Who will forge the rules in the South China Sea?

Nov 13, 2015
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Who will forge the rules in the South China Sea?

Nov 13, 2015
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The United States Navy and Air Force, you may have noticed, have been taking some trips to the South China Sea recently. 

Last month a guided missile destroyer, the USS Lassen, passed within 12 nautical miles of Subi Reef, an artificial island built atop a reef by Chinese engineers.  This week it was a pair of B-52 bombers that flew over another artificial reef.

These movements are not accidental. They’re being conducted to make a point about the rules of the game in international waters. 

“The US since 1979 has a policy to operationally challenge countries that make excessive claims under the law of the sea, claims that are unlawful,” said James Kraska,  professor of international law at the U.S. Naval War College. 

The widely accepted rules of the game under the UN Convention on Laws of the Sea, when it comes to islands, are as follows.

“Rocks that cannot sustain human habitation are entitled to a 12-mile territorial sea, as well as the air space above the territorial sea,” Kraska said.   The rocks have to be above water at high tide. 

Rocks that can sustain human habitation, known as islands, “may generate a 200-mile exclusive economic zone,” Kraska said. That means a country with a claim to that island has the exclusive right to all the fishing, mining and oil 200 miles out.   The 200-mile zone does not entitle a country to prevent what’s known as “innocent passage” of ships by other countries.

Artificial islands, which are what China has been building, don’t get much under international law. “They are only entitled to a 500-meter safety zone,” Kraska said.

China, however, has a different set of rules in mind, “completely divorced from the UN Convention on Laws of the Sea,” said Gregory Poling, director of the Center for Strategic and International Studies’ Asia Maritime Transparency Initiative.  

Beijing couches its claims under a document issued by the pre-communist government of Chiang Kai-Shek in 1947 that drew a “nine-dash line” – a sweeping claim to many islands in the South China Sea.

The legal argument boils down to “this is ours” – with all the ambiguity of what “this” and “ours” means.

The Chinese government intentionally does not make official claims under international law, and this is reflected in the warnings issued to planes and ships that pass near or over areas China has claimed.  “They use generic non legal terms – ‘you’re in the waters of China, the airspace of our reefs,’ none of which gives you an idea of what they’re objecting to other than the fact they’re objecting,” Poling said. “Because if they do clarify that position, it opens itself up to legal ramifications of being proven wrong. As long as the claim remains ambiguous, nobody can nail down what China’s claims are and therefore argue against them.”

This is why the U.S. keeps sailing or flying by, to show that it does not recognize any rules other than internationally recognized ones when it comes to the law of the sea. 

There’s a lot on the line over whose rules prevail, according to Harry Scheiber, director of UC Berkeley’s Law of the Sea Institute. “It’s possible that there is a vast economic benefit not just in control of fisheries and food security, but there’s also the possibility of enormous – the word incalculable is sometimes used – potential resources of oil and gas in that area.”

While resources are important, the dispute over rules would still exist “even if there were not a drop of oil” under the sea floor, said Pooling, because of the value of the islands in terms of sheer nationalism.

“What’s at stake,” James Kraska said, “is what sort of world we have will occupy. Is it a liberal world order in which all countries have the right to use the global commons freely, which is what the law of the sea is based on? Or is it a world order of exclusivity where large powers can cordon off parts of the ocean and declare them off limits?”

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