by Jerome Cohen
The US began on October 27th its first freedom of navigation operation (FONOP) near China’s man-made islands in the South China Sea. This whole exciting story would be seen for the comic farce it is were the situation not so dangerous.
The US and China have put forth some legal claims with regard to their rights in the South China Sea. But neither major contender takes the obvious step to have the claims determined by the world’s greatest impartial experts in the subject. Although the US, by failing to ratify the United Nations Convention on the Law of Sea (UNCLOS), has deprived itself of the possibility of bringing an UNCLOS arbitration against China, as the Philippines has brilliantly done, it could offer to take the dispute to the International Court of Justice, where both Washington and Beijing have able judges, or to an ad hoc arbitration tribunal agreed to by both parties.
China has got itself out on a long and shaky limb. Its claim to “sovereignty” over these low-tide elevations is preposterous. Even if it had a plausible claim to these features as its “territory” and thus to a territorial sea around them, under UNCLOS (not China’s unilateral domestic law) it would still not be allowed to bar even warships from “innocent passage”, i.e., passage that is consistent with the detailed UNCLOS rules.
To be sure, the US makes no territorial claim for itself regarding sovereignty over the reefs in question, but it does apparently reject China’s claim and any claim by others that low-tide elevations can become the “territory” of any state. The US, as I have often said, should accompany its current bold gesture of using the fleet to protest China’s provocative over-reaching by also resorting to more conventional peaceful means of settling disputes through arbitration or adjudication.
We should also be persuading other states, including Japan, to “bombard the headquarters” of the CCP in Beijing, not with missiles but with missives daring the PRC to test its international law claims before tribunals of the world’s leading impartial experts.
Timing is everything in life, and my minimal hope is that the current “High Noon” scenario in the South China Sea will build slowly enough to be overtaken in a few months by the UNCLOS arbitration decision in the case brought by the Philippines against the PRC two and one-half years ago (see the October 29 UNCLOS Tribunal ruling to proceed to the merits of some claims and reserves the question of jurisdiction for others). Whatever the tribunal decides should shake up the current situation.