Maritime Law Expert Discusses U.S. Strategic Interests as China Pushes Farther into Contested Waters

Retired Commander James Kraska Discusses Tensions in the South China Sea with Columbia Law School Professor Matthew C. Waxman at Event Sponsored by the Roger Hertog Program on Law and National Security

New York, December 23, 2015The United States must keep a steady hand on the tiller as China expands its sovereignty claims there by constructing new islands, lighthouses, ports, and military airstrips, unnerving its Asian neighbors, said U.S. naval law expert Retired Commander James Kraska, in a discussion session with students at Columbia Law School.

Retired Commander James Kraska, an expert on
U.S. naval law, spoke with Columbia Law School
students on tensions in the South China Sea
between China and its neighbors.
Kraska, a professor of law and research director at the U.S. Naval War College’s Stockton Center for the Study of International Law, spoke on “Tensions in the South China Sea: International Law and U.S. Strategic Interests” at a Dec. 4 conversation with Professor Matthew C. Waxman.
The discussion was sponsored by the Law School’s Roger Hertog Program on Law and National Security, which, as part of its mission, seeks to expose students to real-world foreign affairs challenges faced by U.S. government officials. Waxman, the program’s faculty co-chair, and adjunct senior fellow with the Council on Foreign Relations, introduced Kraska and steered the conversation, involving students in the discussion. This past spring, Waxman co-taught with Professor Benjamin Liebman, director of the Law School’s Center for Chinese Legal Studies, a new seminar on the law of the sea and maritime disputes in Asia.
While the U.S. says it has not taken sides in disputes between China and Vietnam, the Philippines, and Malaysia over China’s more expansive claims, it opposes restrictions on freedom of navigation and maintains that all sovereignty disagreements should be resolved in accordance with international law, including the United Nations Convention on the Law of the Sea (UNCLOS).
“There’s a certain amount of hard power that has benefitted China, and it bets that economics and ‘bread and butter’ issues will constrain other countries from acting,” Kraska said. “Still, you hope that it has carefully calibrated its actions as to not cause an international incident.”
Professor Matthew Waxman, right, co-chair of Columbia Law School's Roger Hertog Program on Law and National Security and adjunct senior fellow with the Council on Foreign Relations, introduced Kraska and moderated the discussion.
Though Congress never ratified UNCLOS, the U.S. was one of the primary negotiators on the treaty, and it recognizes as customary law the rules governing navigation. Both the U.S. and China agree that a coastal state’s sovereignty extends 12 nautical miles into the ocean—otherwise known as the “territorial sea”—and that a coastal state holds an “Exclusive Economic Zone (EEZ),” which extends 200 nautical miles and permits exclusive rights to natural resource exploitation. But China has asserted rights to more of the South China Sea through historical claims, and it defended these tracts with military exercises. But since early last year, China has asserted rights in more of the South China Sea through historical claims and defended these tracts with military exercises. The countries also disagree on “freedom of navigation” under UNCLOS, especially with regard to U.S. military vessels, and Kraska talked about recent naval exercises that have highlighted those disputes.
Kraska and Waxman discussed with students various strategies and legal tactics the United States and its partners could pursue in this volatile region. Asked why China would risk confrontation, Kraska explained: “China wants to prove that the Communist Party is the party of the people that has thrown off colonialism and advanced their interests; their strategic position is largely internal.”
“But the U.S. refusal to join UNCLOS is a perennial embarrassment. We’re benefitting from its regulation without supporting it,” said Kraska. Since a 1994 fix that addressed some major U.S. concerns, most states have become parties to UNCLOS, with the U.S. remaining one of the few remaining holdouts.
Ryan Santicola '16 LL.M. Jessica Pyle '16 LL.M.,  
members of the Navy Judge Advocate General’s Corps (JAG),
are on a 10-month leave to earn their master’s degree in law 
as part of the Law School’s Roger Hertog Program on Law and
National Security’s elite 
JAG Scholars program.
Kraska developed the first course on maritime security law at the Naval War College, and he also taught the subject at The Hague Academy of International Law. He has served as a legal adviser to joint and naval task-force commanders in the Asia-Pacific, in two tours in Japan and in four Pentagon major staff assignments, including as oceans law and policy adviser as well as chief of international treaty negotiations.  
Columbia Law School’s Jessica Pyle ’16 LL.M., a lieutenant in the Navy, has been studying these issues with Professor Waxman and was eager to discuss them with Kraska. “As a Navy Judge Advocate who will be based in Japan next year, I have made the South China Sea a major focus of my studies this year, and the opportunity to hear about the region from a variety of perspectives—including the legal and political, academic and practical—has been invaluable,” Pyle said. In 2013, Pyle was a member of the U.S. 4th Fleet, which exercises command and control over maritime operations. “Professor Kraska’s talk provided a valuable perspective on what is happening in the South China Sea and its impact on the maritime domain,” she added.
Pyle’s classmate and fellow Navy JAG officer Lt. Commander Ryan Santicola ’16 LL.M. echoed her views. The great value of studying at Columbia Law School is that students get to hear from tremendous experts, and it was fantastic having one the Navy’s own experts on campus,” said Santicola, who during his military service has advised on the law of the sea as it applies to international air navigation and rules of engagement, as well as military justice cases, government ethics and rules.
“Having served in the Asia-Pacific region for the last two years,” Santicola said, “I found the lecture on the law of the sea and freedom of navigation to be incredibly relevant to current events in the world, and I’m sure the students benefited greatly from it—I know I did.”

The two Navy JAGs are joined this year at the Law School by officers in the Army, Air Force, and Marine Corps., making this the first time members of all four of the services are enrolled as LL.M. students at the same time.