The United States and the People’s Republic of China are at a crossroads, with both states fighting to assert their influence over the Indo-Pacific. In particular, China has issued multiple statements outlining its agenda for the region and has taken multiple actions that seek to redefine the global world order. In an address to the Chinese Communist Party, marking the 75th anniversary of the founding of the People’s Republic of China, President Xi Jinping reiterated that Taiwan is the “sacred territory of China” and that people on both sides of the Taiwan Strait are “bound by blood,” sending a message to the world that Taiwanese reunification with the mainland is part of a “wheel of history” that “will not be stopped by any individual or any force.” To flex its muscle in the Taiwan Strait, China has rapidly expanded its military and continued to build islands in the South China Sea to maintain its influence in the contested region. What’s more, many in Washington and Taipei are warning that China may seek to invade Taiwan by 2027.
However, the United States is in poor shape to push back against China’s challenge to the international order. The United States must reverse course and reassure its commitment to its allies in Asia if it stands any chance of pushing back against China’s challenge to its primacy. There are several simple yet crucial steps the United States should take to push back against China’s challenge to the current state of international affairs. In doing so, the United States would reassure its allies in Asia and abroad that it can offer a sustainable vision of a global, rules-based order. Maritime law offers an avenue often left unexplored to directly challenge China without incurring the risks of a conventional military conflict.
Background
Relationships between the United States’ and its allies have long been under strain. Under the Biden administration, multiple allies of the United States expressed concerns with the United States’ willingness to listen to them, citing the unilateral withdrawal of personnel from Afghanistan despite “pleas to extend the Aug. 31 deadline” and “flip-flopping” as threats to the credibility of the United States and its ability to protect its allies and protect global interests. The recent ascension of Donald Trump to the White House only adds to a growing list of concerns many have about the United States’ relationships with the Indo-Pacific. President Trump has appointed a Secretary of Defense who could not name a single member state of the Association of South East Asian Nations (ASEAN), and Indo-Pacific allies are increasingly concerned that Trump will pull out of the Indo-Pacific Economic Framework, which would threaten the multilateral framework that ASEAN depends on. These actions in combination with the United States ongoing retrenchment across the world signal an abdication by the United States in maintaining a rules-based order that is capable of preserving international law, and promoting democratic values abroad.
The United States should ratify the United Nations Convention on the Law of the Sea
One crucial gap in the credibility of the United States and its allies is its failure to ratify the United Nations Convention on the Law of the Sea (UNCLOS). Despite being part of the negotiations behind the convention, the United States has failed to ratify the convention. The lack of ratification poses a serious gap in the legitimacy and credibility of the United States to claim it represents a rules-based order. This has only given China openings to argue that it is the country that represents the best bet of pushing for a rules-based order. In the same address, President Xi asserted that China’s actions and goals align with a broader push towards “an equal and orderly multipolar world” that seeks to “build a community with a shared future for mankind.” However, these flowery words mask what many consider aggressive actions on China’s behalf. China has undertaken multiple non-diplomatic actions that seek to redefine the current world’s rule-based order. Although China is a signatory of UNCLOS, it has long challenged its legitimacy. China has refused to abide by decisions made by the Permanent Court of Arbitration (PCA) and has continued the buildup and militarization of artificial islands to claim territory in contested areas across the South China Sea. This has forced adversarial states such as the Philippines to build up their naval power to protect their respective claims to parts of the contested waters. The nine-dashed line represents one of China’s most prominent challenges to international law, as China uses it to claim sovereignty over most of the contested territories.
In response to China’s actions in the South China Sea, the United States has long relied on Customary International Law for the basis of its Freedom of Navigation Operations (FONOPs) and other enforcement mechanisms against China’s claims of maritime boundaries via the nine-dashed line. While the United States enjoys some rights and privileges, such as access to Exclusive Economic Zones found in UNCLOS through Customary International Law, failure to ratify the convention prevents the United States from effectively pushing back against China’s South China Sea claims. First, Customary International Law is susceptible to erosion because customs regarding maritime law constantly evolve.1 2 For example, when UNCLOS was adopted, it created a new legal regime to govern the exploitation of the ocean floor known as the Exclusive Economic Zone (EEZ). As such, states often seek to clarify and define what forms of sovereignty and benefits states retain from their EEZs. This demonstrates the inability of Customary International Law to set clear standards for how states should interpret and thus follow maritime law. This becomes particularly important in the context of the South China Sea, as its contested portions are due to overlapping EEZ claims that can only be resolved by the treaty that created them.
However, the provisions found within UNCLOS and the subsequent rulings issued by international bodies are binding and, therefore, serve as predictable forms of redress for violations of maritime law. Second, the United States lacks any legal recourse to respond to China’s actions in the South China Sea. In the Philippines and China dispute, the United States asked to be a third-party observer supporting the Philippines. However, the international tribunal denied the United States’ request because it is not a party to the Convention and thus lacks standing to appear before its international tribunals.3 Ratifying the convention would open the door for the United States to build a coalition that would have the capacity to respond and pressure China to follow international maritime law. Doing so would build credibility in the ability of the United States to maintain the international rules-based order while also demonstrating to its allies that the United States can stand up to countries that seek to upend the status quo. International maritime law and freedom of navigation are essential to America’s standing as a global power, as they both safeguard national security interests and serve as a critical check on adversarial countries in their quest to upend the status quo otherwise.
