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Rising Challenges for Maritime Order

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Chinese maritime militia members at a review, Tanmen, China (file image)

By CIMSEC 2019-07-05 17:21:21

[By Dr. Patrick M. Cronin]

The United States is a “seapower” in all senses of the word. Its history, prosperity, and security are inseparable from the oceans. Even U.S. states without coastlines depend on global supply chains and markets that move primarily through the oceans.

The United States neglects its Navy at its peril. But military power must be accompanied by other types of power, both hard and soft. In his analysis of five maritime great powers, Professor Andrew Lambert explains how might and identity derive not exclusively from naval power, but also from the aptitude for using the seas cooperatively. The crucial distinction between seapowers and more insular continental powers is the art of perpetuating profitable economic and political ties with others. “A seapower, the ancient Greek thalassokratia,” writes Lambert, “was a state that consciously chose to create and sustain a fundamental engagement between nation and ocean, from political inclusion to the rule of law, across the entire spectrum of national life, in order to achieve great power status.”

Because America’s peace and well-being depend on unhampered access and use of the oceans, order at sea is indispensable for U.S. global strategy. The post-World War II international system enshrined the idea of “freedom of the high seas” in the 1945 United Nations Charter. Postwar challenges to commercial and military freedom of navigation, however, demanded further protection. In the midst of the Cold War, both Western and Eastern blocs along with nonaligned nations came together to support the multilateral negotiations that resulted in the 1982 UN Convention on the Law of the Sea (UNCLOS). The Third United Nations Conference on the Law of the Sea does not conform with the revisionist notion that the United States imposed its rules on others.

Instead, as Singapore Ambassador Tommy Koh put it, “You will find countries allied here that you will not find working together in any other international forum, such as Mongolia and Swaziland, or Jamaica and Iraq.” As U.S. Ambassador John Norton Moore said, freedom of navigation is the original “common heritage” of all humankind.

From the signing of UNCLOS, the United States accepted all of its provisions as customary international law. The sole exception was Part XI regarding seabed exploration and mining in international waters, outside countries’ territorial waters and Exclusive Economic Zones (EEZs). In short, the United States helped to establish international law of the sea, and despite not ratifying UNCLOS, seeks to ensure its relevance, survival, and enforcement.

So, freedom of seas has been and remains essential for all Americans. However, maritime order is increasingly at risk and from both traditional and nontraditional threats. A critical question is whether we can sustain freedom of the seas into the future.

Rising Challenges for Maritime Order

Maritime order is a larger concept than maritime security. Although security is the sine qua non for order, there is a symbiotic relationship between freedom of navigation on the oceans, for instance, and sustainable coastal communities where almost two-thirds of the world’s mega-cities are situated.

There are at least four significant challenges to maritime order broadly conceived: over the international rules governing maritime behavior; from pirates, terrorists, traffickers, and other non-state actors and transnational criminal organizations; from mounting human exploitation of ocean resources; and from natural disasters and climate change. 

First, the seas are at risk from a growing competition over international rules and rule-making.

Revisionist major powers like Russia and China, but also regional states such as Iran and North Korea, increasingly pose challenges to traditional maritime security. Iran’s shootdown of a U.S. surveillance drone in international airspace constitutes a direct threat to freedom of navigation and overflight around the globe and could lead other aggressors to miscalculate by challenging the U.S. interpretation of international law.

In the Indo-Pacific, the most pressing challenge to existing maritime rules and norms is being posed by China. For example, China’s willful disregard of the 2016 international arbitral tribunal judgment regarding the South China Sea is a direct assault on the postwar system and UNCLOS, the so-called constitution of the oceans.

But brushing aside awards handed down from The Hague is not the only challenge to postwar maritime order. Revisionist powers are challenging accepted rules and norms in various ways. Reckless behavior at sea that endangers other ships is a direct violation of the 1972 International Regulations for Preventing Collisions at Sea (COLREGs). Yet in early June 2019, a Russian destroyer deliberately endangered a U.S. guided-missile cruiser, USS Chancellorsville, an incident that occurred on the heels of an unsafe air maneuver by a Russian fighter jet against a U.S. patrol aircraft. Chinese ships and aircraft have periodically conducted similar dangerous maneuvers to prevent lawful U.S. freedom of navigation and overflight in maritime Asia.

As with North Korea prior to the signing of UNCLOS, China wants to ignore the right of military freedom of navigation and overflight, as suggested by Beijing’s increasingly assertive behavior toward U.S. and other naval vessels operating peacefully within its Exclusive Economic Zone (EEZ).

The EEZ was designed by UNCLOS negotiators to grant coastal states control over resources adjacent to their coasts; it was not designed to grant sovereignty, which extends only in the 12-nautical mile territorial sea. Yet China has repeatedly violated this broadly accepted interpretation of UNCLOS.

From the 2001 incident in which a Chinese fighter jet collided with a U.S. EP-3 aircraft 80 miles south of Hainan Island to the more recent unlawful seizure of an unmanned underwater vehicle (UUV) 50 miles from Subic Bay in the South China Sea, to repeated harassment of Navy Military Sealift Command oceanographic and hydrographic survey vessels, China seeks to alter the rules through provocative actions. China wants it both ways: to preclude any military activities by claiming more limited rights of “peaceful navigation” not derived from UNCLOS within its EEZ, while conducting its own military maneuvers in the EEZs of other countries. In addition, while Beijing condemns every U.S. transit with warships, it lavishes praise on its proprietary and state-run mapping and measuring of the South China Sea and world oceans.

