Question: Which statement most closely corresponds to international law?

1. All nations have the right to both freedom of navigation and overflight in the seas and airspaces beyond the twelve-mile territorial limits of other countries.
2. Any nation has the right to restrict both freedom of navigation and overflight within the two-hundred-mile limit of its Exclusive Economic Zone.

As lead questions go in our detective story, this may well be the most arcane. However, it is also one of the most critical because China is not just engaged in numerous territorial disputes that now constitute war triggers and trip wires. China is also waging an increasingly escalatory jurisdictional battle with the United States over America's right to conduct normal military operations within Asian waters.

Of course, the underlying question about this contentious battle is whether China is trying to implement its own version of the Monroe Doctrine. As University of Chicago professor John Mearsheimer notes:

From China's point of view, it would be ideal if they could duplicate in Asia the feat that the United States has accomplished in the Western Hemisphere—dominate all its neighbors and push the United States far away, just the way the United States pushed all the European great powers far away in the 19th century via the Monroe Doctrine.1

Of course, the best way for China to peacefully implement a Monroe Doctrine with Chinese characteristics is to use a combination of “lawfare” and coercion to close the seas to US military vessels. And therein lies the tale of this chapter.

In fact, the question of whether the seas should be open or closed is an age-old one that dates back to the days in which the Roman Empire effectively sealed off the Mediterranean Sea. Perhaps the most important historical marker in this debate is the year 1609 when Hugo Grotius, a jurist of the Dutch Republic, argued in a work entitled The Free Sea for the principle of mare liberum (Latin for “open sea”).2

At the time, the Dutch Republic was fiercely challenging England for primacy in world maritime trade, and England, through the pen and person of John Selden, fired back at Grotius in a 1635 book not surprisingly entitled Mare Clausum or “closed sea.” While Selden argued that the seas could be “blue territory” controlled by a sovereign just like any other territory, Grotius insisted that they should be international waters open to all nations for trade.

In 1702, this “open versus closed sea” debate was effectively settled when another Dutch jurist, Cornelis van Bijnkershoek, came up with a brilliantly practical way to apply Grotius's theory. He argued that a country's effective control of its coastline should only extend as far as the range of its weapons. Thus was born the “cannon-shot rule.” It established the limit of a country's territorial seas to three miles—roughly the range of the most advanced cannon of the time—and it was only within one nation's three-mile limit that freedom of navigation by other nations could be restricted.³

It was this three-mile limit that became the most universally accepted definition of the boundaries of international waters, and it would hold until passage of the 1982 United Nations Law of the Sea Treaty. This treaty not only increased the territorial waters limit to twelve miles, but far more profoundly, and as we have previously discussed, it also defined a two-hundred-mile Exclusive Economic Zone extending out from each nation's coastline.

While the Law of the Sea Treaty has helped foster peace and stability in much of the rest of the world by establishing seemingly clear rules for a nation's maritime rights, it has had the completely opposite effect in the East and South China Seas. One key reason: China has taken the novel position that both freedom of navigation and overflight are also restricted within a nation's EEZ. today, China is using this legal claim to justify its ongoing harassment of US military ships and planes in the region.

To be abundantly clear here, nothing in the actual treaty supports China's position. Rather, China's EEZ gambit—truly tantamount to a new Monroe Doctrine for China in Asia—simply represents yet another highly innovative “three warfares” attempt to control new territory not by kinetic military force but rather through nonkinetic means.

Indeed, if China's “closed seas” doctrine were accepted within the tight confines of the East and South China Seas, this revisionist legal rule would effectively give China control over two of the most lucrative trade routes in the world. At the same time, such a closed-seas rule would effectively bar US military vessels not just from much of Asia but also from freely operating in “roughly one-third of the world's oceans that are now EEZs.”4

It is for these stark economic and national-security reasons that the United States fiercely opposes any such change in the international rules—and any return to John Selden's seventeenth century “closed seas.” In the examples that follow—starting with a spectacular 2001 collision of both metal and principles in the skies near China's Hainan Island—we shall see that this jurisdictional clash has already led to numerous military confrontations between China and the United States.

FREEDOM OF OVERFLIGHT TAKES A DIRECT HIT

You may recall from our earlier chapter on China's submarine capabilities that touristy Hainan Island also plays host to one of China's most important and diverse military installations. This island not only houses a large squadron of highly maneuverable, missile-equipped Russian-built fighter jets; it is also home to a very sophisticated signals-intelligence facility that monitors the communications of US and other military forces operating in the region.

