Guest Blogger: LCDR Tracy Reynolds on South China Sea legal issues

Want to catch up on the legal issues in the South China Sea? Our guest blogger today is LCDR Tracy L. Reynolds, JAGC, USN, who will help you do just that.  LCDR Reynolds’ very impressive bio is found here, and she participated on our “Short Burst” panel at the 24th Annual National Security Law conference. Her blog below is based on her remarks there. 

Legal Issues of the South China Sea

by

LCDR Tracy L. Reynolds, JAGC, USN

The South China Sea has strategic implications around the world, and it comes down essentially to food, fuel, communications, trade, and people.

The South China Sea has over 3,000 different species of fish, 55% of global maritime fishing vessels operate there.  The South China Sea constitutes about 12% of the global catch.  49% of the world’s oil travels through the South China Sea.  Depending on who you ask, either the United States or China, there is between 266 and 500 trillion cubic feet of natural gas in the continental shelf and between 28 and 125 billion barrels of oil.  95% of international communications cables travel through the sea bed.

Approximately 30% of global maritime trade, or about $5.3 trillion worth of goods, transits through the South China Sea.  The shipping represents half of the globe’s sea tonnage and a third of its total monetary value.  There are 21 megacities — cities that have more than 10 million people — within 60 miles of the coast of the South China Sea.

The South China Sea is no stranger to conflict.  There are multiple sovereign claims in the South China Sea.  Maritime features are claimed by China, Vietnam, the Philippines, Taiwan, Malaysia, and Brunei.  The South China Sea is vast; 1.351 million square miles.  China’s sovereign claims, the infamous Nine or 10-Dash-Line, contains about all of it.

Hong Kong is about 800 miles from the Spratly Islands, which is an area of contested maritime features in the South China Sea.  The Spratly Islands contain about 3,200 extra acres of land artificially constructed by China since 2013.  Chinese Coast Guard vessels and fishing vessels navigate frequently throughout the South China Sea.

China operates the largest fishing fleet in the world, at approximately 200,000 vessels.  The Chinese commercial industry employs about 14 million people, which is 25% of the world’s total.  Hopefully, these factual tidbits set the stage on why the United States, from a national security perspective, cares about the South China Sea.  Also, these facts provide context on why the United States Navy, a military force that implements foreign policy and national domestic priorities on behalf of the United States around the world, might be deployed to the region.

As an active duty military lawyer, my client is the commander for a carrier strike group.  We have an aircraft carrier.  We have destroyers and cruisers.  We have airplanes.  We have many individual units that will operate wherever in the world we are ordered to go.  As the legal advisor for that commander, I want to ensure military operations are based on law and policy.  I refer to a wide variety of legal sources during the planning and execution process.

But first, the general questions boil down to, “What is our mission?  Why are we going?”  The mission may be a port call to Da Nang, Vietnam.  During WESTPAC 2018, my strike group made the first port call to Da Nang in 40 years.  The mission may be a freedom of navigation operation.  Freedom of navigation operations are missions where the United States formally shows our conscientious objection to an excessive maritime claim. 

China is often characterized as the primary maritime claims bad actor in the South China Sea, but there are many nations, including U.S. allies, that have some type of excessive claim in that region.  From a United States policy perspective, we do not tolerate excessive maritime claims from anyone, even people that we have mutual defense treaties with, like the Philippines, or nations we are trying to establish a better working relationship with, like Vietnam.

What is the mission?  Modeling adherence to rules, laws, standards, and norms?  Presence operations or freedom of navigation?  A port call?  What are the sources of law?  Where are we trying to go?  What are we trying to do? 

Sources of international law include custom and treaty.  Customary international law refers to actions taken by nation states out of a sense of legal obligation over time.  Treaties are where nation states agree to act a certain way and sign a piece of paper making promises to that affect.  Examples of international treaty law include the UN Convention of the Law of the Sea (UNCLOS) and the 1972 International Regulations for Preventing Collisions at Sea (COLREGs).  From a policy perspective, the U.S. Navy and the Department of Defense apply the Law of Armed Conflict throughout all military operations, no matter how such missions are characterized.  Regardless of whether the mission involves an international armed conflict, non-international armed conflict, or is some other military operation category, U.S. military forces respect the Law of Armed Conflict and apply it during mission planning at all times. 

Let us pick a mission.  We are traveling around Mischief Reef in the South China Sea.  What are our sources of law?  Let us think about the law of the sea.  The U.S. is not a signatory to UNCLOS.  However, the U.S. Navy considers UNCLOS to be reflective of customary international law.  As such, the US abides by UNCLOS in those areas reflective of custom. 

Our next question is, “What type of land is Mischief Reef?”  The type of maritime feature dictates the cognizant navigational regime, that is, what a vessel or aircraft can do and where that vessel or aircraft can go in the vicinity of a particular maritime feature.  Now, in 2019, Mischief Reef can be seen by pilots and aviators at high-tide.  However, Mischief Reef can only be characterized as “high-tide” because of Chinese land reclamation and reconstruction.  Prior to Chinese efforts, Mischief Reef was simply a shallow spot in the South China Sea.  Mischief Reef cannot attain legal status through construction or land reclamation.  Despite the fact that a local mariner or pilot can observe Mischief Reef at high-tide, the reef does not have the legal status of an island or a rock.  Mischief Reef’s pre-construction status remains the legal truth. 

