Are We on the Brink of Another World War? – China's Growing Militarization in the South China Sea
China recently authorized its coast guard to seize foreign ships "that illegally enter China's territorial waters" and to detain foreign crews for up to 60 days.[1] This new law is deeply concerning, considering China's noncompliance with international law in the South China Sea.
China continues to assert its claims over land features in the Sea, arguing that they have "historic rights" to the South China Sea Islands.[2] If China successfully declares baselines[3] for these Islands, they may have exclusive jurisdiction over a territorial sea that extends seaward up to 12 nautical miles from the baselines.[4] Considering the proximity of each Island, China would consequently claim exclusive possession over the entire South China Sea, along with the airspace above it, and the seabed and subsoil beneath it.[5]
China seems prepared to defend this outrageous claim with hostile forces.[6] China's new law also renewed a reference to China's 2021 China Coast Guard Law (CCGL) that says China's Coast Guard can take coercive action upon foreign military and sovereign immune vessels that violate Chinese domestic law.[7] China's readiness for military confrontation becomes more apparent after considering that China has fully militarized three Islands in the Sea by piling sand onto existing reefs to construct ports, military installations, and airstrips.[8]
China's new law raises significant questions: Will the U.S. lose its right to sail warships through the South China Sea? If so, how can the U.S. enforce international law against China's territorial claims?
The U.S. conducts Freedom of Navigation Operations (FONOPs) to uphold the rights, freedoms, and lawful uses of the Sea recognized in international law.[9] FONOPs chiefly deter countries from making new maritime claims or repudiating existing ones.[10] The United Nations Convention on the Law of the Sea (UNCLOS) codified and accepted FONOPs to contest improper territorial claims.[11] China signed the UNCLOS text in 1982, and ratified it in 1996.[12] Thus, China's new law seems to violate Article 24 of UNCLOS, which expressly states that a coastal state may not "impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage."[13]
While the U.S. is not a member of UNCLOS, the state has aligned its foreign policy with UNCLOS key provisions, believing they accurately reflect customary international law.[14] The U.S. Department of Defense and Department of State have jointly run the U.S. Freedom of Navigation (FON) Program since 1979.[15] The U.S. FON Program "involve[s] naval units transiting disputed areas to avoid setting the precedent that the international community has accepted these unlawful claims."[16]
Notably, “the U.S. does not possess the authority to execute law enforcement operations within the area” because it is a “non-regional state in the South China Sea.”[17] Thus, it may be the case that China's new law strips the U.S. of its right to navigate the South China Sea freely, and it becomes the coastal states' exclusive duty to enforce Article 24 of UNCLOS against China's military forces.[18]
The U.S. may consider signing Shiprider agreements with the coastal states of the South China Sea to expand the Coast Guard's ability to combat security threats through international partnerships, as it has done in the past.[19] The U.S. has signed twelve of these bilateral agreements that have proven successful in protecting the region's economic interests and security against Chinese fishing vessels that infringe on other nations' exclusive economic zones in the Indo-Pacific region.[20] Rightfully, “the PRC is increasingly concerned that the Shiprider program will extend to the Philippines or Vietnam, which are among the nations that reject China's arbitrary and expansive territorial claims.”[21]
With growing tensions between the United States and China, the United States must now attempt to navigate not only the South China Sea but also a new area of international law jurisdiction to combat illegal territorial claims lawfully.
[1] U.S. reiterates its obligation to defend the Philippines after new clash with China at sea, Associated Press (June 18, 2024, 5:59AM), https://www.nbcnews.com/news/world/us-reiterates-obligation-defend-philippines-new-clash-south-china-sea-rcna157666.
[2] Sourabh Gupta & Matt Geraci, China’s Claims in the South China Sea, Inst. For China-America Stud., https://storymaps.arcgis.com/stories/f41484de9d4144c59b22540cb94b150a (last visited Jul. 19, 2024).
[3] Baselines are lines separating territorial sea, waters where rights are shared with other States, with internal waters, waters under the complete sovereignty of the coastal State. Baselines, Max Planck Encyclopedias of Int’l L., https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1142#:~:text=1%20The%20baseline%2C%20also%20called,measured%20from%20the%20same%20baseline (last visited Nov. 4 2024).
