Evidence: Recently Added
As bad as things are already, they could get worse—particularly if American attention and resolve are in question. In attempting to prevent China from using military force to resolve island and maritime claims disputes in the South China Sea, the United States will increasingly face Beijing’s three-pronged trident designed precisely to preserve such a possibility. Maritime militia and Coast Guard forces will be forward deployed, possibly enveloping disputed features as part of a “Cabbage Strategy”13 that dares the U.S. military to use force against non-military personnel. Such forces would be supported by a deterrent backstop that includes both China’s navy and its “anti-navy” of land-based anti-access/area denial (A2/AD), or “counter-intervention,” forces, collectively deploying the world’s largest arsenal of ballistic and cruise missiles. In the region, only Vietnam also has a maritime militia, and the U.S. Coast Guard is not positioned to oppose China’s. Meanwhile, China’s Coast Guard is already larger than those of all its neighbors combined, and still growing rapidly.14
The United States will at some point fully adhere to the Convention. Every oceans industry interest in the United States supports the Convention, from the oil majors to the environmentalists. Indeed, the only opposition is ideologically based, rather than interest based, and even then is senseless un- less rooted in inaccuracies about the Convention. In the meantime, the United States accepts the normative provisions of the Convention as cus- tomary international law, and the United States Navy has one of the best records in the world in careful compliance.
These important provisions for navigational freedom are of the utmost importance in protecting global trade, one of the core mechanisms for global economic growth, and for lessening the risks of conflict involving efforts to assert jurisdiction over warships and other vessels entitled to sovereign im- munity. For “zone-locked” states, the absence of these navigational freedoms would mean losing access to the oceans as though the state were land- locked. Indeed, without the clear legal recognition of these fundaments of navigational freedom, UNCLOS would not have been possible. Sadly, however, the international community must be diligent in combating the challenges to navigational freedom that still exist. These include:
- Aberrant and vague “area” claims such as the old “Libyan Line of Death,” the Chilean “Mar Presencial,” China’s “nine-dashed-line” and North Korea’s 50-mile security zone claim;
- Excessive straight baseline claims;
- Excessive claims concerning innocent passage in the territorial sea; particularly claims concerning consent or notification for warships; claims which have never been accepted as part of oceans law and which have been jointly rebutted by the United States and Russia in the Jackson Hole Statement of September 23, 1989;
- llegal claims asserting ship construction or operation standards for transit through the territorial sea or the economic zone which have not previously been adopted through the IMO mechanism; and
- Claims limiting full high seas navigational freedoms in the exclusive economic zone.
For the most part aberrant and vague area claims and claims beyond permissible limits for the territorial sea and economic zone seem to be slowly re- ceding as the Convention takes greater hold each and every year. The more concerning problems for the future likely relate to the “character” of each of these zonal areas in UNCLOS. We must not permit gradual encroachments to roll back the core UNCLOS compromise of extended coastal state resource rights in return for full navigational freedom in the EEZ and straits transit rights through, over, and under straits used for international navigation.
The rule of law matters. Law serves to provide clear expectations as to juris- dictional boundaries and national rights and obligations so necessary for co- operative relations, economic life, and more broadly, human creativity. Thus, we need to know the breadth of the territorial sea, who manages coastal stocks of fish, the rules for straits transit and a myriad of other rules to func- tion cooperatively in the oceans. If some states claim three nautical miles for the territorial sea and others two hundred nautical miles, we simply do not know the basic rules. But of even greater importance, the rule of law serves as a check on power. An oceans space driven by out-of-control national claims and a “might makes right” credo can neither serve community com- mon interests nor restrain conflict. The Law of the Sea Convention is a re- markable achievement in the rule of law—providing both stability and a check on power.
In the medium term, focusing on managing North Korea at the expense of the United States’ interests in the South China Sea could destabilize the U.S.–Chinese relationship. Such a course would suggest a dangerously narrow definition of U.S. priorities, encouraging China to more assertively press its position on other regional issues, such as its relationship with Taiwan or the territorial disputes in the East China Sea.
But it is in the long term that U.S. acquiescence in the South China Sea would be the most damaging. If the United States ceases to defend freedom of navigation, others will not make up for its absence. U.S. allies such Australia and Japan are committed to international law, but they do not have their own freedom of navigation programs, and they cannot maintain a regular military presence in the South China Sea. Similarly, if the Trump administration does not seek to rally Southeast Asian countries to support the waterway’s openness, those countries will have little reason to stand up to China on their own. States in the region, including U.S. partners, will quickly presume that Washington is pulling back from Asia and will increasingly view China as the region’s most dependable power, despite its misbehavior at sea. The result would be a tilt in Asia’s balance of power toward Beijing.
If the United States waits months to get tough in the South China Sea, it will do so from a weaker legal, military, and diplomatic position than it holds today. Making matters worse, a sudden shift after a long delay could cause whiplash in Beijing, sending the bilateral relationship into a crisis.
That is why the United States must step up now. Just as international law does not enforce itself, access to the oceans cannot be taken for granted—and it should certainly not be traded away.
