Published: 28 March 2023 Author: Stefan Talmon
The idea of sending a warship to the South China Sea had been discussed in the German government since mid-2019. It was reported that the deployment was initially opposed by Chancellor Angela Merkel. However, over the years pressure by allies to send a warship to the Indo-Pacific grew. In December 2020, Japan called on Germany to send a warship to East Asia to take part in joint exercises with units of Japan’s Self-Defence Forces in 2021. Japan also suggested that the warship should traverse the South China Sea in order to counter Chinese claims in the area. Indicating a shift in the government’s position, the Parliamentary Secretary of State at the Federal Ministry of Defence, Peter Tauber, responded to a parliamentary question that sending a warship to the Indo-Pacific was considered a measure ‘to protect and safeguard the rules-based international order’ such as ‘the principles of the UN Convention on the Law of the Sea.’ It would also underline Germany’s ‘commitment to freedom of navigation’.
On 2 March 2021, it was revealed that following up on its “Policy guidelines for the Indo-Pacific region” adopted in September 2020, Germany would send the frigate ‘Bayern’ to the Indo-Pacific. It was announced that the warship would leave its home port of Wilhelmshaven at the beginning of August for a six-month journey. On its return journey, the frigate would sail through the South China Sea. However, it was emphasised that it was not planned to sail within twelve nautical miles of any islands or features claimed by China in the area. It was said that the Federal Government understood the dispatch of the frigate as a sign to counter Chinese sovereignty claims in the South China Sea. It was also said that Germany thereby reaffirmed the July 2016 ruling of the arbitral tribunal established under the UN Convention on the Law of the Sea. Ministerial sources said that the operation would protect ‘our multilateral, rule-based principles and values, such as our commitment to the UN Convention on the Law of the Sea’.
The United States welcomed the plan to sail a warship across the South China Sea. On 3 March 2021, a US State Department spokesperson said:
The United States has a national interest in the maintenance of peace and stability, respect for international law, lawful unimpeded commerce, and freedom of navigation and other lawful uses of the sea. We welcome Germany’s support for a rules-based international order in the Indo-Pacific. The international community has a vital stake in the preservation of an open maritime order.
Asked about the German plans, a spokesperson for the Chinese Ministry of Foreign Affairs stated tersely:
Countries enjoy the freedom of navigation and overflight in the South China Sea as stipulated in international law, but they cannot take it as an excuse to undermine the sovereignty and security of littoral countries.
The deployment of a warship to the South China Sea was to be seen against the background of Germany’s general position on the South China Sea disputes. In response to parliamentary questions on ‘German assessments and perspectives on China’, the Federal Government stated on 11 June 2021:
The Federal Government is monitoring the situation in the South China Sea with concern. As a globally active trading nation and advocate of a rules-based international order, Germany – embedded in the European Union – is involved in strengthening security and stability in the region, preserving the freedom of trade and sea routes and respecting the international law of the sea. …
The development in the South China Sea was a topic at the most recent German-Chinese international law consultations on 20/21 November 2018. Germany advocated full respect for the UN Convention on the Law of the Sea (UNCLOS) and for the preservation of the rights and freedoms guaranteed under UNCLOS in the region, in particular freedom of navigation.
China did not call into question the freedom of navigation as such but warned foreign States to use the current international shipping lanes and stay at least twelve nautical miles away from the Chinese islands and reefs.
In a keynote address at the Command and Staff College of the Armed Forces in Hamburg on 24 June 2021, Federal Minister of Defence Annegret Kramp-Karrenbauer likened China’s conduct in the South China Sea to the Russian annexation of Crimea, stating:
Beijing is deploying ‘little blue men’ in the South China Sea in much the same way that Russia has done with its ‘little green men’ in Crimea and Eastern Ukraine.
The Federal Ministry of Defence portrayed the imminent deployment of the frigate to the Indo-Pacific as a sign that Germany ‘stands up for the freedom of sea routes and compliance with international law in the region.’ However, in an interview broadcast on 29 July 2021, Germany’s chief of the navy, Vice-Admiral Kay-Achim Schönbach, made it clear that Germany had no intention of directly confronting China in the South China Sea. He said:
We will use the usual trade routes where everyone can sail. … We do not do that [i.e., engage in Freedom-of-Navigation Operations]. Other nations do that, we do not take part in such operations.’
