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Lord of the Sea

This British lawyer has been dead for 360 years. So why is he at the center of China's oil fight with Vietnam?

One of the men ultimately responsible for the diplomatic and military showdown taking place right now in the South China Sea is an English lawyer, famed for a massive treatise he wrote by hand in Latin and mysteriously acquiring a now-famous Chinese nautical map. Though he's been dead for 360 years, the legal arguments that John Selden laid out to justify countries snatching up oceans as if they were swaths of land are very much alive and kicking.

And that's a very big deal, because China's apparent embrace of Selden's ideas is leading to a head-on collision between America's belief that the world's waterways should be open to all and China's insistence that it can take exclusive control of portions of them. That is to say, what's at stake in the fight over China's dispatch of an oil rig to waters off the coast of Vietnam is not a few barrels of oil but rather whether the global system that has driven the rise of the West lives or dies.

"Chinese behavior calls into question the core principle of the freedom of navigation to favor a conservative, continental approach to the sea," said Alessio Patalano, a specialist on East Asian maritime issues at King's College London.

All this has come to a head this month because of Beijing's dispatch of a deep-water oil rig to waters 120 miles off the coast of Vietnam that both countries claim. Chinese and Vietnamese ships have repeatedly clashed; violent riots have erupted in Vietnam targeting Chinese-owned businesses. The United States has admonished Beijing for "provocative" and "aggressive" behavior, and the incident is souring relations between the two biggest powers in the world.

So what's all this have to do with the long-dead English lawyer? It goes back to a sordid legal duel between the English and Dutch in the early 1600s. The Dutch were the pre-eminent global trading and naval power of the day; the English were not. And nobody was more threatened by the Dutch rise than the English -- in 1667, the Dutch would sail up the Thames River and burn the whole fleet.

Wanting to make sure that the world's oceans were kept open for business, the Dutch jurist Hugo Grotius wrote "The Open Sea" in 1609. He argued that no one nation can own the high seas, because they are the common inheritance of all mankind. "Every nation is free to travel to every other nation, and to trade with it," he insisted. It was a blatantly self-interested legal argument for a trading power stuck in a tiny bit of land off the North Sea, but it packed a legal punch.

England sought a legal answer to Grotius, and by 1635 it had one when John Selden finally published a direct rejoinder: "The Closed Sea." Selden argued that waters off the coast of a kingdom, such as the waters that the Dutch and English were supposed to share, could in fact be claimed as national territory. "The Sea, by the Law of Nature or Nations, is not common to all men, but capable of private Dominion or proprietie as well as the Land," he wrote.

King Charles I loved the idea, because it gave him a way to push back at the Dutch and expand royal power and reach at a time when Parliament was getting uppity (it would behead him just a few years later). "The King of Great Britain is Lord of the Sea flowing about, as an inseparable and perpetual Appendant of the British Empire," Selden wrote.

It wasn't an entirely novel idea: Older empires including Rome, Spain, and Portugal had also tried to fence off bits of the sea to keep out military and commercial rivals. But Selden's treatise stood for centuries as the ultimate attempt to rebut Grotius, whose ideas essentially form the basis for modern international law and the law of the sea.

Ironically, the British themselves abandoned Selden's notions in favor of Grotius's as soon as the Dutch took over the British crown in the Glorious Revolution. After that, Britain was as interested in anybody as promoting free and open seas underpinned by the unhindered passage of traders and war ships. And they did so for a few centuries, before grudgingly passing the baton to the United States in the early 20th century.

This all matters today, because like a zombie Selden's ideas are clawing their way out of the grave thanks to China. Its appropriation of many of the same legal arguments that Selden made for King Charles to wield against the Dutch are now being turned against Beijing's neighbors in the western Pacific -- and against the United States.

