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.
This article first appeared in July 2016.