China’s
longstanding campaign to redefine water as territory—territory where the
Chinese Communist Party’s (CCP) fiat is law—proceeds apace. Lovers of maritime
freedom must reject this campaign in all its forms. In other words, all nations
that use the world’s oceans and seas to transact diplomacy, trade and commerce,
and martial enterprises must rally against it.
Exhibit A: last week the CCP-affiliated
tabloid Global Times reported that Beijing plans to amend its
Maritime Traffic Safety Law (1984). The revised law will empower the
authorities to “designate specific areas and temporarily bar foreign ships from
passing through those areas according to their own assessment of maritime
traffic safety.” Among other provisions, it will require foreign submarines to
pass through “China’s waters” on the surface while flying their national flags
to identify themselves.
CCP potentates are apt to take an extravagant view of what constitutes “China’s
waters.”
The Legislative
Affairs Office of the ruling State Council further declared that the amendments
conform to the UN Convention on the Law of the
Sea (UNCLOS), often dubbed a
“constitution for the oceans.” And so they may—if China restricts the
law to the territorial seas authorized by UNCLOS. For instance, Article 20 of
UNCLOS explicitly states: “In the
territorial sea, submarines and other underwater vehicles are required to
navigate on the surface and to show their flag.”
Then why bother tinkering with domestic
law? Two possibilities: one, China is making a minor modification to the law to
conform to the law of the sea, or two, it has ulterior motives. If the first
holds, there’s little point in ballyhooing a banal restatement of international
law. But if the second scenario holds, this represents yet another attempt to extend Beijing’s
territorial sway through lawfare. Chinese leaders, that is, are shrouding their
creeping encroachment in concern for maritime safety.
And that’s the case in all likelihood. If
nothing else, Occam’s Razor should
incline observers toward the latter reading of Beijing’s motives. China has
typecast itself in recent years: everything it does ends up being geared to
political ends—ends that typically involve expanding its authority seaward
while banishing painful
memories. Past performance may be no guarantee of future results, but it’s the
safest way to bet. Especially when past performance has been so consistent.
So it’s doubtful in the extreme that China will confine its lawmaking
endeavors to the territorial sea, the twelve-nautical-mile belt of sea just off
its coasts. What will it do? For one thing, it may apply the law to
the seas adjoining underwater rocks that engineers have manufactured into
fortified outposts—even though such features are entitled to no territorial sea
by treaty. Dredging up seafloor confers no legal
prerogatives.
More likely, though, CCP officialdom will
try to enforce the law throughout the South China Sea, and probably elsewhere
in the China seas to boot. Until Beijing proves otherwise, consequently, we
should interpret its latest move as yet another effort to project the force of
Chinese domestic law throughout the waters and skies within the “nine-dashed
line” inscribed on China’s map of the South China Sea.
Thus the Maritime Traffic Safety Law
represents a small part of a larger bid to repeal—not reinforce—the law of the
sea in some 80–90 percent of a
major waterway.
In other words, it will define the South
China Sea—high seas, exclusive economic zones,
and all—as territorial waters. After all, if China commands “indisputable sovereignty”
(or sometimes “irrefutable sovereignty”)
within the nine-dashed line, as spokesmen incessantly claim, then it stands to
reason that CCP chieftains are the lawgivers there. Making rules and compelling
others to obey is what sovereigns do.
Using the law of the sea to subvert the
law of the sea would constitute an impressive if nefarious sleight-of-hand.
Nor are these shenanigans
necessarily confined to Southeast Asia. It’s easy to imagine, say, Beijing’s
insisting that maritime-safety rules apply to traffic in the waters lapping
against the Senkaku Islands. If China considers the archipelago its rightful
property despite Japan’s longstanding administrative control—and it does—then it only makes sense that
Chinese domestic jurisdiction extends there.
If China did seek to enforce its rules
around the Senkakus, it might well try to evict any Japan Coast Guard and
Maritime Self-Defense Force ships patrolling there. It has already deployed massed
fleets of fishing craft and China Coast Guard vessels to the archipelago,
mounting a challenge to Tokyo’s administrative control. Chinese warships skirted within twelve
nautical miles of the islets earlier this month—broadcasting a message of
defiance to Japan and its superpower patron, the United States, which have
vowed to defend them against attack.
What to do about all this? First of all, recognize what China is up to. Even
Beijing’s most inconsequential-seeming moves are meant to advance the larger
agenda. Governments, then, must pay even an apparently routine action like
amending a maritime-safety law close scrutiny lest they lend credence to—or
even abet—China’s high-seas encroachment.
Second, stop
affording China the benefit of the doubt when it does something to expand its
power at fellow Asians’ expense. A weird syllogism seems to underlie commentary
on Chinese sea power and the purposes impelling it: if there’s one scintilla of
doubt about China’s motives, we must scratch our chins, ponder and refuse to
draw conclusions lest we anger Voldemort. Call
it Voldemort’s Razor.
Meanwhile China goes about its
business—and leaves commentators and strategists flailing to catch up by the
time its actions remove that last scintilla of doubt. Deliberately putting
yourself behind the times represents faulty foresight and bad strategy.
No more. Let’s scrap Voldemort’s Razor. If
Beijing wants others to assume the best about its purposes, let it conduct
itself as such. Let it earn back the benefit of the doubt by keeping its
international commitments over a long stretch of time. Let it disavow the
nine-dashed-line map, rededicate itself to upholding the law of the sea, and
cease claiming the marine commons as sovereign territory.
And third, resolve to comply with precisely zero excessive demands emanating
from Beijing. Indeed, the seagoing world must flout such demands early and
often to avoid the semblance of accepting them. Perpetual vigilance and resolve
constitute the price of freedom of the sea. Preserving freedom to use the
maritime commons is America’s top priority in
maritime Asia—and it should be fellow seafaring states’ top priority as well.
So be pessimistic toward
China’s intentions. Be pessimistic and China will constantly prove you right!
Or, in the doubtful event Beijing mends its ways, you’ll be pleasantly
surprised when proved wrong.
James Holmes
is Professor of Strategy at the Naval War College and coauthor of Red Star over the Pacific
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