Tag Archives: Law of the Sea

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line: Finale

By Alex Calvo

This is the fifth installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two, part three, part four

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Whereas the assertion that China has not actually made a claim may not be shared by everybody, in particular given the language flowing from Beijing which the DOS report itself cites, the reference to the “high seas” between mainland China and some islands seems stronger proof that Beijing was not making a historic claim. However, we must again stress that this would be the case if we followed the prevailing interpretation of the law of the sea, but there is no reason why China should adhere strictly to it, and even less that Beijing should not have changed her mind since 1958, when she had little more than a coastal navy and her economy was closed and in tatters. It may be true, as the report notes, that the 1958 Declaration only made a historic claim to the Bohai (Pohai) gulf in northeastern China, but again this should perhaps be judged from a wider historical perspective. After 1949 the PRC took a much more uncompromising stance concerning its North-East than its South-East (and wider maritime) borders. With a pragmatic arrangement in place with the United Kingdom concerning Hong Kong, and a strong economic and political relation with the Soviet Union, it was at the other end of the country where, in 1950, Beijing (not without an intense internal debate given the state of the country), decided to resort to force to prevent the presence of hostile forces close to her border, intervening in the Korean War, pushing back the advancing Allied forces and reversing the impact of the Inchon landing, ultimately forcing a stalemate on the ground. In 1958, just five years after the Korean armistice, nearby waters may have thus been much more present in Chinese leaders’ minds. In addition, these were also the waters directly leading to Tianjin and Beijing, the venue for foreign interventions in both the Opium Wars and the Taiping Rebellion. It would not be until the late 1970s that China’s South-Eastern flank would begin to receive more attention, in part thanks to the rapprochement with the United States and in particular once economic growth and the country’s move to become a net energy and commodity importer turned the waters of the South China Sea into a vital venue and potential choke point. It is true that in December 1941 the loss of HMS Prince of Wales and HMS Repulse in the South China Sea had enabled the Japanese to land in Malaya and ultimately conquer Burma, closing the last land route to besieged Nationalist China, but this did not result in a comparable imprint on China’s historical consciousness, among other reasons because the episode did not involve Chinese naval forces and was subsumed into a much larger, dramatic, and quickly-developing picture.

Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.
Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.

Rejecting the validity of a possible historic claim by China. Concerning whether, if China “Made a Historic Claim”, it would “have Validity”, the DOS paper insists that “such a claim would be contrary to international law”, stressing the limited degree to which UNCLOS recognizes this category of claims, as evidenced by its “text and drafting history”. The text argues that “apart from a narrow category of near-shore ‘historic’ bays” in Article 10, and “historic title” concerning “territorial sea boundary delimitation (Article 15)”, “modern international law of the sea does not recognize history as the basis for maritime jurisdiction”, citing the Gulf of Maine ICJ case. It also underlines the fact that UNCLOS provisions concerning the EEZ, continental shelf, and the high seas “do not contain any exceptions for historic claims” to the detriment of coastal states and all estates enjoying certain freedoms. Concerning fisheries, the report acknowledges that UNCLOS refers to “the need to minimize economic dislocation in States whose nationals have habitually fished” in the EEZ (Article 62(3)) and to “traditional fishing rights and other legitimate activities” (Article 51), but restricts the impact to the possible granting by one state to another of fisheries resources “based on prior usage”. The text stresses that no such traditional fishing practices can “provide a basis for sovereignty, sovereignty rights, or jurisdiction,” adding that UNCLOS rules on oil and gas development contain no “exception for historic rights in any context.” Again we note how a purely legal report like this may be missing part of the picture, given the great importance that fishing vessels have in the ongoing conflict over the South China Sea, where they are one of the pillars of asymmetric naval warfare.

Chinese scholars Gao and Jia have argued that UNCLOS does not regulate “historic title” and “historic rights,” which fall instead under the purview of general international law. In their view, UNCLOS “was never intended, even at the time of its adoption, to exhaust international law. On the contrary, it has provided ample room for customary law to develop and to fill in the gaps that the Convention itself was unable to fill in 1982” as clear from its preamble, which reads “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The DOS report explicitly rejects this position, saying that “it is not supported by international law” and goes against the “comprehensive scope of the LOS Convention.” Experts like Mark Valencia, on the other hand, hold that China’s posture may be compatible with the international law of the sea.

