James Holmes

China’s War on Maritime Law

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James Holmes

China’s War on Maritime Law

China is using language to quietly redefine international maritime law.

China’s War on Maritime Law
Credit: U.S. Navy Photo/Released

Never surrender to China in the battle of language, Washington. Ceding control of the words we use can be fatal to diplomacy. If you let someone define the words used in an argument how he pleases, or if you let him use terms so imprecisely that they lose all meaning, you let him establish the assumptions from which the argument proceeds. And once he sets the assumptions, he can prove whatever he wants. You will lose every time. Call it rhetorical battlespace preparation, or call it “three warfares.” Whatever the name, it’s a never-ending campaign for Beijing. Blunting it demands similar persistence.

Language, then, is a battleground. Exhibit A: Beijing’s effort to coopt the language of maritime law in the recent controversy over aerial intercepts. Ace Defense News reporter Wendell Minnick recounts an exchange with Wang Dong, director of the School of International Studies, Center for Northeast Asian Strategic Studies, Peking University. The topic: last month’s PLA Air Force interception and harassment of a U.S. Navy P-8 anti-submarine-warfare jet east of Hainan Island.

Where to begin? Let’s go over Wang’s commentary piecewise. As Minnick puts it, “There is a strong sense” in China that “the U.S. has abused the definition of ‘innocent passage’ under UNCLOS.” Stop right there. Under the UN Convention on the Law of the Sea, innocent passage refers to the right of ships to pass through a coastal state’s territorial sea — that is, within 12 nautical miles of its shoreline — provided it refrains from doing things that could infringe on the coastal state’s security. The treaty text lists such activities as military surveillance. Fine. But innocent passage is a meaningless term beyond the territorial sea. It has no bearing on the coastal state’s exclusive economic zone, or EEZ, which extends from 200 to 350 nautical miles offshore depending on the underwater geography. Freedom of the sea prevails there.

Freedom means freedom. The P-8 was some 135 nautical miles east of Hainan and at liberty to execute its mission. U.S. and allied spokesmen must debunk the use of the term innocent passage every time Beijing applies it to the EEZ. If the term seeps into common parlance, it will find its way into the legal debate over the EEZ, the United States will have yielded a crucial point. It will have let China redefine a legal precept. Bad idea.

Next, Wang tells Minnick that “U.S. spy planes are not doing sightseeing or picnicking; rather, they’re engaged in intensive, intrusive military intelligence gathering on a massive scale and sustained manner, which not only severely threatens China’s national security, but also violates China’s law.” Washington’s message, again, should be: tough luck. Like all coastal states, China is sovereign only over its territorial seas and airspace. Chinese law does not govern what shipping or aircraft do within its exclusive economic zone, let alone within Beijing’s absurd nine- (or ten-, or whatever-) dashed line enclosing most of the South China Sea. If U.S. Navy air pirates are poaching fish or drilling for oil, then China has a case. That its leadership wants to control sea and sky so very, very much doesn’t make its policy law.

Minnick relates a further assertion: “Wang said the U.S. would not allow these types of operations along its mainland coastline.” This is another standard Chinese talking point, but repeating it incessantly doesn’t make it true. Wang needs to review his Cold War history. In those thrilling days of yesteryear, Soviet ships and aircraft operated along European and North American shores as a matter of routine. Western ships and aircraft did the same off Warsaw Pact shores. Americans and Soviets came to accept such endeavors as legitimate moves in that strategic contest. Let’s remind our Chinese friends about Cold War history rather than let such claims go unanswered. Welcome to the big leagues, China.

Maintains Wang, “UNCLOS does not give a country the right to engage in ‘hostile’ actions in others’ EEZs. The U.S. position that what they’re doing is ‘perfectly legitimate’ is viewed as highly hypocritical, since the U.S. military perhaps remains the only military superpower that has the capability to conduct such intrusive intelligence-gathering operations in a sustained manner.” Here Wang may be trying to coopt the language of the law of armed conflict. The Pentagon, for instance, defines “hostile intent” as the “threat of imminent use of force” against one’s homeland, forces, nationals, or property. “Imminent threat,” in turn, is a commonplace — if hotly debated — international standard justifying the anticipatory use of force. Justifying PLA pilots’ conduct may be Wang’s point. Let’s challenge attempts to redefine routine military operations as virtual acts of war.

As far as U.S. operations being viewed as hypocritical — love the passive voice there! — the fact that some nations choose not to exercise certain prerogatives in the global commons doesn’t nullify those prerogatives for nations that do. If China wants to use the commons the same way America does, let it build the capacity to do so, and then go for it. C’mon in, folks; the water’s fine.

The U.S. State and Defense departments have run a Freedom of Navigation Program for some thirty years now. I worked on it myself, briefly, back in days of yore. FON challenges are typically unobtrusive affairs. U.S. vessels deliberately flout an unlawful maritime claim — something like Libya’s claiming the whole Gulf of Sidra — while the State Department files a diplomatic démarche with the government that lodged the claim. Washington thus establishes a record for opposing such claims. That keeps them from congealing into international custom and, eventually, law. The coastal state seldom says much about it. In effect the parties agree to disagree, and move on.

But when a major power lodges extralegal claims and puts steel behind them, it’s time for fellow seafaring states to mount a more vocal, more forceful defense of freedom of the seas. Otherwise the principle could decay over time. So let’s keep sending Mav and Goose aloft over the China seas — and seize the diplomatic offensive as well.