[4] Maritime Zones under International Law, NOAA, https://www.noaa.gov/maritime-zones-and-boundaries#:~:text=International%20Law%20(2013)-,Territorial%20Sea,seabed%20and%20subsoil%20beneath%20it (last visited Jul. 19, 2024).
[5] Id.
[6] Associated Press, supra note 1.
[7] Sardor Allayarov, International Law with Chinese Characteristics - The South China Sea Territorial Dispute, Inst. of Int’l Rel. Prague (June 19, 2023), https://www.iir.cz/en/international-law-with-chinese-characteristics-the-south-china-sea-territorial-dispute-1.
[8] Center For Preventative Action, Territorial Disputes in the South China Sea, Council on Foreign Rel. Glob. Conflict Tracker, https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea#:~:text=In%20addition%20to%20piling%20sand,missiles%2C%20and%20a%20radar%20system (updated June 25, 2024); Betsy Reed, China has fully militarized three islands in South China Sea, US admiral says, The Guardian, (Mar. 20, 2022, 9:47 PM), https://www.theguardian.com/world/2022/mar/21/china-has-fully-militarized-three-islands-in-south-china-sea-us-admiral-says.
[9] U.S. 7th Fleet Public Affairs, U.S. Navy Destroyer Conducts Freedom of Navigation Operation in the South China Sea, America’s Navy News Stories (May 10, 2024), https://www.navy.mil/Press-Office/News-Stories/Article/3771407/us-navy-destroyer-conducts-freedom-of-navigation-operation-in-the-south-china-s/#:~:text=The%20United%20States%20upholds%20freedom,the%20sea%20guaranteed%20to%20all.
[10] Associated Press, supra note 1.
[11] U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.
[12] Id.
[13] Id.; Jonathan G. Odom, Why US FON Operations in the South China Sea Make Sense, The Diplomat (Oct. 31, 2015), https://thediplomat.com/2015/10/why-us-fon-operations-in-the-south-china-sea-make-sense/.
[14] Jeff M. Smith, UNCLOS: China, India, and the United States Navigate an Unsettled Regime, The Heritage Foundation (Apr. 30, 2021), at 3-14, http://report.heritage.org/bg3608.
[15] Jonathan G. Odom, How The U.S. FON Program is Lawful and Legitimate, Ctr. for Strategic & Int’l Stud. (Oct. 30, 2015), https://amti.csis.org/how-the-u-s-fon-program-is-lawful-and-legitimate/.
[16] Military Exercises and Operational Coordination, U.S. Dep’t of State, https://2009-2017.state.gov/t/pm/iso/c21539.htm (accessed July 16, 2024).
[17] Yen-Chiang Chang et al., Legal or illegal? -Transferring jurisdiction in the course of maritime law enforcement, Nat’l Libr. of Med., (Feb. 29, 2024), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10877403/.
[18] Id.
[19] Sara Muir, U.S. Coast Guard Forces Chief Warrant Officer, Federated States of Micronesia Sign Expanded Shiprider Agreement, U.S. Indo-Pacific Command, (Oct. 14, 2022), https://www.pacom.mil/Media/News/News-Article-View/Article/3189490/us-federated-states-of-micronesia-sign-expanded-shiprider-agreement/#:~:text=In%20May%2C%20USCGC%20Myrtle%20Hazard,resulting%20in%20ten%20lives%20saved.; U.S. Dep’t of State, Press Statement, U.S. Support for the Philippines in the South China Sea (June 17, 2024), https://www.state.gov/u-s-support-for-the-philippines-in-the-south-china-sea-10/.
[20] Shiprider Agreements Making Headway, Geo. Univ. Ctr. for Austl., N. Z., & Pacific Stud. (Mar. 6, 2024), https://canzps.georgetown.edu/shiprider-agreements-making-headway/.
[21] Long-standing shiprider agreements boost Free and Open Indo-Pacific, protect EEZs, Indo-Pacific Def. F. (Apr. 28, 2024), https://ipdefenseforum.com/2024/04/long-standing-shiprider-agreements-boost-free-and-open-indo-pacific-protect-eezs/.
[22] Sourabh Gupta & Matt Geraci, China’s Claims in the South China Sea, Inst. For China-America Stud., https://storymaps.arcgis.com/stories/f41484de9d4144c59b22540cb94b150a (last visited Jul. 19, 2024).
This is a student blog post and in no way represents the views of the Fordham International Law Journal.