Chinese leaders increasingly speak of "territorial integrity" when talking about the South China Sea, which they pretty much claim in its entirety with the "nine-dashed-line," a vague map that seems to label most of that sea as Chinese territory.  For years, Chinese scholars have pushed the notion of "blue territory," or offshore islets and surrounding waters that should be as much a physical part of China as what's behind the Great Wall. On Thursday, China's top general said as much at the Pentagon.

"I want to underscore, finally, that for the territory, which has passed down by our ancestors into the hands of our generation, we cannot afford to lose an inch," Gen. Fang Fenghui said of the disputes in the South China and East China seas. His U.S. counterpart, Gen. Martin Dempsey, the chairman of the Joint Chiefs of Staff, said the U.S. move to the Pacific is designed to protect freedom of navigation and trade.

Beijing's interest in trying to turn its near seas into Chinese territory is, at root, all about security. For centuries, leaders in Beijing worried mostly about securing their flanks on land from barbarians, Mongols, and the like. No real threat came from the sea until the British and other Europeans suddenly showed up in gunboats in the mid-1840s and opened a century of humiliation by seizing Chinese territory, grabbing trading privileges, and eventually carving up the ancient empire.

As Peter Dutton, the director of the China Maritime Studies Institute at the U.S. Naval War College, told Congress earlier this year, China is now seeking to secure its seaward flank by grabbing an offshore belt of territory. That explains, in large part, the aggressive moves to place oil rigs in Vietnamese waters, build military installations on islands off the Philippines, and establish air defense zones over islands run by Japan.

"The Chinese have long felt vulnerable from the sea, and their current maritime strategy seeks to reduce that vulnerability by extending a ring of maritime control around China's periphery," Dutton testified.

Chinese foreign ministry officials and scholars have since the beginning defended the placement of the oil rig on the grounds that it is close to an island that they say is an integral part of China, though Vietnam claims the islands, too. Similar arguments prevail in Beijing over the legality of building airstrips next to the Philippines or aggressively patrolling the Senkaku islands that are in dispute with Japan. Official Chinese media now uses the phrase "territorial integrity" to describe China's efforts to exert control over things that aren't really territory and which aren't, technically speaking, an integral part of China.

And that explains the mounting unease in Washington, which for decades has sent warships into waters claimed by friends and foes alike to assert the international right to freedom of navigation, which is the linchpin of America's ability to be a global superpower.

"What the Chinese are doing here is effectively going after a core, stated, U.S. national interest," said Gabriel Collins, a security analyst and an expert on Chinese maritime issues.

Ironically, the U.S. could put Selden's ideas to use in the current spat with China, notes James Holmes, a professor of strategy at the U.S. Naval War College. If the U.S. took Chinese legal arguments at face value and embraced Selden's notion that distant offshore waters really are national territory, he wrote, "it would show that the Chinese fishing fleet, the China Coast Guard, and the PLA Navy are guilty of old-fashioned cross-border aggression" when they enter other countries' exclusive economic zones.

It might mean parking Grotius and the idea of open seas for a while, he says, but it would make it easier to understand just what's at stake in the maritime squabbles in the South China Sea -- and maybe even pave the way for a negotiated solution just as happened with China's neighbors on land.

Photoillustration by FP/Image via Wikimedia Commons

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The Magnitsky Flip-Flop

The Obama administration was against Russia sanctions before it was for them.

In 2009, after the death of an imprisoned Russian lawyer, American hedge fund manager Bill Browder began pushing Congress to sanction Moscow for alleged human rights violations. Lawmakers from both parties quickly signed onto the legislation. But it faced strong opposition from an unexpected source: the Obama administration.

Today, the White House argues that sanctions are the only way of punishing Russia over Ukraine. Two years ago, by contrast, the administration tried to stop the Magnitsky Act -- named after the dead lawyer, Sergei Magnitsky -- in its tracks for fears that it would derail its efforts to "reset" relations with Moscow. The tortured history of the legislation underscores the administration's conflicting impulses when it comes to Russia and its ongoing struggle to decide if Russia is a rival asserting its power or an adversary actively seeking a confrontation with the West.