The text does not stop at arguing that it is not open to a state to make historic claims based not on UNCLOS but on general international law, laying down a second line of defense. It explains that, “even assuming that a Chinese historic claim in the South China Sea were governed by ‘general international law’ rather than the Convention,” it would still be invalid since it would not meet the necessary requirements under general international law, namely “open, notorious, and effective exercise of authority over the South China Sea,” plus “continuous exercise of authority” in those waters and “acquiescence by foreign States” in such exercise of authority. Furthermore, it explains that the United States, which “is active in protesting historic claims around the world that it deems excessive,” has not protested “the dashed line on these grounds, because it does not believe that such a claim has been made by China,” with Washington choosing instead to request a clarification of the claim. Whether this view is also meant to avoid a frontal clash with Beijing, in line with the often state policy goal of “managing” rather than “containing” China’s rise, is something not discussed in the text.

The report concludes by criticizing another view put forward by Gao and Jia, namely the relevance of claims made before the advent of UNCLOS. While these two scholars argue that “In the case of the South China Sea as enclosed by the nine-dash line, China’s historic title and rights, which preceded the advent of UNCLOS by many years, have a continuing role to play,” the DOS paper says that “The fact that China’s claims predate the LOS Convention does not provide a basis under the Convention or international law for derogating from the LOS Convention,” adding that “permitting States to derogate from the provisions of the Convention because their claims pre-date its adoption is contrary to and would undermine” the convention’s “object and purpose” stated in its preamble to “settle … all issues relating to the law of the sea.”

Conclusions. Long-standing American policy towards China stresses the need to manage the latter’s rise, so that it does not threaten the post-Second World War system, based among others on freedom of navigation and a ban on territorial expansion as a legitimate causus belli. As a result, Washington has often called on Beijing to clarify her claims on the South China Sea, in an attempt to constrain them while avoiding a frontal clash. This position also seeks to reinforce the perception that the United States focuses on the rule of law at sea, rather than on supporting one claimant against the other over disputed waters. The DOS document, in line with this approach, carefully dissects Chinese claims, analyzing whether they may be compatible with standard American interpretations of international Law of the Sea. The conclusions are rather pessimistic, exposing how, despite having ratified UNCLOS, the Convention’s provisions are not seen in the same light by Beijing and Washington. This should not surprise us, since international law seeks to constrain power but at the same time it is shaped by it, thus as countries rise they seek to play a greater role in the fate of rules and principles. In the case of China this is even clearer due to historical perceptions that it was to a large extent seaborne power which subjected the country to a semi-colonial status for a whole century. If Beijing’s claims in the South Chinese Sea cannot be seen in the light of UNCLOS, the question arises what ultimate Chinese goals are. Could this be the subject of a future paper by the Department of State? Or does Washington prefer to wait until the international arbitration case launched by Manila concludes? While the second option seems more likely, as time goes by the idea that China’s rise may be shaped, rather than constrained, increasingly seems less and less realistic. However, if the time comes to draw a line in the sand, a whole of government effort will be needed, going beyond the naval circles that to date have been most vocal in articulating the need to resist Chinese expansion.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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Gibraltar: Legal Advice on Innocent Passage

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While tensions over the South China Sea often prompt headlines, attracting a great deal of attention by analysts, the dispute over Gibraltar has a much smaller presence in the media and specialized publications. However, given its location at a vital chokepoint, the conflict over the Rock cannot be ignored by naval and maritime observers. Furthermore, for the student of comparative conflict at sea it is interesting to look at some of its features, including disputes over the law of the sea and resort to non-lethal asymmetric warfare, which we also find elsewhere. A third reason is Gibraltar’s role in the air reinforcement strategy for the defence of the Falklands, an issue that China watchers are increasingly paying attention to, given Beijing’s growing interest in the South Atlantic, including Namibia.

Just like in the South China Sea, one of the aspects of the dispute over Gibraltar concerns the concept of “Innocent Passage”. In the case of the Rock, intruding warships have often claimed to be engaged in this regime, recognized by international law, both customary and UNCLOS (United Nations Convention on the Law of the Sea). However, Gibraltar’s authorities have rejected such claims, arguing that they were a mere excuse to justify incursions into British Territorial Waters. In order to reinforce their case, Gibraltar’s government announced in November 2014 that it had commissioned an expert legal opinion on the definition of innocent passage under UNCLOS. The latest string of incidents prompted the Gibraltar Broadcasting Corporation (GBC) to ask the Rock’s authorities whether the opinion had been received, and they replied confirming it had. According to the GBC, the opinion explains that “A vessel can only be considered to be on innocent passage through British Gibraltar Territorial Waters if it’s moving continuously and expeditiously, and is not engaged in any activities that are prejudicial to Gibraltar or the UK”, adding that “when it appears objectively from the foreign vessel’s behaviour that its purpose in passing through BGTW is to assert its country’s sovereignty claim over the waters, its passage would not be deemed to be innocent under international law.”1

