Keeping the Routine, Routine: The Operational Risks of Challenging Chinese Excessive Maritime Claims
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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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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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In addition to filing diplomatic protests, conducting operational assertions and continuing to conduct routine operations in China’s EEZ, the United States also embarked on a bi-lateral approach to working with the People’s Republic to resolve the aforementioned differences in interpretation and application of the Law of the Sea. In 1998, the United States and China signed the bi-lateral Military Maritime Consultative Agreement (MMCA) to establish “a stable channel for consultations” between the two nations in order to “promote common understanding regarding activities undertaken by their respective maritime and air forces when operating in accordance with international law including the principles and regimes reflected in the United Nations Convention on the Law of the Sea.”42 Since the EP- 3E incident the two governments have used the forum to discuss some of the issues and differences raised by the incident. Such issues discussed included military activities in the EEZ, including surveillance and military surveys, the right to distress entry and communications between the two country’s military forces.43
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Furthermore, the political impact of aggressively contesting Chinese excessive maritime claims can extend beyond the scope of the Combatant Commander. Fighting the Global War on Terrorism and managing the nuclear crisis in North Korea requires that the United States and China cooperate in an amicable manner such that these crises may be resolved. In the aftermath of the EP-3E incident, the United States and China underwent a pause in their strategic and theater-strategic dialogue.45 In order to achieve national objectives in both the Global War on Terrorism and the situation in North Korea, neither the United States nor China can afford another political freeze because of operational an assertion or routine operations that escalated into a political and legal conflict between the two states.