China and the Rules-Based Legal Order for the Indo-Pacific
For once, the Chinese Communist Party (CCP) has made an accurate observation about the South China Sea. On August 9, 2021, a London-based “journalist” and guest contributor to China Global Television Network wrote an article indicating the United States “cannot make the rules in the South China Sea.” Naderi is absolute correct—the United States does not make the rules, but neither does China.
As with all the world’s oceans, the South China Sea is governed by customary international law rules, most recently codified in the United Nations Convention on the Law of the Sea (UNCLOS), that have been developed over the past two centuries. The United States Navy has championed these customary norms since the beginning of the Republic, and it has, on more than one occasion, gone to war to preserve these navigational rights and freedoms. If challenged, the United States would inevitably fight again to preserve a free and open Indo-Pacific region.
As in by-gone days, the rules-based order that has effectively regulated lawful uses of the seas is once again under attack, this time by China, Russia, and other rogue nations that want to change the rules to advance their nationalistic agendas. So, while the United States may not make the rules, it certainly has a right and obligation, along with other states governed by the rule of law, to safeguard freedoms of navigation and overflight and other internationally lawful uses of the sea associated with those freedoms.
II. The China Threat
Naderi tows the CCP line that China does not pose a threat to its neighbors and that U.S.-led naval exercises are being used by Washington to fraudulently project the illusion of the “China threat.” Yet some dozen partners from India to Oceania are combining efforts and strengthening their armed forces in recognition that China poses the greatest threat to peace and security in the Indo-Pacific region since World War II. Naderi’s assertion that China’s efforts to create a new regional order should be supported because it is based on strict respect for international law and the U.N. Charter, as well as the right of states “to decide their futures freely and without external threat and pressure” is equally incredulous. Such a misrepresentation is disingenuous at best.
On the eve of the opening ceremonies of the Tokyo Olympics, the CCP aired a video where China threatened Japan with continuous nuclear strikes and “full-scale war” if Tokyo interfered in Chain’s handling of Taiwan. This statement was made despite the fact that China has a “no first use policy,” which states China will only use nuclear weapons in response to an nuclear attack against China and unconditionally undertakes not to use or threaten to use nuclear weapons against nonnuclear-weapon states (like Japan). Perhaps it is time for Tokyo to join the nuclear club as a counterbalance to China’s increasing nuclear capabilities?
Moreover, China Coast Guard (CCG) vessels continue to illegally intrude into the waters surrounding the Senkaku Islands, which are clearly Japanese territory and have been under the administrative control of Tokyo since 1972. In 2021, CCG vessels operated in Japanese waters for 152 consecutive days, the highest number on record since 2012. It should, therefore, come as no surprise that Japan identified China as its number one security threat in its 2021 White Paper.
The CCP’s threat against Japan should come as no surprise given the increasing level of aggression directed at Taiwan since September 2020. Between 1954 and 2020, the Davis Line (the median line in the Taiwan Strait) was reportedly breeched only four times by Chinese aircraft. Beginning in September 2020, however, Chinese intrusions have increased in both scope and size raising the possibility that these unprecedented incursions are not consistent with the peacetime right of overflight in international airspace, but rather constitute a threat to use force against Taiwan in violation of Article 2(4) of the U.N. Charter. Four of the more provocative intrusions occurred in September 2020 (19 combat aircraft), March 2021 (20 combat aircraft), April 2021 (25 combat aircraft), and August 2021 (11 combat aircraft). Moreover, between January 1 and November 30, 2020, Chinese warplanes penetrated Taiwan’s air defense identification zone (ADIZ) about 380 times, compared to six intrusions in 2016 and 20 intrusions in 2017. Given the heightened cross-strait tensions, these acts of coercion by combat aircraft are designed to alter the status quo in the Taiwan Strait and clearly raise the risk of miscalculation and military confrontation.
Although the United States maintains a “One-China Policy,” this policy is premised on the condition “that the future of Taiwan will be determined by peaceful means” and that any effort to determine the future of Taiwan by other than peaceful means would be viewed with grave concern by the United States. Moreover, China recently sought to increase tensions by publicly telling Taipei that the United States would abandon the idea of defending Taiwan, citing the recent fall of Kabul to the Taliban as precedent. China’s current aggression toward Taiwan demonstrates it has not lived up to its end of the bargain. Perhaps it is time for the United States to reconsider and abandon the misguided “One-China Policy” and reestablish diplomatic ties with Taipei.
