Playing by or Playing with the Rules of UNCLOS?
One way to interpret the challenges emanating from the PRC is that Beijing resents a legal regime that appears to favor American security at the PRC’s expense. Unable to change the words of UNCLOS, the PRC argues—laboriously, at times—to persuade the United States that the spirit of the law clearly supports Beijing’s interpretation, even where the word of the law may be insufficiently precise.
Hence, Chinese and American analysts of UNCLOS dicker about the meaning of article 58(3), which reads: “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.”16 PRC analysts point to the “due regard” clause as evidence of the obligation of foreign states to abide the laws of coastal states and the right of coastal states to restrict military activities in the EEZs off their coasts. American analysts tend to view this conclusion as smuggling into the article a privilege that was explicitly rejected by the drafters of the convention.
It is conceivable, of course, that advocates writing on behalf of the PRC offer interpre- tations of UNCLOS that are in fact meant to reopen and extend negotiations about issues that have, apparently, been settled. By challenging the understanding of what is permissible in the EEZ, the Chinese analysts may be hoping that other states will follow suit, adjusting what would then be seen as customary international law and hoping that the legal justifications they offer will likewise become the new norm. This, indeed, is precisely why some American proponents of UNCLOS argue that the United States must ratify the convention. For example, Rear Adm. Arthur E. Brooks, commander of the Seventeenth Coast Guard District, has said, “While reliance upon customary interna- tional law has served us well for many years, it does not adequately protect our interests. Customary international law is based on the evolving practice of States; it can and does erode over time. The Law of the Sea Convention provides the legal certainty and stabil- ity” that the admiral believes would assure U.S. interests for the long term.17
In a vigorous denunciation of the U.S. position on UNCLOS, Shen Dingli, the vice dean of the Department of International Studies at Fudan University, comments that for a long time the United States has been acting as the world’s primary maritime power, seeking to limit the rights and interests of littoral states but all the while penetrating their maritime space in ways that are “hegemonic and offensive.” He asserts that the United States, which has thus far refused to ratify UNCLOS, nevertheless regards itself as if it were among those states that have ratified the convention, censuring states that genuinely have. Shen writes that the United States often interprets the convention from the vantage of its own interest rather than according to the stringent standards it claims are demanded of a world leader. If this persists, Shen cautions, it will be difficult for the United States to maintain its image as a moral and legal exemplar. Instead, it will be perceived as a state that is always scheming and seeking to profit at the expense of other states.
As a signatory to UNCLOS, the PRC occasionally implies that its interpretations should trump those of the United States, which has yet to ratify the convention that Washing- ton nevertheless employs as a bludgeon against Beijing’s claims that UNCLOS permits limitations by coastal states on foreign military activities in the EEZ. The message is that even though the United States asserts its compliance with UNCLOS, because it has not undertaken to be formally bound by the convention it has no standing to impose its self- regarding interpretations of the regime on those states that have ratified it.
For instance, Zhang Haiwen cites passages from an essay by Scott Borgerson to make the point that there is a “strong political force which is scornful of the Convention in the United States. They like to take advantage of the Convention but do not respect it.”11 Zhang writes, “It is unfair . . . that the United States, which has yet to ratify the Convention, is raising an argument on the interpretation of the Convention.”12 Reacting to what she views as Washington’s selective compliance with UNCLOS, Zhang highlights the following from Borgerson’s piece: “Opponents of the convention [UNCLOS] argue that there is no need to join the treaty [UNCLOS] because, with the world’s hegemonic navy, the United States can treat the parts of the convention it likes as customary international law, following the convention’s guidelines when it suits American interests and pursuing a unilateral course of action when it does not.”13
In these sentiments Zhang is not alone. Chinese observers have framed the dispute about UNCLOS as illustrative of U.S. hegemonic tendencies. “America’s failure to cooperate with the international community on UNCLOS is not an isolated phenomenon,” writes one commentator, “but is one element in its strategy to dominate the world and monopolize the oceans.”14
Each side devises elaborate argumentation to justify a position by reference to terms and passages from UNCLOS, implying a common acquiescence to the primacy of inter- national law generally and to the UNCLOS regime specifically. Neither side challenges the legitimacy of international law in general or UNCLOS in specific. That the two disputants contend in such civil, legalistic discourse might encourage one to conclude that reason has surpassed passion, except that vessels from each state, dispatched by authorities determined to defend a principled position, meet in defiant encounters at sea, jeopardizing maritime harmony, menacing bilateral relations, and endangering the lives of duty-bound sailors. Thus, it provides only modest comfort that conversation about the EEZ is possible, even if it is through dialogue that both sides prefer to resolve the present controversy.
A resolution of the EEZ issue is unlikely to emerge from a discussion of law, because the law is not really the problem. Sino-U.S. relations are strained because of the ways in which the strategic aims of Beijing and Washington collide and chafe against one another during a period of rapid transition of stature and perceived power.
Simply put, the PRC—reflexively anxious about its comparative weakness in the face of far more robust U.S. military power—worries about how the United States and its allies may undermine those assets that the PRC has managed to develop to offset the existing military asymmetry between them. Beijing seems committed to expanding strategic depth by raising the cost to the United States of operating close to the PRC’s shores.
In line with this objective, the PRC evidently resents U.S. intelligence and surveillance activities. It hopes to push foreign forces as far from shore as is possible, especially those with prying eyes capable of gathering information about assets Beijing prefers to keep secret.