The Strategist, the Lawyer and the South China Sea

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The Strategist, the Lawyer and the South China Sea

Understanding law and politics in contested waters.

The Strategist, the Lawyer and the South China Sea
Credit: REUTERS/U.S. Navy/Handout via Reuters

Readers of The Diplomat were recently afforded an exchange by two leading experts in South China Sea disputes. Dr. Sam Bateman, a retired commodore of the Royal Australian Navy (RAN), wrote of the strategic problems associated with U.S. Freedom of Navigation Operations (FON OPS) in the South China Sea. Bateman warns of the United States “militarizing” a sensitive circumstance and “turning back the clock” on international law. Responding to these claims, Commander Jonathan Odom, judge advocate general (JAG), former oceans policy advisor in the Office of the Secretary of Defense, and current military professor at the Daniel K. Inouye Asia Pacific Center for Security Studies, defended the FON OPS program by noting the legal errors underpinning Bateman’s argument.

At face value, each author’s analysis is useful but incomplete. Accepting Bateman’s approach means believing that FON OPS are illegal, or at least legally controversial. As Odom retorts, this is simply untrue. But accepting Odom’s legal defense of freedom of navigation as the last word in the South China Sea is to ignore the central geopolitical questions at hand. In the final reading, the lawyer’s discussion places boundaries on what is legitimately contested in the South China Sea in a way that the strategist finds hard to accept, while the strategist raises questions that the law can’t answer. Both Odom and Bateman make an important contribution to understanding the circumstance unfolding, though their arguments only relate to each other indirectly. This failure to communicate reflects the shrinking space for dialogue in the U.S.-China relationship itself, which sometimes rehearses the same arguments.

The Bateman-Odom dialogue carries special lessons. Precisely because the lawyer and the strategist find it hard to directly engage one another, their dialogue can teach us about the relationship between law and geopolitics in the South China Sea disputes and what it means for strategy and operations.

Law as the Boundary for Acceptable Strategy

What does this interchange illuminate about the nexus of law and politics as it relates to the Sea and U.S.-China relationship in it? Bateman is mostly right when he notes that “it is politics not the law that will resolve many disputes” in the South China Sea. As a general observation, this is hard to deny. No one, for example, holds out much hope that the impending judgment of the Permanent Court of Arbitration on the merits of the 9-dashed line will put strategic competition in Southeast Asian waters to rest. But though Bateman is right that politics come first in the South China Sea, he’s overly ambitious when he implies that politics is all. Surely politics will determine much about the future of the South China Sea, and the political arena, not the legal one, is the priority of U.S. diplomacy and defense planning. Law is a part of the paradigm within which we understand events, but strategic and political dynamics will define the spectrum of likely outcomes.

But even so, to say that there is a strategic competition underway that stands apart from the legal interpretation of things should not be to imply, as Bateman does, that there is nothing at all that a mainstream legal reading of the situation can contribute to the strategic debate. The tricky part is to know where the boundary line between law and politics lies and what it signifies: What can technical analysis of the law achieve in the South China Sea and when? Conversely, where does engagement with the law reach its limit in terms of its overall potential contribution to regional stability? If the relationship between law and politics is understood as a spectrum between two poles – one technical, clear and represented in treaties and jurisprudence, the other contentious and inherently fluid, characterized by competing interests and incomplete understanding – the challenge is to know which part of the spectrum is salient to which events at what time. This is no easy feat.

As Odom’s much-needed clarification points out, it’s established law, not politics, that can and should point the way to the eventual authoritative delimitation of jurisdiction in the South China Sea, with the caveat that this will only be possible once the strategic conditions for final resolution have been reached. Application of agreed legal principles in this case is by no means self-evident, even to the specialist, which is what makes Odom’s contribution to the overall debate so valuable. Easy application of UNCLOS to the South China Sea was never likely for many reasons. It’s characterized by too many complicating factors, not least a bedeviling geography. All else being equal, a precise and “purely legal approach” like the one Odom lays out is essential to determining the correct eventual application of the law in this very complicated space. To contend that the law has no role here is to drastically undervalue the impressive gains made in the negotiation of UNCLOS, and to dismiss a powerful ordering framework for international affairs at sea.

Bateman’s foundational assumption about the irrelevance of law is problematic for another reason, one that plays out in his own argument. Custom and treaty rules have a very important role in defining what behaviors are routine and uncontroversial, and what is escalatory and provocative. With respect to the right of the world’s navies to navigate anywhere beyond 12 nautical miles of the coast, UNCLOS and the historical record are very clear. Both the U.S. and Chinese navies exercise that right routinely around the world, and it is uncontroversial under law. Though the language of UNCLOS does not explicitly guarantee the right, neither does it explicitly circumscribe it. The principle of freedom of navigation’s long and undisputed status as established custom means that the burden is on the treaty to explicitly overturn the right, if a change to customary practice was indeed intended. The fact that the treaty doesn’t suggests that the idea of limiting the freedom of navigation didn’t have enough support among the negotiators to be reflected in the final agreement. The published diplomatic history of the treaty substantiates Odom’s point that “the EEZ was a bargain to guarantee economic resource-related rights to those coastal states, but otherwise preserve the existing freedoms enjoyed by other states.” Attempts to grant coastal states security-related rights in the EEZ were made and failed during the treaty negotiation. Bateman would have us believe that this remains an open question when it is in fact a question that has been asked before and answered in the UNCLOS negotiations.

