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Response to Jonathan Odom's "How China Shot Down Its Own A2/AD Lawfare Strategy"

2015-10-23 21:51:27       source:NISCSS

The gloating, patronizing, absolutist tone of Odom's piece deserves a response. Also I may, in Mr. Odom's mind, be one of those "critics of US military activities in the waters of East Asia" that "recycles the antiquated rhetoric that such activities violate international law".

Mr. Odom concludes that China's actions in other countries' EEZs and territorial seas means that in his words the "legal debate is over… forever". However his conclusion is based on several rather questionable assumptions. They include:

1. that the U.S. not having ratified the Convention can pick and choose which UNCLOS provisions it wishes to abide by, deem them customary law, and unilaterally interpret them to its benefit

2.  that China and the U.S. have the same interpretation of the meaning of freedom of navigation and other terms in UNCLOS relevant to it like abuse of rights, due regard, peaceful use/purpose, and marine scientific research

3. that all of China's objections to all US military activities off its coast are based on its EEZ law and jurisdiction; and

4. that China and the U.S. are qualitatively and quantitatively doing the same thing in foreign EEZs.

I don't expect Mr. Odom to defend these assumptions as he writes that this general topic "is no longer worthy of [his] discussion".  Nevertheless it would be useful to know exactly what the U.S. is doing off China's coast so that we can all make up our own minds as to whether or not China’s objections are justified.

As Mr. Odom well knows, China is not the only country that places restrictions on some foreign military activities in its EEZ and territorial sea. Indeed in Asia alone, India, Malaysia, and US ally Thailand do not allow foreign military activities in their EEZs, and Indonesia, Taiwan and Vietnam require permission for foreign warships to enter their territorial seas. So the debate will continue—with or without Mr. Odom, and perhaps the United States.

Mark J. Valencia

Adjunct Senior Scholar

National Institute for South China Sea Studies

Haikou, China


Jonathan Odom's "How China Shot Down Its Own A2/AD Lawfare Strategy" is available at: http://nationalinterest.org/feature/how-china-shot-down-its-own-a2-ad-lawfare-strategy-14037