Perhaps most impressively, Hainan Island's vast underground caverns within the confines of the Yulin Naval Base ably hide China's growing fleet of Jin-class ballistic-missile submarines. This is a fleet now fully capable of delivering nuclear warheads as far away as San Francisco, St. Louis, and Boston. It's not for nothing the US military wants to keep close tabs on Hainan Island.

As for what transpired in the skies near Hainan Island on April 1, 2001, a US Navy EP-3 reconnaissance plane was conducting normal operations when two Chinese J-8 fighters intercepted it. In fact, one of the Chinese pilots, Lieutenant Commander Wang Wei, was well known by his American counterparts for his top gun antics—Wang had, on several previous occasions, made very dangerous passes at US planes.⁵

On this day, as the US EP-3 flew a straight line on autopilot, top gun Wang would have his own very deadly “Icarus moment” when the tail fin of his fighter accidentally struck the EP-3's left aileron. As the J-8 fighter was cut into two pieces and Wang ejected from his plane—never to be seen again—the impact sent the US plane into a steep dive. With twenty-four American crew members on board, the plane would drop eight thousand feet in thirty seconds and another six thousand feet before the pilot, Lieutenant Shane Osborn, got the wings back to level and the nose up.

At this perilous point, Lt. Osborn made a fateful decision: he chose to make an emergency landing at Lingshui Airfield on Hainan Island where, upon landing, he and his crew were promptly arrested and detained. This was despite the fact that international law permits such emergency landings.

In the ensuing diplomatic furor, China repeatedly asserted its right to prohibit military flights within its two-hundred-mile Exclusive Economic Zone, all the while extracting several humiliating apologies from the American side. Finally, after ten days, the US crew was released—but not before China had successfully mined critical classified data from the plane's computer hard drives.

What is perhaps most remarkable about this 2001 EP-3 collision given the international incident that ensued is the fact that even today, Chinese planes and cowboy pilots routinely harass US reconnaissance planes using highly dangerous maneuvers. A particularly over-the-top case in point is offered by the more recent “in your face” moves of a Chinese jet jock. According to the Pentagon, the Chinese pilot's intimidation included a barrel roll over a Navy Poseidon-8 aircraft, a 90-degree pass across the P-8's nose with weapons bared, and a “fly-along” within twenty feet of the P-8's wingtips.6

Of course, it's not just freedom of overflight in the skies of Asia that Chinese forces are contesting. There have also been numerous clashes on the high seas over freedom of navigation.

A classic case in point is the “Impeccable Incident.” The USS Impeccable is a relatively small and unarmed catamaran-type ocean-surveillance ship tasked with monitoring submarine activity using a state-of-the-art “towed array” sonar system that is literally towed behind and beneath the ship.⁷

In an incident now infamous in US Navy circles, the Impeccable was operating well beyond China's territorial limits but within China's Exclusive Economic Zone when a Chinese war frigate defiantly crossed the Impeccable's bow at a range of about one hundred yards—perilously close by naval standards. This bullying maneuver was immediately followed by another bow crossing along with a series of no less than eleven flyovers by a Chinese Y-12 marine-surveillance plane—with the plane buzzing as close as six hundred feet to the Impeccable's bridge.

Two days later, a white-hulled China Marine Surveillance vessel upped the intimidation ante by contacting the Impeccable over bridge-to-bridge radio, declaring her operations illegal, and warning the ship to leave or “suffer the consequences.” Those consequences would come with a vengeance a day later as the gray-hulled Impeccable was stalked by five Chinese civilian white-hulled ships, including two fishing trawlers that came within a mere fifty feet of the Impeccable.

Most provocatively, when the Impeccable tried to leave the area, the fishing trawlers blocked its path and attempted to snag the towed sonar array with grappling hooks. Finally—in a graphic illustration of how small clashes can indeed lead to escalatory responses—America's commander in chief, President Barack Obama, ordered the guided-missile destroyer USS Chung-Hoon to protect the Impeccable.

It is precisely these types of jurisdictional battles between an “open seas” America and a “closed seas” China that are becoming far too numerous to count. The clear danger is that one of these incidents may result in an exchange of fire that ignites a war.

It is also far too easy to see how this might happen. In one likely scenario, planes collide and pilots are killed. This provokes extreme nationalist responses on both sides, and it's a quick race up the escalatory ladder.

Such scenarios notwithstanding, the biggest war trigger may not be an accident at all. Instead, as China's military might grows, it may quite deliberately attempt to enforce its own “closed seas” view of the world in an attempt to bar the US military from the waters and airspaces of Asia.

Of course, no US president is likely to tolerate such an action as it would deal a heavy blow to both the national security and economic prosperity of the American nation. Thus, while Taiwan independence may well be a red line for China that the United States and Taiwan dare not cross, freedom of navigation and overflight may well be America's red line in Asia.