China's interpretation of UNCLOS at odds with U.S. and rest of the world
Chinese practice with regard to innocent passage, exclusive economic zones, and sovereignty claims over what China calls “Historic Waters” is largely inconsistent with UNCLOS.
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China recently acknowledged that it too conducts surveillance and marine data collection in the EEZ of foreign states, including the United States.24 On June 1, 2013, at the maritime security session of the Shangri- La Dialogue, high-ranking Chinese military officials confirmed that China has sent its ships into the United States' EEZ.25 U.S. Admiral Samuel Locklear, Commander of U.S. Forces in the Pacific, confirmed that China's Navy has "started 'reciprocating' the US Navy's practice of sending ships and aircraft into the 200-nautical mile zone off China's coast."26 This activity is ironic because China continues to intercept foreign military and fishing vessels, the United States included,27 and attempts to force them to leave.28 In March 2009, for example, a China Maritime Surveillance patrol vessel intercepted the USNS Impeccable, a U.S. Navy vessel,29 while it was conducting a military survey in China's EEZ.30 The Impeccable was radioed by the Chinese patrol vessel and told that it shouldn't be operating "without the permission of the Chinese government."31
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Another area where the United States and China differ is on the establishment of the baselines on which all the maritime regimes are defined. The Convention allows the coastal state to determine its baselines in one of three methods: the low-water line, straight baselines, and archipelagic baselines.29 For coastal states such as China and the United States, UNCLOS declares, "the normal baseline for measuring the breadth of the territorial sea is the low-water line along the Coast."30 UNCLOS allows a coastal state to apply straight baselines to measure the extent of their territorial seas under certain circumstances. These circumstances include: where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.31 China, in its 1996 Declaration of the Government of the People's Republic of China on the Baseline of the Territorial Sea, declared straight baselines and promulgated their geographic positions.32 Although the Chinese first claimed straight baselines in the 1958 Declaration on the Territorial Sea and again in the 1992 Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone, the 1996 Declaration was the first time that the Chinese actually specified the geographic coordinates of its straight baseline claims. An analysis of China's baseline claims by the U.S. State Department's Office of Ocean Affairs finds that, "much of China's coastline does not meet either of the two LOS Convention geographic conditions required for applying straight baselines."33 In some areas, the misapplication of the straight baselines allows the Chinese government to excessively claim nearly 2000 square nautical miles as territorial seas that should be regarded as high seas if the baselines were properly drawn.34 The consequence of these straight baseline claims is clear. These straight baselines extend China's territorial, jurisdictional, legal, and economic authorities into the high seas beyond where the Convention intended.
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Lastly, the Government of the People's Republic of China and the United States disagree on the differences between military surveys and marine scientific research (MSR). UNCLOS affirms the right of all States and other international organizations to conduct MSR. At the same time, however, it grants to coastal states the right and authority to control, and conduct MSR in its territorial seas and its EEZ.35 The Convention, however, distinguishes between MSR and "hydrographic surveys" and "survey activities." UNCLOS clearly associates hydrographic surveys and other survey activities with those commonly performed by warships, thus granting them the same privilege as other activities commonly associated with warships such as launching and recovering aircraft.36 In its 1996 Regulations Regarding Management of Marine Scientific Research (MSR) Involving Foreign Vessels, the Chinese Government, however, "appears not to distinguish between MSR and military surveys."37 Furthermore, the People's Republic of China enacted domestic legislation in early 2003 that further amplified their attempts to restrict the rights of maritime nations to conduct military surveys in its EEZ.38
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As previously discussed, coastal states lack security interests in the EEZ. Nothing in UNCLOS supports the PRC position. Similarly, the Chinese position that the freedom of overflight reflected in UNCLOS article 58 is a narrow right, including only the right to transit the airspace above the EEZ, is not supported by UNCLOS, other international agreements, or state practice. On the contrary, the negotiating history of UNCLOS and state practice before, during, and after UNCLOS support the conclusion that freedoms of navigation and overflight in the EEZ are broad freedoms; it is coastal-state rights in the EEZ that are narrowly limited. As we have seen, UNCLOS article 58 is quite clear: all states enjoy the freedoms of navigation and overflight and other internationally lawful uses of the seas related to these freedoms, such as those associated with the operation of ships and aircraft. Long-standing state practice supports the position that surveillance and reconnaissance operations conducted in international airspace be- yond the twelve-nautical-mile territorial sea are lawful activities. Since the end of World War II, surveillance and reconnaissance operations in international airspace have become a matter of routine. Many nations, including the PRC, en- gage in such activities on a routine basis. Moreover, as previously discussed, UNCLOS article 19.2(c) prohibits intelligence-gathering activities by ships en- gaged in innocent passage through the territorial sea—as noted above, no simi- lar prohibition is contained in part V of UNCLOS, and therefore, surveillance and reconnaissance activities are permitted in the EEZ. The PRC has an obliga- tion under UNCLOS article 56 to exercise its limited resource-related rights in the EEZ with due regard for the rights of other states to engage in lawful military activities, including surveillance and reconnaissance operations, in the zone.