South China Sea and ASEAN Regional States
China routinely ignores the provisions of the Declaration of Conduct of Parties in the South China Sea (DOC) by threatening and using force against the other South China Sea claimants and engaging in activities that raise tensions and undermine regional peace and stability, such as occupying, reclaiming, and militarizing a number of uninhabited South China Sea features. China routinely interferes with the resource rights of the regional states, purporting to control their exclusive economic zones (EEZs) and continental shelves by arresting or sinking fishing boats, harassing survey vessels and offshore oil rigs, and illegally seizing fishing equipment and fish catch. China has blocked access to over $2.5 trillion in unexploited oil and gas resources, resulting in enormous economic loss for the other South China Sea claimants. This aggression upends the sovereign rights and jurisdiction of the regional states and runs counter to their ability to fulfill U.N. goals of sustainable development.
China has also established seven military outposts on massive artificial islands that have changed the status quo of the South China Sea. Militarization of these outposts clearly violates China’s commitment to exercise self-restraint in conducting activities that could complicate or escalate the ongoing disputes and affect regional peace and stability. These shore-based infrastructure improvements, such as airfields and hangars for combat aircraft, port facilities and deep-water channels to improve access for large warships, communications and surveillance facilities, fixed-weapons positions, and improved logistics hubs (water and fuel storage facilities), provide China with a persistent and robust power projection presence that will be used to threaten the sovereignty of regional nations, impede free and open access to the South China Sea, and endanger global prosperity.
At an August 2021 meeting of the U.N. Security Council, under the chairmanship of India, Secretary of State Anthony Blinken discussed many of these concerns, underscoring the importance to defend, uphold, and revitalize the rules-based international order reflected in UNCLOS, which regulates all activities in the oceans and is critical to global stability and the security and prosperity of all nations. He emphasized that the international order is under serious threat in the South China Sea where China has engaged in dangerous and provocative actions to advance its illegal maritime claims and intimidate and bully other claimant states “from lawfully accessing their maritime resources.”
China objected to the discussion of the South China Sea issue in the U.N. Security Council, indicating that the U.S. remarks were irresponsible, that China and ASEAN countries were capable of maintaining peace and stability in the South China Sea, and that the United States was stirring up trouble by sending ships and aircraft to the region. China additionally emphasized that the United States has no credibility on maritime issues given that Washington has failed to join UNCLOS, “but considers itself a judge of the convention.”
China has a point—the United States is not a party to UNCLOS and maybe it should be so it can deflect future Chinese criticism. Nonetheless, since 1983, the United States has publicly accepted and acted in accordance with the provisions of the convention regarding traditional uses of the oceans and recognized the rights of other states in waters off their coasts, as reflected in UNCLOS, so long as the rights and freedoms of the United States and other nations are recognized by the coastal states. Concomitantly, the United States has also exercised and asserted its navigational rights and freedoms on a worldwide basis, consistent with the convention, and has demonstrated its non-acquiescence in unilateral acts of other states that restrict the navigational rights and freedoms of, and other lawful uses of the sea, by the international community.
China, on the other hand, despite being a party to UNCLOS, is recognized globally as a serial violator of the convention. Virtually all of its domestic legislation applicable to its maritime claims is inconsistent with UNCLOS and customary international law. Most of China’s claimed straight baselines along its mainland coast do not meet the geographic requirements of UNCLOS (articles 5 and 7) and are therefore illegal. Similarly, China’s claimed baselines around the disputed Paracel Islands and part of the Senkaku Islands are unlawful. As a continental state, China may not draw straight baselines around its claimed mid-ocean archipelagoes (UNCLOS articles 46 and 47). China has failed to demonstrate its open, notorious, effective, and continuous exercise of authority over the Gulf of Bohai and Hainan Strait, as well as a showing of actual acquiescence by foreign states in the exercise of that authority. Thus, China’s claim that the gulf and strait constitute internal waters based on historic rights is inconsistent with international law.