HMS Scimitar escorting Spanish Govt vessel Emma Bardan out of BGTWs
HMS Scimitar escorting Spanish Govt vessel Emma Bardan out of BGTWs

On reading the GBC report, Luke Coffey, Margaret Thatcher Fellow, Margaret Thatcher Center for Freedom, The Heritage Foundation, tweeted “Spain in violation of UNCLOS, Article19 (Meaning of innocent passage), paragraph 2C, 2D, 2J, probably 2K and 2L!!”.2 These passages of UNCLOS read:

Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage”.

It could also be argued that incursions into Gibraltar’s territorial waters amount to a violation of paragraph (a) of the mentioned UNCLOS article, which reads “ any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations”, given that they take place in parallel with a denial of the British sovereignty over the Rock and her population’s right to self-determination.

However, innocent passage is a key concept in the law of the sea, and cannot be easily dismissed. Any attempt to deny that a warship moving through territorial waters enjoys it must be approached with care. This was made clear by James Kraska, a professor at the US Naval War College, who also commented on the Gibraltar report. Kraska stressed on Twitter that a “[t]hreat may not be implied based on mere presence, but must be overt, such as statement or action, such as fire control radar,” adding “See Jackson Hole Agreement; purpose of trip irrelevant; must have overt violation of art. 19 to be not innocent.”3 This refers to the 1989 USA-USSR Joint Statement With Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, known as “Jackson Hole Agreement”, whose text states that “All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required”, in accordance with UNCLOS.

A difference between Cold War maritime confrontations and the dispute over Gibraltar is that in the former, it was the limits of innocent passage, which were disputed, ultimately leading to the 1989 Joint Statement. However, in the case of the Rock, vessels violating her territorial waters claim that those waters do not exist. Another difference to take into account is that while ramming featured in a number of incidents during the Cold War, the context was mainly a threat of conventional war at sea. On the other hand, what we are now seeing in regions like the South China Sea is mainly non-lethal warfare, featuring a complex mix of coastguards and other state agencies, fishing boats, maritime militias, and oil rigs. In Asia, this phenomenon is called the “gray zone” between peace and war. This does not mean that the conventional force is irrelevant, since what we are facing in the South China Sea is a dual war akin to the Second Indochina War on land. Concerning Gibraltar, the fact that intruding ships purport to conduct “sovereignty” patrols means that their passage is not innocent within the meaning of Article 19 of UNCLOS. The very purpose of those incursions is to undermine the “peace, good order, and security” of the territorial waters of the United Kingdom.

Could the legal opinion provided to Gibraltar’s Government have any influence on the legal dispute over the South China Sea? As is often the case, lawyers on both sides may find something to support their respective views. On the one hand, maritime democracies are bound to benefit from any obstacle to further incursions into British Territorial Waters, which not only run directly against the concept of rule of law at sea and peaceful resolution of disputes, but make it difficult for the European Union to play a role in the South China Sea. On the other hand, China may expand the notion that a warship moving through territorial waters is not engaged in innocent passage when making a territorial claim, arguing that neither is she when contesting a territorial claim. The challenge, however, remains how to distinguish lawful innocent passage, no matter how disliked by the coastal state, from genuine threats to “peace, good order, or security” of the coastal state. Kraska underlines that for this analysis, we must fall back on the Charter of the United Nations, which forbids the “threat or use of force.” A factor not to be forgotten is Beijing’s permanent seat at the UNSC, meaning that whatever interpretation of the UN charter may prevail among maritime democracies, it is unlikely to make it into a Security Council resolution if it is seen by China as detrimental to her national security. Recent months have seen many proposals concerning a reinforced presence by maritime democracies in waters claimed by Beijing in the South China Sea, and the airspace over them, as well as a number of incidents involving warships and planes in those same waters. The former include a study by Scott Cheney-Peters on joint air patrols, whose main purpose would be “to counter excessive claims and rights not in accordance with international law.”

