direct economic loss of more than RMB
70 million [25]. Piracy and Armed Robbery Against
Ships Report—Annual Report 2008, made by Interna-
tional Maritime Bureau, indicates that there are 293 ac-
tual and attempted attacks in the world in 2008 , of which
75 attacks happened in the Southeast Asia waters and the
South China Sea, including 11 in Vietnam and Cambodia,
28 in Indonesia, 6 in Malacca Strait, 12 in Malaysia, 7 in
the Philippines, 6 in Singapore, and 5 in the South China
Sea [26]. Recently, piracy in the South China Sea has
been in an in creas ing te nden cy, fo r exampl e, in F ebru ary,
2010, pirates attacked Singapore-registered tugboat “Top-
niche7”, and two months later, pirates robbed a Singa-
pore flagged tug in Malaysian waters [16].
4.2. Terrorist Activities
Besides the rampant piracy, maritime terrorist activity is
another increasingly serious threat to the safety of navi-
gation in the South China Sea. After the “9.11” accident,
terrorist activities in Southeast Asia have been happ ening
with increasing frequency, states such as Indonesia, the
Philippines and Malaysia have become the high-risk ar-
eas of terrorist attacks, where terrorist organizations,
such as Moro Islamic Liberation Front (MILF), Abu
Sayyaf Group (ASG), Free Aceh. Movement (GAM) and
Jemaah Islamiya (JI), are much active [27,28].
“What international society concerns most is that ter-
rorist organizations and members may engage in mari-
time terrorist attacks to cut off the maritime traffic in the
region, hence making terrorist activities a huge potential
threat to the safety of navigation in the South China Sea
[29].” The International Maritime Bureau indicates that
“Terrorist groups including al Qaeda attempt to use a
boat loaded with explosives to attack oil tankers and
merchant ships, this type of maritime terrorist attack has
become a new trend of maritime robbery [30].” “The
United States of America also regards Southeast Asian
Muslim extremist as the potential threat to commercial
navigation, because terrorists may hi-jack a liquefied
natural gas tanker and turn it into a floating bomb to de-
stroy ports. When attacks become more and more serious,
ship owners and cap tains will probably choose other safe
waters instead of the South China Sea [31].”
4.3. Activities of Foreign Armed Ships
Besides threats from piracy and maritime terrorism to the
safety in the South China Sea, foreign armed ships have
frequently attacked Chinese fishing boats. In June 2009,
8 fishing boats operating within China’s U-Shape Line
suddenly lose communication ; later investigation showed
that 3 armed Indonesian ships visited with force and de-
tained all 75 fishermen in the 8 fishing boats. According
to statistics from Bureau of Marine and Fishery of Lin-
gao County, Hainan Province, more than half of fishing
boats from Lingao County have once been stolen or
robbed of fishing nets, which leads to a direct loss of
more than RMB 10 million [32].
Against the backdrop of escalating dispute over the
South China Sea, relevant states frequently make Chi-
nese fishermen the first target of attack, detaining, con-
fiscating, shooting and killing against law and humanity.
Statistics from Hainan Province Public Security Border
Battalion shows that from 2003-2008 fishing boats, reg-
istered in Hainan Province, while operating in the South
China Sea, have been detained by neighboring states for
75 times, detaining 75 boats and 738 fishermen, with a
total direct loss of more than RMB 35 million [32].

The Freedom of Navigation in the South China Sea: An Ideal or a Reality? 142
Even worse, it is possible for piracy, terrorism and or-
ganized crime to be collaborated in the South China Sea.
Piracy will provide finance for terrorists to purchase
weapons; organized crime such as maritime smuggling
will provide terrorists with weapons and explosives; and
terrorist groups will provide special skills for pirates and
criminal organizations to evade law enforcement agency’s
pursuit and arrest. The collaboration will benefit all of
them. If it permits, terrorism base and hiding-place could
be a shelter for pirates and criminal organizations, the
latter in turn covering terrorist activities. M oreover, their
trans-boundary activities and evasion through high seas
have made it extremely difficult for law enforcement
agency to catch them.
5. Some Suggestions
In order to meet the challenges from piracy and maritime
terrorism, states around the South China Sea, the U.S. and
Japan have been attempting to establish cooperation
mechanisms to maintain the safety of navigation in the
region. For example, some ASEAN member states have
participated joint patrol measures—Five Power Defense
Arrangement (FPDA) and Eye in the Sky; the U.S. has
held large-scale joint maritime military drills with Thai-
land, the Philippines, Indonesia, Malaysia and Singapore;
under the cover of anti-terrorism and return to Asia
strategy, the U.S. has strengthened its military influence
in the region.
