The March 2009 USNS Impeccable (T-AGOS-23) incident, like the 2001 EP-3 event before it, highlighted a flashpoint that exists between the United States and China in the South China Sea. The similarity of Chinese behavior during these two events is remarkable. The Impeccable incident occurred when a collection of Chinese government and fishing vessels maneuvered aggressively and in close quarters around the American ship, interfering with her performance of survey operations in the South China Sea more than 70 miles off China's nearest coastline. The EP-3 incident occurred in approximately the same area when an aggressively maneuvered Chinese intercepting aircraft collided with the American patrol plane as it performed routine reconnaissance operations. The statements of the Chinese government in the aftermath of each of these events, claiming that the U.S. naval operations were illegal and threatening to China, demonstrates the sharp differences of perspective over what traditional military activities constitute legitimate uses of those waters.
Although the conflict is generally expressed by both the Americans and the Chinese in terms of international law, the friction is not fundamentally about the correct interpretation of those laws or of the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). Rather the legal conflict reflects a larger clash between China's objective of increasing its control over its "near seas" and the American geostrategic interest in maintaining the freedom of navigation on which the health and stability of the global maritime commons rely, and which are essential to support American security guarantees in East Asia. The language of international law is nonetheless important because it is the primary terrain chosen by China to directly confront American naval power. Thus, to understand China's legal arguments is to pull back the curtain and view clearly the complex ways in which China is challenging the United States in East Asia and to observe the larger implications of these disputes.
U-Shaped Line
The Chinese have long viewed the Bohai Gulf, Yellow Sea, East China Sea, and South China Sea1
the so-called near seas as regions of core geostrategic interest and part of a great defensive perimeter established on land and at sea to protect China's major population and economic centers along the coasts. In the 1930s China's Republican government formed the Land and Water Maps Inspection Committee to address concerns about potential foreign encroachment on Chinese claimed territories, including reports that foreign forces were occupying islands in the South China Sea. The committee reported in 1935 that in the South China Sea, China's southernmost territorial feature is the James Bank, which sits about 50 nautical miles off the coast of Borneo, and that China's maritime boundary should therefore extend south to 4 degrees North latitude. By 1947, the government of the Republic of China began to publish maps with a U-shaped series of lines in the South China Sea to delineate its maritime boundaries.The Chinese government repeated this cartographic feature after the Communist party came to power on the mainland in 1949, and today it remains depicted on every map published in China and Taiwan. But the nature of China's claim over the expanse of water and the numerous islands, shoals, rocks, and islets contained within the nine dashes of the U-shaped line has never been specified. Among Chinese scholars and officials there appear to be four dominant schools of thought as to the line's meaning. The Chinese government, however, continues to avoid publicly taking an official position, perhaps because it benefits from continued ambiguity and the negotiating latitude that it affords.
Sovereign Waters
Some Chinese policy analysts continue to assert that the waters within the U-shaped line should be considered sovereign Chinese waters, subject to the government's full jurisdiction, presumably as either internal waters or territorial seas. One group of senior Chinese defense analysts, for instance, describes Chinese offshore interests as "the area extending out from the Chinese mainland coastline between 200 nautical miles (to the east) and 1600 nautical miles (to the south)," or roughly to the latitude claimed in the 1935 report. They consider these "sea domains under Chinese jurisdiction . . . [as] the overlaying area of China's national sovereignty."2 Indeed, the 1992 Law of the People's Republic of China on the Territorial Sea and Contiguous Zone specifically claims sovereignty over each of the island groups in the South China Sea the Pratas Islands (Dongsha), Paracel Islands (Xisha), Macclesfield Bank (Zhongsha), and the Spratly Islands (Nansha). Accordingly, these analysts suggest that since these island groups are claimed as sovereign, the U-shaped line that surrounds them defines a zone of sovereignty as well.
This perspective presents a challenge for the Chinese government in that it ignores the international law limits imposed by UNCLOS on a coastal state's authority to make such claims. As a party to the convention, China is bound by its provisions, which contain no mechanisms by which the Chinese can lawfully claim sovereignty over the waters of the South China Sea, even if they are ultimately able to consolidate control over the islands themselves. Accordingly, government officials and others have searched for more convenient avenues by which to claim legal control over the South China Sea.
