Foreign Policy: China can’t be selective on the Law of the Sea

August 7, 2018

Foreign Policy: China can’t be selective on the Law of the Sea

by  Tuan N Pham, Yokosuka (Japan)

Image result for china and law of the sea

Last May, Washington disinvited Beijing from the 2018 Rim of the Pacific (RIMPAC) naval exercise on the grounds that Chinese actions in the South China Sea run counter to the pursuit of free and open seas. Like RIMPAC 2014 and 2016, China dispatched a spy ship into the United States’ exclusive economic zone (EEZ) to monitor the world’s largest international maritime exercise.

And just like the past two exercises, Washington did not object to the Chinese ship’s presence — which is not the response received from Beijing when US and other navies conduct similar activities in China’s (claimed) EEZ. Instead, more often than not China admonishes the offending nation for violating its claimed territorial sovereignty and sometimes even harasses the military units themselves.

Image result for china and law of the sea

Read On;

While not unprecedented and not in violation of international law, the spy ship’s deployment into the United States’ EEZ reminds the world that China is a rising power that is willing to fully leverage its interpretation of maritime rights under the United Nations Convention on the Law of the Sea (UNCLOS). This underscores Beijing’s selectively choosing the parts of UNCLOS that it likes and ignoring or reinterpreting the parts that it does not like or finds inconvenient for its national interests. Beijing clearly understands its own maritime rights, but it does not necessarily tolerate and accept the same rights for others.

The Chinese argument on the (non)permissibility of military activities in the South China Sea is counter to the US position that coastal states have the right under UNCLOS to regulate economic activities in their own EEZ but do not have the right to regulate foreign military activities in it.

Beijing contends that military activities (such as intelligence surveillance reconnaissance flights, maritime survey operations, maritime collection operations and military exercises) on the high seas and in EEZs are unlawful based on the legislative spirit of UNCLOS and on UNCLOS’s requirement that the high seas be used only for peaceful purposes.

US legal scholars and diplomats have counter-argued that military activities have been a recognised lawful activity on the high seas and EEZs under customary international law and are preserved under Article 58 of UNCLOS. The international community by and large agrees with Washington — only 27 states concur with Beijing’s interpretation of UNCLOS, while the majority of states (over 100, including all permanent United Nations Security Council members other than China) hold Washington’s position.

Former president Fidel Ramos, 88, the Philippines’ envoy for talks with Beijing hopes to improve ties with Beijing that have soured over a territorial dispute in the South China Sea. (Anthony Wallace/AFP via Getty Images)

That  said, there is another perspective worth mentioning for additional context. Just as China conveniently demands that other nations observe its domestic laws when it instructs ships in its EEZ to leave, China is simply following other nations’ domestic laws when it conducts surveillance in those countries’ EEZs. Granted, although China’s laws in this regard are illiberal while most other countries’ laws are liberal, the principle being observed arguably may be the same.

Image result for china in south china sea

The Chinese aircraft carrier Liaoning steaming forward the South China Sea. —AFP

Nevertheless, as the People’s Liberation Army Navy continues to operate in distant waters and in proximity to other nations’ coastlines, Beijing may have no choice but to eventually address the inconsistency between its demands of other nations and its own actions. It can either adjust its standing approach or continue to assert its untenable authority to regulate military activities in its EEZ. The former is more likely, while the latter carries more risks (and eventually costs) in terms of the legal validity of its own maritime sovereignty claims, international credibility and world standing.

Regionally, continued ‘do as I say and not do as I do’ will exacerbate the growing concerns among its nervous neighbours about China’s ‘benevolent’ rise and will cast increasing scepticism on its sincerity and commitment to comply with the ASEAN Code of Conduct guidelines to handle maritime disputes in the South China Sea. Globally, this inconsistency will undercut Beijing’s carefully crafted and cultivated international image as a defender of global trade and will undermine its strategic goals of promoting its geopolitical influence abroad and displacing the Western-oriented world order with one without dominant US influence.

Beijing has begun incrementally and subtly adding nuance to its legal and diplomatic positions at various diplomatic, academic and media forums. Beijing now appears to not necessarily object to intelligence-gathering operations and military exercises in China’s EEZ per se; rather, they object to the scope, scale and frequency of these activities. They also seem to no longer view such activities as intrinsically unlawful under international law but rather as threatening to China’s peace and security as well as destabilising for the region.

Despite these efforts, at the end of the day, Beijing is conveniently disregarding UNCLOS and accepted international norms to support its own national interests and complement its strategic narratives. This is counterproductive, since Beijing needs the international community to believe that its commitments to uphold international law are sincere and credible — especially in the maritime trade realm on which its growing economy relies. Similarly, the world needs a rising China to be a responsible global leader respectful of the rule of law and compliant with global norms.

Tuan Pham is widely published in national security affairs. The views expressed are his own and do not reflect the official policy or position of the US Government.

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