July 14, 2016
Weeping, gnashing of teeth and rending of garments! Those were sounds emanating from Beijing following the July 12 ruling from the International Tribunal for the Law of the Sea.
International law has a way of accommodating realities of power—of deferring to the strong. Kudos go to the jurists, consequently, for speaking truth to power—for upholding the plain meaning of the UN Convention on the Law of the Sea (UNCLOS) rather than softening their findings or declining to rule on the most contentious matters in hopes of fostering amity with China. John F. Kennedy would award them a profile in courage.
Beijing, for instance, has proclaimed repeatedly, loudly and stridently that it commands “indisputable sovereignty” within a nine-dash line enclosing some 80–90 percent of the South China Sea. That includes exclusive economic zones (EEZs) apportioned to coastal states such as the Philippines, the claimant that brought its case before the UNCLOS tribunal. Indisputable sovereignty is a sea grab.
And a land grab, even if much of the land is watery. At issue is Scarborough Shoal; the shoal is a submerged reef deep within the Philippines’ EEZ, extending two hundred nautical miles offshore and grants the coastal state exclusive rights to tap natural resources in those waters and the seafloor beneath. China’s coast guard and navy shut their Philippine counterparts out of the waters at Scarborough Shoal—that is, out of waters allocated to Manila by treaty—four years ago.
The tribunal rejected not just China’s claims to the waters adjoining Scarborough Shoal; it rejected the nine-dashed line as a whole. Beijing has claimed sovereignty—physical control upheld by a monopoly of force—within that expanse based on “historic rights”. In other words, officialdom contends that since Chinese fishermen worked those waters for centuries, they and the geographic features within belong to China.
Not so, say the UN judges. They point out that fishermen from other Southeast Asian countries plied their trade in the same waters. But even if historic rights once commanded some validity, they note, UNCLOS—to which China is a party, and to which it consented—supersedes any such claims. The Philippine exclusive economic zone, then, belongs to the Philippines.
And so it went. The UNCLOS tribunal also held that no island, atoll or reef in the Spratly Islands is entitled to an EEZ. The treaty text sets criteria for judging a feature’s legal status: if it can sustain human habitation or economic life from its innate resources, it qualifies as an island encircled by an exclusive economic zone.
The judges administered a mild shock. Commentators, including yours truly, have generally interpreted the convention’s requirements to mean that an island with its own freshwater supply qualifies as an island. The jurists demurred, pointing out that no one has ever inhabited the Spratly Islands except in transient fashion. Still less has China ever exercised exclusive control over South China Sea waters. Heck, the decision even downgraded Taiwan’s Itu Aba (Taiping) Island, the largest of the Spratly Islands and a feature boasting fresh water of its own.
The tribunal, furthermore, took Beijing to task for its island-building project. Manila maintained that Chinese engineers were unlawfully erecting artificial islands within the Philippine EEZ. UNCLOS allows coastal states to build artificial islands within their own EEZs, but not those belonging to others. The judges agreed. They also held that China had wrought “irreparable harm” to the marine environment while excavating the seafloor to expand rocks or reefs into islands capable of supporting airfields, piers and other infrastructure.
China “destroyed evidence” of these features’ natural and thus legal status to boot. That’s doubtless a feature—not a bug—in the process from Beijing’s standpoint. Tampering with evidence is no big deal for an offender willing to flout the law. In short, very little didn’t go the Philippines’ way in the proceedings. It was a win-win day for Manila, to borrow the hackneyed business jargon whereby Chinese interlocutors seem so bewitched.
Which leaves the question: what next? First of all, it’s plain that this is not over. Americans are accustomed to an orderly legal process. A court hands down its judgment, the authorities execute it, and that’s that. Not so in this case.
The UNCLOS tribunal ruling constitutes one more milestone in an unfolding strategic competition between China and rival claimants such as the Philippines and Vietnam, the latter backed by the United States and, with luck, by other friendly powers such as Australia and Japan. Let’s take our victory lap today—and don our game faces tomorrow. In all likelihood this will be a long, trying contest.
Second, Chinese interlocutors are fond of invoking American history, in hopes of finding some historical precedent that will disarm U.S. officialdom in interactions on quarrelsome matters. The Monroe Doctrine often comes up, and some Westerners are taken in by the analogy. So do the Cuban Missile Crisis and other past controversies.
Here’s one I’ve never seen invoked, but one that might discomfit Beijing:Andrew Jackson. As a fellow son of Tennessee, I’ve never been able to summon up much enthusiasm for “Old Hickory”. President Jackson’s cavalier disregard of the law is mainly why. After the U.S. Supreme Court headed by Chief Justice John Marshall found—in Worcester v. Georgia (1832)—that Georgia laws authorizing the seizure of Cherokee lands breached federal treaties with the Cherokee nation, Jackson reputedly replied: “John Marshall has made his decision, now let him enforce it.”
The shade of Old Hickory evidently dwells in Beijing, which has declared that it will ignore the UNCLOS ruling despite having acceded to UNCLOS. Sucks to be you if you’re Filipino—or Cherokee.