Historic Waters
Perhaps because it is one of the least well-defined aspects of international law, some Chinese have suggested that the concept of "historic waters" may enable the government to legitimately claim broad control over the South China Sea.3 The concept is barely mentioned in UNCLOS, but exists in customary international law. It allows coastal states to claim extended jurisdiction over water space or islands when the claim has been open and long-standing, exclusive, and widely accepted by other states. Unfortunately for advocates of this perspective, China's claim to a historic right to control the South China Sea is seriously undermined by similar, overlapping claims maintained by the Philippines, Vietnam, Malaysia, Brunei, and Indonesia, not to mention parallel claims made separately by Taiwan. This demonstrates that however long-standing China's claims in the South China Sea might be, clearly they are neither exclusive nor widely accepted by other states.
Nonetheless, Chinese law asserts historic rights over the South China Sea. The 1998 Law of the People's Republic of China on the Exclusive Economic Zone and Continental Shelf, for instance, states that legal developments "shall not affect the historical rights that the People's Republic of China enjoys." More recently, Chinese officials have asserted so-called "administrative responsibilities" that stem from these claimed historic rights over the South China Sea. In furtherance of these administrative responsibilities, on 26 December 2009, the Standing Committee of China's National People's Congress approved the Law on Island Protection. This law gives the Chinese government broad jurisdictional authority over all claimed offshore islands, including ownership and enhanced administrative oversight over uninhabited islands, for the purpose of strengthening ecosystem protection, controlling use of natural resources, and promoting sustainable development. In combination with China's laws claiming sovereignty over all islands plus historic rights to administer the waters of the South China Sea, this law could provide a rationale for increased activities in the sea by the vessels of China's Maritime Surveillance Service, Fisheries Service, Coast Guard, and others.
Island Claims
Some Chinese view the U-shaped line as simply asserting a claim to all the islands, rocks, sand bars, coral heads, and other land features that pierce the waters of the South China Sea, and to whatever jurisdiction international law of the sea allows coastal states to claim based on sovereignty over these small bits of land. This perspective probably helped inform the Chinese government's decision to promulgate the 1992 and 1998 laws mentioned above, which stake a claim to the South China Sea's island groups and then claim a territorial sea, exclusive economic zone, and continental shelf emanating out from them. Thus, in combination, these Chinese laws assert jurisdictional control over nearly the entire South China Sea area within the U-shaped line.
On their face at least, China's claim to sovereignty over the islands and jurisdiction that is lawfully derived from it are legitimate in that the claims comply with the general provisions of UNCLOS and other aspects of law of the sea. On further inspection, however, a series of fundamental problems arise that undermine many aspects of these claims. For instance, only a very few of the South China Sea's islands qualify under UNCLOS for more than the mere 12-nautical-mile territorial sea. Islands that are too small to sustain human habitation or to support economic life of their own do not qualify for extended coastal state jurisdiction. Nor of course do the South China Sea's many rocks, coral heads, and sandbars that do not remain above water at high tide. Thus, only a small handful of all the islands in the South China Sea qualify for an exclusive economic zone or continental shelf. Without these zones, China's reach over the waters of the South China Sea should be limited in most places to a band of 12 nautical miles around each feature, leaving the substantial water space between these zones as high seas. This probably explains the ambiguous provision in China's 1998 law that asserts additional historical rights as a basis for jurisdiction over the waters.
Another weakness of China's claim of jurisdiction over the South China Sea based on its assertion of sovereignty over the sea's rocks and sandbars is that it has objected to similar claims made by Japan to an exclusive economic zone and continental shelf rights around Okinotorishima, a small coral feature in the Pacific Ocean about 1,050 miles south of Tokyo.4 International law prevents a state from claiming legal rights if it objects to the same type of claims by other states. As such, neither the provisions of UNCLOS nor historic rights are especially persuasive sources of law on which China can base its claims. Accordingly, some Chinese scholars and analysts have begun to claim that the law should give protection to a coastal state's security interests in its surrounding waters.
