China and the United Nations Convention on the Law of the Sea: Operational Challenges
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Finally, the United States should not ratify the UNCLOS Convention until the ambiguities regarding warship innocent passage rights and military operations in the EEZ are resolved. This is commonly referred to as the “military activities” exemption.59 President Reagan’s Executive Order made it U.S. policy to abide by the great majority of the Treaty, especially those sections germane to ship and aircraft navigation. The U.S. is therefore already in functional compliance. A case could even be made that the international acceptance of the Treaty -- even by those nations who have not ratified it -- has given the Treaty the force of international law.60
It is apparent that China does not intend to abide by the letter of the law -- at least not when it does not suit its purposes. Therefore, the U.S. must level the playing field in order to work through the issues. Ratifying the UNCLOS Treaty may actually take away the very flexibility that PACOM needs in dealing with China. Were the U.S. to ratify the Treaty tomorrow, the problems discussed in this paper would persist, but PACOM would have fewer “legal” options available under international law in order to respond to China’s excessive claims and provocations.
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The differing views held by the United States and China over maritime boundaries has great significance for U.S. national security. The military forces of the United States provide a critical deterrent against foreign aggression that might affect the global flow of commerce. In order for U.S. forces to be a credible deterrent they must have access. In its analysis of the national security implications inherent in the UNCLOS convention, the U.S. Department of Defense emphatically stated that, “Assurance that key sea and air lines of communication will remain open as a matter of international legal right and will not become contingent upon approval by coastal or island nations is an essential requirement for implementing our national security strategy.”49 China’s policies and actions place this freedom at risk. If they are allowed to prevail in their claims, the negative operational consequences for USPACOM are tremendous.
If China is allowed to prevail in its claims of sovereign jurisdiction over enormous ocean areas, this would seriously degrade the ability of U.S. forces to conduct peacetime operations in a critical region. Not only would the U.S. Air Force and Navy be unable to operate in much of the south-east Asian littoral, but forces responding to contingencies in other regions could be forced to take alternate routes that would significantly restrict the ability of the U.S. to quickly respond to a crisis.50
Second, without U.S. presence, important partners such as Singapore and the Philippines would no longer benefit from the stabilizing influence that the presence of U.S. forces provides. Instead, as the emerging naval power in the region, Chinese ships would be free to exert their influence unchecked.
Lastly, any freedom of navigation operations conducted by U.S. forces take on a new level of risk as the mere presence of U.S. forces in China’s claimed EEZ could result in hostilities. U.S. forces and Allies, like Australia, routinely conduct freedom of navigation (FON) operations in order to oppose illegitimate maritime claims. These operations are not intended to be antagonistic. Rather, they are intended to serve as just one element in the discourse between nations.51 However, with China’s extreme sensitivity to sovereignty, most U.S. FON operations will almost certainly be viewed as blatantly provocative.52
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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.