Resolution of U.S. China dispute over freedom of navigation in EEZ unlikely to be through legal discussion as both sides have valid strategic concerns

Each side devises elaborate argumentation to justify a position by reference to terms and passages from UNCLOS, implying a common acquiescence to the primacy of inter- national law generally and to the UNCLOS regime specifically. Neither side challenges the legitimacy of international law in general or UNCLOS in specific. That the two disputants contend in such civil, legalistic discourse might encourage one to conclude that reason has surpassed passion, except that vessels from each state, dispatched by authorities determined to defend a principled position, meet in defiant encounters at sea, jeopardizing maritime harmony, menacing bilateral relations, and endangering the lives of duty-bound sailors. Thus, it provides only modest comfort that conversation about the EEZ is possible, even if it is through dialogue that both sides prefer to resolve the present controversy.

A resolution of the EEZ issue is unlikely to emerge from a discussion of law, because the law is not really the problem. Sino-U.S. relations are strained because of the ways in which the strategic aims of Beijing and Washington collide and chafe against one another during a period of rapid transition of stature and perceived power.

Simply put, the PRC—reflexively anxious about its comparative weakness in the face of far more robust U.S. military power—worries about how the United States and its allies may undermine those assets that the PRC has managed to develop to offset the existing military asymmetry between them. Beijing seems committed to expanding strategic depth by raising the cost to the United States of operating close to the PRC’s shores.

In line with this objective, the PRC evidently resents U.S. intelligence and surveillance activities. It hopes to push foreign forces as far from shore as is possible, especially those with prying eyes capable of gathering information about assets Beijing prefers to keep secret.