Contemporary politics and their geostrategic circumstances cannot change prevailing international law. There are some agreed upon principles at work, and Odom assists in identifying and applying them. The long and arduous UNCLOS process was undertaken precisely to give answers to these politicized questions. The “carefully balanced EEZ regime” that Bateman correctly privileges was the codified result of this effort. Changes to these agreed-upon principles require re-negotiation with the consent of all parties. This is unlikely and not widely desired. That balance – preserving freedom of navigation (including military navigation) for user states and reserving exclusive economic rights for coastal authorities – is sacrosanct and protected by both treaty and custom, with equal respect to both sides of the deal. At least, it is to the vast majority of the international community. Beijing insists that this deal somehow doesn’t apply to its own near seas, where it happily accepts (and extends) the exclusive economic rights granted it under UNCLOS but rejects the freedom of military navigation provisions that made the treaty’s conclusion politically possible in the first place. China’s position is untenable and one that will not likely be entertained by the majority of the world’s states. Bateman insists that the status of navigational rights in the EEZ is everywhere unclear. This is a similarly unsupportable proposition. There are spaces of strategic uncertainty where diplomacy and defense planning will be the determinative factor in the outcome of the South China Sea disputes; there are also spaces where once-political questions have been crystallized into legal ones through custom and codification. The freedom of military navigation in the EEZ falls in the latter category as Odom contends, not the former as Bateman would have us believe. Any confusion on this point is unhelpful and obscures the nature of the strategic competition at hand.

What Odom’s analysis provides to the strategic discourse, the Freedom of Navigation Operation provides to the operational context. A well-executed FON OP demonstrates a clear and defensible boundary between what has been established in law and what remains the province of strategic contest. The former are rights that are affirmed by law. The latter are interests that are not affirmable in any objective sense, but can only be pursued through the geo-political interaction of parties involved. Drawing a firm and correct boundary between law and politics through FON OPS is an essential and consequential act, one that Washington believes is worth a certain degree of risk. This also seems to be a boundary line that Beijing will grudgingly accept, despite its official pronouncements: Its tolerance of the October FON OP is likely attributable, at least in part, to what Beijing knows is its perceived international legitimacy. Some may call the operation politically unwise, but very few would accuse Washington of breaking the law. By insisting on its right to freedom of military navigation through the regular execution of FON OPS, the United States puts firm and uncontroversial limits on what China can legitimately claim is really contested in these complicated disputes. It is a necessary and stabilizing measure in a quickly militarizing situation.

Strategy Vindicated

But even given the importance of the law in this dispute, we have to acknowledge that there are strategically significant questions that stand outside that area. Bateman, somewhat like Beijing itself, confuses the geostrategic dimensions of the issue by making a political argument dressed up in legal language. This is most clear in the invocation of the term “due regard.” When Bateman suggests that the United States is obligated to exercise its right to freedom of navigation with “due regard to the rights and duties” of the coastal state, this mixes the legal and political domains. Legally, UNCLOS does carry a requirement for navigating states to operate with “due regard” to the parallel “rights and duties” of coastal states that apply alongside their own in the EEZ. But the “rights and duties” to which navigating states need to pay due regard are surely limited to those that are either established by custom or codified in the treaty text itself. (In fact, the “due regard” requirement of navigating states appears in Article 58 and the “rights, jurisdictions and duties of coastal states” in the EEZ appears in Article 56. There is a strongly suggested connection between the language used in 58 and the identical language appearing only paragraphs before). As UNCLOS grants only exclusive economic rights to coastal states in the EEZ, not security rights, it is surely those and only those for which navigating states must account as they operate. There can be no UNCLOS-generated legal obligation for navigating states to pay due regard to rights not clearly established. Any argument to the contrary cannot be substantiated