Japan has been also taken efforts to build and partici-
pate security cooperation mechanism in the South China
Sea, and provided aids to Southeast Asian states’ mari-
time safety. Regional Cooperation Agreement on Com-
bating Piracy and Armed Robbery in Asia, initiated by
Japan in 2004, has been attached great importance by
ASEAN states, for example Singapore, and become one
of the most influential multilateral mechanisms for mari-
time non-traditional safety in the South China Sea. States
in the region from now on should enhance mutual trust as
well as bilateral and regional cooperation, so as to secure
the safety of navigation in the South China Sea.
5.1. The Confidence-Building Measures
The Guidelines for the Implementa tion of the DOC,
adopted by the China-ASEAN Foreign Ministers’ Meet-
ing in July 2011, points out that “Initial activities to be
undertaken under the ambit of the DOC should be confi-
dence-building measures”6. Therefore, in order to reduce
the risk in the safety of navigation in the South China Sea,
the relevant states must take confidence-building meas-
ures, or draft safety codes for navigation, for example,
“Agreement of Preventing Maritime Accidents in the
South China Sea”, which can cover navigation under, in
and above the sea, maritime exploration and research,
naval drills, transportation of petrol and gas, cooperation
in anti-piracy and anti-terrorism, fishery administration,
protection of marine environment, administration of
transportation of dangerous radioactive materials, and so
on. It will help to secure a regular negotiation between
related states on maritime safety, prevent marine and air
collisions, as well as reduce the risk of accidents caused
by normal activities. “Agreeme nt of Preventing Maritime
Accidents in the South China Sea” may start from bilat-
eral agreements, and extend gradually to multilateral.
5.2. The Bilateral and Regional Cooperation
The effective way to maintain the safety of navigation in
the South China Sea is through cooperation of neighbor-
ing states. So, China can negotiate with each member
state of ASEAN, especially with Vietnam, Malaysia and
the Philippines, and establish a bilateral maritime safety
cooperation mechanism. Through holding bilateral ac-
tivities, such as joint military drills, marine rescue opera-
tion, mutual warships visit and so on, China should pro-
mote bilateral military cooperation, build confidence
between China and ASEAN states, and eliminate their
doubts, thereby creating a better condition for the safety
of navigation in the South China Sea.
Furthermore, the Declaration on the Conduct of Parties
in the South China Sea (DOC) has set up five areas for
cooperation, namely, marine environmental protection,
marine scientific research, safety of navigation and
communication at sea, search and rescue operation, and
combating transnational crime, including but not limited
to trafficking in illicit drug s, piracy and armed robbery at
sea, and illegal traffic in arms,7 which should be the pri-
ority in regional cooperation among relev a nt states.8
In conclusion, the freedom and safety of navigation in
the South China Sea are in conformity with the interest
of all states within and out of the region. Extra-regional
states are most concerned with the freedom of navigation
in the region. The U.S. and Japan are seriously concerned
with free and safe passage along vital sea lanes and air
lanes in the region. The former U.S. State Department
spokesman James P. Rubin once said, “The freedom of
navigation is America’s fundamental interest. It is crucial,
7Article 6: The Declaration on the Conduct of Parties inthe South
China Sea.
8Because the South China Sea is a “semi-enclosed sea”, article 123 o
f
UNCLOS impose a general obligation on States bordering a semi-
enclosed sea to cooperate with each other in the exercise of their rights
and in the performance of their obligations under the Convention. In
p
articular, these States are obliged to endeavour, directly or through an
appropriate regional organization, to coordinate their activities in three
areas: (a) the management, conservation, exploration and exploitation
of the living resources; (b) the protection and preservation of the ma-
rine environment; and (c) marine scientific research.
6Article 5: Guidelines for the Implementation of t he DOC.

The Freedom of Navigation in the South China Sea: An Ideal or a Reality? 143
for the peace and prosperity of the Asia-Pacific region
including the U.S., to ensure all ships and planes to pass
without obstacle through the South China Sea [33].” In
fact, China has announced repeatedly that it respects the
freedom of navigation of vital sea lanes through the
South China Sea; China did not and will never intervene
foreign ships going through the region, and there is no
indication that China will impede the freedom of naviga-
tion. However, the freedom of navigation doesn’t mean
freedom of military activities in the South China Sea;
instead, states exercising their freedom of navigation
must be for peaceful purposes only and respect the
coastal states’ sovereignty and security interests.
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