Security Interests
China's assertiveness about its claims in the waters of its near seas has grown in tandem with the size of its navy and maritime services, and from these forces has emerged a fourth perspective, namely that the U-shaped line reflects China's long-standing maritime security interests in the South China Sea, and that they should have legal protection. As one Chinese analyst put it, "The Navy is just one of the means of protecting our maritime rights and interests . . . the primary means should be to rely on the law, on international law, and internal legislation." To enforce these laws and sovereign interests at sea, "in recent years we have started to carry out periodic patrols to safeguard our rights in the East and South China Seas."5
In this sense, the Chinese see international law in conjunction with maritime power as a means to establish the long-desired maritime security buffer throughout the near seas, including the South China Sea. That international law does not provide protection for a coastal state's security interests beyond the narrow territorial sea has not deterred Chinese proponents from making such claims. However, close scrutiny of each of the four Chinese perspectives concerning the meaning of the U-shaped line demonstrates that none is firmly grounded in international law as it currently stands.
Exclusive Economic Zone
The creation of the exclusive economic zone in 1982 by UNCLOS as a region extending beyond the territorial sea to a maximum of 200 nautical miles from a coastal state's shores was a carefully balanced compromise between the interests of coastal states in managing and protecting ocean resources and of maritime user states in ensuring high-seas freedoms of navigation and over-flight, including for military purposes. Thus, while in the exclusive economic zone the coastal state was granted sovereign rights to the resources and jurisdiction to make laws related to those resources, to ensure the participation of maritime powers high-seas freedoms of navigation were specifically preserved for all states. Nonetheless, China has persistently attempted to shift this carefully balanced compromise by making more expansive claims of legal protection for its security interests, especially in the South China Sea.
Chinese scholars and officials do so by reasoning that since the exclusive economic zone is a region of coastal state jurisdiction, the coastal state should be able to impose legal limits on the freedoms of navigation for military purposes if it considers those activities to "encroach on the national security interests of the coastal state." Accordingly, the Chinese assert that in the exclusive economic zone freedoms of navigation and overflight "do not include the freedom to conduct military and reconnaissance activities in the [waters or their] superjacent airspace [since such activities] can be considered a use of force or a threat to use force against the State."6 On this basis, Chinese domestic law purports to ban all forms of surveys in the exclusive economic zone including military surveys and hydrographic surveys without the consent of the Chinese government.
Although in the exclusive economic zone UNCLOS grants coastal states jurisdiction over marine scientific research related to living and non-living resources, the 2002 Surveying and Mapping Law of the People's Republic of China defines surveying and mapping so broadly that the law purports to cover all types of research, including military surveys, hydrographic surveys, and related activities. Additionally, the law claims regulatory authority over all such activities conducted in any "sea areas under the jurisdiction" of China. It is these national laws that Chinese officials cite as the authority to interfere with the activities of USNS Impeccable, Bowditch (T-AGS-62), and other naval research vessels. There are also reports that China is considering domestic legislation that would purport to make all foreign surveillance and reconnaissance flights above its exclusive economic zone illegal.7
The Implications
In combination, China's claims are tantamount to a claim of full sovereignty over the South China Sea. Were these to become accepted, they would impede legitimate American naval operations in support of regional friends and allies, deterrence of regional conflict, and maintenance of freedom of navigation in the South China Sea's critical sea lines of communication. That China is a party to UNCLOS while the United States is not makes no difference in terms of these legal disputes or the rights of American naval power to operate globally beyond the territorial seas of other states, since much of UNCLOS has been accepted by the United States as binding customary international law. However, American non-membership diminishes its influence over the future shape of law of the sea as it develops within the institutions created by UNCLOS, such as the courts and committees it established to interpret its provisions and to develop aspects of the law left unresolved in the convention. In short, the failure of the United States to accede to UNCLOS gives China unchallenged diplomatic space to attempt to shape law of the sea in its favor. This could have serious consequences for legal issues that are critical to America's global security interests.
