Access and use of the global commons, particularly the sea and the air space, is a core element of U.S. military and commercial power. In times of war, control of the commons may be ensured by mil- itary means. In peacetime it is sought through international law and diplomacy and through lim- ited military responses when the rules govern- ing use of the commons are breached. In some cases, a peacetime incident may quickly result in a reaffirmation of traditional freedoms of the sea. In oth- ers, a more concerted effort, combining diplomacy with demonstration, is needed to return to adherence to inter- national norms. This latter combination appears to be the case regarding China and the South China Sea. As noted recently by Patrick Cronin and Paul Giarra:

Chinese assertiveness over its region is growing as fast as China’s wealth and perceived power trajectory. Beijing’s unwelcome intent appears to give notice that China is opt- ing out of the Global Commons.¹

Though not a new phenomenon, China’s increasingly assertive activities in the South China Sea are drawing concern that the country is seeking regional hegemony at the expense of its neighbors in Southeast Asia as well as the United States, Japan, and South Korea.

Political and legal activity publicized by international civil society and transnational organizations may be used to bring pressure against a potential adversary. China seeks to leverage international organizations and willing national governments in its lawfare campaign. The Department of Defense reports, for example, that the assertion of claims and rights in the maritime domain could enhance the perceived legitimacy of coercive Chinese operations at sea.⁷⁹ From the Chinese perspective, the global nature of international politics and the proliferation of international laws and regu- lations serve to make this form of legal warfare more effective than in the past.⁸⁰

In terms of maritime strategy, China’s legal warfare is a resourceful anti-access or sea denial strategy. Sea denial is employed by inferior continental navies to deny maritime powers the ability to exercise command of the sea and thereby limit their influence over events on land.⁸¹ Employment of submarine mines is an example of a traditional sea denial strategy. China seeks to create “strategic depth” to the Chinese mainland by denying access of its EEZ to warships and aircraft of the United States, Japan and other coun- tries in the region. The strategy of the People’s Liberation Army (Navy) (PLA(N)) set forth in a recent Chinese defense white paper is directed at the “gradual extension of strategic depth for offshore defensive operations” and for “enhancing its capabilities in inte- grated maritime operations and nuclear counterattacks.”⁸²

Dating back to its 1958 Declaration on the Territorial Sea until present day, China maintains the right to restrict the authority of foreign naval vessels to enter its territorial seas. In the 1958 declaration the Chinese government stated, "No foreign vessels for military use and no foreign aircraft may enter China's territorial sea and the air space above it without the permission of the Government of the People's Republic of China."14 In two separate pieces of domestic legislation: the Maritime Traffic Safety Law of the People's Republic of China,15 and the Law on the Territorial Sea and Contiguous Zone,16 the Chinese restated and reaffirmed their requirement on foreign military vessels to obtain the permission of the government prior to entry into its territorial seas. The Chinese position, however, is at odds with the Convention and U.S. interpretation of UNCLOS. Although UNCLOS places restrictions on ships exercising their right of transit passage, the treaty does not place any requirement for military vessels to obtain permission to enter the territorial seas of the coastal state.17 The United States, therefore, does not recognize China's prior notification requirement.