October 28, 2015

South China Sea Artificial Islands -- U.S. Navy & Law of the Sea

By Jerry Hendrix

The recent passage of an American warship within 12 nautical miles of one of China’s artificial (and illegal) “islands” in the South China Sea represents the sustainment of over 400 years of custom and international law at sea. Ever since Hugo Grotius wrote The Free Sea in 1609, it has been accepted maritime law that no nation may claim or exercise sovereignty over the high seas and that other nations have a right to free navigation and trade on those waters. China now faces a decision as to its next step: Challenge the U.S. Navy, the largest and most powerful in the world, or accede to international law and norms and abandon its claims. Given the importance of tradition and custom within China’s Confucian culture, China should take a page from what mariners call the international “rules of the road.”

An insightful analogy can be drawn from the development of an important maritime custom and the current Chinese actions challenging the settled law of the sea. For hundreds of years, large ships have met one another on the high seas; over time, rules were established to ensure against collision. The standard rule for two vessels, traveling under power and converging, is that the ship observing another on its left-hand (port) side must maintain course and speed, or “stand on.” The other ship, holding the first ship on its right-hand (starboard) side, either slows or alters course in order to “give way” and avoid collision. The procedure of “stand on” and “give way” has evolved from custom to law and now governs the actions of vessels in waters the world over.

To be clear, contrary to Chinese claims, the U.S. Navy’s actions in the South China Sea are legal in every sense of the word. Under international law, no nation can create sovereign territory in an area that did not have sovereign characteristics previously, therefore, the waters surrounding the artificial Chinese constructs are not sovereign and hence the passage of a U.S. warship within 12 nautical miles – the area normally defined as territorial waters — would simply be a ship sailing freely upon the high seas. In this situation, the United States represents the “stand on” power within the international arena, strictly charged to maintain its previous strategic course and speed in order to avoid collision.

China, on the other hand in this analogy, is clearly the “give way” power. By its aggressive actions — the dredging of sand and the destruction of rare coral reefs in order to create artificial land masses to base military and civilian operations — China is acting illegally and illegitimately, well outside of accepted international norms. Continuing with these claims promises to badly destabilize the region and undermine China’s role as a mature and responsible power. From this standpoint, China must “give way” and alter its strategic course in order to avoid collision with the United States and the broader international community.

Initial indications are that China does not intend to take the responsible course; by making that choice, it will find itself at odds with the current international system of governance — and that is telling. It is increasingly clear that China does not approve of the post-war international system, based as it is upon free navigation, free trade, and the rule of law. This system has, within the past few generations, lifted more people out of poverty than at any other time in human history, while also witnessing the unprecedented absence of large-scale war. Chinese actions intimate that its rulers believe the current system is an artifact of its previous century of humiliation, that the system needs to be replaced, and that the free navigation of U.S. warships, which have benignly guaranteed global peace for 70 years, threatens Chinese security.

China does not want to become a “responsible member” of the old global system of which the United States is the guarantor; it wants to create a new system in its place. The small artificial islands being built in the South China Sea represent the proverbial camel’s nose under the tent in the Chinese plan. Any action that China takes to interfere with or counter the U.S. Navy’s operations in international waters must be understood to be, at a minimum, a challenge to the current international system or, at most, an act of war.

Chinese officials may well wonder why the United States took so long to respond, after having passively watched while the three artificial constructs were dredged from the bottom or blasted from endangered coral reefs. There is another custom of the sea that might help to explain this: Regardless of the geometry of a convergence of ships at sea, powered vessels are always required to maneuver to avoid sailboats or oared vessels. China and its military have long been viewed as backward by the West, but now we have come to understand that China is a modern power — and must now obey the rules of the road. In the South China Sea, given current international laws and ancient customs, China must “give way” or face collision and cataclysm.

 

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