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UNCLOS and the Maritime Security of China

Robert Beckman

Director, Centre for International Law, NUS

Draft Only- not for circulation or citation without written consent of author

Presented at

Conference on China and East Asia Strategic Dynamics 11 – 12 March 2010, Singapore

Organized by

Rajaratnam School of International Studies (RSIS), Nanyang Technological

University

Beckman, UNCLOS and the Maritime Security of China 2

UNCLOS and the Maritime Security of China

Robert Beckman

Director, Centre for International Law, NUS

Introduction

This paper will focus on the relevance of international law, especially the

international law of the sea, to China’s strategic role in maritime affairs in the region.

It examines the extent to which China’s national laws and policies are consistent with

its rights and obligations as a party to the 1982 United Nations Convention on the Law

of the Sea (UNCLOS). UNCLOS is of fundamental importance because it establishes the

legal framework upon which China can act in the maritime environment to deal with

maritime security issues either unilaterally or in cooperation with other States.

This paper examines the extent to which China has acted in conformity with the

1982 UNCLOS, and the extent to which its positions on issues of law of the sea have

provoked questions and criticism. As would be expected of a rising power, China is

promoting an interpretation of certain vague provisions in the law of the sea which

will further its national interests. In particular, China is challenging the position of the

United States with respect to activities by foreign ships in its exclusive economic zone,

especially the military and survey activities. If China can convince other States in Asia

to accept its position on this issue, it could influence the development of the law of

the sea. On the other hand, when China reaches the status of a major naval power, it

may review its position and decide that it can better promote its national interests in

the maritime arena by adopting the traditional position of naval powers on military

uses of the oceans.

Although its national laws and policies are for the most part consistent with its

rights and obligations under UNCLOS, some of China’s positions on legal issues relating

to the South China Sea have cast doubts on whether it is acting in conformity with

1982 UNCLOS. In particular, China’s use of straight baselines around the Paracel

Islands is not consistent with the provisions of UNCLOS. Even more important, China’s

use of the dotted-line map to support its sovereignty claims in the South China Sea,

and its references to “historic rights” in the waters inside the dotted line, have

provoked controversy and given other claimants the opportunity to argue that China

is not acting in conformity with UNCLOS and international law.


The paper concludes by arguing that in the long run China can be more

instrumental in shaping the dynamics of the maritime domain in the region if it brings

its laws and policies into conformity with UNCLOS.

The importance of UNCLOS

China’s relationship with other States in the various maritime zones is set out in

UNCLOS. On 7 June 1996, China deposited its instrument of ratification to UNCLOS

with the UN Secretary-General1

It is a fundamental principle of international law that the relations between States

are governed by the rules of international law. If a matter is governed by international

law, the domestic laws and regulations of a State are relevant only if they are

consistent with international law. A State cannot use its domestic law as an excuse for

not complying with its international obligations. Also, there is an implied obligation on

all States parties of universally accepted conventions such as UNCLOS to bring their

domestic laws and regulations into conformity with UNCLOS.

. UNCLOS is legally binding on China vis-à-vis other

States parties under the law of treaties. Given that it is generally accepted that most

of its norm-creating provisions are the best evidence of customary international law,

UNCLOS is also the starting point for examining China’s legal relationship with States

not parties to UNCLOS (such as the United States) in the various maritime zones.

UNCLOS defines the rights and jurisdiction of China in the maritime zones subject

to its sovereignty (internal waters and territorial sea) as well as its rights and

jurisdiction in maritime zones outside its sovereignty (high seas, contiguous zone,

exclusive economic zone, continental shelf and the deep seabed).

China and Maritime zones within sovereignty

To understand the rights, freedoms, obligations and jurisdiction of States in the

various maritime zones, it is necessary to determine whether a maritime zone is

within the sovereignty of coastal States or outside the sovereignty of coastal States.

Coastal States have practically unlimited sovereignty in their ports and internal

waters, much like they have over their land territory. Coastal States also have

sovereignty in the 12 nm mile belt of territorial sea adjacent to their coast, which is

measured from baselines in accordance with the provisions of UNCLOS 2

1 See

. The

sovereignty of the coastal State in its territorial sea extends to the waters, the airspace

http://www.un.org/Depts/los/reference_files/status2010.pdf

2 See Articles 2 and 3 of UNCLOS

http://www.un.org/Depts/los/reference_files/status2010.pdf�


above the waters, and the seabed and subsoil beneath the waters3

However, the sovereignty of the coastal State in the territorial sea is limited.

Article 2(3) of UNCLOS provides that the sovereignty over the territorial sea “is

exercised subject to this Convention and other rules of international law”. There are

two important restrictions on the sovereignty of coastal States in the territorial sea.

First, ships of all States have the right of innocent passage through the territorial sea

. Since the

territorial sea is within its sovereignty, the general rule is that the laws and regulations

of the coastal States apply to acts and events in the territorial sea, and the authorities

of the coastal State have the exclusive right to exercise police power in the coastal

State.

4.

Second, if a strait used for international navigation lies within the territorial sea, ships

and aircraft of all States have the right of transit passage through and over such

straits5

Archipelagic waters are also within the sovereignty of the archipelagic State.

Article 49 provides that the sovereignty of an archipelagic State in its archipelagic

waters is exercised subject to Part IV of UNCLOS on archipelagic States. There are two

major limitations on the sovereignty of archipelagic States in their archipelagic waters.

First, ships of all States have the right of innocent passage through the archipelagic

waters

.

6. Second, ships on aircraft have the right archipelagic sea lanes passage on sea

lanes and air routes through the archipelagic State7

China and the use of straight baselines

.

All maritime zones are measured from baselines. The normal rule for baselines is

the low water line along the coast8. Article 7 permits the use of straight baselines (1)

where the coastline is deeply indented and cut into, or (2) if there is a fringe of islands

along the coast in its immediate vicinity9. In either case, the drawing of straight

baselines must not depart to any appreciable extent from the general direction of the

coast10

3 See Article 2 of UNCLOS

.






9 See Article 7 (1) of UNCLOS



The general rule for using the low water line for baselines also applies to islands.

However, where a “low-tide elevation” is situated wholly or partly within 12 nm of an

island, the low-water line on that elevation may be used as the baseline11

Archipelagic waters consist of waters inside straight archipelagic baselines

connecting the outermost points of the outermost islands and drying reefs of the

archipelagic State

.

12

On 25 February 1992, China adopted its Law on the Territorial Sea and Contiguous

Zone

. Only archipelagic States are permitted under UNCLOS to draw

archipelagic baselines and claim archipelagic waters. Article 46 provides that an

archipelagic State is a State constituted wholly by one or more archipelagoes and may

include other islands. Indonesia and the Philippines are archipelagic States and can

draw straight baselines connecting the islands in their archipelago. Continental States

which have island archipelagoes off their coast may not draw straight archipelagic

baselines connecting the islands because they are not archipelagic States.

