How America Should Wage 'Lawfare' in the South China Sea

June 4, 2015 Topic: SecurityPolitics Region: Asia Tags: South China SeaInternational LawMilitary

How America Should Wage 'Lawfare' in the South China Sea

"The United States has not employed international law as effectively as it could to stop China’s scramble for mastery over the South China Sea."

The United States is perfectly positioned to undo this damage and facilitate cooperation among the smaller claimants. The State Department has long evaluated other nations’ divergence from UNCLOS’ dictates in its meticulously researched and well-regarded “Limits in the Seas” (LIS) series. (Though the United States has not ratified UNCLOS, it can legitimately interpret maritime law because it accepts most of UNCLOS’ substantive provisions as reflecting binding, customary international law.) While UNCLOS cannot solve all the region’s maritime boundary disputes, American diplomats should use the LIS reports to cajole and cudgel the non-China disputants into cutting their excessive claims down to size and resolving—or at least shelving—any distracting disputes with each other. This cooperation is already in its early stages, but more must be done to reconcile the smaller claimants’ domestic laws with UNCLOS.

Illegitimating China’s Maritime Claims. Second, the United States should encourage the smaller claimants to come to a consensus position on what maritime zones are allocated to the South China Sea’s islands under the law of the sea.

As mentioned earlier, the law of the sea determines the size of the maritime zones—or areas where sovereigns have jurisdiction over the waters and seabed—attached to each piece of insular territory. Different types of features are entitled to differently sized maritime zones. So, for example, an island the size of Maui entitles the United States to jurisdiction over a two hundred nautical mile exclusive economic zone. On the other hand, a submerged reef does not entitle its sovereign owner to any maritime zone.

Without getting too much into the often head-spinning details, it is enough to note that maritime law grants larger maritime zones to territory that is above water at high tide and can also “sustain human habitation or economic life of [its] own.” Thus, generally speaking, the bigger the piece of territory, the more that its owner can control the surrounding waters and seabed.

To date, the claimants have acted as if most of the South China Sea’s features are entitled to the maximum maritime zone. This made sense before China escalated the struggle: each nation was trying to maximize its own influence. But realistically, the vast majority of these features are spits of land that almost certainly qualify for little to no maritime zone.

The smaller claimants should own up to this fact and jointly classify the vast majority of the area’s insular territory as features that are entitled to only very small maritime zones. Happily, this consensus should come easily to the smaller claimants—they have not invested much political capital in a contrary legal interpretation, so they can bring their views into alignment with UNCLOS at low cost.

By doing so, the claimants could deprive China’s extensive claims to the Sea’s waters of their legal authority and cast its actions in a wholly pugnacious light. Additionally, this consensus might help tamp down the conflict by lowering the stakes—after all, sovereignty over the islands will matter less if they grant the owner little in terms of maritime rights. Finally, by helping to neutralize the islands’ worth ahead of time, the smaller claimants can hedge their downside risk in the event that China prevails in the legal conflict. That way, the Sea has a better chance of being free and open to the investment and economic exploitation of all interested parties, not just China.

The United States must take the lead on this issue as well. Using the LIS series as a vehicle, the State Department should issue a new report that surveys all named features in the South China Sea and categorizes them under maritime law. Although the South China Sea claimants may have a different take from the United States, this new report could provide a starting point for their discussions with each other—discussions that Washington can guide.

Refining the Role of International Law in the South China Sea

One should not overstate the importance of law to the dispute—international law cannot compel nations like China (or any other claimant) to act against their core national interests. But when wielded properly, law can increase the costs of engaging in aggressive behavior by illegitimatizing it and organizing a coalition to counter it. Wielded improperly, however, law can inflame a combustible situation by undermining its own legitimacy and relevance, or, worse, actually encouraging escalatory conduct.

Thus far, the United States has not employed international law as effectively as it could to stop China’s scramble for mastery over the South China Sea. Rather than emphasize “international law” as a universal palliative, Washington should highlight one branch of it—the law of the sea—while downplaying another branch of it—the law of sovereignty—in its efforts to guide the claimants toward a peaceful resolution of the dispute.

Sean Mirski is co-editor of Crux of Asia: China, India and the Emerging Global Order.

Image: Flickr/PACOM