Sharing the high seas

In early February, the USS John S. McCain conducted a freedom of navigation operation in the South China Sea, the first under President Joseph Biden's administration. The ship cruised waters around the Paracel Islands that the People's Republic of China, Vietnam, and Taiwan claim jurisdiction over. Such FONOPs, as they're called, are one way the U.S. challenges maritime claims it believes go against international laws.

Eight months earlier, two U.S. aircraft carriers conducted FONOPs in the sea, which China called a provocation. Chinese Foreign Ministry spokesperson Zhao Lijian said: "The U.S. action is intended to drive a wedge between countries, promote the militarization of the South China Sea, and undermine peace and stability in the South China Sea."

The U.S. has conducted FONOPs in the region since 2013. Today, it does so under a new Chinese law. In January, China's top legislative body passed the Coast Guard Law, which authorizes Chinese coast guard ships to use any necessary means—including weapons—to stop threats from foreign vessels in Chinese waters.

U.S. national security experts call China's activities in the South China Sea over the past two decades a militarization, seeing China as a rising superpower that threatens international world order. Policy discussions of American intervention in the South China Sea often stay within this militarized framework. Following the February South China Sea FONOP, a Foreign Policy piece argued that "Biden must keep challenging China on freedom of navigation." In April, a different Foreign Policy piece wondered, "Will Americans die for freedom of navigation?"

Such news stories and commentary offer one way to frame an old question: Who controls the oceans, and everything they contain? In regions such as the South China Sea where there are multiple competing claims, it's a complicated problem.

"The South China Sea is a very crowded and busy body of water," says Carla P. Freeman, SAIS '90 (MA), '99 (PhD), an associate research professor of China studies and executive director of the Johns Hopkins School of Advanced International Studies Foreign Policy Institute.

Freeman points out that the coastal Southeast Asia countries in this region coexisted for centuries before participation in the international systems of trade and relations involving centralized nation-state governance. "Now that they're nation-states, they're defining their territorial borders and they have different historical perspectives on the scope of their competing claims. Many countries in the region are energy dependent on the Middle East and [the South China Sea is] a major pathway for international shipping. It's the channel through which the lifeblood of many of these economies travels."

Technically, nobody controls the oceans. The high seas remain one of the globe's remaining free, open-access spaces, unencumbered by any individual nation's laws (see also: Antarctica, international airspace, outer space). Since World War II, an assortment of international maritime laws and trade and diplomatic agreements have established some guidelines that provide general international norms on the world's seas. The 1982 United Nations Convention on the Law of the Sea, or UNCLOS, is the main international agreement that defines a nation's maritime boundaries: The length of territorial sea is 12 nautical miles from a country's baseline (typically, low-tide waterline); a country's exclusive economic zone extends 200 nautical miles from that baseline. Sovereign states can control their territorial waters within the EEZ limit, and claim rights to all resources in those waters and the seabed below the water's surface. Outside EEZs: the free, high seas.

The South China Sea is one of three places—along with the East China Sea and waters above the Arctic Circle—where differing interpretations of the UNCLOS agreement tangle into a knot of overlapping claims. Per UNCLOS, EEZs give countries rights to resources beneath their water's surface, such as fish, and under the seabed floor, which include large estimates of valuable hydrocarbon and mineral deposits that private commercial interests have had in their sights for decades.

At more than twice the size of the Gulf of Mexico, the South China Sea is a roughly 1.3 million-square-mile portion of the Pacific Ocean that extends from the Taiwan Strait down south to the Strait of Malacca. Ten countries border the sea—Brunei, Cambodia, China, Indonesia, Malaysia, Philippines, Singapore, Taiwan, Thailand, Vietnam—putting different historical perspectives and cultures in conversation, and conflict, over how to manage a shared, indispensable resource.

Bonnie S. Glaser, SAIS '82 (MA), the recently appointed director of the Asia Program at the nonpartisan German Marshall Fund of the United States, has worked at the intersection of Asia-Pacific geopolitics and U.S. policy for more than three decades. During her time at the Center for Strategic and International Studies in Washington, D.C., she started the China Power Project, which in 2016 determined that an estimated $3.4 billion in global trade annually passes through the South China Sea.

"It's so far away and we don't have any territorial claims there, why does the United States care?" Glaser says. "One [reason] is economics and trade. Our ally Japan is extremely dependent on keeping those sea lanes open, but the country that's most dependent on unhampered trade is China. Beijing has no incentive to try to shut off the South China Sea and access to it by commercial ships, unless there's a war."

China has roughly 9,000 coastline miles and sustains eight of the 10 busiest ports in the world; three, Shenzhen, Guangzhou, and Hong Kong, are found on the South China Sea. Chinese politicians often point to the long-standing Chinese presence in the region to bolster claims to disputed territories. "The South China Sea is one of the spaces where China sees itself as appropriately exercising important if not dominant influence," Freeman says. "It's where it is experimenting with reshaping the rules of the road—and those include the way that the U.N. Convention on the Law of the Sea is interpreted."