It would be interesting to see the full text of the legal opinion commissioned by Gibraltar’s Government. In any case, the information released about it should serve as a reminder that in a global, inter-connected, world, each maritime dispute may certainly be unique, but it makes sense to study them from a comparative perspective, among other reasons because in both diplomacy (including public diplomacy) and international legal and arbitration proceedings, anything considered as a precedent may be used to defend one’s position.

Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. He tweets at Alex__Calvo and his work, which includes “China’s Air Defense Identification Zone: Concept, Issues at Stake and Regional Impact”, Naval War College Press Working Papers, No 1, US Naval War College, 23 December 2013, available here, can be found at https://nagoya-u.academia.edu/AlexCalvo

1Source kindly pointed out by Michael J. Sanchez, founder of OP-WEST. An interview with Sanchez, where he explains the origins and work of OP-WEST, is available at A. Calvo, “OP-WEST: Open Source Intel in Contested Maritime Spaces”, Center for International Maritime Security (CIMSEC), 1 April 2015, http://cimsec.org/op-west-open-source-intel-contested-maritime-spaces/15718

2 Tweet by @LukeDCoffey dated 18 August 2015.

3 Tweets by @JamesKraska dated 19 August 2015.

Changing EEZs

PacificEEZ
Pacific Exclusive Economic Zones. David Butler/Globe staff, click on the chart to enlarge

An interesting discussion took place in the Boston Globe about how to deal with potential changes in the world’s Exclusive Economic Zones (EEZs) as rising sea levels change the shape of land areas, perhaps resulting in the complete disappearance of some sovereign nations.

One of the possibilities is that the EEZs may be frozen in their current configuration and become an asset of the population, even after the land becomes uninhabitable or disappears completely, and that this asset may be sold, traded, or leased away. We know territorial sovereignty can be sold, after all, the United States benefited from the Louisiana Purchase and Seward’s Folly (Alaska).

A Chinese corporation has been attempting to build a new port complex on “reclaimed” land in Sri Lanka. “Located next to the Colombo Port, the US$1.4 billion project will add about 233 hectares of reclaimed land to the capital and house luxury office buildings, apartment blocks, a golf course, a water sport area, medical facilities, education institutions, hotels, a theme park and marinas.” The project is on hold right now, but if it goes forward, the Chinese firm would be granted  20 hectares (49.4 acres) on an outright basis and 88 hectares (244.6 acres) on a 99-year lease.

This is not a transfer of sovereignty, and  Sri Lanka is not in any danger of disappearing, but it does indicate the scope of China’s interest in the area and, located right off the Southern tip of India, it is sure to feed into India’s fears of being surrounded by a Chinese “string of pearls.”

Potentially more serious is the decision of the government of the Maldives, “The law passed by the Parliament will now allow absolute foreign ownership of land in Maldives if the investment is above USD 1 billion. The caveat to the law is that 70% of the land has to be reclaimed from the sea.” 

The Maldives, with an average elevation of 1.6 meters,  is one of those island nations in danger of being adversely effected by rising sea levels. If anyone takes the Maldives up on their offer, it will probably be the Chinese, who have already shown a lot of interest in the Indian Ocean island nation, despite Maldivan assurances to India that no Chinese military base will be allowed on its land. Again this is not a transfer of sovereignty, but it may be a harbinger of things to come

Besides I really wanted everyone to see the chart of Pacific EEZs. A lot of that is U.S. EEZ.

This article can be found in its original form on Chuck Hill’s CG blog. Chuck retired from the Coast Guard after 22 years service. Assignments included four ships, Rescue Coordination Center New Orleans, CG HQ, Fleet Training Group San Diego, Naval War College, and Maritime Defense Zone Pacific/Pacific Area Ops/Readiness/Plans. Along the way he became the first Coast Guard officer to complete the Tactical Action Officer (TAO) course and also completed the Naval Control of Shipping course. He has had a life-long interest in naval ships and history.

CIMSEC content is and always will be free; consider a voluntary monthly donation to offset our operational costs. As always, it is your support and patronage that have allowed us to build this community – and we are incredibly grateful.


Toward a Harmonious Pacific through China-led, Confucian-based Maritime Law

What goals should the United States seek in the South China Sea?  Trying to preserve the status quo – hoping that each country be ever content with its historic resources and territory – is simply unrealistic, as demographics alter populations and climate change alters fish stocks, river flows, and even the land under one’s feet, as sea levels rise.  The U.S. feints at regional stability; yet advocating for peace while conducting military exercises with China’s neighbors, and arming those neighbors while proposing détente to their larger Pacific roommate, do nothing to turn down the temperature in an already overheated region.