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In theory, the 1982 UNCLOS Treaty leveled the playing field and created an unambiguous set of rules for all countries to abide by. While the convention represents a major step forward in codifying many of the historical practices that had evolved into international law and crafted practical guidelines designed to promote equitable commerce, the contemporary practice does not yet mirror the theory.
China’s national defense policy declares, “China . . . defends and administers its land borders and seas under its jurisdiction, safeguards the country’s territorial sovereignty and maritime rights and interests, and secures both its lands and sea borders strictly in accordance with treaties and agreements it has signed with neighboring countries, and the United Nations Convention on Law of the Sea.”12 In reality, however, Chinese practice with regard to innocent passage, exclusive economic zones, and sovereignty claims over what China calls “Historic Waters” is largely inconsistent with UNCLOS.
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An innovation of the 1982 UNCLOS Treaty was the creation of EEZs set forth in Articles 55 through 58.22 These zones ensure that coastal states maintain a significant degree of control over the natural resources off their coasts while retaining a substantial portion of the navigational and over-flight freedoms associated with the high seas region.23 Military ship and aircraft activities are not explicitly limited in the EEZ, so long as their activities do not involve exploitation of the resources resident in the EEZ. China sees the EEZ differently.
During development of the UNCLOS Treaty, Chinese delegate Li Ching made it clear that China did not concur with the EEZ concept. “China’s contention is that the essence of the new zone lies in the exclusiveness of coastal State jurisdiction. This contention explains why China repudiated the idea that the economic zone should be regarded as part of the high seas. If that zone were considered to be included in the high seas, so runs the argument, there would be no sense in labeling it as exclusive.”24 Not surprisingly, upon ratification in 1996 China asserted full sovereign rights over a 200 nautical mile EEZ.25 This assertion only adds to the complexities of the new EEZ concept.
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China’s claims to those resources rest in part on his- toric claims illustrated in a map in which a series of nine dashed lines indicate some degree of jurisdiction over virtually all of the waters of the region (a similar claim has been made by Taiwan). With regard to U.S. naval op- erations, China has argued that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) prohibits foreign military operations within its EEZ, a contention found nowhere in the text of the convention itself. China has raised the stakes by stating that control of the South China Sea and its resources is a core national interest on par with its claims to Tibet, Taiwan, and Xinjiang.
Yet Chinese claims are ambiguous. Does the nine-dash chart signify territorial claims to the South China Sea and the seafloor, or does it apply only to the rocks and their territorial sea within the marked zone? Are the claims really a “core interest,” or are they a starting point for negotiating the division of fishing and energy resources of the region?4
China’s arguments and actions reflect its regional per- spective and willingness to exercise its military in pursuit of regional interests. This is changing as China becomes increasingly reliant on distant sea lanes for access to stra- tegic and critical materials, particularly energy from the Persian Gulf, minerals from Africa, and recently, resources passing the Arctic. Security of sea lanes is now becoming a part of its strategic world view.
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China is asserting its interests in ways that threaten the foundational norms that govern the global maritime commons. This trend is most evident in the South China Sea, where China’s policies and activities are challenging stability and security.
China is challenging these norms in two ways. First, it is challenging established provisions of the United Nations Convention on the Law of the Sea (UNCLOS), which allows states to claim Exclusive Economic Zones (EEZs) and continental shelves. Instead, China bases its maritime jurisdictional rights on a historical a “nine-dashed line,” instead of an EEZ or a continental shelf.1 This view regard- ing how states may legitimately claim maritime resource rights increasingly is causing friction with its South China Sea neighbors.
Second, China is challenging the rights of navies to conduct operations, undertake exercises and gather intelligence in the EEZs of other states. Though China benefits substantially from the existing order, Beijing’s views about some key norms governing military activities throughout the global system diverge from those of the United States and other like-minded countries. Such Chinese activi- ties are both creating instability in the South China Sea and undermining international legal norms designed to suppress international instability and armed conflict.
Here is another critical point: The 163 parties to Law of the Sea Convention could choose to change the convention’s terms at any time. After all, the convention as it stands today is not the same as earlier versions. In fact, there is a marked trend now toward coastal states claiming more jurisdiction over their adjacent waters than the current convention recognizes.
Chances are that any new version of the convention called for by Brazil, China, and other emerging coastal powers would push in favor of a more “Chinese” definition of exclusive economic zone transit rights. They might call for a larger zone with more limited rights for noncoastal states.
That would be a disaster for the United States. America, with the most powerful Navy in the world and trade links that span the globe, needs full freedom of navigation in the world’s oceans. If we do not ratify the Law of the Sea, we will have a very hard time stopping that kind of change, and the longer we wait, the weaker our position will be. We should lock in the beneficial rules—the ones that we helped draft—now.
As it is the United States follows customary maritime law. But customary law can also change over time in ways we cannot control. If the world’s other coastal states such as China start claiming that U.S. military assets can’t transit their exclusive economic zones without permission, that practice could enter customary maritime law. Then the United States would have a hard time arguing that it was going to ignore customary maritime law and instead follow the terms of a treaty that it had never ratified.