13. On 15 May 1996, the same day on which it decided to ratify UNCLOS, the PRC

promulgated the precise limits of its straight baselines 14 . This included the

employment of straight baselines along the mainland coast and around the Paracels15.

China also stated that it would use straight baselines around other archipelagoes in

the South China Sea16

China’s use of straight baselines around the Paracels is inconsistent with UNCLOS.

Continental States are not permitted to employ the use of straight baselines around

their island archipelagos. Viet Nam and the United States have objected to China’s use

.



13 See 1992 Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone

adopted on 25 Feb 1992 in Collection of the Sea Laws and Regulations of the People’s Republic of China,

Office of Policy, Law and Regulation, State Oceanic Administration (1998) at 186 - 190

14 See paragraph 1 of the 1996 Declaration of the Government of the People’s Republic of China on the

Baselines of the Territorial Sea of the People’s Republic of China issued on 15 May 1996 in Collection of

the Sea Laws and Regulations of the People’s Republic of China, Office of Policy, Law and Regulation,

State Oceanic Administration (1998) at 191

15 See paragraph 2 of the 1996 Declaration of the Government of the People’s Republic of China on the

Baselines of the Territorial Sea of the People’s Republic of China issued on 15 May 1996 in Collection of

the Sea Laws and Regulations of the People’s Republic of China, Office of Policy, Law and Regulation,

State Oceanic Administration (1998) at 193

16 Ibid


of straight baselines around the Paracels17

The United States has also stated that some of China’s straight baselines along its

coast are not permissible under UNCLOS, including its straight baseline connecting

Hainan to the mainland

. Although there may be other cases in

which continental States have drawn straight baselines around offshore archipelagoes

(e.g., the United Kingdom around the Falkland Islands, Equador around the

Galapagoes), the fact that there are other instances of practice inconsistent with

UNCLOS does not make China’s straight baselines legal. Any attempt by China to draw

straight baselines around other islands in the South China Sea would also be

inconsistent with UNCLOS.

18

China and activities in its territorial sea

.

China’s 1992 Law on the Territorial Sea and Contiguous Zone contains one

provision which may be inconsistent with UNCLOS. Article 6 provides that to enter the

territorial sea foreign military ships must obtain permission from the Government of

the People’s Republic of China19

“the provisions of UNCLOS on the right of innocent passage shall not

prejudice the right of a coastal State to request, in accordance with its

laws and regulations, a foreign State to obtain advance approval from or

give notification to the coastal State for the passage of its warships

through the territorial sea of the coastal State

. The Declaration deposited by China when it ratified

the convention in 1996 softens this somewhat by providing that:

20

The requirement of notification is a much less onerous requirement than “permission”

or “approval’. However, China has not taken any steps to amend its 1992 Law to bring

it into conformity with its 1998 Declaration

”.

21

17 Y H Song and Zou Keyuan “Maritime Legislation of Mainland China and Taiwan: Developments,

Comparisons, Implications and Potential Challenges for the United States,” 31 Ocean Development &

International Law, 303 – 345 at 323 (2000) (Song and Zou)

. The US and other naval powers maintain

18 Song and Zou, Ibid at 328

19 See Article 6 of the 1992 Law of the People’s Republic of China on the Territorial Sea and the

Contiguous Zone adopted on 25 Feb 1992 in Collection of the Sea Laws and Regulations of the People’s

Republic of China, Office of Policy, Law and Regulation, State Oceanic Administration (1998) at 187

20 See China’s Statements on Ratification of UNCLOS dated 7 June 1996 available at

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%

20ratification

21 See Song and Zou, supra note 17 at 313

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification�

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification�


that warships have the right of innocent passage and need not seek approval or give

notice22

On this issue China is not alone. A small number of other States also argue that a

requirement of notification or authorization by warships is not inconsistent with the

right of innocent passage. This dispute has been around for a long time, and is

probably best handled on a bilateral basis through negotiations to establish a practice

which meets the interests of both States without requiring other to change its legal

position.

.

China’s laws prohibiting or severely restricting research, survey and military

activities in its territorial sea are lawful under UNCLOS23

China and maritime zones outside sovereignty

. A coastal State has the right

to regulate and prohibit research, survey and military activities by foreign ships in

maritime zones under its sovereignty. Articles 19, 40 and 54 make in clear that the

passage rights of foreign ships do not include the right to engage in research and

survey activities. Also, although warships have the right of innocent passage through

the territorial sea and through archipelagic waters, Article 19 sets out a list of military

activities which would make such passage “not innocent”.

The sovereignty of coastal States ends at the outer limit of the 12 nm territorial

sea. The waters seaward of the outer limit of the territorial sea are not subject to the

sovereignty of the coastal State. They are sometimes referred to as “international

waters” even though that term is not used in UNCLOS and is not a legal term of art. It

is just a shorter way of saying “waters seaward of the outer limit of the territorial sea”

or “waters outside sovereignty”.

In this area coastal States only have such rights and jurisdiction as are conferred

by UNCLOS in the various maritime zones. As a general principle, the laws of the

coastal State do not apply to the acts of foreign nationals or foreign ships in these

areas. Coastal States have no jurisdiction over the acts of foreign ships or foreign

nationals in these areas unless such jurisdiction is expressly provided for in UNCLOS or

other compatible international treaties. The general principle governing jurisdiction in

these areas is that ships are subject to the exclusive jurisdiction of the State whose

flags they fly.


23 See Article 11 of 1992 Law of the People’s Republic of China on the Territorial Sea and the Contiguous

Zone adopted on 25 Feb 1992 in Collection of the Sea Laws and Regulations of the People’s Republic of

China, Office of Policy, Law and Regulation, State Oceanic Administration (1998) at 189


China and the contiguous zone

The contiguous zone is the zone contiguous to the territorial sea, extending out to

no more that 24 nm from the baselines from which the territorial sea is measured24. In

other words, it lies between 12 and 24 nautical miles from the baselines. In the

contiguous zone, the coastal State is given jurisdiction to enforce four types of its laws

and regulations: (1) custom; (2) fiscal; (3) immigration; and (4) sanitation25

Article 33 of UNCLOS on the contiguous zone is exactly the same as the equivalent

article in the 1958 Convention on the Territorial Sea and Contiguous Zone. The

provision in the 1958 Convention was drafted by the International Law Commission

(ILC). The official commentary to the ILC draft indicates that a proposal to include

“security” in the list of laws that coastal States would have jurisdiction to enforce in

this zone was rejected

. Therefore,

the contiguous zone is in effect a type of protection zone in which a coastal State can

enforce its laws and regulations on various types of smuggling and pollution.

