It is a paradox of the current international order that Asia-the most populous and economically dynamic region on the planet-arguably benefits most from the security and economic dividends provided by international law and institutions and, yet, is the wariest about embracing those rules and structures. More broadly speaking, Asian nations have long manifested an extreme wariness at the prospect of delegating any form of sovereignty. 5 Similarly, for many years, India-much like its trans-Himalayan neighbor-was reluctant to submit its maritime territorial disputes to international arbitration, preferring to negotiate with its smaller neighbors on a bilateral basis, where the stark asymmetry in national power and state capacity would presumably work to its advantage. Navy routinely conduct freedom of navigation operations against numerous countries, including India and China.

Department of Defense’s (DOD) most recent report on freedom of navigation stipulates that the U.S. 4 Both nations have also enacted domestic legislation that enters into direct conflict with certain rights and regulations guaranteed under UNCLOS. For example, both India and China demand greater control and oversight over foreign military activities in their exclusive economic zones (EEZ). 3 Asia’s other great rising power, India, shares some of China’s more controversial positions with regard to the United Nations Convention on the Law of the Sea (UNCLOS).

2 Nowhere is this more evident than in Asia, where the People’s Republic of China (PRC) has adopted an increasingly assertive territorial policy in the South and East China Seas, while pursuing a sophisticated form of “lawfare” that seeks to reshape the international consensus on freedom of navigation and overflight. A growing number of rising powers, many of whom harbor historical grievances, have chosen to openly contest, selectively reinterpret, or discreetly subvert key principles of the maritime order. This international legal regime is under threat. The complex rules and norms that govern freedom of navigation and maritime economic activity have played a crucial role in maintaining the global commons free from policies of enclosure, coercion, and expropriation. The law of the sea is one of the structural pillars of the international order.

The Free Sea by James Kraska