Is there another way?

Interestingly, in response to China’s most recent provocative (or expansive, “salami-slicing”) efforts in the South China Sea, the affected countries have neither used, nor threatened, retaliatory military force.  Perhaps they saw the lack of international military response to Russia’s actions in the Crimea and realized the futility of might against might, facing such a stronger force as China.  Or perhaps they drew lessons from the international community’s decade-plus-long quagmire in the Middle East.  At any rate, they went, instead, to the law, and to the United Nations, with the Philippines filing a 4,000-page case in March 2014, and Vietnam joining the case in early December.  The case pends.

Chinese law is often seen by the Western world as a punitive weapon, wielded bluntly to reinforce the power of those with authority.  I came face-to-face with this stereotype in 2010, when, aboard a U.S. Coast Guard high-endurance cutter, we hosted two Chinese shipriders from the Fisheries Law Enforcement Command (now part of the China Coast Guard), to cooperatively enforce an international moratorium on high-seas driftnet fishing.  The shipriders’ knowledge of Pacific fisheries was extensive, and their insight into local fishing practices highly revealing; yet they were surprised by the professional and non-aggressive way we conducted fisheries boardings.  Excessive force was unnecessary; the rule of law enabled us.

They were not the first shipriders I’ve met who were used to maritime law enforcement being far more aggressive in their home countries. The FLEC shipriders were fascinated to learn that the law not only empowered, but also restrained us: that it protected citizens’ rights, and even the rights of non-citizens.  This is powerful.

Sunset on the South China Sea off Mui Ne village on the south-east coast of Vietnam (Author MikeRussia; Wikimedia Commons)
Sunset on the South China Sea off Mui Ne village on the south-east coast of Vietnam (Author MikeRussia; Wikimedia Commons)

Whence the origins of Chinese law?  The legal tradition in China has grown, over centuries, from two roots: Legalism, which results in the often brutal applications of punishment seen in Western media; and, curiously, Confucian philosophy.  While Legalism posits tough laws and harsh sentences to keep the populace controlled, Confucianism holds that laws should help a community achieve harmony (or “Li”); and that leaders are expected, by virtue of their status, to model the moral behaviors they want their people to emulate.  This Confucian strain in Chinese thought provides an interesting and useful opening for influencing development in a new direction, toward a cooperative and harmonious maritime code of conduct in the Pacific.

How might China be convinced to develop such a code?  After all, they are stronger than their neighbors: why handicap themselves?  Yet economics suggests that selfish or destructive behaviors net a country less long-term economic growth and geopolitical power than mutually beneficial international actions.[1] This is the angle to play, enhanced by emphasizing the inherently Chinese flavor of a Confucian-based legal code.  China has much to benefit by spending less on a military arms race and more on economic development: by cultivating harmonious relationships with their neighbors, they will create a stronger and more willing market for their goods, to keep driving the massive yet near-solitary economic growth engine keeping their political party empowered.

This is, perhaps, an audacious proposal, for it seeks through persuasion and a bit of flattery to encourage China to become a responsible maritime actor, on its own terms, by appealing to its history and pride. The U.S. could say: We can help you develop a comprehensive Pacific maritime legal framework; China-led, Confucian-based, for harmonious interaction with your neighbors and comprehensive regional prosperity.

Overly optimistic?  Not impossible.

It is important here to focus not just on maritime law tactics (how to conduct a law enforcement boarding; how to apply various levels of force) but on strategy: how to build a framework for long-term, harmonious international maritime interaction.  This could start at the military-to-military level, through engagements between China Coast Guard and U.S. Coast Guard counterparts.  China Coast Guard leaders would be invited to observe, not only tactical-level boardings and operational-level maritime law enforcement planning; but also the legal aspects of preparing case packages, reviewing case law, and arguing cases in U.S. court.  Discussions would cover both strengths and shortfalls of the existing U.S. and international maritime legal systems, expanding to cover differences between the type of maritime law enforcement the U.S. Coast Guard conducts, and the similar-but-different, non-law enforcement Maritime Interdiction Operations (MIO) conducted by both the U.S. Navy and U.S. Coast Guard to enforce UN resolutions.  What elements of each should be integrated into a Pacific maritime “code of conduct”?