26. Also, it is reported that during the negotiations at the Third

UN Conference on the Law of the Sea which led to UNCLOS, the delegation of China

proposed that the provision be amended by adding “security” to the list. However,

this proposal was not approved27

The provision on contiguous zone in China’s 1992 Law on the Territorial Sea and

Contiguous Zone is inconsistent with Article 33 of UNCLOS. China’s 1992 Law states

that China can enforce its “security, customs, fiscal and sanitary laws”

.

28

China and the high seas

. The inclusion

of “security” is of questionable legality, as it would relate to the passage of

reconnaissance ships or warships.

Under UNCLOS, the high seas are parts of the sea not included in the exclusive

economic zone, territorial sea, internal waters or archipelagic waters29


. This in effect


26 See Myron Nordquist et al., United Nations Convention on the Law of the Sea: A Commentary,

Volume II, Martinus Nijhoff Publishers (1985) at 274


28 See Article 13 of the 1992 Law of the People’s Republic of China on the Territorial Sea and the

Contiguous Zone adopted on 25 Feb 1992 in Collection of the Sea Laws and Regulations of the People’s

Republic of China, Office of Policy, Law and Regulation, State Oceanic Administration (1998) at 189



means that the high seas are all parts of the sea seaward of the outer limit of the

exclusive economic zone.

The basic principles governing the high seas are those which were codified in the

1958 Convention on the High Seas and are now set out in UNCLOS30. First, the high

seas are not subject to a claim of sovereignty by any State31. Second, the high seas are

open to all States32. Third, all States may exercise the freedom of the high seas under

the conditions laid down in UNCLOS33. The freedoms of the high seas include

navigation and overflight34. The freedom to lay submarine cables and pipelines is also

a high seas freedom but is subject to Part VI of UNCLOS35. Freedom of scientific

research is also a high seas freedom, but it is subject to Parts VI and XIII of UNCLOS36.

Although not expressly mentioned, it is also understood that high seas freedoms

include the freedom to conduct surveys and the freedom to engage in military

activities, including weapons tests and military exercises involving the use of

weapons37

Article 88 provides that the high seas shall be used for peaceful purposes. It is

generally agreed that this phrase means that the high seas should not be used to

commit a use of force or act of aggression against another State. The phrase “peaceful

purposes” was not intended to prohibit navies, military exercises or the use of

weapons

.

38

The high seas provisions in UNCLOS set out the principles of jurisdiction over ships

on the high seas. The general principle is that ships on the high seas are subject to the

exclusive jurisdiction of the flag State, except as provided in UNCLOS or some other

treaty

. The major powers would never have agreed to UNCLOS if that had been

the intent.

39

30 See Part VII of UNCLOS

. The most important exception is piracy. The warships of all States have the



33 Ibid

34 See Article 87 (1) (a) and (b) of UNCLOS

35 See Article 87 (1) (c) of UNCLOS

36 See Article 87 (1) (f) of UNCLOS

37 See Myron Nordquist et al., United Nations Convention on the Law of the Sea: A Commentary,

Volume III, Martinus Nijhoff Publishers (1985) at 84 – 85

38 Nordquist, ibid at 90 - 92



right to seize a pirate ship and arrest the person on board40. The other important

provision on jurisdiction is that warships and government ships on non-commercial

service have complete immunity from the jurisdiction of any State other than the flag

State41

China has taken no actions relating to the high seas which have raised any

controversy or questions.

.

China and the exclusive economic zone

The exclusive economic zone (EEZ) is located beyond and adjacent to the

territorial sea and extends to a maximum of 200 nm from the baselines from which

the territorial sea is measured42

The EEZ is the most difficult maritime zone to understand. It is not under the

sovereignty of the coastal State. Nor is it part of the high seas. As stated in Article 55,

it is:

. In other words, it begins at the 12 nm outer limit of

the territorial sea and extends out to 200 nm. Therefore, in the area between 12 nm

and 24 nm it overlaps with the contiguous zone.

a specific legal regime under which the rights and jurisdiction of the

coastal State and the rights and freedoms of other States are governed

by the relevant provisions of this Convention.

The rights and jurisdiction of the coastal State in the EEZ are set out in Article 56.

The coastal State has sovereign rights to explore and exploit the living and non-living

natural resources in the water and on and under the seabed and in the subsoil43

Article 56 also provides that in the EEZ, the coastal State has jurisdiction as

provided in the relevant provisions of this Convention with regard to the following

matters: (1) the establishment of artificial islands, installations and structures

. This

in effect gives coastal States all of the fisheries and the oil and gas resources out to

200 nm.

44; (2)

marine scientific research45; and (3) the protection of the marine environment46


.



43 See Article 56 (1) (a) of UNCLOS

44 See Article 56 (1) (b) (i) of UNCLOS

45 See Article 56 (1) (b) (ii) of UNCLOS

46 See Article 56 (1) (b) (iii) of UNCLOS


Article 73 specifically provides that the coastal State has jurisdiction to pass and

enforce laws and regulation relating to fisheries resources in its EEZ. The EEZ is a

specific legal regime which is not subject to the sovereignty of the coastal State.

Therefore, the coastal State has no jurisdiction to extend its laws to govern activities

in the EEZ other than those enumerated in Article 56. Furthermore, even in the case of

those items mentioned in Article 56, such as marine scientific research, it only has

such jurisdiction as is provided in the relevant provisions of this Convention. Many

Government officials (and some scholars) refuse to acknowledge that the jurisdiction

of the coastal State to regulate foreign ships in its EEZ is severely restricted by Article

56.

Article 58 sets out the rights and duties of other States in the EEZ. Like Article 56,

it is intended to be exhaustive. Article 58(1) provides that in the EEZ, all States enjoy,

subject to the relevant rules of this Convention,

the freedoms of navigation and overflight and of the laying of submarine

cables and pipelines, and other internationally lawful uses of the sea

related to these freedoms, such as those associated with the operation of

ships, aircraft and submarine cables and pipelines, and compatible with

the other provisions of this Convention.

The quoted language above was inserted at the suggestion of Eliot Richardson of

the United States with the intent of ensuring that States would have the right to

conduct military activities in the EEZ47. The US and UK also maintain that the right to

conduct hydrographic surveys is also preserved by this language because surveys are

associated with the operation of ships, or in some cases, with the laying of submarine

cables48

Articles 56 and 58 are subject to the “due regard principle”. Article 56(2) provides

that in exercising its rights and performing its duties in the EEZ, the coastal State shall

have due regard to the rights and duties of other States. Article 58(3) provides that in

exercising their rights and performing their duties in the EEZ, States shall have due

regard to the rights and duties of the coastal State. It also provides that they shall

. However, this language has been the subject of some controversy and there

is no consensus in the international community.

