Published by The Lawfare Institute
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Much has been written over the past several days regarding the unanimous landmark decision in the arbitration case between the Philippines and China, which soundly repudiates China’s excessive claims and activities in the South China Sea. While the tribunal’s award deals a death knell to China’s infamous nine dash line and its coercive behavior against other South China Sea claimants, the international community should not lose sight of the fact that Beijing’s indefensible claims in the South China Sea are but one part of a concerted effort by China to change the status quo and alter the rules-based legal order that has governed the world’s oceans for centuries.
Despite being a party to the Convention since 1996, China is a serial violator of its provisions. Virtually all of its domestic implementing legislation is inconsistent with UNCLOS and customary international law. Beijing’s refusal to observe the decision of the Arbitral Tribunal simply reconfirms China’s disdain for the international rules-based legal order, which has directly contributed to the unprecedented growth and prosperity of the Asia-Pacific region over the past 70 years.
In 1996, China declared two sets of straight baselines, one along its mainland coast and the other around the disputed Paracel Islands. In 2012, China established straight baselines around several of the disputed Senkaku (Diaoyu) Islands. Most of China’s mainland coast does not meet the geographic requirements of UNCLOS Article 7 for establishing straight baselines—i.e., deeply indented coastline or fringe of islands along the coast. Moreover, nearly all of the baselines depart appreciably form the general direction of the coast, and the waters within the lines are not closely linked to the land domain to be subject to the regime of internal waters. Use of straight baselines to enclose the Paracels and Senkakus is also inconsistent with UNCLOS. In effect, China has drawn archipelagic straight baselines around the disputed island groups. As a continental state, however, China may not establish archipelagic baselines around any of its islands.
Thus, with few exceptions, China’s baselines should be the low-water line as provided in UNCLOS Article 5. Nonetheless, by declaring illegal straight baselines, China has claimed thousands of square nautical miles (nm) of territorial sea that should remain international waters and a significant amount of area as internal waters that should be territorial seas. These expanded maritime zones destabilize the region by encroaching on neighboring states’ EEZ and continental shelf claims in the Yellow, East China and South China Seas, as well as impeding navigational rights and freedoms of the international community in these waters.
China claims the Gulf of Bohai (Pohai) and the Hainan (Qiongzhou) Strait as internal waters. Both claims appear to be based on an historic rights rationale. In order to substantiate an historic bay or historic waters claim, a state must demonstrate its open, notorious, effective, and continuous exercise of authority over the bay/waters, coupled with an actual showing of acquiescence by foreign states in the exercise of that authority. The Gulf of Bohai has not been listed in standard compilations of historic bays, and both the United States and the United Kingdom protested the claim in 1958. Therefore, the claim does not appear to enjoy sufficient acquiescence by foreign governments as required by international law.
Similarly, China’s claim to the Strait of Hainan as internal waters has been protested by a number of nations. The strait is also listed as a major strait in standard collections, and qualifies under UNCLOS as a strait used for international navigation where the right of transit passage applies. China may not, therefore, close Hainan to international navigation by claiming that the strait is internal waters.
China first claimed a 12 nm territorial sea claim in 1958. That claim was reaffirmed in a 1992 law, which also established a 24 nm contiguous zone. For the most part, the 1992 law comports with UNCLOS. There are two provisions of the law, however, that are clearly inconsistent with the Convention, customary international law and state practice. Although Article 6 of the law recognizes the right of innocent passage for “non-military foreign ships,” it purports to require foreign warships and other government vessels operated for non-commercial purposes to obtain prior “permission” before engaging in innocent passage through the territorial sea. UNCLOS Article 17, which applies to all ships (including military ships and other government vessels), does not condition innocent passage on prior notice or consent. Military ships engaged in innocent passage are prohibited from conducting certain military activities in the territorial sea, but lack of prior notification or consent is not one of the prohibited activities listed in UNCLOS Article 19.
Article 4, which declares a 12 nm contiguous zone adjacent to the territorial sea, is likewise problematic. Within the zone, China claims the right to exercise the necessary authority to prevent or punish infringement of its “security, customs, fiscal, sanitary laws and regulations or entry-exit control within its land territories, internal waters or territorial sea.” The reference to customs, fiscal, sanitary, and entry-exit control (immigration) jurisdiction is consistent with UNCLOS; reference to “security” jurisdiction is not.
China claimed a 200 nm exclusive economic zone (EEZ) in 1998. Although much of the 1998 law appears to conform to the requirements of UNCLOS, many of its provisions are vague and are applied inconsistently with the Convention. For example, China’s domestic legislation (Article 11) appears to grant freedom of navigation and overflight in the EEZ to all nations. In practice, however, China purports to regulate foreign military activities in the EEZ based on a series of alternative legal arguments that have evolved over the past two decades, from national security and the “peaceful purposes” argument, to regulation of MSR, to arguments based on resource management and environmental protection.
More recently, China has taken the unprecedented position that differentiates between freedom of navigation for commercial ships and freedom of navigation for naval vessels. China argues that naval vessels only enjoy “freedom of navigation” (ziyou hangxing) on the high seas. In the EEZ, warships enjoy the more limited right of “peaceful navigation” (ziyou hengxing). Thus, when operating in the EEZ, China maintains that U.S. warships may not engage in military activities and must take into consideration China’s security interests. A plain reading of UNCLOS and its negotiating history refutes China’s position and confirms long-standing state practice that all nations have an absolute right under international law to conduct military activities beyond the territorial sea of another nation.