(Aug. 18, 2007) SHANGHAI, China - The crew from the U.S. Coast Guard Cutter Boutwell trains with the China Coast Guard during the North Pacific Coast Guard Forum. (Coast Guard photo by Petty Officer Jonathan R. Cilley)
(Aug. 18, 2007) SHANGHAI, China – The crew from the U.S. Coast Guard Cutter Boutwell trains with the China Coast Guard as part of the North Pacific Coast Guard Forum. (Coast Guard photo by Petty Officer Jonathan R. Cilley)

One of the benefits of a Confucian-based code of conduct for South China Sea ship interactions would be to assume all parties’ good intentions, rather than their ill-will.  In a specific maritime rulebook supporting this code, potentially aggressive actions would be presumed, unless meeting certain hostile tripwires, to be honest mistakes, prompting mutual retreat.  Furthermore, in order to discourage intentional “gray area” behavior, the tripwires would specifically reflect hostile intent – regardless of whether a military or civilian actor cross them.

Additionally, again based on Confucian philosophy, the greater the power, the more the responsibility to model ideal behavior.  Thus, as the leading power in the region, the onus is on China to set the most moral and harmonious example in its maritime interactions.

This code of conduct would both complement, and expand upon, the existing COLREGS: for where the COLREGS guide navigational interactions, the expanded code of conduct would also cover “exploratory interactions” – when ships are not simply navigating from one port to another, but exploring, patrolling, conducting research, or otherwise operating intentionally but non-navigationally.

Concurrent U.S. Defense-State strategic regional engagement is also recommended, in which reductions in maritime tensions are coupled with increased diplomatic development, where the U.S. encourages countries with competing resource claims to develop bilateral or multilateral agreements for resource sharing and protection.  The goal is to convince Pacific nations that sharing the pie doesn’t mean going hungry: instead, cooperation can reduce each country’s individual share of defense and production, while promoting labor specialization and national pride.[2]  As a bonus for regional stability, the more countries invested cooperatively in an area, the greater their individual and collective desire to avoid any sort of conflict that might harm those resources, or take their production off-line.

Both the U.S. combatant commander and his country team counterparts should cooperatively emphasize Chinese-influenced, Confucian-based legal bases throughout the spectrum of their “defense, diplomacy, and development” engagements, as an overarching strategic theme.  This is one way the U.S. can face China down in their game of “Go”:[3] from every angle, at every opportunity, seeds of a harmonious rule of law will be planted.  While some efforts will be stymied or stifled, some seeds will grow, and ideally, this concept of law will begin to permeate Chinese society deeply enough that it cannot quickly be uprooted.  And why should the Chinese tear it out?  It will underpin their economic growth, protect their military from engagement, and cement their moral status as a 21st-century great power.

Engagement surrounding the rule of law is a long-range play.  The goal is not only a more peaceful, China-influenced, legal framework for the Pacific; but also to sow seeds of change for democratic evolution within China itself.  Raising awareness within Chinese leadership that laws are not just sticks with which to beat opponents, but beacons of moral empowerment; that laws should guide leaders to act justly; that the rule of law can inspire a peaceful, communal patriotism; and that people at all levels of society can trust the law to protect them – these powerful democratic concepts can, over time, drive significant positive change within Chinese society: change that traditional military might not and political posturing never could achieve.

Facilitating a China-led, Confucian based, cooperative maritime-based rule of law could eventually be expanded to other contentious and competitive domains, including space, cyberspace, and even intellectual property – all areas that could benefit from an improved, shared, legal basis. And perhaps, success in this region of the world could be expanded to locally-led and -derived, rule-of-law-based engagements in other combative areas.  After having seen such conflict and destruction on its many shores, we could at last look forward to a new era in which the Pacific is finally peaceful enough to be worthy of its name.


Lt. Heather Bacon-Shone serves in the United States Coast Guard, and has operational afloat experience throughout the Pacific.  The views expressed herein are those of the author and are not to be construed as official or reflecting the views of the U.S. Coast Guard or Department of Defense.

[1] In economic terms, rent-seeking versus profit-seeking.

[2] In other words, a non-zero-sum game.

[3] “To update an old saying, ‘Russians play chess, Chinese play “go,” and Americans play poker.”  In Reveron, Derek S. and James L. Cook.  “Developing Strategists: Translating National Strategy into Theater Strategy,” Joint Force Quarterly, Issue 55, 4th Quarter 2009, p. 21.