47 See Captain George V. Galdorisi and Commander Alan Kaufman “Military Activities in the Exclusive

Economic Zone: Preventing Uncertainty and Defusing Conflict” 21 Cal. W. Int’l L.J 253 – 301 at 271 – 272

(2001 – 2002) (Galdorisi and Kaufman)

48 Statement of Mr Peter Dutton, Associate Professor, US Naval War College, Before the United States-

China Economic and Security Review Commission dated 11 June 2009


comply with the laws and regulations of the coastal State adopted by the coastal State

in accordance with the provisions of this Convention.

As indicated in Article 56, the coastal State does have jurisdiction over marine

scientific research. Part XIII of UNCLOS covers marine scientific research in detail.

Article 246 makes it clear that marine scientific research in the EEZ is subject to the

consent of the coastal State. Although UNCLOS contains no definition of marine

scientific research, the very name suggests that it involves research about the marine

environment.

UNCLOS divides marine scientific research into two general categories, which

commentators refer to as “pure scientific research” and “applied scientific research”.

Pure marine scientific research is described in Article 246(3) as research for peaceful

purposes in order to increase scientific knowledge of the marine environment for the

benefit of all mankind. In normal circumstances, coastal States are to grant their

consent for such research. Applied marine scientific research is described in Article

246(5) as research that “is of direct significance for the exploration and exploitation of

natural resources, whether living or non-living.” Coastal states may withhold their

consent for the conduct of such research. Article 249 permits the coastal State to

establish conditions for the conduct of marine scientific research. It also recognizes

the distinction between the two categories, and provides in paragraph 2 that coastal

States may impose additional conditions on research of direct significance for the

exploration and exploitation of natural resources.

A major concern of the United States is that China is attempting to control or

restrict survey and military activities in its EEZ even though they believe that it has no

right to do so under UNCLOS49. The US argues that all States have a right to carry out

survey activities and military activities (such a marine data collection and military

reconnaissance in the EEZ) because they are lawful uses of the sea related to the

freedoms of navigation and overflight as set out in Article 58(1)50. The US also argues

that China’s jurisdiction over activities is limited to that set out in Article 56, and that

there is no provision in UNCLOS that gives coastal States jurisdiction over survey

activities and military activities in its EEZ51

In order to give itself the right to regulate such activities, China takes a much

broader view of marine scientific research than most States. China’s 1996 Regulations

.

49 Statement of Mr Peter Dutton, Associate Professor, US Naval War College, Before the United States-

China Economic and Security Review Commission dated 11 June 2009

50 Ibid

51 Ibid


on Management of Foreign-related Marine Scientific Research apply to “survey

activities and research on the marine environment and marine resources” in sea areas

under the jurisdiction of China52. The United States takes a much narrower view of

marine scientific research53

However, vessels conducting military reconnaissance on Chinese submarine

activity off the coast of the new submarine base on Hainan would not fall within the

definition used in the 1996 regulations on marine scientific research. The USNS

Impeccable was monitoring Chinese submarines, not conducting a survey or

conducting research on the marine environment

.

54

China could also maintain that military activities in its EEZ which threaten its

security interests are contrary to the principle that the high seas shall be used for

“peaceful purposes”, a principle set out in Article 88 of UNCLOS. Article 58(2) provides

that this principle also applies in the EEZ. China can argue that military or

reconnaissance activities which threaten its security interests are not peaceful

purposes. The United States argues that this principle only means that in exercising

their rights in the EEZ, States must refrain from any threat or use of force against the

territorial integrity or political independence of a State. It is not likely that the two

sides will reach a consensus on the meaning of “peaceful purposes”.

. Therefore, it is not clear on what

grounds China maintained that it had a right to interfere with activities of the US

vessel.

Unless the US and China can negotiate an agreement to prevent incidents at sea,

these types of disputes are likely to continue, and to increase tensions between the

US and China.

China and the continental shelf

The continental shelf comprises the seabed and subsoil of the submarine areas

beyond the territorial sea55. The continental shelf overlaps with the EEZ for any State

whose shelf does not extend beyond 200 nm56

52 See Article 2 of the 1996 Regulation of the People’s Republic of China on Management of the Foreign-

related Marine Scientific Research adopted on 18 June 1996 in Collection of the Sea Laws and

Regulations of the People’s Republic of China, Office of Policy, Law and Regulation, State Oceanic

Administration (1998) at 282

. The coastal State does not have

53 See Galdorisi and Kaufman, supra note 47 at 295

54 See “China hits out at US on navy row,” BBC News, 10 March 2009 available at

http://news.bbc.co.uk/2/hi/7934138.stm


56 Ibid

http://news.bbc.co.uk/2/hi/7934138.stm�


sovereignty over the continental shelf. It exercises over the continental shelf

sovereign rights for the purpose of exploring it and exploiting its resources57. The

coastal State has the right to take reasonable measures for exploration of the shelf,

for the exploitation of the natural resources of the shelf and for the reduction and

control of pollution from pipelines58. The delineation of the course for the laying of

submarine pipelines (but not submarine cables) is subject to the consent of the coastal

State59. As in the EEZ, the coastal State has the exclusive right to construct and to

authorize and regulate the construction, operation and use of artificial islands,

installations and structures on its shelf for economic purposes60

One issue which arises is whether China could justify its laws on hydrographic

surveys

.

61

Questions have been raised by the submarine cable industry about China’s

requirements for permits to lay and repair submarine cables on its continental shelf.

China is only one of two States in Asia which requires a permit for the repair of

submarine cables on its continental shelf

as reasonable measures for the exploration of the continental shelf, given

that the coastal State exercises sovereign rights for the purpose of exploring the

continental shelf and has an interest in ensuring that other States do not explore for

resources on or under the shelf. This is a very interesting and very difficult issue as

there are subtle differences in the provisions in UNCLOS in Part V an EEZ and Part VI

on the continental shelf.

62


. Some commentators have argued that the

right to lay submarine cables is a high seas freedom which applies in the EEZ under

Article 58(1), and that the laying and repair of submarine cables outside the territorial




61 Article 7 of China’s 2002 Surveying and Mapping Law of the People’s Republic of China available at

http://en.sbsm.gov.cn/article//LawsandRules/Laws/200710/20071000003241.shtml provides that

foreign organizations or individuals that wish to conduct surveying and mapping in the territorial air,

land or waters, as well as other sea areas under the jurisdiction of the PRC shall be subject to the

approval by the administrative department for surveying and mapping under the State Council and the

competent department for surveying and mapping of the army.

62 See generally China’s 1989 Regulations on Management of laying Submarine Cables and Pipelines in

Collection of the Sea Laws and Regulations of the People’s Republic of China, Office of Policy, Law and

Regulation, State Oceanic Administration (1998) at 319

http://en.sbsm.gov.cn/article/LawsandRules/Laws/200710/20071000003241.shtml�


sea should not be subject to a permit requirement from the coastal State63

China and extended continental shelf submissions

. However,

China seems to take the position that the right to lay cables is subject to the right of

the coastal State under Article 79(2) of UNCLOS to take reasonable measures for the

exploration of the continental shelf. The language of Article 79 is ambiguous and open

to interpretation.

