China is using excessive EEZ claims to deny U.S. access
China views its excessive regulatory claims over the EEZ as an important component of its ability to conduct asymmetric maritime warfare and deny U.S. access to the Asia-Pacific region.
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Multiple examples of Chinese excessive naval claims that run afoul of UNCLOS Efforts to extend China’s control over the South China Sea run afoul of UNCLOS. Examples of China’s legal overreach include:
- Claiming that military aircraft do not have the right of overflight over the Exclusive Economic Zone: overflight of the EEZ is specifically recognized by the convention, and military surveillance is not limited
- Interfering with U.S. government vessels operating beyond the 12-mile territorial sea, notably Chinese interference with the USNS Impeccable and USNS Bowditch because they were “moving about in China’s Exclusive Economic Zone”
- Claiming that uninhabitable rocks in the Paracels and Spratleys are habitable so that China can claim they are islands with their own 200-nm EEZ, and engaging in military operations to take possession of the rocks from other countries.
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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.
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Such activity impairing the right of overflight of the EEZ is an element of China’s campaign to reshape its EEZ away from an area of limited jurisdiction focused on resource management and exploitation and toward an area of quasi-sovereign ocean and air- space. The goal of this “legal warfare” (or “lawfare”)75 is to renego- tiate the essential bargain of the Convention through a patient, persistent effort at reinterpretation.76
China views its excessive regulatory claims over the EEZ as an important component of its ability to conduct asymmetric mari- time warfare. In 2006, the U.S. Department of Defense reported to Congress that, through an orchestrated program of scholarly arti- cles and symposia, China sought to shift scholarly opinion and the view of national governments away from interpretations of the Law of the Sea that favor freedom of the seas.77
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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
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The United States and China, on the other hand, do not share a common interest in freedom of navigation and overflight. On the contrary, the PRC's views on the legality of military activities in the EEZ are diametrically opposed to the views of the United States. China argues that military activities in their EEZ, such as U.S. Sensitive Reconnaissance Operations (SRO) and other SMS operations, are hostile acts and therefore violate the "peaceful purposes" provisions of UNCLOS Articles 88, 141 and 301. Beijing additionally argues that such operations impair state security interests and damage China's sovereign rights and jurisdiction in the EEZ. Accordingly, China insists that it has a right to impose restrictions on military activities in the EEZ, including prohibiting surveillance and reconnaissance operations as well as other military marine data collection activities. China's claims have no basis in customary international law or UNCLOS and are not supported by state practice.42
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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.
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The Chinese and U.S. governments also disagree about the rights of warships to operate within a nation's Exclusive Economic Zone (EEZ). UNCLOS grants the coastal state the right to establish an EEZ that "shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea extends."18 Within the EEZ, the Convention allows all States to enjoy the rights of over flight and navigation limited only by their exercise of due regard for the economic rights of the coastal states.19 In their declaration upon ratification, however, the Chinese stated that they enjoyed "sovereign rights and jurisdiction"20 over its EEZ. By omitting any reference to its economic rights within the EEZ, China appears to take a broad view of its rights to control military activity within its EEZ.21 Furthermore the Chinese government also seeks to limit the rights of warships and aircraft to operate within its EEZ by claiming that the mere presence of the military vessel violates the "due regard" elements of the Convention by posing threats to Chinese national security.22
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In attempting to increase its control and extend its authority throughout the South China Sea by applying domestic legislation to international waters, China has created a con- flict both with its neighbors and with UNCLOS. China’s claims are not just a threat to navigation in the South China Sea. They are a threat to the global commons and to in- ternational law that was developed to protect the rights of both coastal states and distant-waters states in those regions.
China’s efforts to enclose the local commons are short-sighted. It is growing into the role of a global power with its own interests in access and use of the global commons. In fact, the balance between coastal interests and distant- water concerns may now be in the process of tipping toward the latter. Gail Harris, writing in The Diplomat, stated: “Chinese strategists now also believe in order to protect their economic development they must maintain the security of their sea lines of communications, something that requires a navy capable of operating well beyond coastal waters.”9
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Attributing motives to Chinese actions is difficult under the best of circumstances. In the South China Sea, it is even more so. Chairman of the Joint Chiefs of Staff Admiral Mike Mullen recently said that China’s “heavy investments of late in modern, expeditionary maritime and air capabilities seem oddly out of step with their stated goal of territorial defense,” while Secretary of Defense Robert Gates accused China’s top military officers of not following the same policy as senior political leaders who have worked to develop other aspects of the U.S.-China relationship.6
As a large and increasingly industrial state, China is concerned with matters of access to strategic and critical materials, especially oil and gas and industrial minerals. In the short term, China may give its regional interests highest priority. As it grows as a global economic power, however, it will find that freedom of navigation and over- flight worldwide are essential to its security.
Increasing dependence on sea lanes for imports of oil and minerals and access to export markets will push for a shift of priority on global mobility over control of the regional sea. A key reason for China to support UNCLOS is the “transit passage” provisions that assure the unimpeded passage of commercial vessels and the warships that are increasingly called on to escort them through the Straits of Singapore and Malacca, the Strait of Hormuz, and other chokepoints through which its critical imports flow.
The authors argue that "China is playing fast and loose in claiming rights to territory on and beneath the South China Sea. The United States could help the situation by joining the United Nations Convention on the Law of the Sea."
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