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China’s Challenge to the Global Maritime Order
The rules of the international law of the sea are largely codified in the 1982 Third United Nations Convention on the Law of the Sea (UNCLOS). The Convention and the customary international law established by the long practice of nations comprise the basic elements of the maritime order for nearly three-quarters of the surface of the earth.
In his new and seminal work, China’s Law of the Sea: The New Rules of Maritime Order, Isaac B. Kardon offers readers a well-informed and objective assessment of China’s sense of the existing global maritime order and how and why Chinese leaders seek to change the rules of the international law of the sea (ILOS). This book is not about China’s compliance with the existing rules of the established maritime order—or, more to the point, its widespread, repeated, and flagrant instances of noncompliance. Rather, it is about the party-state directed plan to control the international rules and set new rules more favorable to China’s national interests and regional and international ambitions. China’s Law of the Sea describes Chinese leaders’ vision for those rules as shaped by the party-state’s broader maritime practices that include “actions on, under, and above the world’s oceans, in its domestic maritime law and policy, and in the global arena.”
Kardon is uniquely qualified to assess China’s maritime practices. In 2012, Kardon was a language and foreign area studies fellow in Beijing when he was invited to one of the first conferences of Chinese experts convened to discuss the law of the sea. In the succeeding years, he was both an observer and a participant in maritime law workshops and conferences in China. He was appointed a visiting scholar at the People’s Republic of China (PRC) National Institute for South China Seas and later to a position at Taiwan’s national Academia Sinica. His decade-long studies and visits abroad in Asia have focused on China’s development of maritime power, with research on China’s maritime disputes and law of the sea issues, global port development, and Peoples Liberation Army Navy (PLAN) overseas basing. Formerly associate professor at the U.S. Naval War College’s China Maritime Studies Institute, Kardon is now a senior fellow of China studies in the Asia Program of the Carnegie Endowment for International Peace.
Ideology, Solidarity, and Geography
Kardon notes both the United States and the PRC acted, ironically, to create much of China’s dissatisfaction with UNCLOS and fuel its maritime disputes in Asian waters. In 1945, U.S. President Harry Truman issued two executive orders—the Truman Proclamations—that asserted U.S. jurisdiction and control of the natural resources of the continental shelf (the seabed beneath shallow coastal waters) contiguous to the United States, and U.S. rights to control fisheries in the high seas contiguous to the United States.
With the stroke of a pen, the leading defender of freedom of the seas ushered in an era of “ocean closure” and ”creeping jurisdiction” that would soon be embraced most enthusiastically by the developing world. . . states mounted ambitious new claims to rights for fishing and resource exploitation, and they established new patterns of practice by enforcing those rights when other states objected or interfered.
Kardon explains how China, for its part, aligned itself with the developing world. Its UN delegates helped shape UNCLOS for the benefit of coastal states: the Chinese agreed to a 200 nautical mile Exclusive Economic Zone (EEZ), and all the resources therein, for every littoral nation. “The PRC had helped create a new multi-lateral treaty that marshalled the voting power and the voice of the developing world against the Soviets and the Americans.” As a result, “China’s ideological commitment to sovereignty and Third World solidarity that sat at cross purposes with its material interests” engendered future maritime disputes, especially in the East Asia seas region.
China’s ocean frontage in the region runs along the South China, East China, and Yellow Seas. These are narrow bodies of water that produce overlapping jurisdictional claims from other nations—Vietnam, the Philippines, Brunei, Malaysia, Indonesia, and Taiwan—exercising their EEZ entitlements across 200 nautical miles. UNCLOS thus codified China’s disadvantage relative to the legal entitlements of these nations and prompted Chinese delegates to add signatory caveats when it ratified the Convention: China’s right to delimit the EEZ, to deny the compulsory jurisdiction of dispute resolution bodies (to overlapping EEZ claims), to lay sovereignty claim to islands and archipelagos in disputed areas, and to oppose “innocent passage” through its territorial seas without prior notice.
China’s Law of the Sea explains clearly—with telling insight and objective analysis—how those caveats have become the specific objects of state-party practice on the high seas and the rules at issue in Beijing’s maritime disputes. Kardon also shows how China’s maritime practice has shaped both bilateral and multilateral relations throughout East Asia; more than half of China’s three million square kilometers of claimed jurisdiction in waters in this region are in dispute.