Article 76 of UNCLOS permits states to make continental shelf claims beyond 200

nautical miles out to a maximum of 350 nautical miles or even further64. The claim to

extended continental must be made by submitting technical information to the

Commission on the Limits of the Continental Shelf (Commission) established by

UNCLOS65

Article 76 provides that the Commission shall make recommendations to coastal

States on matters related to the establishment of the outer limits of their continental

shelf

. The date for submission of claims for most States Parties was 13 May 2009.

66. It also provides that the limits of the shelf established by a coastal State on the

basis of these recommendations shall be final and binding67. However, it also provides

that the provisions of this article are without prejudice to the question of delimitation

of the continental shelf between States with opposite or adjacent coasts68

The effect of a submission to the Commission on “existing maritime disputes” is

dealt with specifically in the Rules of Procedure of the Commission

.

69

63 These issues were discussed at the Workshop on Submarine Cables and Law of the Sea organized by

the Centre for International Law in Singapore on 14 – 15 December 2009. A copy of the Workshop

Report is available at

. Rule 5(a)

provides that in cases where a land or maritime dispute exists, the Commission shall

not consider and qualify a submission made by any of the States concerned in the

dispute. However, the Commission may consider one or more submissions in the

areas under dispute with prior consent given by all States that are parties to such a

dispute.

http://cil.nus.edu.sg/programmes-and-activities/past-events/workshop-on-

submarine-cables-and-the-law-of-the-sea-on-14-15-december-2009/



66 Ibid

67 Ibid. This clause is not without ambiguity. It can be argued that the limits would be final and binding

only on the coastal State extending its shelf on the basis of the recommendations.


69See Annex I of Rules of Procedure of the Commission on the Limits of the Continental Shelf available

at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/309/23/PDF/N0830923.pdf?OpenElement

http://cil.nus.edu.sg/programmes-and-activities/past-events/workshop-on-submarine-cables-and-the-law-of-the-sea-on-14-15-december-2009/�

http://cil.nus.edu.sg/programmes-and-activities/past-events/workshop-on-submarine-cables-and-the-law-of-the-sea-on-14-15-december-2009/�

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/309/23/PDF/N0830923.pdf?OpenElement�


In May 2009 Malaysia and Viet Nam made a joint submission to the Commission

to extend their continental shelves beyond 200 nm into the South China Sea70. Viet

Nam also made a separate submission 71. China immediately objected to these

submissions on the ground that they “seriously infringed China’s sovereignty,

sovereign rights and jurisdiction in the South China Sea”72. China referred to Article

5(a) of Annex I of the Rules of Procedure of the Commission, and requested the

Commission not to consider the submissions of Malaysia and Viet Nam73

However, China’s decision to attach the u-shaped dotted-line map to its

objections to the Joint Submissions of Malaysia and Vietnam and the Submission of

Viet Nam raised old suspicions in ASEAN countries about the nature of its claim in the

South China Sea. It seemed to confirm China’s policy of “deliberate ambiguity” with

respect to the dotted line map and its claim in the South China Sea.

. Given that a

maritime dispute exists in the South China Sea, China’s objection was a lawful

response to the submissions, and the Commission will not be able to consider the

submissions of Malaysia and Viet Nam.

China’s claim in the South China Sea and UNCLOS

UNCLOS contains no provisions on historic title or historic rights. However, it does

contain three provisions referring to matters as “historic”. First, Article 10 on bays

provides that States may draw closing lines across the mouths of bays if such lines do

not exceed 24 nm. Article 10 also states that the provision on bays does not apply to

UNCLOS and contains only two provisions which are possibly relevant to so-called

“historic bays”. Second, Article 15 on the delimitation of territorial sea boundaries

provides that as a general rule, the median line should be applied in determining the

territorial sea boundary, unless it is necessary by reason of historic title or other

special circumstances to delimit the boundary in another matter. Third, Article 298

gives States Parties the right to opt out of the compulsory binding dispute settlement

system in section 2 of Part XV for disputes involving “historic bays or titles”. Given

these provisions, it can be argued that UNCLOS does not recognize any “historic

waters” or “historic rights” in areas outside of the territorial sea.

70 See Joint Submission by Malaysia and the Socialist Republic of Viet Nam dated 6 May 2009 available

at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm

71 See Submission by Socialist Republic of Viet Nam dated 7 May 2009 available at

http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm

72 See Note from China dated 7 May 2009 available at

http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf

73 Ibid

http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm�

http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm�

http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf�


Given these provisions, the most controversial aspect of practice with respect to

UNCLOS is its continued use of the u-shaped dotted-line map to describe its claim to

sovereignty over disputed islands in the South China Sea74

To make a claim to historic rights or historic waters within the u-shaped line in the

South China Sea, China may argue that it has historic rights or historic waters that are

not regulated by UNCLOS, and that such rights would continue to be governed by the

principles and rules of general international law.

.

75 Given that China has not exercised

sovereignty over the sea space within the u-shaped dotted-line, it would have the

burden of proving that the rights and jurisdiction it has asserted are consistent with

principles and rules of general international. Such an argument, however weak, would

give China a legal basis for continuing to claim some historic rights in the waters within

the u-shaped line. In practice, Chinese officials sometimes refer to the u-shaped

dotted-line in discussions on China’s claim76, but they do not explain the exact effect

of the line77

Some scholars assert that it has “historic rights” in the waters inside the u-shaped

dotted-line because Chinese fishermen have traditionally fished in those waters

.

78

The concern with regards to China’s claim to “historic rights” outside its territorial

sea is reinforced by the fact that China’s 1998 Law on the Exclusive Economic Zone

and Continental Shelf contains a provision which seems to be intended to preserve its

historic rights beyond its territorial sea. Article 14 provides that the provisions of this

.

However, if any of the areas beyond the China’s EEZ were the traditional fishing

grounds of China, any traditional fishing rights would be subject to the EEZ claims of

other States. In effect, when China ratified UNCLOS, it agreed that any “traditional

fishing rights” it had in waters outside its own EEZ would be governed by the UNCLOS

provisions on the EEZ and high seas. Under Article 62 of UNCLOS, China could request

access to any surplus of the allowable catch in the EEZ of neighbouring States if it has

traditionally fished in areas which are now the EEZ of other States.