Likewise, China’s requirement in its 1992 territorial sea law that foreign warships and other government non-commercial vessels require prior permission to conduct innocent passage through the territorial sea is contrary to UNCLOS (articles 17 and 19) so long as the ship does not engage in any activities that is considered to be prejudicial to the peace, good order, or security of the coastal state. China’s claim that it has jurisdiction over security-related matters in its contiguous zone violates the plain language of UNCLOS (article 33), which limits coastal states authority in the contiguous zone to prevent and punish infringement of its customs, fiscal, immigration or sanitary laws and regulations committed within its territory or territorial sea.
China’s purported authority to regulate all foreign military activities in its EEZ is equally untenable and in direct contravention of international law. While China exercises exclusive rights to the resources of the zone and jurisdiction over marine scientific research (MSR), all states have an absolute right under international law to conduct military activities beyond the territorial sea of another state. Within the EEZ, all states enjoy high seas freedoms of navigation and overflight and other internationally lawful uses of the seas related to those freedoms (UNCLOS articles 56, 86 and 89). Military operations, exercises, and activities, to include military marine data collection and intelligence, surveillance, and reconnaissance operations, have always been regarded as internationally lawful uses of the sea and the right to conduct military activities in the EEZ is not affected by the convention.
China’s air defense identification zone (ADIZ), which was established in 2013 and encompasses much of the East China Sea, also does not comport with state practice and customary international law. All nations enjoy freedom of overflight in international airspace seaward of the territorial sea. The purported application of ADIZ regulations to transiting aircraft that do not intend to enter Chinese national airspace interferes with the freedom of overflight and is therefore inconsistent with international law.
Finally, China’s reprehensible refusal to comply with the award of the South China Sea Arbitral Tribunal reaffirms Beijing’s disdain for contemporary international law and accentuates its devious plans to alter the rules-based international order to advance its illegal maritime claims. The tribunal ruled that “China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect….” The tribunal’s award is final and binding, and as a party to the convention China has a legal obligation to comply with the ruling (UNCLOS article 296, Annex VII article 11). Beijing cannot pick and chose which decisions it will observe or reject.
IV. “Policing” the South China Sea
If China acted as a responsible state actor and did not engage in activities that intimidate its neighbors, no one would have to police the South China Sea. But, Naderi is correct in saying that no one has deputized the U.S. Navy to be the South China Sea policeman. Nonetheless, as Secretary Blinken astutely observed before the Security Council in August 2021, every state has the responsibility “to defend the rules that we’ve all agreed to follow and peacefully resolve maritime disputes” and if a state like China “faces no consequences for ignoring these rules, it fuels greater impunity and instability everywhere.”
A conflict in the South China Sea would devastate the global economy and have serious, long-term consequences for international peace and security in the Indo-Pacific region. Some of the world’s busiest and most strategic sea lines of communication (SLOC) traverse the South China Sea, with nearly one-third of global maritime trade and two-thirds of the world’s oil shipments transiting these waters annually. This includes between $3.4 and $5.3 trillion in ship-borne trade, including $1.2 trillion bound for U.S. ports. Thus, the United States has an abiding interest in “policing” and ensuring the South China Sea SLOCs remain open to protect U.S. and allied economic interests and maintain regional and global peace and security.
Like it or not, the Indo-Pacific region will only enjoy continued stability, economic growth, and prosperity if the United States and its partners maintain peaceful and deliberate military operations in the region to counter Chinese hegemony. As a maritime domain, the Indo-Pacific requires the continuous presence of naval and air forces of allies and partners to ensure it remains free and open. Continued U.S. naval operations in the Indo-Pacific will buttress regional peace, stability, and security and counterbalance China’s efforts to alter the rules-based international legal order that has preserved peace and stability in the region for eight decades. As a Pacific nation, global leader, and premier maritime power, the United States remains committed to countering China’s unlawful intimidation and coercion against its neighbors, which threaten their sovereignty and reinforce China’s efforts to advance its illegal maritime claims. The rules-based order has benefited all nations and it will continue to do so unless bullies like China are allowed to change the status quo and alter the rules that have effectively governed the world’s oceans for centuries.
*** The views expressed herein belong solely to the author and do not necessarily represent the opinions of JTMS or the Yonsei Institute for North Korean Studies. Captain Raul (Pete) A. Pedrozo, USN (Retired) holds a JD from the Ohio State University College of Law as well as an LLM in International & Comparative Law from Georgetown University Law Center. He currently serves as Howard S. Levie Chair on the Law of Armed Conflict and is a Professor of International Law at the U.S. Naval War College.