By Eric Vandenbroeck and co-workers

Why Is China Rewriting The Law Of The Sea

For decades, scholars and policymakers have puzzled over the question: What is China trying to accomplish with its extensive maritime claims throughout the South and East China Seas?

A few answers are floated regularly: Perhaps Beijing wants to control natural resources. The South China Sea is a rich source of fisheries and other living resources and contains commercially viable hydrocarbon deposits. Or, perhaps, Chinese leaders seek security. After all, Beijing has constructed military bases on Woody Island in the Paracels and on all seven Spratly Islands it occupies. Chinese leaders may also want to bolster Beijing’s status in the larger regional order by setting the maritime.

But neither resource interests, security, nor status alone provides satisfactory explanations for Beijing’s behavior. Instead, as China analyst Isaac B. Kardon argues in his groundbreaking book, China’s Law of the Sea: The New Rules of Maritime Order, Beijing sees itself as fundamentally above the law and beyond accountability to others, significantly smaller states. And while a full-scale global change to the oceans regime is beyond China’s grasp, Kardon writes, Beijing’s actions may have consequences beyond its nearby waters.

The law of the sea—codified for decades in the United Nations Convention on the Law of the Sea—is pretty clear on most things. Countries have territorial seas stretching 12 nautical miles off their coasts. Islands do, too. Rocks and submerged features do not. Countries also have resource zones that extend at least 200 nautical miles, theirs alone to fish, mine, and harvest deep-sea riches. Every state can fly, sail, and operate in waters beyond the territorial seas and pass freely through straits. The problem is that China, though a party to the U.N. convention, flouts each element.

As Kardon systematically demonstrates, China challenges the prevailing law of the sea by undermining the geography-based rules for defining coastal zones, controlling ocean resources that belong to other states, hampering freedom of navigation, and ignoring its commitment to abide by dispute resolution provisions.

In East Asia, Kardon argues, “China is not so much changing the rules as it is reducing their importance.” In other words, existing international law is acceptable elsewhere, but in this region, what China says goes. For instance, China exercises regional “veto jurisdiction” in maritime resources zones by blocking Japan, Vietnam, and the Philippines from developing their oil and gas fields unless they accept Beijing’s terms. Regarding unwanted litigation, Kardon writes, China asserts a “great power exception” and reinforces “a sovereignty norm” as an excuse for dodging South China Sea arbitration brought by the Philippines.

China’s maritime policies have opened the door for other states to flout the rules, inviting a world where international law has little relevance at sea. “China is changing the international environment in which those rules take effect,” Kardon writes. China is unique: It backs its maritime claims with formidable naval, law enforcement, and maritime militia fleets. How will that translate to less powerful states? Will they now decide to make expansive historic rights claims? Are all parties to the U.N. convention free to ignore arbitration required by the convention? Will other states decide it is fair game to prevent neighbors from enjoying their resource rights?

As Kardon makes clear—and this is a particular strength of his book—the eight states he analyzed surrounding the narrow semi-enclosed seas of East Asia have mixed answers to these questions. Like China, they prize the economic value of their coastal waters. They, too, care about their sovereignty and security. Perhaps this is why they also prize the capacity of international law to hold raw power at bay and are generally more supportive of the U.N. convention’s provisions than their more powerful neighbor. But in the face of muscular Chinese coercion, Kardon writes, resorting to the protection of law carries little weight.

At least some countries in the region have been willing to follow China’slead in ignoring the rules. For instance, Kardon writes, some regional states have claimed an exclusive economic zone from islets and rocks not entitled to them. This is seen in Japan’s approach to tiny, isolated Okinotorishima and in Vietnam’s greatly excessive baselines—the lines along a country’s coast from which the territorial sea and resource zones are measured. Both cases mirror China’s similarly excessive claims. These are signs of the legal erosion Beijing’s behavior presages.

Meanwhile, only the United States openly and actively opposes Beijing’s limitations on maritime navigational rights and freedoms for foreign ships. Kardon finds no appetite in Southeast Asia to support this area of international law. Some states, such as Brunei, fully acquiesce to Beijing’s legal preferences. Others straddle a middle path. Close U.S. ally Japan is the only regional state to object to China’s attempts to limit military exercises and intelligence gathering—both permitted activities—in the exclusive economic zone.

Southeast Asians have mustered unified resistance to some of Beijing’s more outrageous claims. China’s so-called nine-dash line and related claims to historic rights cast a net over almost the entirety of the South China Sea, denying Vietnam, Malaysia, Indonesia, and the Philippines access to the maritime resources that international law allocates to them. Aside from Brunei, China’s neighbors universally reject the nine-dash line. And perhaps because they have little but the law to protect their interests, Vietnam, Indonesia, and the Philippines fully support the U.N. convention’s mandatory dispute resolution procedures. The problem is that Beijing complains that these procedures offend its sovereignty despite its promise to submit to them when it acceded to the convention. In the face of China’s rejection of tribunals, smaller regional states are left with few remedies.

Pushback alone is not enough to stop China’s growing sea power—and Beijing’s desire for what Kardon terms a “post-liberal international order”—from potentially reshaping the global oceans regime. Kardon believes that we may see a return to raw power as the organizing principle for the world’s oceans. To paraphrase Thucydides—the strong do what they can; only the weak resort to law. Kardon writes, "[t]he normative flux brought about by China’s law of the sea shows the beginning of a possible rejuvenation of a less universal type of international law.” Indeed.

In steering the international system back toward a realist approach to international law, however, Chinese leaders see themselves as following in the footsteps of the United States. Unlike Beijing, Washington never acceded to the U.N. Convention on the Law of the Sea, despite active support for most of its provisions. Over the past four decades, senators have objected to its encroachments on U.S. sovereignty and the country’s ability to project power freely. China, Kardon writes, has significantly benefited from the absence of U.S. leadership in this critical arena.

In particular, China’s membership has allowed it to appoint a judge to the International Tribunal for the Law of the Sea and take a leading role in the International Seabed Authority. Beijing thus “exercises substantive leadership,” as Kardon notes, while undermining the law’s substantive provisions. Because the United States declined to ratify the convention, partly to avoid the same mandatory dispute resolution provisions China refuses to submit to, it gave up an opportunity to exercise leadership over the development of the global oceans regime from inside its institutions. China stepped into this breach. Today, the steady breakdown of the law of the sea in East Asia in the face of Chinese coercion stands as evidence of the failure of U.S. leadership.

This may be the most severe insight of Kardon’s book. We are left to wonder whether U.S. accession to the convention would have changed things. Would the total weight of U.S. support have put sufficient pressure on

Beijing to comply? Would it have buttressed an international legal regime against the rise of a competitor? U.S. accession might have reinforced those aspects of international law that are essential to the U.S. national interest but can now only be maintained through power.

In this sense, Kardon’s book is an epitaph for the end of an era when a truly global, Washington-led maritime order might have been achieved. Perhaps this, more than advancing any resource, security, or status interest, is what China has been trying to accomplish all along.

 

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