74 The u-shaped dotted line map was first officially recognized in 1947 by the Kuomintang Government

and has continued to be used by both the People’s Republic of China and Republic of China. For a

history on the u-shaped dotted line, see generally Zou Keyuan, “The Chinese Traditional Maritime

Boundary Line in the South China Sea and its Legal Consequences for the Resolution of the Dispute over

the Spratly Islands,” 14 Int’L J. Marine & Coastal L. 27 – 55 (1999) (Zou)

75 The final paragraph in the preamble to UNCLOS provides that “matters not regulated by this

Convention continue to be governed by the rules and principles of general international law”.

76 See discussion in Zou, ibid at 34 – 35

77 Zou, supra note 74 at 36



Law “shall not affect the historic rights enjoyed by the People’s Republic of China79

One of the most troubling developments in 2009 was the decision by China to

attach the u-shaped dotted-line map to its objections to the Joint Submissions of

Malaysia and Vietnam and the Submission of Viet Nam to the Commission on the

Limits of the Continental Shelf

”.

Therefore, it seems that China has intentionally taken a position in its domestic

legislation which will enable it to maintain that it has historic rights in the South China

Sea that are not regulated by UNCLOS, but continue to be regulated by the principles

and rules of general international law.

80

China has indisputable sovereignty over the islands in the South China

Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction

over the relevant wasters as well as the seabed and subsoil thereof (see

attached map)

. This action seemed to confirm China’s policy of

“deliberate ambiguity” with respect to the dotted line map and the exact nature of

claim in the South China Sea. The objections themselves were expected, and from

China’s perspective, necessary in order to protect its sovereignty claim. However,

there was no need to attach the map, and China should have been aware that it would

trigger suspicion. The language China has used to describe the nature of its claim in

the South China Sea is also not completely free from ambiguity. In its objections the

China stated that:

81

It is not clear what China means when it states that is has sovereignty over the islands

and the “adjacent waters”. It would relieve some suspicion if China clarified the

statement and made it clear that it understands that it can only claim “sovereignty”

over the islands and an adjacent 12 nm territorial as measured from the baseline

provisions in UNCLOS. Otherwise, some may interpret its statement to mean that it

believes it has sovereignty over the waters inside the u-shaped dotted line.

.

Some statements from the PRC indicate that it recognizes the freedoms of

navigation and overflight in the waters of the South China Sea, notwithstanding the u-

shaped dotted line map82


. There is no evidence that the historic rights it has exercised

inside the dotted line include any general right to regulate navigation and overflight.









This is support for the argument that in fact it is only claiming sovereignty over the

islands within the u-shaped dotted-line, as well as the maritime zones permitted by

UNCLOS from the islands. Nevertheless, there is concern that China continues to refer

to the u-shaped dotted-line map and to be intentionally vague as to how the map

relates to the nature of its claim in the South China Sea.

There is also some confusion and uneasiness in ASEAN countries about China’s

proposed solution to the South China Sea disputes. The basic principle setting out

China’s policy on the South China Sea since Deng Xiaoping has been “shelving the

disputes and developing jointly83”. However, this phrase has caused some confusion,

as some Chinese officials and scholars claim that what it means is that the overlapping

boundary disputes are set aside, but not the sovereignty disputes over the islands84. In

other words, they argue that the other claimants must recognize China’s sovereignty

over the islands as a pre-condition to joint development. An explanation of the phrase

on the web site of the MOFA states that the phrase means that China maintains that it

has sovereignty over the disputed islands, but regarding those territorial disputes for

which they can’t reach a comprehensive and durable settlement at the moment, they

will leave the sovereignty issues alone and set aside the disputes85

China and the regime of islands and low-tide elevations

. By shelving the

disputes, they are not giving up sovereignty, but rather, setting it aside. Nevertheless,

given inconsistent statements by officials and scholars on the meaning of this phrase,

this ambiguity reinforces the doubts and suspicion concerning China’s policy on the

South China Sea disputes.

Questions have also been raised about China’s policy with respect maritime zones

around islands over which it claims sovereignty.

Article 121 provides that an island is a naturally formed area of land above water

at high tide. The normal rule is that islands are entitled to all the maritime zones,

including a territorial sea, contiguous zone, EEZ and continental shelf. However, Article

121(3) creates an exception by stating that “rocks which cannot sustain human

habitation or economic life of their own shall have no EEZ or continental shelf. Article

121(3) is deliberately ambiguous because no agreement could be reached on more

precise language. In maritime boundary delimitation cases, courts and tribunals have

83 See Zou Keyuan, “Joint Development in the South China Sea: A New Approach” 21 (1) Int’l J. Of

Marine Coastal Law, 83 – 109 at 103 (2006)

84 Zou, Ibid at 98

85 This is based on a translation done by a Research Associate at the Centre for International Law.


avoided dealing with how Article 121(3) should be interpreted. The most recent case

in which the Court was invited to interpret the provision was the Black Sea case

between Romania and Ukraine, but the Court avoided the issue and decided the case

on other grounds86

Estimates are that less than 50 of the 150 or more features in the South China Sea

are islands within the definition in Article 121

.

87

China has taken a strong stand against the position of Japan that the tiny, remote

island of Okinotorishima is an island entitled to an EEZ and continental shelf of its own.

Since 2004 China has maintained that Okinotorishima is a “rock” within Article 121(3)

and that it is not entitled to an EEZ or continental shelf of its own.

. Some are low-tide elevations, which

are below water at high tide, but above water at low tide. Others are reefs, shoals and

sandbars that are not above water even at low tide. The fact that claimants have built

structures on such features does not turn them into islands. It is only an island if it is a

“naturally formed’ area of land above water at high tide. Therefore, if Article 121 were

applied strictly, only some of the islands in the South China Sea would be entitled to

an EEZ of their own, and they would not be given full effect when drawing the

boundary between the islands and the mainland coast. Other islands may be rocks

within Article 121(3) and would be entitled only to a 12 nm territorial sea and a 24 nm

contiguous zone. The majority of the features are not islands because they are not

above water at high tide. Such features would not be entitled to any maritime zones

of their own (not even a 12 nm territorial sea).