That debate has taken center stage in recent weeks because of Russia's invasion and annexation of Crimea and its role in stirring up unrest in eastern Ukraine. But this time the Obama administration is heralding the benefits of freezing the assets of people close to Russian President Vladimir Putin as a way of pressuring him to de-escalate the ongoing crisis in Ukraine. So far, the U.S. has sanctioned 45 people and 19 entities, including four banks.

But in 2010, when Maryland Democratic Sen. Ben Cardin introduced the bill that Browder championed, the Obama administration balked. Magnitsky, an auditor with law firm Firestone Duncan, had worked for Browder's firm, Hermitage Capital Management. He was imprisoned in 2008 after alleging that top Russian officials had effectively stolen $230 million from the government. Magnitsky died in prison in 2009 at age 37 after becoming ill and being denied medical care. Russian officials said he suffered a fatal heart attack, though they provided no evidence to support that contention.

Browder wanted the U.S. to go after the Russian officials responsible for Magnitsky's death, but his timing was terrible. The bill began gaining steam in 2011, just as the administration was focused on normalizing trade relations with Russia ahead of its scheduled entrance into the World Trade Organization the following year. Officials from the State Department, Treasury Department, and President Barack Obama's National Security Council fanned out across Capitol Hill to lobby against the bill and argue that the administration already had enough power to impose sanctions on Russia.

"The administration, starting with Hillary Clinton and then John Kerry, did everything they could do to stop the Magnitsky act," Browder said in an interview.

In early 2012, the Magnitsky Act got a surprising boost. The administration wanted to win congressional support for repealing the Jackson-Vanik Amendment, a Soviet-era law that denied Russia normal trade relations with the U.S. If the 1974 law remained on the books, U.S. companies who wanted to sell goods to Russia would face higher tariffs, putting them at a disadvantage to other international companies. Powerful lawmakers signaled they'd only support the repeal if the Magnitsky Act was signed into law. The two provisions were lumped together and approved by the House and the Senate in December 2012. Obama signed them into law almost immediately.

The administration added 18 names, mostly mid-level officials, to the Magnitsky list in April 2013, but supporters of the law want the administration to do more in light of Russia's actions not only at home, but also in Ukraine. Sens. Robert Menendez (D-N.J.), Bob Corker (R-Tenn.), Ben Cardin (D-Md.) and John McCain (R-Ariz.) sent a letter to the administration in January asking the State and Treasury departments to "clarify when we can expect additional names to be added to the Magnitsky list."

Under the law, congressional leaders can suggest names to the administration and it must respond within 120 days. The deadline for the administration to respond to the senators' January 17 letter is this Saturday. It is unclear whether the administration will add more names to the list or wait to see whether Russia tries to interfere with the Ukrainian elections on May 25, a move that U.S. and European officials have said would trigger further sanctions.

"While we can't speak to the timing of any additional designations, we continue to investigate potential targets, and the administration is determined to fully implement the Act by making further designations as appropriate," Laura Lucas Magnuson, a National Security Council spokeswoman, said in an email.

In some ways, the administration has already gone beyond the Magnitsky list with the current Ukraine sanctions. Obama has said that the U.S. is prepared to ban business with whole sectors of the Russian economy if Moscow continues to foment unrest in Ukraine. Still, advocates of the Magnitsky list say it's important because it condemns the Russian government's actions against its own people, not just those of neighboring countries.

"While the world is naturally focused on Ukraine, it's crucial to send the signal that the world has not forgotten about the human rights of Russians," said Vladimir Kara-Murza, a leading member of the People's Freedom Party, a Russian opposition group.

Others worry that adding more names to the list would bring swift and harsh retaliation. After the U.S. passed the law in 2012, Moscow responded by banning the adoption of Russian orphans by American citizens.

"This was a sign of how far the Russian government is willing to go to hurt it's own people to make a political point," said Jeff Goldstein, a senior policy analyst with the Open Society Foundations.

ANDREY SMIRNOV/ AFP/ GETTY