But he also added:
Indeed, in this case too, we actually consider this law, the law of the sea, to be binding. Of course, we do not support the People’s Republic of China in formulating and claiming a twelve-mile zone as territorial waters around these small reefs, which are then build up and expanded into islands. Of course, we do not support that.
On 2 August 2021, the frigate ‘Bayern’ set sail set for the Indo-Pacific region for a seven-month show-of-presence and training mission. The ship was to call at 12 different ports, including Djibouti, Karachi, Diego Garcia, Perth, Guam, Tokyo, Incheon, Saigon, Singapore, Colombo and Mumbai. In her speech on the occasion of the ‘Bayern’s’ departure from the port of Wilhelmshaven, Defence Minister Annegret Kramp-Karrenbauer declared:
[F]or our partners in the Indo-Pacific it is a reality that the freedom of the seas is restricted, and sea routes are no longer safe. They experience how attempts are being made to enforce territorial claims according to the law of the strongest. … As advocates of a rules-based order, we are not indifferent when applicable law is disregarded, and facts are created on the ground that are contrary to international law … . Our commitment in the Indo-Pacific does not mean to be against something or someone, but to stand up for something together … . I see it this way: We will cooperate with China where we can and push back where we must. We will firmly resist anyone who tries to circumvent international laws and impose their own rules on us and our partners. … It [the Indo-Pacific Deployment] stands for Germany’s active support of a rules-based order that is near and dear to us. … Our rules-based order is also defended at sea – and the German Navy is at the service of peace, freedom and the law.
On the same day, the Federal Foreign Office also commented on the deployment of the ‘Bayern’ to the Indo-Pacific, stating inter alia:
The frigate will also cross the South China Sea. Germany regularly underlines the significance of the UN Convention on the Law of the Sea (UNCLOS) as a comprehensive, universally recognised legal framework, particularly its provisions on freedom of navigation in international waters, as well as the obligatory mechanisms for the settlement of disputes.
Federal Foreign Minister Heiko Maas also issued a statement to mark the departure of the frigate ‘Bayern’ for Asia which read in part:
The Indo-Pacific is where the international order of the future will be decided. … And this is why the frigate Bayern is setting sail for Asia today. Its mission is to support us in upholding international law and improving security in the Indo-Pacific together with our partners.
On the date of the ‘Bayern’s’ departure for its Indo-Pacific mission, the Chinese Embassy in Berlin issued the following information note on its website entitled ‘The Facts about the South China Sea and China’s Position’. The note set out China’s position on, inter alia, the question of freedom of navigation, stating:
The South China Sea disputes have never affected the freedom of navigation and overflight, which all countries enjoy in the South China Sea in accordance with international law. The South China Sea is one of the safest and freest sea lanes in the world. About 30 percent of the world’s trade in goods and about 100,000 merchant ships transit the South China Sea each year, and not a single ship has ever reported its navigation hampered or its safety threatened.
The South China Sea is the lifeline of China’s maritime trade. 60 per cent of China’s maritime trade and a good 85 per cent of its energy imports pass through the South China Sea. China therefore attaches great importance to peace and stability in the South China Sea and attaches more importance than any other country to maintaining smooth and safe navigation. China consistently respects and supports the freedom of navigation and overflight enjoyed by all countries in the South China Sea in accordance with international law.
United States military activities in the South China Sea are the greatest threat to freedom of navigation. The United States maintains a number of warships in the South China Sea year-round and regularly conducts so-called ‘Freedom of Navigation Operations’ directed against China, sending warships and military aircraft into China’s territorial waters and into areas adjacent to islands and reefs, even into the internal waters of China’s Xisha [Paracel] Islands. The purpose of the United States’ ‘Freedom of Navigation Operations’ is not to secure freedom of navigation, but to find excuses to exercise its maritime hegemony and to extent its military presence in the South China Sea at will, which is totally contrary to the spirit of international law.