In political terms however, the term “due regard” carries a different connotation. In the contemporary strategic context, in which assets in the littoral can easily put the adjacent shore at significant risk and vice-versa, coastal states clearly have a security interest in the EEZ. In geopolitical relationships, including the all-important U.S.-China one, it’s not unreasonable that Beijing would urge Washington to pay “due regard” to its legitimate security “interests” in the South China Sea. This would include refraining from operational activity that might imply threat, real or perceived. But this amounts to a political request (or warning) based on the strategic facts of the situation, appealing to Washington’s prudence perhaps, but not to international law. It is not and cannot be interpreted as a legal obligation on the United States or any other navy that might happen by. To argue that any navy operating within the Chinese EEZ is obligated to pay due regard for Chinese interests beyond what is legally established by custom or treaty is tantamount to saying that all navies operating in the South China Sea are obligated to hew to China’s strategic preferences. Posed as a legal assertion, the contention is absurd. But posed as a geopolitical question, it is not. Geopolitically, this is in fact one of the over-riding questions for strategists on all sides of the disputes. How far is the international ocean-going community prepared to accommodate the preferences of a growing China? What does accommodation mean for the region’s strategic future? Most importantly, what mix of accommodation and assertiveness in U.S. policy and operations will bring stability to Southeast Asia as China transitions from a regional to global maritime power?

Bateman is therefore correct to raise the issue of “due regard” and Odom is correct to ignore it as legally irrelevant. There is nothing to be gained and much to be lost by dressing up a geopolitical question as a legal one. We need to be clear about what questions are answered by law and what questions need to be answered by strategy. The difference between the two is significant: The legal contribution to this question of due regard is uninteresting; the geo-political contribution is definitive. Bateman succeeds in raising the central geo-political question, but he shouldn’t present a strategic choice as a legal obligation. The failure to separate the legal and the political here is unhelpful in analysis and policy.

Dual-Tracked Game: Law and Strategy in U.S. Policy

None of this should be read to defend Bateman’s claim that Odom takes an “overly legal” approach or that the law is irrelevant to these disputes. But there is a real risk in confining this issue to the legal realm. First, there is a very consequential part of this dispute that can’t be resolved by recourse to law. While the Philippine arbitration is perhaps necessary to move forward, no one believes that it will or can provide “the” solution. Even if the Tribunal finds in the Philippines’ favor, Beijing’s (re)claimed assets in the Sea will remain, de jure contested but de facto established. The fact that they won’t be accorded more than a 500 meter safety zone hardly seems to matter in that context.

Second, there’s a strong limit on what a policy that is overly-reliant on demonstrating legal principle can achieve. If there weren’t, the U.S. wouldn’t need any allies or partners outside Manila. Manila’s arbitration has accomplished what the U.S. could not: It has publicly called out the absurdity of the 9-dashed line and sought confirmation in one of the most widely accepted instruments of international law. But this will not be enough. Once confirmed, the legal principle will need to be defended through partnerships aimed at other lines of effort: diplomacy, effective law enforcement, information and intelligence-sharing, and, if necessary, military exercises and operations. The U.S.-Philippine alliance will not shore up those lines of effort and therefore, by itself will be insufficient to protecting U.S. interests in the South China Sea. We all know this. It’s this reality that pushes Bateman to correctly warn about escalation and strategic risk, even if he does apportion too much blame for this state of affairs on the United States. It’s also this reality that sits in the background of Odom’s vigorous defense of FON OPS. These operations are intended to mitigate risk: by drawing a clear red line for Beijing, demonstrating U.S. operational commitment to the established rules, and thereby disincentivizing further Chinese activities that undermine the status quo.

But despite the fact that we know that this is not purely a legal dispute, too many of us talk as if it were. This is particularly unhelpful given that the other claimants and Southeast Asian stakeholders don’t have as much confidence in the law as we do. In their strategic context, the law is often perceived as inadequate to the task of bringing predictability or stability to the region. This asymmetry in perceptions means that when we confine our discussions to the letter of the law, we are talking mostly to ourselves. U.S. allies and partners in Southeast Asia will need us to engage in the difficult political questions too, even as the U.S. continues to defend UNCLOS and the customary norms that it reflects.

The South China Sea disputes are not just legal disputes. They represent a geostrategic contest. Correct application of the law can inform and put boundaries around this contest, but it cannot resolve all of the questions at hand. On this distinction, U.S. policymakers, diplomats and military commanders need to be crystal clear. In the final analysis, both Odom and Bateman worry about escalation in one of the world’s most important waterways. They only disagree about whose behavior presents the most risk, and what should be done to avoid more of it in future. In the process of this disagreement, Bateman unfairly politicizes the established provisions of UNCLOS, and Odom corrects the record around FON OPS and UNCLOS, but stops short of directly engaging Bateman’s geostrategic concerns. Nonetheless, their dialogue sheds light on where the legal and geopolitical realms start and end in the South China Sea, and what it all means for the way to manage our way safely ahead.

Kerry Lynn Nankivell is an Associate Professor at the DKI Asia Pacific Center for Security Studies in Honolulu, where her teaching and research focuses on maritime security in the Indo-Pacific. The views expressed here are her own and do not necessarily represent the official view of DKI APCSS, U.S. Pacific Command or the U.S. Department of Defense.