Remember: UNCLOS addresses maritime, not land, boundaries. China ratified UNCLOS in 1995, but it bases its claims to territory on the "nine-dash line" that appears on a map created in 1947 by the then Republic of China. This nine-dash line—referring to the number of dashes used to represent it—claims a larger area of the South China Sea for China, including archipelago clusters. In 2016, an arbitrary tribunal called under UNCLOS ruled that China's maritime claims inside the nine-dash line have no lawful effect if they exceed UNCLOS' designations, and both China and Taiwan rejected the ruling.

Between 2009 and 2014, Vietnam created approximately 60 acres of land by filling in the seas around land masses, a process called land reclamation. Since 2014, China has created more than 2,000 acres of territory through land reclamation, thus establishing, it argues, a broader range for its waters claims under UNCLOS.

U.S. FONOPs are one way to address access to waterways, but ocean governance enforcement remains a diplomatic conversation. "The U.S. is interested in how disputes should be resolved, and they should not be resolved through the use of force," Glaser says. "Just because China has more power than Malaysia or the Philippines, does that mean that the Chinese should be able to use their power, whether it's coast guard or military, to coerce these smaller countries to accede to Chinese claims to sovereignty? So even though the United States doesn't have sovereignty claims itself, we stand up for the rights of other countries to have their sovereignty claims and insist that all parties work out their differences peacefully—if necessary, through international courts, not through use of force."

America's history in Southeast Asia, however, isn't irreproachable. "Southeast Asian countries have nagging doubts about the reliability of the United States and how seriously the United States actually takes this issue," Glaser says of the South China Sea, adding that those countries are "very afraid of standing up to China and then being left hanging out to dry—and they don't have enough in common with each other that they can really forge a common position."

The Biden White House has reinforced a position of its predecessor that could signal a change in the region: The U.S. will continue protecting not only freedom of navigation in the South China Sea but also the rights of smaller countries to access their resources. The latter "is an important position that has been inherited by and reaffirmed by the Biden administration," Glaser says. "I think that countries are looking for evidence that it is really true, that we are actually going to stand up for their rights to access resources."

A U.S. Energy Information Administration report claims the South China Sea holds an estimated 11 billion barrels of oil and 190 trillion cubic feet of natural gas, mostly under undisputed waters. The seabed floor is also estimated to be a rich source of polymetallic nodules, deep-sea rocks that contain high concentrations of precious metals such as manganese and cobalt that are used in the components of electric car batteries, smartphones, and electronics equipment.

"The Law of the Sea looks like a pretty good deal because it gives coastal countries 200 nautical miles to lay claim to all the resources in those waters and in that seabed," Freeman says. "It has proven able to constrain China's freedom of action, as China would have it, and also imposed some constraints on China's maritime claims. So China's pushed against aspects of it."

The daughter of a diplomat who moved frequently during childhood, Freeman is interested in borders and the transition between places, and she researches how China's foreign and domestic policies shape its relationships with its regional neighbors. She's following China's actions in the South China Sea to understand how the country's approach to the global commons, those areas outside any country's control, might be evolving.

"The global commons is a fascinating concept, how these big spaces stay outside of sovereign control," Freeman says. China "wants naval vessels and other military vessels to get permission before they enter or transit waters in their exclusive economic zone, but under UNCLOS, those are high seas and open access to everyone—at least that's been the customary way of interpreting the rules of the road."

Discussing the development of UNCLOS and subsequent ocean guidelines requires compressing a few centuries of history into a few paragraphs. UNCLOS is an actual international agreement created in 1982 following eight years of talks. Those talks were the third such international convening on the subject since the mid-1950s. UNCLOS went into effect in 1994 after it was ratified by the 60th nation. To date, it has been ratified by 164 U.N. member states, and the United States remains one of a handful of countries that have signed but not ratified it.

UNCLOS' definition of the high seas replaced the 1959 Convention of the High Seas, which, in its first two articles, defines the high seas as "all parts of the sea that are not included in the territorial sea or in the internal waters of a State" and that are open to all nations, which are free to navigate, fish, lay submarine cables and pipelines, and fly over. Free seas, free market.

The concept of the "free" seas as a customary international norm dates to an early 17th-century treatise written by Hugo Grotius, a Dutch jurist for the Dutch East India Company. His defense of the company's seizure of a Portuguese merchant ship and its cargo, which became a moral and business crisis among stockholders, was published as a 1609 pamphlet titled Mare liberum sive de jure quod Batavis competit ad Indicana commercia dissertatio. "The Freedom of the Seas," as it became known, argued that the oceans are more like air than land: "The sea is common to all because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries" (translation, Ralph van Deman Magoffin, A&S 1907 [PhD]).

