Cracks in the Global Foundation: International Law and Instability in the South China Sea
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China is asserting its interests in ways that threaten the foundational norms that govern the global maritime commons. This trend is most evident in the South China Sea, where China’s policies and activities are challenging stability and security.
China is challenging these norms in two ways. First, it is challenging established provisions of the United Nations Convention on the Law of the Sea (UNCLOS), which allows states to claim Exclusive Economic Zones (EEZs) and continental shelves. Instead, China bases its maritime jurisdictional rights on a historical a “nine-dashed line,” instead of an EEZ or a continental shelf.1 This view regard- ing how states may legitimately claim maritime resource rights increasingly is causing friction with its South China Sea neighbors.
Second, China is challenging the rights of navies to conduct operations, undertake exercises and gather intelligence in the EEZs of other states. Though China benefits substantially from the existing order, Beijing’s views about some key norms governing military activities throughout the global system diverge from those of the United States and other like-minded countries. Such Chinese activi- ties are both creating instability in the South China Sea and undermining international legal norms designed to suppress international instability and armed conflict.
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Instead of reinforcing the existing international legal order, China is seeking to change the rules and norms that define international maritime rights. In the South China Sea, this results in friction, as China’s neighbors and the United States insist on preserving their maritime rights. Managing this friction will be challenging, but the United States and its regional friends and allies should continue to work together to encourage China to accept the existing norms and support the pillars of globalization rather than undermin- ing them. This perspective was reflected in the Department of Defense’s 2011 Annual Report to Congress on Military and Security Developments Involving the People’s Republic of China, which states, “The United States welcomes a strong, prosperous, and successful China that reinforces international rules and norms and enhances 29 security and peace both regionally and globally.” Unfortunately, that statement must still be taken as aspirational with regard to the laws, rules and norms that govern maritime security and provide order in the maritime global commons.
In truth, these norms have also been weakened by American neglect. Even as the Chinese have put pressure on the existing system, the United States has failed to exercise full, effective and active leadership. By its failure to ratify UNCLOS, the United States remains – along with such dubi- ous international companions as Iran and North Korea – fundamentally a spectator in a system that it largely created, that governs international relations and activities in the maritime domain and that has now been accepted by 161 states and the European Union.
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Those who argue that the United States should think twice before ratifying UNCLOS because the Convention “has done nothing to avert the current impasse in the South China Sea” are only partially right.30 True, UNCLOS has not deterred Chinese regional maritime expansionism, at least in part because the United States has failed to ensure its leadership over this cornerstone of the global system. By failing to ratify UNCLOS, the United States has allowed China, which ratified it in July 1996, to pursue its own interpreta- tions and to pressure others with the mantle of institutional legitimacy. Thailand’s recent ratifi- cation statement shows this clearly and is not a healthy development for a global system predi- cated on free and open trade through a stable maritime domain. Additionally, those South China Sea states that are attempting to conform with UNCLOS norms in order to shape Chinese behaviors and limit China’s excessive claims in the South China Sea will require full American leadership and support to be successful.
Although the cracks in the foundation so far remain hairline fractures, sustained and effective American leadership over the pillars of the global system will be essential to repair the damage and to keep the foundation solid. In the South China Sea, this will require the United States to continue to encourage progress by all parties to the region’s disputes toward bringing their laws and claims into compliance with UNCLOS. Furthermore, the United States must maintain a sustained focus on this strategically important region, providing con- sistent diplomatic leadership supported by a strong regional military presence.
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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.