While states seeking to revise international rules at sea constitute a severe and growing threat to maritime order, there are other acute and chronic challenges.

A second source concerns non-traditional security threats from piracy, terrorism, and illegal trafficking by non-state actors, including transnational criminal syndicates. Illegal, Unreported, and Unregulated (IUU) Fishing alone “results in global losses in the tens of billions of dollars each year.” The cost and irreparable human and environmental damage of illicit trafficking in people, drugs, wildlife, and other commodities is enormous.

But there is an area where traditional and non-traditional threats such as transnational crime converge: lethal technology. Non-state actors are gaining access to more disruptive and deadly technologies. Acting either alone or as proxies of states, they are likely to pose increased risks to maritime shipping, navigation and overflight. The Houthi rebels who allegedly shot down a U.S. MQ-9 Reaper drone over Yemen and the plausible deniability about attacks on oil tankers in the Persian Gulf in June 2019 suggest how non-state actors could significantly disrupt maritime order in years to come.

Thirdly, maritime order in the oceans is at severe risk from a growing global population’s use of the oceans, as we face problems such as massive overfishing. The oceans face multiple stressors, including increased human use of maritime resources as global population approaches an anticipated 9.8 billion people by 2050. As Greg Poling observes, in the South China Sea alone there is “a series of catastrophes piling on top of one another.” China’s island-building reclamation was enormously destructive to coral reefs, and a resurgence in giant clam digging is causing additional damage. This environmental damage comes on top of overfishing.

Finally, humanity is at greater risk from the seas themselves, including the impact of natural disasters on built-up coastal areas and the effects of climate change.

Littoral regions, where roughly 40 percent of the world’s population lives, are especially vulnerable to tsunamis and rising sea levels. But the entire world is dependent on the oceans in many ways: for instance, 25 percent of all species on the planet are thought to live in the biodiverse tropical coral reefs, even though these reefs comprise less than 1 percent of the Earth’s surface. Sadly, warming oceans resulting from periodic El Niño heat waves are leading to large-scale bleaching and destruction of many coral reefs. Climate change projections suggest most coral reefs may cease to exist by the middle of the century, although some will be able to adapt because of local conditions such as internal waves.

Faced with all of these risks, we must do more to find ways of cooperating on our maritime commons, while not flinching from protecting both freedom of the seas and the survival of our shared marine environment.

Maritime Order in the Indo-Pacific

Maritime order is indispensable for preserving a free and open Indo-Pacific region. The United States is approaching these issues within the vision for a free and open Indo-Pacific, as most recently described in the June Indo-Pacific Strategy Report. Although released by the Department of Defense, the report adopts a comprehensive approach.

The report’s introduction underscores the Indo-Pacific region’s economic centrality for the world and the United States: “The Indo-Pacific contributes two-thirds of global growth in gross domestic product (GDP) and accounts for 60% of global GDP.”  Moreover, “nine of the world’s 10 busiest seaports are in the region, and 60 percent of global maritime trade transits through Asia, with roughly one-third of global shipping passing through the South China Sea alone.” Moreover, with five Pacific states and Pacific territories on both sides of the International Date Line, “America’s annual two-way trade with the region is $2.3 trillion, with U.S. foreign direct investment of $1.3 trillion in the region—more than China’s, Japan’s, and South Korea’s combined.”

Despite its significant economic holdings, the United States is worried by powers seeking to unilaterally revise agreed-upon rules and norms, especially in the maritime domain. The U.S. strategic vision sets forth principles congruent with ASEAN centrality and norms, including seeking the peaceful resolution of disputes, supporting a rules-based approach, and expanding cooperation. The goal of the United States is to help independent actors protect their interests while not allowing any one nation to dominate the Indo-Pacific.

At the recent Shangri-La Dialogue in Singapore, concern over the consequential U.S.-China relationship took center stage. Then Acting Secretary of Defense Patrick Shanahan said the United States cannot stand aside when smaller actors face pressure and coercion (and that includes the Cross-Strait issue, too), nor can the U.S. fail to respond when revisionist powers seek to unilaterally change a rules-based system. The Law of the Sea and marine policy are caught up in the larger global resurgence of major power rivalry in which the basic contest centers on rules and rule-making.

However, big powers can pursue what Joseph Nye has called “cooperative rivalry” at sea — a reason why Acting Secretary Shanahan used his one-on-one discussion with his Chinese counterpart, General Wei Fenghe, to advance ideas for cracking down on North Korea’s illicit trading and strengthening mechanisms for avoiding unintended catalytic war.

The United States can also benefit from fashioning a larger consensus around halting IUU fishing — something the Obama administration elevated and which the Trump administration has recently shown stronger support for in the Pacific Islands and in its work with ASEAN. The same goes for the global challenge of slowing climate change and building resilient coastlines and islands.

The United States should also prepare to harness and enhance existing contributions for maritime order — an appropriate priority for a major seapower state like the United States. As the Indo-Pacific Strategy Report makes clear, the United States is in the fourth year of an Indo-Pacific Maritime Security Initiative (MSI) designed to bolster the security of littoral states in Southeast and South Asia, especially near the South China Sea.

The bottom line is that security and maritime order are intertwined, rather than in opposition to one another.

Dr. Patrick M. Cronin is Senior Fellow and Chair for Asia-Pacific Security at Hudson Institute. This editorial was first published by CIMSEC and appears here in an abbreviated form; the original may be found here

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.