And, like the U.S. Supreme Court, the UNCLOS tribunal has no force at its disposal—no navy or coast guard—to dispatch to the scene to enforce its decision. Another eminent American statesman, Theodore Roosevelt held forth a century after Jackson’s day on behalf of an international court wielding the sanction of physical force. A century later, Roosevelt’s vision has borne little fruit.
To be sure, the UN Security Council could authorize enforcement of the UNCLOS tribunal’s decision, except Security Council resolutions demand the concurrence of all five permanent members . . . including China. So much for UN enforcement action.
Short of UN action, seafaring powers will have to band together to oppose Chinese overreach. And the United States cannot do it all alone. If Asian and extraregional powers care enough about freedom of the sea to mount a sustained effort to defend it, the resulting maritime consortium could deter China. If the seagoing community proves apathetic, on the other hand, China could prevail by default—and do serious damage both to Asian interests and to the liberal system of nautical trade and commerce.
Third, China is politically and strategically predictable but tactically unpredictable. Politically and strategically predictable because the leadership has gone on record, again and again, proclaiming that the UNCLOS tribunal has no standing to judge what Beijing sees as rights dating from remote antiquity. The leadership can hardly back down now for fear of being hoist by the standard it has set—that it’s the protector of historic rights that amount to a birthright.
Tactics are another matter. Chinese strategic traditions hold that there can never be enough deception in diplomacy and warfare. Roughly speaking, Beijing has a few options. It can comply with the UN ruling. That’s a nonstarter.
It can ignore the ruling, let the furor subside, and, assuming it does, get back to business as usual. A quiet, temporary tactical withdrawal would suit China’s purposes while costing the leadership little in political terms. Afterward China could resume its “small-stick diplomacy,” relying chiefly on law-enforcement ships and aircraft to get its way vis-à-vis lesser contenders while backing its “white hulls” up with naval, air and missile forces.
Or Beijing could escalate. It could do the usual things commentators speculate about. It could declare an air-defense identification zone, possibly corresponding to the zone within the nine-dashed line. Over time, enforcing such a zone could help consolidate its claim to indisputable sovereignty.
It could start island-building at Scarborough Shoal—much as it did at Mischief Reef starting in quieter times twenty years ago. If no one opposed its efforts effectively, China would have effectively hollowed out the law of the sea in Southeast Asia, and in highly public fashion. American sea power would have been proved impotent.
It could shift the scene of conflict to the East China Sea, where Chinese ships and aircraft wrangle with their Japanese counterparts around the Senkaku Islands. That would stretch the allies in an effort to cover all bases.
Or China could do something altogether unexpected. It excels at that.
What should contenders not named China do? Rival Southeast Asian claimants—Vietnam, Indonesia and so forth—should take heart from the Philippine example and file their own cases with the tribunal. One doubts Beijing will refuse to take part in future proceedings, considering how this one went. At a minimum, findings from the tribunal would amplify their legal and moral standing in the disputes.
And the United States? Over the past year or so, U.S. mariners and legal scholars have gone the rounds over the intricacies of freedom of the sea, including “innocent passage” through China’s “territorial sea”, that twelve-nautical-mile belt of sea that adjoins the mainland, islands that qualify as islands under the law of the sea, and rocks that are above sea level at all times.
Here’s an idea: as a guide to action, let’s jettison the adjective “innocent” in favor of “indecent”. Innocent passage seldom offends those who need to be offended. It does little for freedom of the sea, except in the trivial case when the coastal state imposes some extra burden on freedom of navigation—such as demanding advance notice from vessels before they cross through the territorial sea. Innocent passage deflates minor excesses at best.
Think bigger. Indecent passage would mean challenging every Chinese overreach, early and often. Its goal would be to prevent Beijing from abridging any maritime freedom guaranteed by treaty or customary international law. In the case of the Scarborough Shoals of the world, it would mean keeping China from changing the legal status of a maritime feature merely by altering its physical conformation—by piling sand on an atoll or submerged rock.
Mother Nature made Scarborough Shoal an undersea reef. It remains an undersea reef in the eyes of international law, entitled to no exclusive economic zone or territorial sea. Conveying that message is the point. So, even if China constructs an island on Scarborough Shoal, complete with runways or piers, American and allied strategy must insist that it’s entitled to zero control of the air and seas over or around it. Nada.
To uphold freedom of the sea, U.S. Navy and friendly ships and planes should exercise every prerogative to which they’re entitled by the law of the sea, in every square inch of airspace and waterspace where they’re entitled to exercise it. Airmen should conduct surveillance flights in immediate proximity to Scarborough Shoal and other contested features. Ships can lawfully conduct flight operations, underwater surveys and the like—check UNCLOS. They can loiter or even anchor there.
They should. Be indecent—and confound the lawless.
James Holmes is Professor of Strategy at the Naval War College and coauthor of Red Star over the Pacific. The views voiced here are his alone.
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