The Strategist, the Lawyer and the S. China Sea

Understanding law and politics in contested waters.

The Strategist, the Lawyer and the S. China Sea

By Kerry Lynn Nankivell

Readers of The Diplomat were recently afforded an exchange by two leading experts in South China Sea disputes. Dr. Sam Bateman, a retired commodore of the Royal Australian Navy (RAN), wrote of the strategic problems associated with U.S. Freedom of Navigation Operations (FON OPS) in the South China Sea. Bateman warns of the United States “militarizing” a sensitive circumstance and “turning back the clock” on international law. Responding to these claims, Commander Jonathan Odom, judge advocate general (JAG), former oceans policy advisor in the Office of the Secretary of Defense, and current military professor at the Daniel K. Inouye Asia Pacific Center for Security Studies, defended the FON OPS program by noting the legal errors underpinning Bateman’s argument.

At face value, each author’s analysis is useful but incomplete. Accepting Bateman’s approach means believing that FON OPS are illegal, or at least legally controversial. As Odom retorts, this is simply untrue. But accepting Odom’s legal defense of freedom of navigation as the last word in the South China Sea is to ignore the central geopolitical questions at hand. In the final reading, the lawyer’s discussion places boundaries on what is legitimately contested in the South China Sea in a way that the strategist finds hard to accept, while the strategist raises questions that the law can’t answer. Both Odom and Bateman make an important contribution to understanding the circumstance unfolding, though their arguments only relate to each other indirectly. This failure to communicate reflects the shrinking space for dialogue in the U.S.-China relationship itself, which sometimes rehearses the same arguments.

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Source: thediplomat.com