88

86 See Maritime Delimitation in the Black Sea (Romania vs. Ukraine) available at

On 12 November

2008, Japan submitted to the Commission on the Limits of the Continental Shelf

information on the limits of its continental shelf beyond 200 nautical miles from the

baselines from which the breadth of the territorial sea is measured. Japan’s

submission included its 200 nm EEZ measured from Okinotorishima, as well as three

regions of the continental shelf extended beyond 200 nautical miles from

Okinotorishima. On 6 February 2009, China submitted a note verbale in response to

Japan’s submission in which it stated that Japan’s submission was not in conformity

with UNCLOS because Okinotorishima was a rock within Article 121(3) and could not

http://www.icj-

cij.org/docket/files/132/14987.pdf

87 Marius Gjetnes “The Spratlys: Are they rocks or islands?” 32 Ocean Development & International Law

191 – 204 at 199 (2001)

88 See Yukie Yoshikawa, “Okinotorishi: Just the Tip of the Iceberg”, Harvard Asia Quarterly, Vol. IX, No. 4,

Fall 2005.

http://www.icj-cij.org/docket/files/132/14987.pdf�

http://www.icj-cij.org/docket/files/132/14987.pdf�


be utilized as a basepoint to measure the a 200 nm EEZ or a continental shelf beyond

200 nautical miles.89

Given China’s strong stance on Okinotorishima, the question arises whether China

will take a similar view in interpreting how Article 121 applies to the islands in the

South China Sea. Will it claim an EEZ only around the larger islands? Also, what is

China’s policy on low-tide elevations in the South China Sea? Will it concede that it is

not permitted to claim any maritime zone around features such as Macclesfield Bank

which are not above water at high tide? It would greatly assist the legitimacy of

China’s claim if it announced that its will comply with the provisions of UNCLOS when

claiming maritime zones around islands in the South China Sea.

China and dispute settlement under UNCLOS

UNCLOS was negotiated and adopted as a “package deal”. Part of the package is

that the general principle is that any dispute between two States parties concerning

the interpretation or application of a provision of the Convention was subject to the

system of compulsory binding dispute settlement in section 2 of Part XV. This enables

one State Party to unilaterally take another State Party to an international court or

tribunal if they have a dispute over the interpretation or application of the Convention.

However, there are some exceptions. One of the most important is that under Article

298, a State Party has the right to “opt out” of the dispute settlement for disputes on

certain provisions, including disputes concerning the provisions on maritime boundary

delimitation, disputes relating to military activities and disputes relating to historic

bays and historic title.

On 25 August 2006, China made a declaration to the UN Secretary-General under

Article 298 stating that it did not accept the compulsory binding dispute settlement

system in Part XV with respect to all the categories of disputes referred to in

paragraph 1 of Article 29890

89 Japan Submission and the China’s note verbale are available on the web site of the UN Division of

Ocean Affairs and Law of the Sea. See

. Therefore, even if the United States becomes a party to

UNCLOS, any disputes between China and the United States over military activities

cannot be referred to a court or tribunal for settlement without the express consent

of both States.

http://www.un.org/Depts/los/clcs_new/submissions_files/submission_jpn.htm

90 See China’s Declaration made on 25 August 2006 available at

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20after%

20ratification

http://www.un.org/Depts/los/clcs_new/submissions_files/submission_jpn.htm�

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20after%20ratification�

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20after%20ratification�


China’s opt-out declaration also applies to any disputes concerning “historic bays

and historic titles”. However, it is not clear whether this phrase, which is obviously

intended to apply to those terms as they are used in Articles 10 and 15 of UNCLOS.

Therefore, if a State Party were to challenge China’s right under UNCLOS to claim the

waters within the dotted line map as “historic waters” or its right to claim “historic

rights” within such waters, such dispute may be subject to compulsory binding dispute

settlement.

China and cooperation to enhance maritime security

China has played a constructive role in recent years in efforts to increase

cooperation on maritime security. It has played a positive role in supporting the

actions of the Security Council in dealing with the possible shipment of weapons of

mass destruction and their delivery systems from DPR Korea91. China has also

supported the UN Security Council resolutions to combat piracy by Somali pirates in

the Gulf of Aden. By sending Chinese warships to the region and participating in the

coalition, China is demonstrating not only the growing power of its navy, but also its

willingness to be a partner in dealing with threats to maritime security92

At the regional level China supported the new cooperation mechanism to

enhance safety and environmental protection in the Straits of Malacca and Singapore

as well as efforts to enhance maritime security in the region

.

93

China also joined the US Container Security Initiative by signing a declaration of

principles and agreeing to joint efforts to target and pre-screen cargo containers

shipped from the ports of Shanghai and Shenzhen destined for U.S. ports

.

94

Like several other States in Asia, China was reluctant to join the US led

Proliferation Security Initiative (PSI). China’s position on the PSI was set out in the

following statement by a foreign ministry official at a press conference in October

2004:

.

91 For example, as a permanent member of the Security Council, China supported UN Security Council

Resolutions 1718 of 14 October 2006 and Security Council Resolution 1874 of 12 June 2009.

92 See William Foreman, “Chinese Navy ships set sail on groundbreaking mission to fight piracy off

Somalia,” Associated Press, 27 December 2008

93 “IMO Fund Raises Straits Co-Operation to a New High”, MPA Press Release, 14 October 2009,

available at MPA News Centre, www.mpa.gov.sg

94 See “China’s port of Shenzhen joins US Container Security Initiative,” Global Security Organization

Website, 24 June 2005, available at http://www.globalsecurity.org/security/library/news/2005/06/sec-

050624-usia03.htm

http://www.mpa.gov.sg/�

http://www.globalsecurity.org/security/library/news/2005/06/sec-050624-usia03.htm�

http://www.globalsecurity.org/security/library/news/2005/06/sec-050624-usia03.htm�


“China stands firmly against the proliferation of weapons of mass destruction and is ready to conduct non-proliferation cooperation with the relevant countries within the framework of international law. But we have our concern over the possible of armed interception by the PSI beyond the limits of international law. Our reservations about such activities make us stay outside the PSI. However, we support the purposes of PSI on non-proliferation of WMDs95

One of the concerns about PSI which was expressed by States in Asia was that the

United States policy was ambiguous on whether interdictions at sea under the PSI

would be done in a manner which was consistent with international law, especially

UNCLOS

.”

96. The US Statement of Interdiction Principles merely stated that interdictions

unde r the PSI would be “consistent with national legal authorities and relevant

international law and frameworks”97

ASEAN and the South China Sea

. Because the principles did not clearly state

interdictions at sea would be consistent with UNCLOS, the US proposal was met with

suspicion in some countries in Asia. This is very similar to the type of suspicion which

China faces with regard to its policies regarding the South China Sea.

Following several years of discussions and negotiations the 2002 ASEAN-China

Declaration on the Conduct of Parties in the South China Sea (2002 DOC) was adopted

by the Foreign Ministers of ASEAN and the PRC at the 8th ASEAN Summit in Phnom

Penh on 4 November 200298

The 2002 DOC contains provisions on the following: (a) peaceful resolution of the

territorial and jurisdictional disputes; (b) self-restraint in the conduct of activities that

would complicate or escalate disputes and affect peace and stability; (c) confidence-

building measures; and (d) cooperative activities.

.