For over 40 years, the United States has failed to ratify the convention, namely due to concerns by conservatives about impending threats to U.S sovereignty and the ability to maintain access to drilling oil. These fears are mostly unfounded because the United States has already been bound by the convention because of customary international law since the Reagan Administration. Second, the United States already meets the environmental standards set by the convention, meaning that there is no reason why international tribunals would rule that the United States would no longer be allowed to drill for oil in its coastal waters.
The United States should reassert Naval Dominance in the South China Sea and the Taiwan Strait
Beyond joining the convention, there are other steps the United States should take to assert naval dominance capable of disuading a Chinese invasion of Taiwan. For far too long, the United States has maintained an insufficient posture that is incapable of dissuading a Chinese invasion of Taiwan or persuading its allies that it is capable of defending its interests in the South China Sea. Concerns about U.S naval dominance are becoming more pressing, as China has raised the stakes by shadowing ships as they enter the Taiwan Strait. While China cannot lawfully seize U.S warships under international maritime law, the lack of other vessels in the area makes it so the U.S is poorly positioned to engage in any firefight with China over an invasion of Taiwan. Analysts have long argued that whether or not Beijing decides to launch an invasion of Taiwan is based upon the United States’ naval power and showing of strength in the Taiwan Strait. Many have called for the deployment of autonomous warships and aircraft carriers in the Taiwan Strait, arguing that it will raise the risk calculus for China if it decides to invade Taiwan. However, autonomous vessels lack a current legal regime that allows them to be deployed in international or contested waters without the threat that adversarial nations can seize them because they do not have standing to sail on the high seas.
Some in the naval community call upon a novel solution to deploy these autonomous vessels. They argue that the United States should vest autonomous ships with the same legal rights currently bestowed onto fully manned warships. Under international maritime law, whether a ship enjoys certain legal rights is entirely based on domestic law. This means that only the United States can declare whether ships under its jurisdiction should enjoy the same protection as others under international maritime law.4 These rights include the right to fly their flags, exercise belligerent rights, the right against unlawful seizure or detention, and other rights founded when vessels are granted sovereign immunity. Fully manned warships like the ones shadowed by China last month currently enjoy these rights which prevents China from outright seizing or interdicting their movements. This offers them legal protection to patrol the Taiwan Strait and engage lawfully in combat and freedom of navigation operations. Expanding this legal regime for autonomous ships is the key to unlocking U.S naval dominance in the region. It would give the U.S legal cover for the deployment of autonomous vessels with anti-ship personnel or anti-submarine capabilities that would hinder any hypothetical Chinese invasion of Taiwan. While there is a case to be had that China would never seize ships even if they lacked proper status under international law, the point of granting these ships legal rights is not only to protect them from seizure for China. It also sends a message to the global community that the United States is acting as a leader in establishing a legal regime for autonomous vessels and that the United States intends to abide by international law. That is important to U.S. leadership because it demonstrates that the United States is bound by the rules just like every other country and intends to lead by example. Instead of pushing back against China’s violations of international law with even more violations that would undermine its legitimacy, the United States would demonstrate its commitment to building alliances with other countries who wish to preserve freedom of navigation for all. Part of the reason China does not seize U.S warships beyond the fact doing so would lead to a direct military confrontation is because China risks alienating the international community more than it already has, when it would violate the right of a warship to otherwise traverse the sea. Building up naval presence in the Taiwan Strait is more than about militarily threatening China if it were to invade Taiwan, but it is also about sending a message to allies that the United States would stand ready to protect everybody’s right to freedom of navigation. The battle for control and influence in Asia represents one of the most consequential geopolitical disputes between two great powers. The South China Sea is responsible for nearly 60% of all maritime trade, and the continent is home to some of the most rapidly growing economies in the world. While there are many logistical challenges to maintaining relationships with allies in Asia, the ball is ultimately in the United States’ court in how it decides to respond to threats to its primacy in the region. Only time will tell whether the United States is willing to work to maintain the rules-based order it had fought hard to establish during and immediately after the Cold War.
Featured/Headline Image Caption and Citation: “The USN Nimitz Class Aircraft Carrier USS Ronald Reagan and the Arleigh Burke Class Destroyers USS Paul Russell surge ahead in the Pacific Ocean,” Image source from Picryl | CC License, no changes made.
- Feinman, Dean. 2024. “Lost at the South China Sea: A Legal Rationale for Joining UNCLOS.” Fordham Law Review 93, no. 3 (November): 984. ↩︎
- Beckman, Robert and Davenport, Tara. 2012. “The EEZ regime: Reflections after 30 Years..” Law of the Sea Institute Conference Papers: 6. https://www.law.berkeley.edu/files/Beckman-Davenport-final.pdf. ↩︎
- Feinman, Dean. 2024. “Lost at the South China Sea: A Legal Rationale for Joining UNCLOS.” Fordham Law Review 93, no. 3 (November): 988. ↩︎
- Kraska, James and Pedrozo, Raul. 2022. “Unmanned Maritime Systems.” Disruptive Technology and the Law of Naval Warfare. ↩︎