Fortunately, China's perspectives on its legal authorities in the South China Sea do not reflect the current state of international law. Nor do the Chinese perspectives reflect the proper understanding of the balance of rights, interests, and freedoms expressed in the provisions of UNCLOS related to the exclusive economic zone. The Chinese nonetheless appear to be advocating revisionist legal interpretations to apply operational pressure on U.S. naval activities in the South China Sea and perhaps to create sufficient friction to cause American national security decision-makers to reduce the level of naval operations there.
Additionally, by portraying this dispute as a struggle between developed powers (e.g., the United States) that seek to maintain power and developing states (e.g., China) that seek legal protections from naval aggression, some Chinese appear to believe they can undermine the perception of legitimacy with which American naval power is seen in the eyes of some regional states.8 As the Deputy Chief of the People's Liberation Army General Staff, Lieutenant General Ma Xiaotian, put it, "fair and rational mutual relation norms should be created . . . to give proper consideration to each other's . . . vital and significant security interests."9 These are not the perspectives of a power that is satisfied with the existing rules and norms that govern international activities at sea.
China's regional objectives and activities exist in direct tension with the U.S. maritime strategy, which seeks to maintain security and stability in the global maritime commons through cooperative international action and freedom of navigation in all waters beyond the territorial sea. Ironically, China's regional objectives and activities also exist in tension with its own increasing global interests. As a rapidly rising economic power, it is one of the primary beneficiaries of the stable global system this strategy provides. China appears to be increasingly willing to use its steadily modernizing naval capacity to support stability operations, such as the anti-piracy efforts in the Gulf of Aden, in far-flung areas in which it has interests. As one noted Chinese maritime strategist stated,
China has numerous national interests in international maritime space . . . [including] open ocean transport routes, international straits, 600 ports in more than 150 countries, [and] investments in the international seabed . . . which require the Navy to defend a larger scope.10
Efforts to protect these wider maritime interests, however, depend on the lawful operation of naval power to suppress threats to the security in the maritime commons. China cannot have it both ways. If China desires to assume a greater global leadership role, it must also accept the rules by which the global system functions. One price of participating in the protection of its growing overseas interests is acceptance of the naval activities of others with interests in the South China Sea.
1. Li Jinming and Li Dexia, "The Dotted Line on the Chinese Map of the South China Sea: A Note," Ocean Development and International Law, Volume 34 (2003), p. 287 95.
2. Wang Shumei, Shi Jiazhu, and Xu Mingshun, "Carry Out the Historic Mission of the Army and Establish the Scientific Concepts of Sea Rights," China Military Science, 1 February 2007, pp. 139
46.3. "South China Sea: Controversies and Solutions
Interview with Liu Nanlai," Beijing Review, 4 10 June 2009.4. "China Dismisses Japan's Claim of Tiny Atoll in Pacific," Xinhua, 19 January 2010.
5. "China's Maritime Rights and Navy," World Knowledge, 1 January 2009.
6. Ren Xiaofeng and Cheng Xizhong, "A Chinese Perspective," Marine Policy, Vol. 29 (2005), pp. 139
46.7. Hai Tao, "U.S. Military Makes China's Adjacent Seas their Backyard," International Herald Leader, 1 September 2009.
8. Li Guangyi, "On Legal Issues Associated with the Military Usage of Exclusive Economic Zones," Journal of Xi'an Institute of Politics, Vol. 18, No. 2, April 2005.
9. "The Major Powers and Asian Security: Cooperation or Conflict
," Speech by Lieutenant General Ma Xiaotian, Deputy Chief of the General Staff, People's Republic of China, before the Second Plenary Session of the 8th IISS Security Summit, Shangri-La Dialogue, Singapore, 30 May 2009.10. Xu Qi, "Maritime Geostrategy and the Development of the Chinese Navy in the 21st Century," translated by Andrew Erickson and Lyle Goldstein, Naval War College Review, Vol. 59, No. 4 (Autumn 2006), pp. 46
66.