Anchors for rule of law on the high seas

The modern idea that all seafaring people should abide by natural laws of conduct has been around for at least 400 years. It was best codified in the 1982 Law of the Sea Treaty. But in October the idea took two big leaps forward, showing once again the wisdom of having rules on the high seas based on universal principles.

In one instance, a United Nations-backed court decided Oct. 29 that it would rule on whether China violated maritime law in seizing reefs in the South China Sea claimed by the Philippines. China rejects the court’s jurisdiction even though it is party to the sea treaty.

The other instance was the intentional passage of a US Navy destroyer close to a new artificial islet built up with sand by China and located hundreds of miles from the Chinese coastline. The United States (which honors the treaty in practice but has yet to formally adopt it) wanted to protect a core tenet of the treaty – freedom of navigation for nonthreatening vessels.

Both actions have reverberated around Asia, which is rife with tense disputes over offshore territories. China is not the only nation to make dubious claims on what are sometimes submerged rocks. But its recent efforts to take formations largely underwater and build them up with military-capable surfaces has alarmed the region. Many Asian leaders welcome any actions to assert the rule of law rather than allow such disputes to be settled by force.

The UN tribunal, called the Permanent Court of Arbitration, will not rule directly on the Philippines’ claim of sovereignty. Rather it will decide the nature of the reef itself and whether the Philippines is entitled to an economic zone of 200 miles. The fact that the court took the case at all is a victory. Other countries in Southeast Asia might now file a legal challenge against China, possibly forcing it to accept that it cannot bully its neighbors with “ancient” claims on islands far from its shores. A favorable final ruling for Manila, perhaps coming next year, should help pressure China to abide by universal rules.

For nearly a decade, the nations of Southeast Asia have pushed China to abide by a code of conduct in their waters. So far it has resisted. As was the case with Russia taking Crimea from Ukraine, China prefers to set its own rules over territory or waters. But nations that rely on the sea benefit far more when they abide by rules that have worked for centuries. The recent action by both a UN court and the US asserts the need for a preeminence of law, one that is anchored in principles of the common good.