The Dutch used that argument to break English, Portuguese, and Spanish trade monopolies; "free" seas slowly became an international customary norm, and freedom of navigation was alluded to in President Woodrow Wilson's Fourteen Points speech to Congress outlining his ideas for peace following World War I, which helped lay the groundwork for creating the United Nations in 1945. The young U.N. needed to establish some ocean governance guidelines following wartime upheavals. National boundaries changed in both the European and Pacific war theaters, and colonies began pushing back against their occupiers, anticipating the waves of decolonization to come. Nailing down who can do what where on the oceans was important for everybody. Mare liberum's long-term victors: global capitalism and the international power of countries with naval prowess.

The People's Republic of China gets involved in this postwar-resources race later, as the Communist Party spent the two decades after the war rebuilding a country devastated by civil war and roughly 100 years of foreign invasion. During this rebuilding, the Communist Party was also trying to politically reeducate its population and transform an agrarian economy into a communal society. China does participate in UNCLOS talks and has signed and ratified the agreement, but "it doesn't like living in an international system that was designed and built consistent with U.S. preferences and U.S. goals," Freeman says.

Michael Klare, a professor emeritus of peace and world security studies at Hampshire College and a senior visiting fellow at the Arms Control Association, has written about 21st-century global dynamics as a competition for resources, particularly oil. In a May column at the independent, nonprofit foreign policy site TomDispatch, Klare points out that efforts to move to renewable energy sources introduce new competitions: "While the sun and wind are indeed infinitely renewable, the materials needed to convert those resources into electricity—minerals like cobalt, copper, lithium, nickel, and the rare-earth elements, or REEs—are anything but."

Resource competition indirectly shapes consumer costs, but the most threatening results of such global competition are environmental. "In addition to nationalism and strategic maneuvers, one of the core issues in the South China Sea is resources and access to resources," says Tabitha Grace Mallory, a Chinese foreign and environmental policy specialist and an affiliate professor at the University of Washington's Jackson School of International Studies in Seattle. Mallory, SAIS '06 (Cert), '08 (MA), '13 (PhD), says news coverage tends to focus on the hydrocarbon deposits. "But the fisheries really are the more important resource for the people in the region in terms of food security. It's a renewable resource if managed well, and it can provide an economic and food contribution for those populations indefinitely."

Mallory is currently reading through Chinese-language sources relating to fisheries and ocean governance to better understand the Chinese government's evolving relationship with the high seas. Commercial fishing is an international, interdisciplinary industry by its very nature, one that sits at the intersection of so many UNCLOS issues in the South China Sea: who can go where on the surface, who can get things from underneath, why China feels like a late arrival to the global resources grab, and why establishing international ocean governance consensus is so necessary.

In extreme brevity: Industrialized distant-water fishing on the high seas explodes after WWII, such that by 1960 global fishing begins depleting certain areas. China doesn't begin its distant-water fishing enterprises until 1985 in response to the food insecurity of dwindling domestic fish stocks. In 2013 China raises its marine fisheries to strategic industries, suggesting their importance for national security. And in 2019 a former Chinese fishing official said the country's distant-water fishing fleet embodies China's presence on the high seas and in the management of its marine resources, "breaking up the long-term monopoly of high seas resources by a few Western countries" (translation Mallory's).

That said, China, the U.S., and the larger international fishing industry do share a number of goals, such as curbing illegal fishing and protecting marine stock. China and the U.S. also agree that the other is an environmental threat to the planet, and as Mallory points out in an online talk hosted by the National Committee on United States–China Relations, they're both right.

There may be enough common international interest in fishing to spur some movement on protecting the biodiversity of the high seas in areas outside national jurisdictions, as the industry's survival is directly tied to marine life that can renew itself. The long-term environmental impact of hydrocarbon extraction and seabed mining may be irreversible. "I think that's going to be the next frontier—protecting vulnerable marine environments like deep-sea areas," says Mallory, who alluded to recent research that showed that damage caused by deep-sea trawling decades ago remains essentially unchanged today. "The resilience of deep-sea areas isn't great. They don't get many ocean currents turning over it, they don't get much oxygen, and they don't get sunlight. When you damage those areas, it pretty much stays that way."

These environmental perspectives don't always enter the national security policy discussions around ocean governance in China or the U.S. "I find most people who talk about the South China Sea are from a particular community," Glaser says. "The defense community will debate the issue of whether, for example, China's militarization of the South China Sea is something we have to worry about. Can we take out these islands in the first 30 minutes of a war? And then the environmental conversation is virtually one unto itself. We really need to be bringing these different communities together."

Freeman agrees. "What's at stake is that you have these spaces that are zones for connectivity around the world, but I think they can also be seen as important zones for global cooperation," Freeman says. "They force us as a globe to sit down and discuss how we're going to manage the resources, the access, the rights, and the responsibilities, in these different areas that are outside the control of any single country. And I think that's really powerful."