U.S. must challenge China's flawed interpretation of UNCLOS freedom of navigation provisions
China's flawed interpretation of UNCLOS freedom of navigation provisions, if left unchallenged, could begin to have the status of customary international law, setting a precedent for other nations, and ultimately have serious implications for the global norms that support security and stability at sea.
The U.S.’s post-World War II record of success in shaping a favorable law of the sea agenda was achieved without a serious rival. For decades, developing nations looked to the Soviet Union for leadership in opposing perceived imperialistic trends in U.S. foreign policy. However, within the law of the sea, the Soviet antagonist was notably absent. As the nation most capable of challenging U.S. operations and underlying legal doctrines, the Soviets had no interest in doing so. The U.S. and Soviet Union were, in effect, law of the sea allies.53
Today, China shows far less inclination toward cooperation. Although Chinese legal arguments are not entirely original, what separates China from the traditionally ineffectual opponents of military maritime mobility is China’s ambitious naval modernization.54 The Chinese have served notice they intend to be at least a regional maritime power and perhaps more. Moreover, the Chinese intend to protect their maritime interests by redefining key aspects of the maritime legal regime.55
If indeed the Chinese are inclined to lead a law of the sea insurgency from a position of maritime strength, the international political climate for doing so is more favorable today than 1982, when UNCLOS opened for signature, or even than 1994, when UNCLOS entered into force. Today, states with coastal concerns and interests of their own may find China’s arguments useful in their own contexts. Two especially fertile justifications for increased regulation are protecting the coastal marine environment and ensuring off-shore security.
Regardless of the pace of change, the critical factor in creating and changing international custom will continue to be the relative power of relevant actors.93 The creation of international law is a political process and those with the political, economic, and military power to bend the international legal environment to their own objectives are generally successful in doing so. As relative power changes among international actors, changes to established legal paradigms should be expected.
The implications for the law of the sea are obvious. China’s willingness to challenge traditional legal constructs and ability to influence states with similar interests cannot be dismissed, especially if a dramatic event accelerates the change. One need not agree with China’s arguments or be certain of their ultimate success to acknowledge China’s potential as an advocate for coastal state interests. Whether these interests will reshape the law of the sea remains to be seen. However, to assume that customary law will remain static and that the traditional maritime powers will continue to dictate its future seems retrospective.94
This is precisely the position taken by Bao Shixiu, a Senior Fellow at the Academy of Military Sciences of the People's Liberation Army of China. In his critique of the U.S. 2006 National Space Policy (NSP), Bao advances the notion of vertical sovereignty with the following curious statement: "[t]he NSP declares that U.S. space systems should be guaranteed safe passage over all countries without exception (such as 'interference' by other countries, even when done for the purpose of safeguarding their sovereignty and their space integrity).201 However, the statement in the NSP to which Bao refers is not limited solely to U.S. space systems. It reads: "The United States considers space systems to have the rights of passage through and operations in space without interference." Thus, the rights recognized in the U.S. space policy are applicable to all space systems, which is compatible with the Outer Space Treaty. However, the principal concern vis-A-vis potential Chinese claims of vertical sovereignty over portions of space above their territory lies not with a claim of complete sovereignty, but rather with the assertion that satellite navigation above Chinese territory is subject to Chinese "consent and control" as articulated by Professor Cheng. This space sovereignty position is directly analogous to China's assertion of sovereignty over the airspace above its seaborne EEZ.2° Recall that China alleges that military reconnaissance missions constitute an abuse of overflight rights.205 China may easily adapt and extend this same position to the space domain, applying it to overflight by American military satellites passing over Chinese territory. ￼￼
Legal scholar Ren Xiaofeng summarizes Beijing's sensitivity to reconnaissance and military activities in its exclusive economic zone (EEZ) and its adjacent airspace this way: "Freedom of navigation and overflight does not include the freedom to conduct military and reconnaissance activities. These things [military reconnaissance activities] amount to forms of military deterrence and intelligence gathering as battlefield preparation." These activities in the EEZ, according to Ren, connote preparation to use force against the coastal state. When Ren refers to the "adjacent airspace," he includes outer space and space reconnaissance.207
China's ostensible military objective for such action is denial, "the temporary elimination of some or all of a space system's capability to produce effects, usually without physical damage.208 This legal argument, if ultimately successful, would have the strategic effect of rendering American military satellites useless and could establish a lawful predicate for Chinese military action against those satellites.209 Given its increased military expenditures for research and development of counterspace 21 technology, China could contemplate action that would effectively blind the United States with regard to Chinese military actions. International acquiescence or acceptance of Chinese assertions of vertical sovereignty would effectively vitiate national means of verification of compliance regarding any existing or new arms reduction treaties, and would render meaningless any proposal to ban or limit weapons in space.
