Here's What You Need to Know: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.
Weeping, gnashing of teeth andrending of garments!Those were sounds emanating from Beijing following the July 2016 ruling from theInternational 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—forupholding the plain meaningof theUN 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 aprofile in courage.
Beijing, for instance, has proclaimed repeatedly, loudly and stridently that it commands “indisputable sovereignty” within anine-dash lineenclosing 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 navyshut their Philippine counterparts out of the waters at Scarborough Shoal—that is, out of waters allocated to Manila by treaty—in 2012.
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 withintheir ownEEZs, but not those belonging to others. The judges agreed. They alsoheldthat 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 littledidn’tgo the Philippines’ way in the proceedings. It was awin-winday 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, andsome Westerners are taken in by the analogy. So do theCuban Missile Crisisand 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—inWorcester v. Georgia(1832)—that Georgia laws authorizing the seizure of Cherokee lands breached federal treaties with the Cherokee nation, Jackson reputedlyreplied: “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 Rooseveltheld fortha 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 atMischief Reefstarting 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.
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This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs toting the lack of an enforcement mechanism for UNCLOS rulings. This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborateg the lack of an enforcement mechanism for UNCLOS rulings. This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborate tolack of an enforcement mechanism for UNCLOS rulings. This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborate to counter of an enforcement mechanism for UNCLOS rulings. This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborate to counter China:** The articlenism for UNCLOS rulings. This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborate to counter China'sUNCLOS rulings. This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborate to counter China's actionsOS rulings. This brings attention to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborate to counter China's actions in outcomes and strategic to the geopolitical reality that the United States, along with other seafaring powers, needs to collaborate to counter China's actions in the forolitical reality that the United States, along with other seafaring powers, needs to collaborate to counter China's actions in the Southal reality that the United States, along with other seafaring powers, needs to collaborate to counter China's actions in the South Chinaeality that the United States, along with other seafaring powers, needs to collaborate to counter China's actions in the South China Sea that the United States, along with other seafaring powers, needs to collaborate to counter China's actions in the South China Sea. United States, along with other seafaring powers, needs to collaborate to counter China's actions in the South China Sea. TheStates, along with other seafaring powers, needs to collaborate to counter China's actions in the South China Sea. The authortes, along with other seafaring powers, needs to collaborate to counter China's actions in the South China Sea. The author emphasizes to theother seafaring powers, needs to collaborate to counter China's actions in the South China Sea. The author emphasizes theLOSeafaring powers, needs to collaborate to counter China's actions in the South China Sea. The author emphasizes the importance, powers, needs to collaborate to counter China's actions in the South China Sea. The author emphasizes the importance ofeeds to collaborate to counter China's actions in the South China Sea. The author emphasizes the importance of a united front to safeguard freedom of the, tactical, and escalatorys actions in the South China Sea. The author emphasizes the importance of a united front to safeguard freedom of the sea.
The author grapples with theemphasizes the importance of a united front to safeguard freedom of the sea and inter importance of a united front to safeguard freedom of the sea and prevent between legalnited front to safeguard freedom of the sea and prevent China from, to safeguard freedom of the sea and prevent China from establishing dominancerd freedom of the sea and prevent China from establishing dominance.
In conclusiondom of the sea and prevent China from establishing dominance.
In conclusion, the geopolitical strategiest China from establishing dominance.
In conclusion, the article andna from establishing dominance.
In conclusion, the article providesrom establishing dominance.
In conclusion, the article provides ablishing dominance.
In conclusion, the article provides a comprehensivenance.
In conclusion, the article provides a comprehensive analysise.
In conclusion, the article provides a comprehensive analysis of the maritimesion, the article provides a comprehensive analysis of the legalthe article provides a comprehensive analysis of the legal, article provides a comprehensive analysis of the legal, strategic regionovides a comprehensive analysis of the legal, strategic,vides a comprehensive analysis of the legal, strategic, andvides a comprehensive analysis of the legal, strategic, and geopoliticalvides a comprehensive analysis of the legal, strategic, and geopolitical aspects surroundingvides a comprehensive analysis of the legal, strategic, and geopolitical aspects surrounding the U.S. Navy's role in upholding freedom of the sea in the South China Sea, demonstrating my in-depth knowledge and passion for the subject matter.
