Driving Russia further into China’s arms: Incidents like ‘John McCain’ warship incursion near Vladivostok counterproductive for US

The US continues to press Moscow from all sides. Rocket launches into the Black Sea, Baltic troop deployments and now Far East naval incursions. While these shows of strength may feel good now, they could yet prove foolhardy.

Ever since ocean-going travel became common, two principles have competed to guide the use of the seas. On the one hand, the principle of mare liberum seeks to minimize restrictions on navigation. On the other hand, the concept of mare clausum aims to maximize states’ ability to limit access to parts of the seas they consider their own territory.

Mare liberum favours strong naval powers. Its primary supporters over the centuries have included the Dutch, the British, and now the Americans. By contrast, weaker states, eager to keep others away from their shores, have tended to be proponents of mare clausum.

Since 1982, the use of the oceans has been regulated by the United Nations Convention on the Law of the Sea (UNCLOS). Although the US Senate has never ratified it, successive American administrations have accepted UNCLOS as binding international law. Their interpretation of it, however, differs from that of many other states. The US actively opposes what it calls ‘excessive’ maritime claims by other nations, asserting its right to freely navigate the oceans in accordance with the principle of mare liberum.

The latest manifestation of this policy took place this week when the US warship ‘John S. McCain’ sailed into what Russia claims as its waters in Peter the Great Bay, near Vladivostok. The Russian Navy dispatched a vessel of its own to intercept the ‘McCain’, which then returned to international waters.

The legal situation is complex. UNCLOS defines various types of waters, including ‘internal waters’ which are sovereign territory and from which foreign ships can be excluded; ‘territorial waters’ which extend up to 12 nautical miles from the coast and through which foreign ships have a right of ‘innocent passage’; and ‘international waters’ over which states exert no jurisdiction. UNCLOS also mentions a category called ‘historical waters’, which are considered internal, but are not defined.

Russia claims Peter the Great Bay as internal on the grounds of it being historical water. This term derives from an earlier category in the law of the sea, historical bays, which are bodies of water largely surrounded by land. States are entitled to enclose such waters by drawing a straight line (called a baseline) across the mouth of the bay and declaring everything behind the baseline to be internal water. Territorial waters are then measured 12 nautical miles outward from the baseline.

Exactly where one can do this is not clear. In general, though, it is believed that states can only classify as historical those waters over which they have exercised continuous authority with the acquiescence of other states.

The Russian claim to Peter the Great Bay dates back to 1957, when the Soviet Union first declared it a historical bay. The claim was then reaffirmed in 1984 when the Soviet Union drew a baseline enclosing the bay. It is questionable, however, whether this was justified.

First, the length of the baseline – 106 nautical miles – could be seen as excessive. Second, the Soviet Union’s initial 1957 claim was rejected by key powers such as the USA, the United Kingdom, and France. It could be argued that Russia did not enjoy the acquiescence of other states which is required in the cases of historical waters.

Having said that, Russia could argue that it has exercised continuous control over the bay for a very long time, and that although some other states have rejected its claim, with the exception of the US, they haven’t done anything to challenge it, in effect acquiescing in practice if not in word.

The matter is further complicated by the fact that statements by both the Americans and the Russians refer to the USS ‘John S. McCain’ as having been in territorial waters, not internal waters. Though the exact location of the incident is not clear, this language would suggest that the American warship did not enter into the sea behind the baseline which the Russians claim as internal, but only into the sea extending 12 nautical miles beyond the baseline, which the Russians claim as territorial.

If that is the case, and the USS ‘John S. McCain’ was in Russian territorial waters and not internal waters, it could be argued that it had a right to innocent passage. Indeed, Russian domestic law recognizes that this right applies to warships as long as they ‘observe the legislation of the Russian Federation concerning passage through the territorial sea.’ The issue would then be whether the Americans did so.

In short, Russia could be said to have a right to claim the bay as internal waters and to object to the American action. But equally, America could be said to be within its rights to reject that claim and to do what it did. In the absence of an external authority able to enforce a judgement, it is hard to say that one side or the other is definitively correct.

Ultimately, therefore, the American incursion into the bay is not so much a legal issue as a political one. The USA could have made the political decision not to challenge the Russian claim. The question then is why the USA chose instead to act.

One explanation could be that the incident was part of a general campaign of pressure against Russia. It is perhaps no coincidence that the event coincided with test launches of rockets into the Black Sea by US forces in Romania. Combined with the deployment of US troops into the Baltic region and Poland, the naval action in the Far East could be interpreted as part of a strategy of pressing from all sides.

There may, however, be another explanation. The US Navy described its action in Peter the Great Bay as a ‘freedom of navigation operation’ designed to challenge ‘excessive maritime claims.’ One might take the Americans at their word, and see their action as a statement of principle rather than a specifically anti-Russian act.

The reason why this principle has suddenly become so important is the rising might of China, combined with Chinese efforts to turn areas of the ocean into mare clausum, most notably the South China Sea. The US regards this process with alarm, and feels a need to press back against mare clausum wherever it sees it.

If so, this fits a pattern of recent behaviour, including America’s withdrawal from arms control treaties with Russia. The US abandonment of the INF treaty, and soon possibly the New START treaty, have little to do with Russia, but a lot to do with China. Arms control treaties with Russia have prevented the US from building up its arsenal to meet growing Chinese power. The Americans have therefore decided to dispense with them.

The problem from Russia’s point of view is not, therefore, that the Americans regard it as a serious threat and are out to get it, but rather that they regard it as insignificant. Russia just doesn’t matter enough to Americans for them to be worried about annoying it when they take actions designed to confront China.

For now, this confrontational approach perhaps suits the US. In the long term, though, events like that in Peter the Great Bay can only intensify Russian-American tensions and drive Russia further into Chinese arms. Poking the bear from all sides might eventually prove to be highly counterproductive.

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The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.