Exactly why the South China Sea has fallen off the administration’s agenda is not clear. But it is possible that U.S. officials have decided to lift the pressure on China’s maritime outposts because they believe that doing so could help secure Beijing’s help in managing North Korea. There are other signs that suggest that the administration may be trying to gain China’s favor. When Secretary of State Rex Tillerson went to Beijing in March, for example, the White House authorized him to describe the bilateral relationship in language favored by Chinese officials—a puzzling accommodation in light of the importance that Beijing attaches to such rhetoric. The next month, Trump called on South Korea to pay for a missile defense system whose deployment China has opposed. The Trump administration has also released no details about when it will announce arms sales to Taiwan, and Trump has indicated that he will seek Beijing’s permission before speaking to Taiwan’s president again. (Trump spoke on the phone with Taiwanese President Tsai Ing-wen in December, in a break from longstanding U.S. policy that angered China.)
If this is the administration’s logic, it is deeply flawed. China is indeed capable of pressuring North Korea, since Beijing supports much of that country’s economy. But China has long prioritized the stability of the Korean Peninsula over its denuclearization, and those preferences will not change. More likely is that Beijing will pressure North Korea just enough to demonstrate that it is pitching in, avoiding the kinds of dramatic steps that would push Pyongyang toward denuclearization at the risk of the regime’s collapse. China will not ignore its interests in the Korean Peninsula simply because Washington gives up its own interests in the South China Sea.
To further demonstrate its support for the Convention’s legal regime, a succession of US presidents over the past three decades have directed a multi-agency US Freedom of Navigation Program to preserve the nation’s rights, freedoms, and lawful uses of the sea and airspace throughout the world. Of note, this US interest in freedom of navigation has included maintaining that freedom in the waters of East Asia, as demonstrated by a combination of public statements, diplomatic correspondence, and operational activities. Through the 1980s, 1990s and 2000s, the US Department of State has diplomatically protested and the US Department of Defense has operationally challenged excessive maritime claims asserted by nations in East Asia that are inconsistent with the Convention. These US efforts to preserve the legal regime reflected in the Convention are transparently documented in the US Department of Defense’s Annual Freedom of Navigation Reports and its Maritime Claims Reference Manual, both of which are available to the public on the Internet.
At the same time, the United States has demonstrated support for the Convention’s legal regime through its actions as a coastal state, to include respecting all of the rights, freedom, and lawful uses of the sea and airspace exercised by other states. For example, when vessels and aircraft from foreign militaries, such as Russia20 and China,21 conduct military activities in and over the US exclusive economic zone, the United States has fully respected this “other internationally lawful use of the sea” by foreign militaries reflected in the Convention
US accession to the Law of the Sea Convention in the immediate future might not be possible. Yet US presidents of both political parties have taken the maximum possible action within their legal authority to respect the law of the sea, by declaring that many of the rules contained in the Convention reflect customary international law, and by acting accordingly. Moreover, US military commanders and forces are instructed to adhere to customary international law, including that re ected in the Law of the Sea Convention. On a more practical level, this author always has a copy of the Convention on his office desk and routinely relies upon many of the rules of law contained therein as a reflection of customary international law when advising his military commander-clients and their staffs on law of the sea matters.
In my personal opinion, the United States should join the Convention as a State Party. Legally, accession would enable the nation to enjoy the legal benefits that the Convention affords a party as a matter of conventional law, with more durable certainty. Politically, US accession would further demonstrate to other nations the US commitment to the rules-based and balanced approach of rights and responsibilities that the Convention reflects. More important than what I personally believe, the executive branch of the US Government supports and has long supported US accession to the Convention, in particular when discussing the ongoing situation in the waters of East Asia. In May of this year, President Obama acknowledged this challenge for the United States in his speech before the graduating cadets at the US Military Academy.19 He stated: “You see, American influence is always stronger when we lead by example ... We can’t try to resolve problems in the South China Sea when we have refused to make sure that the Law of the Sea Convention is rati ed by our United States Senate, despite the fact that our top military leaders say the treaty advances our national security.”
In short, the noticeable absence of the United States in the roll-call of mem- ber-states to the Law of the Sea Convention continues to handicap US efforts in the international community to promote the rules-based approach reflected in the Convention, particularly in the ways it can aid in resolving maritime-related disputes in the South China Sea. Yet, as a US citizen, I fully respect the US Senate’s constitutional role in the treaty-making process.
China and the United States have already agreed on communication protocols for unplanned encounters at sea. But most encounters between U.S. ISR vessels and aircraft and China’s warships and planes are not unplanned, unintentional, or even unexpected. While the new agreements may make the encounters safer, they will not make them any friendlier or less frequent.
What is needed is an agreement on a set of voluntary guidelines for military and intelligence-gathering activities in foreign EEZs and on definitions of permitted and prohibited conduct there. Such guidelines would provide indicators of friendly and unfriendly behavior and help parties avoid unnecessary incidents without banning any activities outright. But so far, the United States has rejected any and all such guidelines — voluntary or not — as unacceptable. There is now an opportunity for Washington to re-consider its position.
However, any such agreement should be ancillary to a grander bargain on the South China Sea. This bargain would in essence be a political and military stand-off with de-escalation. China would refrain from further occupation, construction, and “militarization” on its claimed features. It would also not undertake any provocative actions like occupying and building on Scarborough Shoal, harassing other claimants in the area, and declaring an air defense identification zone over the Spratlys. China would also agree to a Code of Conduct for activities in the South China Sea — although it may not be as robust or as binding as many would like. The United States, in turn, would decrease or cease altogether its provocative FONOPs against China there and its “close-in” ISR probes.
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