In the first paragraph of his recent AMTI article, Zheng Zhihua essentially conflates two issues–questions of sovereignty over islands and questions of jurisdiction over resources and the boundaries delimiting them–when he says:

A few international observers also accuse China of deliberately obscuring its territorial claims in the South China Sea by using terms not found in the UNCLOS, such as “adjacent waters” and “relevant waters”. And some countries keep demanding that China “clarify” its Nine-Dash Line map.”

‘Territorial claims’ are about island and land features in this context, and are not governed by UNCLOS, as we all know by now. Criticism of the use of “adjacent waters” and “relevant waters” is well justified, because these refer not to the land but to the waters and the boundary claims China makes. Right off the bat he mixes the two concepts, but this allows him to implicitly criticize those who criticize China and at the same time to make the following statement:

China has an unequivocal and consistent territorial claim to islands and other land features in the South China Sea, despite a certain ambiguity in its maritime claims.

This is an accurate statement and exactly what we have been challenging China about. Few have heartburn with China’s island claims. Whether one believes China’s claims to sovereignty over land features is strong or weak–and reasonable people disagree about this point–very few believe China has no rational claim at all. The second paragraph accurately states the point that Beijing (and Nanjing before it) have consistently claimed sovereignty over the land features through China’s domestic law and the publication of the Nine-Dash Line.

But the Chinese government remains unambiguously ambiguous about the nature of its maritime claims and their reference, if any, to the Nine-Dash Line. The rest of the piece is devoted to addressing historic rights–but it never hits the issue head on. Does China claim them? If so, what rights? Where? And by what theory?

The rest of the piece is directed at the supposed weakness of the law regarding historic maritime rights. But to say that UNCLOS does not “properly address” historic rights is pretty weak tea, in my view. The entire 20th century process of the United Nations Conference on the Law of the Sea–known as UNCLOS I, II and III, resulted in several treaties. The 1958 Geneva Conventions on the Law of the Sea were agreed after the conclusion of UNCLOS I. The United Nations CONVENTION on the Law of the Sea (also often referred to as UNCLOS or sometimes LOSC or LOST) after UNCLOS III ended in 1982. During this process, the question of historic rights in relation to resource rights was often addressed. Although UNCLOS II resulted in no treaties, it did result in a helpful report on the state of “historic rights” at sea as of 1962. It can be found here. It is dense but enlightening reading for the brave-hearted non-specialists who want to wander in.

In 1962 there remained no international consensus on resource rights because there were so many approaches world wide–i.e., so many different approaches to “historic rights” in relation to resources. Even in 1958 this question presented serious difficulty–so much so that the 1958 Geneva Convention on the Territorial Sea acknowledges the existence of this zone, but could not even generate agreement about how wide it was and so left that question open. The challenge for the international community between the 1958 conventions and 1982, when UNCLOS III ended, was to create an orderly process for allocating resource rights. It was no easy task because of the tension inherent between extending coastal state rights seaward and the freedoms of navigation and other freedoms that were fundamental to so many states.

By 1982 sufficient consensus was achieved around the concept of a new zone–the exclusive economic zone (EEZ)–that UNCLOS III was able to close with the text of a new convention. China actively participated in the UNCLOS III negotiations and indeed won the day on this point of the EEZ as it was quite active in talking a leadership role among developing states, which by then formed a majority. The negotiating blocs were in fact the “Group of 77” countries–which grew between UNCLOS I and III to more than 120 states, many of them former colonies–pitted against the “West” (US,  Europe) and the “Soviets” (the USSR and associated countries). The latter two groups opposed extending coastal state resource zones in ways that infringed upon navigational and high seas freedoms. So in other words, a grand bargain was struck in the EEZ that was designed, on the basis of consensus, to bring order to the previous patchwork of historical approaches to resource interests while preserving high seas freedoms there to the maximum extent possible.

I should point out that the EEZ has been an extraordinarily successful regime, on the whole. It took another 12 years after 1982, but by the mid 1990’s sufficient countries came around to the compromise that UNCLOS came into force in 1994. China signed on in 1996 and made no reservations or signing statements about the EEZ. The EEZ has become nearly universally accepted, even by states such as the US who are not party to the Convention. I only say “nearly” because there are less than 10 countries world wide whose claims are unknown (such as the DPRK and Iran) or remain excessive–such as Peru’s continued claim to a 200 mile Territorial Sea (an excellent source for this type of data is here).

The International Court of Justice and the United States have even both recognized the existence of the EEZ in customary law. So, it is simply inaccurate to say UNCLOS did not “properly address” historic rights. UNCLOS obviated the need for the existence of historic rights for resources beyond the territorial sea and it included historic rights as part of the process for defining territorial sea baselines. The international community, through the UNCLOS process, therefore “spoke” about historic rights comprehensively. The examples of scholarly statements on historic rights are all consistent with UNCLOS and its limitation of historic rights to baselines and bays.

Nonetheless, Zheng’s line of argument has become standard stock among Chinese scholars now. It is the flip side of the EEZ bargain that China is also seeking to undo–the navigational and other high seas freedoms that were made part of the EEZ. They dress up their statements with claims of “ambiguity” or that the law needs to be “perfected.” But let’s be honest…China finds that the UNCLOS bargain regarding the EEZ does not suit its current interests and objectives. It is therefore trying to except itself from the bargain’s requirements. This is not about the imperfections or ambiguities of the law. It is about China’s changed interests.

The challenge China has for itself is how to consolidate its near seas interests without undoing its global interests. Globally, the EEZ regime is strongly accepted, including the basic bargain between resources and high seas freedoms. A Chinese attempt to undo the regime would not, shall we say, be an exercise in “smart power.” Additionally, China has benefitted by the EEZ extension in many direct and indirect ways. China is the biggest global commercial fishing state because it purchases fishing rights from so many coastal states around the world. China’s sea lanes are stable because navies have global access to the EEZ to suppress state and non-state threats to commercial passage. Destroying the regime would probably be impossible and would in any event would be contrary to China’s interests beyond the near seas. Accordingly, its best option is to argue for exceptional rights. Hence, it maintains ambiguity about its Nine-Dash Line claims and steadily injects confusion into the conversation about the concept “historic rights.” This buys China space and time to pursue consolidation of its near seas interests while dulling he sharper edges of criticism.

About Peter Dutton

Peter Dutton is Professor of Strategic Studies and Director of the China Maritime Studies Institute at the U.S. Naval War College. He is also Adjunct Professor of Law at New York University School of Law and an Affiliated Distinguished Scholar at the U.S.-Asia Law Institute there. Professor Dutton's current research focuses on American and Chinese views of sovereignty and international law of the sea and the strategic implications to the United States and the United States Navy of Chinese international law and policy choices. All opinions expressed are his personal views and not meant to represent the views of the US government.