Foreign MSR activities are further regulated by the 2002 Surveying and Mapping Law. Any survey and mapping activities by a foreign entity must be pre-approved by the State Council and the People’s Liberation Army, and may not involve state secrets or endanger China’s security. “Surveying and mapping” is broadly defined to include any marine data collection in the Chinese EEZ. China thus asserts that U.S. military hydrographic surveys and intelligence, surveillance and reconnaissance (ISR) operations endanger its security, is akin to MSR, and is therefore subject to PRC control. China’s position has no foundation in international law and is inconsistent with state practice and the plain language of UNCLOS.
UNCLOS clearly distinguishes between MSR and other types of marine data collection, such as hydrographic surveys and ISR operations (Articles 19, 40, 54, 56, and 87, and Part XIII). Consequently, while coastal states have jurisdiction over MSR in the EEZ, and may regulate MSR and surveys in the territorial sea, archipelagic waters, international straits, and archipelagic sea lanes, they do not have jurisdiction over hydrographic surveys and ISR operations in the EEZ. These forms of marine date collection are considered high seas freedoms of navigation and other internationally lawful uses of the sea, and may therefore be exercised freely in foreign EEZs without coastal state notice of consent, consistent with UNCLOS Article 58.
The EEZ was devised primarily for the purpose of granting coastal states greater control over the living and non-living resources adjacent to their coasts, to include jurisdiction over off-shore installations and structures, marine scientific research (MSR), and the protection and preservation of the marine environment. Apart from these limited coastal state sovereign rights, all states enjoy high seas freedoms of navigation and overflight, laying of submarine cables and pipelines, and other internationally lawful uses of the seas related to those freedoms in the EEZ. UNCLOS Articles 55, 56, 58 and 86 accommodate the various competing interests of coastal and user states in the EEZ, maximizing coastal state control over natural resources without diminishing freedom of navigation and other internationally lawful uses of the sea. Long-standing state practice confirms that the term “other internationally lawful uses” does not refer solely to navigation and overflight rights. Military operations, exercises and activities have always been regarded as “internationally lawful uses of the sea,” and the right to conduct such activities is enjoyed by all states in the EEZ.
Finally, in November 2013, China established an air defense identification zone (ADIZ) over much of the East China Sea. All aircraft entering the zone must file their flight plan and maintain communications with Chinese authorities, operate a radar transponder, and be clearly mark with their nationality and registration identification. Aircraft that do not cooperate with the identification procedures or follow the instructions of the Chinese authorities will be subject to undefined “defensive emergency measures.” The ADIZ declaration drew sharp rebukes from Japan, South Korea and the United States, and was operationally challenged a few days after it was established by Japanese, Korean, and U.S. military aircraft.
International law does not prohibit China from establishing an ADIZ in international airspace adjacent to its national airspace. In fact, a number of nations, including the United States, Japan and South Korea, have established ADIZs in international airspace off their coasts. However, the manner in which Beijing made its announcement, and the way in which it implements and enforces the new zone, are problematic.
The new Chinese zone overlaps the pre-existing Japanese and Korean ADIZs. No other ADIZ crosses over into that of another nation. Another novel feature of the Chinese ADIZ is that it encompasses airspace over disputed land features—Socotra Rock and the Senkaku Islands. Normally, states do not establish ADIZs over contested territory. Finally, China’s ADIZ procedures apply to all aircraft transiting the zone, regardless of whether they intend to enter Chinese national airspace. Most nations that have established ADIZs only apply their procedures to aircraft that intend to enter their national airspace.
China’s application of its ADIZ regulations to transiting aircraft that do not intend to enter Chinese national airspace is inconsistent with international law. All nations are guaranteed freedom of overflight in international airspace seaward of the territorial sea. China may not, consistent with time-honored freedoms of navigation and overflight, condition transits through international airspace on pre-notification to PRC authorities.
China’s defiance of international law and disturbing pattern of coercion undermine the rule of law and liberal order of the oceans. China seeks to abolish freedom of the seas in order to acquire complete control of the Near Seas and advance its anti-access/area denial (A2/AD) strategy. It seeks to alter the status quo in the East and South China Seas through unlawful intimidation, expropriation of large areas of the high seas and international airspace, and large-scale land reclamation activities in order to advance its expansionist goals. By controlling the Near Seas and its strategic sea lines of communication and abundant resources, China is one step closer to achieving its salami-slicing campaign and effectively dominating the Asia-Pacific region.
As a Pacific nation, a Pacific leader, and a Pacific maritime power, the United States can help counterbalance the Chinese threat by maintaining a strong military presence in the region and strengthening the capacity of its like-minded partners and allies. However, the United States cannot, and should not, go it alone. Manila’s decision to seek third-party resolution in its dispute with China, and the Tribunal’s conclusion that China’s infamous dashed-line claim to the South China Sea has no basis in law, is a step in the right direction. As China recovers from this humiliating setback, it might consider amending its bevy of legacy claims that are equally egregious.
Raul (Pete) Pedrozo is a Nonresident Fellow in the Stockton Center of International Law, U.S. Naval War College. The views expressed herein are his own.