The 2002 DOC also states that the Parties:

95 Ministry of Foreign Affairs of the People’s Republic of China, “Foreign Ministry Spokesperson Zhang

Quiye’s Press Conference,” 26 October 2004 available at

http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t167984.htm

96 Mark J Valencia, “The Proliferation Security Initiative: A Glass Half-Full”, Arms Control Today, June

2007; available at http://www.armscontrol.org/act/2007_06/Valencia

97 See Interdiction Principles for the Proliferation Security Initiative dated 4 Sept 2003 available at

http://www.state.gov/t/isn/c27726.htm

98 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea available at

http://cil.nus.edu.sg/2002/2002-declaration-on-the-conduct-of-parties-in-the-south-china-sea-signed-

on-4-november-2002-in-phnom-penh-cambodia-by-the-foreign-ministers/

http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t167984.htm�

http://www.armscontrol.org/act/2007_06/Valencia�

http://www.state.gov/t/isn/c27726.htm�

http://cil.nus.edu.sg/2002/2002-declaration-on-the-conduct-of-parties-in-the-south-china-sea-signed-on-4-november-2002-in-phnom-penh-cambodia-by-the-foreign-ministers/�

http://cil.nus.edu.sg/2002/2002-declaration-on-the-conduct-of-parties-in-the-south-china-sea-signed-on-4-november-2002-in-phnom-penh-cambodia-by-the-foreign-ministers/�


• reaffirm their respect for and commitment to the freedom of navigation in

and overflight above the South China Sea as provided for by the universally

recognized principles of international law, including the 1982 UN

Convention on the Law of the Sea.

• stand ready to continue their consultations and dialogues concerning

relevant issues, through modalities to be agreed by them, including regular

consultations on the observance of this Declaration.

• undertake to respect the provisions of this Declaration and take actions

consistent therewith. In addition, the final paragraph states that the Parties

concerned reaffirm that the adoption of a code of conduct in the South

China Sea would further promote peace and stability in the region and

agree to work, on the basis of consensus, towards the eventual attainment

of this objective.

The vagueness of the self-restraint provision in the 2002 DOC has resulted in

misunderstandings and increased tension. It provides that the Parties undertake to

exercise self-restraint in the conduct of activities that would complicate or escalate

disputes and affect peace and stability including, among others, refraining from action

of inhabiting on the presently uninhabited geographic features. This suggests that the

Parties are to refrain from new occupations, but implies that they can continue

enhancing their presences on features they already occupy. In other words, the

Parties can argue that their actions to build fortifications, structures, runways and

tourist facilities on features they currently occupy are not inconsistent with the self-

restraint provision.

One of its obvious weaknesses in the 2002 DOC is that it contains no provisions

setting out any procedures or mechanisms to ensure that the parties comply with

their obligation “to respect the provisions of this Declaration and take actions

consistent therewith.” Nor does it provide for any mechanism to deal with differences

which may arise over the interpretation or application of the provisions in the

declaration.

Nevertheless, the 2002 DOC provides a framework whereby China can cooperate

with the ASEAN States in matters of mutual interest which do not touch on the

sovereignty issues. Such matters would include search and rescue, safety of navigation,

and protection of the marine environment. Such cooperation could also include

cooperation on issues of maritime security, including cooperation to combat piracy,

maritime terrorism and other maritime crimes.


Conclusions

For the most part, China has acted in a manner that is consistent with its rights

and obligations under UNCLOS, and most of its national laws and regulations are

consistent with its rights and obligations under UNCLOS. However, some of China’s

actions and some of its laws and regulations are arguably not consistent with UNCLOS.

Therefore, concerns have been raised in other countries about whether China intends

to bring its actions and its laws and regulations into conformity with UNCLOS.

The most controversial maritime security issue is what appears to be an attempt

by China to interpret 1982 UNCLOS in a manner which gives it the right to restrict or

regulate foreign military and survey activities in its EEZ. China may attempt to

convince other States in the region to support its position on this issue, as well as its

position that the provisions on marine scientific research should be interpreted very

broadly. Interestingly, some of China’s neighbours may support China’s positions on

military and survey activities in the EEZ, not out of fear of the United States military

activities in their EEZ, but because they may want rules which limit China’s ability to

conduct military and survey activities in their EEZ.

If China maintains its current position on military and survey activities in the EEZ,

there is likely to be continual tension with the United States which threatens regional

security in the maritime domain. It would be in China’s interest and the region’s

interest if China would make a good faith effort to enter into an agreement with the

United States to prevent incidents at sea outside of territorial sovereignty. Given the

differences between the US and China on the lawfulness of military and survey

activities outside its territorial sea, it would be in the interests of both States to reach

an agreement to prevent incidents at sea. Otherwise, an incident like that involving

the USNS Impeccable could get out of hand and trigger action which is not in the

interests of either State.

On the issue of military activities in its EEZ, China seems to be locked into the

position of a developing country which fears survey and military activities by major

naval powers, especially the United States. However, when China becomes a major

naval power, it may be in its national interests to review its position on military and

survey activities in the EEZ. China may then decide that it is in its national interests to

adopt the traditional position of naval powers on military and survey activities in the

EEZ. What we may be witnessing now is the transition period in which its policies are

still dictated by short-term fears of the United States, rather than by a long-term view

of its national interests.

The second controversial legal issue raised by China’s policy on ocean issues is its

continued policy of “deliberate ambiguity” with respect to the nature of its claims in


the South China Sea, especially its policy on the infamous u-shaped dotted-line map.

China’s continued use of this map and its continued refusal to clarify what it means

has cast a serious shadow over China’s conduct in the South China Sea. It enables

critics to assert that China is claiming 80% of the South China Sea as its historic waters

even though such a claim is inconsistent with UNCLOS. This casts doubt on the

legitimacy of China’s claims in the South China Sea and its position on other legal

issues under UNCLOS. It would be in China’s interest to amend its national laws to

bring them into strict conformity with UNCLOS, especially its provision on the

contiguous zone, the use of straight baselines around the Paracels and the reference

to “historic waters’ in its law on the EEZ and continental shelf.

It is also hoped that China and the ASEAN countries will look beyond their

differences on the legal issues concerning UNCLOS, and recognize that they have a

common interest in cooperating to enhance maritime security at both the regional

and global levels. The 2002 DOC creates a framework for cooperation and confidence-

building between China and ASEAN which can enhance maritime security in the region.

China should exercise a leadership role by agreeing to talks on how to more effectively

implement the 2002 DOC. Given the increase in tension in the South China Sea in the

past 24 months, China should enter into a dialogue with ASEAN to attempt to agree on

confidence-building measures to enhance communication and trust as called for in the

2002 DOC.

China is in a position to assume a leadership role in enhancing maritime security

in East and Southeast Asia by promoting cooperation to combat piracy, maritime

terrorism and other illegal activities at sea. China could also take a leadership role in

maritime security in the region by promoting cooperation in other areas of common

interest such as search and rescue, navigational safety and protection of the marine

environment. However, it would be easier for China to assume a leadership role if its

national laws and policies were in strict conformity with its rights and obligations

under 1982 UNCLOS.

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