Practice, Uniformity, and Consistency
Kardon explains most UNCLOS rules are seen as universal because they have become customary through wide practice. The United States acknowledges that uniform and consistent practices form the basis for customary ILOS. It also views UNCLOS as largely codifying pre-existing customs and, therefore, saw no need to ratify the Convention. Today, the elemental disputes and the tensions surrounding ILOS, Kardon argues, are not driven by varied legal interpretations of customary practices. The debate centers on the principles of mare liberum (free seas) and mare clausum (closed seas), that is, between a liberal conception of the maritime order “in which most uses and resources of the sea remain unregulated, and a more territorial ordering in which those uses of the sea fell under the jurisdiction of sovereign states.”
Throughout China’s Law of the Sea, Kardon carefully disentangles Chinese rhetoric to demonstrate that Beijing clearly favors a closed seas order, the primacy of state sovereignty, and ILOS that recognizes and accedes to prevailing state practice. There is more than Third World solidarity at play here: “The PRC’s steady advocacy for its version of the law of the sea rests in part on its perception that China’s entitlements under UNCLOS are inequitable, unfairly truncated by its geographic confinement in semi-enclosed areas.” Kardon argues China’s insistence on its extra-UNCLOS geographic claims is driven by perceived future economic benefit and these and other claims shape its domestic maritime laws, diplomacy, and its maritime operations and practices.
Kardon also offers an effective and well-grounded model for assessing the effectiveness of China’s maritime practices as the state’s means to change the rules that govern the existing maritime order. The model aligns practices with a “PRC-preferred rule” and then seeks to determine if the practices are geographically uniform, that is, applied across all sea areas in which China claims jurisdiction, and consistent over time. This, then, is an approach grounded in the “uniform” and “consistent” criterion well-established in common law as the means of assessing the universal legality of customary practices. Kardon applies it throughout his work to assess Chinese practice in each of four rules sets: geography (boundaries), natural resources, navigation, and dispute resolution.
Law and Force
Kardon argues PRC practice in each of the four rule sets is less about changing these rules than about changing the environment in which the rules take effect. “The evidence supports the conclusion,” he writes, “that there is no viable pathway for China to produce wholesale change to the legal rules of the maritime order—but there are distinct signs of extra-legal change to maritime order in East Asia.”
China is shaping the region, Kardon explains, by organizing and mobilizing its sea-going capabilities and by shaping its laws and legal theory for the defense of Chinese maritime rights as they are perceived by the party-state. China’s Law of the Sea explores this perception that “Chinese maritime rights and interests are under foreign threat” and describes the “all-hands-on-deck program to augment and channel China’s maritime law enforcement, naval, economic, bureaucratic, and even legal academic capabilities into PRC practice.” That perception is also the impetus for China’s rise as a maritime power and the unparalleled growth of its Maritime Law Enforcement (MLE) capabilities.
Kardon notes, for example, China has sent to sea the world’s largest coast guard. The Chinese Coast Guard (CCG) includes more than 130 vessels of more than 1000 tons—many ex-PLAN frigates and destroyers— “that conduct often coercive ‘rights protections’ operations across China’s disputed waters.” CCG operations are supported by PLAN units that hover, out of line of sight, just over the horizon. China’s vast fisheries fleet—again the largest in the world—is also part of a Maritime Militia. Many of these vessels have specially strengthened hulls (for ramming) and are armed with water cannons, light arms, and automatic weapons.
China’s Law of the Sea also explores the often extra-legal practices the PRC employs to assert its claims. China, for example, has abandoned the specified geography of UNCLOS to use uninhabited rocks, reefs, and atolls well isolated from the mainland as basepoints for drawing baselines to enclose claimed sovereign territory. Allocating rights to marine resources is one of the primary functions of the ILOS. UNCLOS directs states to cooperate in creating beneficial practices for shared resources like migratory fisheries; for China “practical cooperation, however, has been rare, narrowly targeted and fleeting.” In practice, China has proved to be “singularly capable and willing . . . to encroach on the marine resource rights of other states.”
In the East Asia seas region today, ILOS has less bearing in maintaining prevailing norms than the actual practices of states, and especially the PRC. Chinese MLE has become increasingly assertive in these seas, through which $5.3 trillion in global trade and 30 percent of the world’s oil pass every year. China has neither relinquished nor negotiated competing claims to the East Asia seabed that holds billions of barrels of oil and trillions of cubic feet of natural gas. Moreover, the PRC continues to insist on its rights to permit—or prohibit— passage of all the world’s ships through these contested waters.
China, then, is positioned to dominate one of the world’s most economically and politically significant maritime choke points. Other nations in the region “cannot draw normal maritime boundaries; they struggle to exploit resources and navigate freely within those undelimited boundaries; they are denied legal avenues for resolving these disputes.”
In the waters of East Asia, it appears China intends to become a law unto itself.