The Federal Government reported on the ‘Bayern’s’ deployment in its progress report on the implementation of the German Government policy guidelines on the Indo-Pacific Region, stating:
The frigate BAYERN embarked on its patrol and training mission in the Indo-Pacific in August 2021. Germany is thereby underscoring its responsibility for maritime security and for upholding the rules-based international order in this region, too. Together with France and the UK, Germany presented its legal position with respect to international law on maritime claims in the South China Sea in a joint Note Verbale to the United Nations in September 2020. … It set out the following international law position: upholding the integrity and universality of the UN Convention on the Law of the Sea, with whose rules and principles all maritime claims in the South China Sea must conform (as stated bindingly in the arbitral award in the Philippines v. China case of July 2016); respecting UNCLOS regulations on the peaceful settlement of disputes, on unhampered exercise of the freedoms of the high seas, in particular the freedoms of navigation and overflight, and on the right of innocent passage.
Germany repeatedly emphasised that its commitment in the Indo-Pacific was not directed against anyone or anything. For that reason, Germany also planned a friendly port visit of the ‘Bayern’ to Shanghai. China, however, saw things differently and refused a port visit. In response to a question during the regular government press conference on 15 September 2021, the spokesperson for the Federal Foreign Office stated:
After a period of reflection, China decided that it would not want the German frigate ‘Bayern’ to visit one of its ports. We have taken note of that.
The following day, a spokesperson for the Chinese Foreign Ministry explained the decision as follows:
[I]n recent years, in the name of safeguarding freedom of navigation, [a] certain major country has frequently sent military vessels and aircraft to the South China Sea to flex muscles and stir up trouble, deliberately creating disputes on maritime issues. China is firmly resolved to safeguarding its territorial sovereignty and maritime rights and interests. … We also hope that countries outside the region can respect the efforts of regional countries to safeguard peace and stability in the South China Sea and play a constructive role toward this end.
The spokesperson made it clear that visit of the German frigate to the South China Sea would not contribute to “mutual respect and mutual trust” in the relations between the two countries.
Setting out from the Korean peninsula, the frigate ‘Bayern’ crossed the South China Sea towards Singapore in the second half of December. On 16 December 2021, the Federal Foreign Office issued a statement on the Frigate ‘Bayern’ crossing the South China Sea which read in part:
Germany’s presence in the South China Sea underscores its continued commitment to freedom of navigation and the preservation of the rules-based international order in the Indo-Pacific, which is coming under pressure in the South China Sea. The People’s Republic of China, for example, is making far-reaching maritime claims and does not recognise the 2016 UNCLOS arbitration ruling on the Spratly Islands. …
Germany regularly underlines the significance of the UN Convention on the Law of the Sea (UNCLOS) as a comprehensive, universally applicable legal framework for all activities in the world’s oceans and seas. This applies in particular to the freedom of navigation and overflight in international waters enshrined in the Convention, as well as to the right of innocent passage through coastal waters. UNCLOS also governs the procedure to be followed in the event of a dispute via mandatory dispute settlement mechanisms.
After almost seven months and a 43,000 nautical miles long journey, the ‘Bayern’ returned to its home port of Wilhelmshaven on 18 February 2022.
This was the first time since 2002 that a German warship transited the South China Sea. Unlike US warships, the ‘Bayern’ did not conduct a so-called freedom of navigation exercises but stayed on common international shipping routes. Germany thereby avoided taking a clear position on China’s territorial and maritime claims in the South China Sea. The presence of the ‘Bayern’ in the South China Sea thus had no meaningful value either for freedom of navigation or the preservation of the so-called rules-based international order. In terms of international law, it was not the deployment of the warship that was relevant but the statements by the federal government accompanying that deployment.
There have been no reports of China impeding commerce and freedom of navigation in the South China Sea. All reported incidents rather arose in the context of fisheries or territorial disputes or were related to freedom of navigation exercises by the US and other States’ navies. One could therefore gain the impression that Germany, like the United States and some other States, uses freedom of navigation in the South China Sea as a legal stick to beat China.
Category: Law of the sea
DOI: 10.17176/20230328-195319-0