In attempting to increase its control and extend its authority throughout the South China Sea by applying domestic legislation to international waters, China has created a con- flict both with its neighbors and with UNCLOS. China’s claims are not just a threat to navigation in the South China Sea. They are a threat to the global commons and to in- ternational law that was developed to protect the rights of both coastal states and distant-waters states in those regions.
China’s efforts to enclose the local commons are short-sighted. It is growing into the role of a global power with its own interests in access and use of the global commons. In fact, the balance between coastal interests and distant- water concerns may now be in the process of tipping toward the latter. Gail Harris, writing in The Diplomat, stated: “Chinese strategists now also believe in order to protect their economic development they must maintain the security of their sea lines of communications, something that requires a navy capable of operating well beyond coastal waters.”9
Attributing motives to Chinese actions is difficult under the best of circumstances. In the South China Sea, it is even more so. Chairman of the Joint Chiefs of Staff Admiral Mike Mullen recently said that China’s “heavy investments of late in modern, expeditionary maritime and air capabilities seem oddly out of step with their stated goal of territorial defense,” while Secretary of Defense Robert Gates accused China’s top military officers of not following the same policy as senior political leaders who have worked to develop other aspects of the U.S.-China relationship.6
As a large and increasingly industrial state, China is concerned with matters of access to strategic and critical materials, especially oil and gas and industrial minerals. In the short term, China may give its regional interests highest priority. As it grows as a global economic power, however, it will find that freedom of navigation and over- flight worldwide are essential to its security.
Increasing dependence on sea lanes for imports of oil and minerals and access to export markets will push for a shift of priority on global mobility over control of the regional sea. A key reason for China to support UNCLOS is the “transit passage” provisions that assure the unimpeded passage of commercial vessels and the warships that are increasingly called on to escort them through the Straits of Singapore and Malacca, the Strait of Hormuz, and other chokepoints through which its critical imports flow.
Chinese anti-access policies may be designed only to expand its jurisdiction and control over the South China Sea and other near seas, but these practices will have a global impact even if the Chinese do not intend it. A key principle of international law is that law evolves as the norms that support it evolve. Thus, if other states accept China’s view that the law of the sea allows it to prohibit foreign military activities in its EEZ, for instance, China will have introduced a new norm into the law that would shift the existing balance of coastal state and international rights at sea. Another key principle is that international law applies equally in all places. Thus, if China succeeds in shifting the norms for East Asia, other states in other regions could assert the same right. In this manner, Chinese actions have serious implications for the global norms that support security and stability at sea.
Some observers are concerned that China’s maritime territorial claims, particularly as shown in the map of the nine-dash line, appear to challenge to the principal that the world’s seas are to be treated under international law as international waters. If such a challenge were to gain acceptance in the SCS region, it would have broad implications for the United States and other countries not only in the SCS, but around the world, because international law is universal in application, and a challenge to a principal of international law in one part of the world, if accepted, can serve as a precedent for challenging it in other parts of the world. Overturning the principal of freedom of the seas, so that significant portions of the seas could be appropriated as national territory, would overthrow hundreds of years of international legal tradition relating to the legal status of the world’s oceans.54
More specifically, if China’s position on whether coastal states have a right under UNCLOS to regulate the activities of foreign military forces in their EEZs were to gain greater international acceptance under international law, it could substantially affect U.S. naval operations not only in the SCS and ECS (see Figure 5 for EEZs in the SCS and ECS), but around the world, which in turn could substantially affect the ability of the United States to use its military forces to defend various U.S. interests overseas. As shown in Figure 6, significant portions of the world’s oceans are claimable as EEZs, including high-priority U.S. Navy operating areas in the Western Pacific, the Persian Gulf, and the Mediterranean Sea. The legal right of U.S. naval forces to operate freely in EEZ waters is important to their ability to perform many of their missions around the world, because many of those missions are aimed at influencing events ashore, and having to conduct operations from more than 200 miles offshore would reduce the inland reach and responsiveness of ship-based sensors, aircraft, and missiles, and make it more difficult to transport Marines and their equipment from ship to shore. Restrictions on the ability of U.S. naval forces to operate in EEZ waters could potentially require a change in U.S. military strategy or U.S. foreign policy goals.55