As such, according to UNCLOS, the applicable legal regime for military operations around Mischief Reef is due regard.  Mischief Reef is not an island and is not entitled to a territorial sea, contiguous zone, and exclusive economic zone.  Mischief Reef is not a rock and is not entitled to a territorial sea.  Instead, Mischief Reef has no legal entitlements under UNCLOS or customary international law. 

The only potentially applicable navigational regime is that currently granted by UNCLOS to artificial islands; a 500-meter safety zone.  However, UNCLOS grants the 500-meter safety zone to artificial islands within a coastal nation’s exclusive economic zone. 

Mischief Reef is approximately about 850 miles away from Hong Kong, well outside the Chinese exclusive economic zone.  While this safety zone standoff may be may be applied to Mischief Reef out of courtesy or policy, it is not required under law.

Next, as a U.S. active duty legal practitioner, I consider the Law of Armed Conflict.  The distinction principle is a foundational concept within the Law of Armed Conflict.  By law, U.S. military operators must distinguish themselves as individuals and targets from those not part of the fight.  How is the distinction principle implicated when there are 200,000 Chinese fishing vessels operating throughout the South China Sea?  How should U.S. military units perceive and react to Chinese Coast Guard vessels?  China’s perspective on Mischief Reef and other maritime features throughout the South China Sea appears to be that these areas are Chinese territory. 

If a Chinese fishing vessel navigates in close proximity to a US military vessel, the US military vessel has a legal obligation to determine whether that Chinese fishing vessel is a civilian vessel engaged in civilian activities or in support of Chinese military objectives.  The U.S. and China are not at war.  However, a U.S. warship must constantly be alert to small vessels that pose force protection threats.  How close should a U.S. warship commanding officer allow a Chinese civilian fishing?  If Chinese fishing vessels continue to operate in the South China Sea as if they are cooperating with Chinese warships to defend Chinese sovereign territory, the distinction principle may evolve and change.  Professor Ken Anderson at American University has warned that obligation without reciprocity weakens legal systems, particularly when one side is pressed to protect the civilians of both sides put at risk because that’s how the other side deliberately wages war.  

In addition to law and policy, there are other mission planning considerations.  Are there shoal waters?  Will driving a ship on a particular course result in grounding that vessel?  Are there environmental considerations, such as whale migrations or calving, that might require my ship to deviate from a plotted course?  Must particular training goals be met that require a certain type of water space or wind speed?  A particular mission that is lawful and in line with U.S. policy objectives might change based on tactical considerations or other impacts.  These considerations must also be integrated into the planning process.

A ship driver is not required by law to maintain a certain distance from Mischief Reef.  However, operating within 12 nautical miles of Mischief Reef has strategic implications that are well outside the scope of any strike group mission.  My advice regarding standoff distances from Mischief Reef are not based exclusively in law.  Instead, this advice is grounded in policy considerations that such an action is not in line with the current mission or U.S. objectives. 

If my strike group’s Mischief Reef mission requires us to model adherence to laws, standards, rules, and norms, I will carefully evaluate the particular navigational regime around the feature.  Mischief Reef is in international waters.  My strike group has the right under international law, both custom and treaty, to operate there as long as all navigation is done with due regard for others in the region. 

How close to Mischief Reef will the strike group steam?  Mission will dictate.  Risk tolerance will inform decision making. 

As an active duty military legal practitioner, I want to keep everyone safe.  I want to meet my mission.  But I also want the U.S. to act in the South China Sea in a deliberate fashion.  Mission planning and execution should not contribute to the evolution of law in a way that will negatively impact U.S. national security interests or the lives of innocent civilians in the area.

Under Customary International Law, if a nation state acts as if it has a legal obligation to behave in a certain way, over the course of time that sense of duty can become a legal obligation.  The U.S. must avoid operating in a way that could invariably ascribe legal character to tactical or operational actions. 

The multi-level planning considerations articulated above for a Mischief Reef operation are also applicable in other areas of the world.  The South China Sea could be indicative of the Chinese and the Russian response in every area where these nations are in pursuit of national domestic interests.

Military planners and foreign policy experts should assume that Russia closely observed international reactions to the 2016 UNCLOS Tribunal’s ruling that there is no legal basis for Chinese sovereign claims in the South China Sea.  Russia will likely use this outcome to inform their thinking regarding Russian claims to the Lomonosov Ridge in the Arctic.  The U.S., Canada, Denmark, and other Arctic claimants should inform their legal strategies with Chinese actions in the South China Sea.  At a minimum, nation states should ensure that state actions are reflective of policy principles that nations are comfortable implementing in other venues.  Alternatively, nations must be ready to distinguish actions such that these actions do not inadvertently influence the creation of legal norms contrary to domestic or international goals.

Outer space, as a military operating environment, should be considered in a similar fashion.  Both outer space and the maritime domain are common areas, where nation states pursue domestic interests and foreign policy goals.  In addition to nations, private citizens influence the creation of legal norms and standard operating procedures.  Russian and Chinese actions in the South China Sea and the Arctic could be predictive of these nations’ approach to outer space.

In sum, the South China Sea is a legal petri dish.  The simple Mischief Reef mission is rife with legal, tactical, and strategic complications.  Multi-level analysis and thinking is necessary to ensure that mission is met, everyone is kept safe, and the lessons learned are not forgotten when the U.S. turns to other military operating environments.

The views and opinions expressed in this article belong only to Tracy Reynolds, and do not necessarily reflect an official policy or position of the U.S. Navy or the Department of Defense.

As we like to say on Lawfire^®, check the facts, assess the law and the arguments, and decide for yourself!