Why International Law Matters: China And The U.S. Are Totally Going To Nuke Each Other

It may not come to nuclear war, but China and the U.S. are taking a dispute over statutory interpretation to a dangerous level.

Maybe it won’t get that far, but those who care about these international law disputes think China and the U.S. are on a collision course because both sides hew closely to contradictory readings of international law. One would assume the conflict won’t go nuclear, because that’s a patently absurd result for economically intertwined nations fighting over what amounts to an inconvenient sandbar, but experts feel a naval conflict isn’t out of the question with Chinese admirals hurling bellicose rhetoric already.

At issue is the United Nations Convention on the Law of the Sea (UNCLOS), a body of law that ideally keeps countries from huffing and puffing and sparking nuclear armageddon, but that instead leaves open enough avenues of interpretation that both sides swear up and down that they’re following the letter of the law when it comes to the Spratly Islands — a gathering of sunken reefs 500 miles off the Chinese shore (and claimed by pretty much everyone else in the region) that China is furiously stacking with sand to turn into “real islands” like a nuclear-armed Geppetto so they can base air and naval units there and gum up the flow of trade — and foreign naval power projection — through the region.

The United States claims it can roll its big ships right up next to these islands:

The US definition of freedom of navigation means all ships (including warships) are allowed to traverse both the 200-nautical mile exclusive economic zones (EEZs) and the 12-nautical mile territorial seas without obtaining the permission of the coastal state. Inside the 200-nautical mile EEZ, the US believes that military ships may conduct any activity, including surveillance of the coastal state (e.g., “spying”). Within 12 nautical miles, the US believes military ships must abide by the rules of “innocent passage” which precludes any overt military-related activity.

As if the U.S. needs to be within 12 miles to spy on something. The Navy can offer China tasteful cabana decorations from 50 miles away, but it’s the principle of the thing, you know?

Meanwhile, China thinks these islands legally force the U.S. Navy to keep its hands to itself when 200 miles away in all directions and can never get within spitting distance even if it promises to play nice:

The Chinese definition of freedom of navigation is quite different. Essentially, the Chinese argue that military ships should have to follow rules of innocent passage even in the 200-nautical mile EEZ, and that military ships must get permission to enter the 12-nautical mile territorial sea, even if those ships are planning to make an innocent passage.

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Most countries agree with the U.S., but not all. Even an ostensible U.S. ally in the region, Malaysia, takes the Chinese view here, which is curious since they’re one of the countries miffed about China’s Spratly Islands policy. For what it’s worth, strict construction would seem to favor the U.S. since there’s an entire section of UNCLOS titled, “INNOCENT PASSAGE IN THE TERRITORIAL SEA.” But whatever.

At this point, some pointy-headed academic quibbling on the finer points of interpretation probably won’t resolve this conflict as much as a hard-nosed negotiation conducted under the specter of conflict will. Thus, it’s easy to survey the situation and write off the practice of international law as a useless endeavor inevitably frustrated by any country with a bigger stick. And yet even this prickly situation shouldn’t signal international law’s irrelevance in principle. After all, the more airtight the drafting of conventions like UNCLOS, the less likely it is that a country can credibly go rogue and still have the backing of its regional rivals. That sort of clarity, and the moral authority it carries, means something when it comes to the negotiating table to sort out these disputes.

So the next time you doubt whether some 3L International Law class is just a waste of time, remember for that the subject can have global ramifications… for maybe one student.

For the rest of the class though, it probably is a jerk-off class.

Differing interpretations of international law could spark major naval conflict between the US and China [Quartz]

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