Long-standing disagreements concerning territorial sovereignty over the Spratly Islands lie at the core of the PRC’s maritime disputes in the South China Sea. The Philippines, Brunei, Malaysia, Vietnam, and Taiwan each claim sovereign title to some or all of the hundreds of features clustered in that vital waterway. Among the reasons for the recent intensity of these disputes are contested jurisdictional entitlements to maritime zones projecting out from those islands. Indeed, the various small islands, reefs, and atolls of the Spratlys have little value in and of themselves – even as lily pad military installations – but punch well above their weight if they generate territorial seas and exclusive economic zones (EEZs) for their sovereign. This jurisdictional component is the substance of the Philippines’ ongoing Annex VII UNCLOS arbitral suit against the PRC, and highlights a salient feature of the PRC’s position in the disputes: its seemingly extravagant claims to “maritime rights and interests,” backed up by a growing body of domestic laws, regulations and rules.
China’s so-called maritime rights and interests [国家海洋权益] are a staple of PRC discourse on its maritime disputes, yet remain frustratingly ambiguous – even in specialized reports by the government agencies tasked with administering and regulating the maritime space in question. The “interests,” while apparently expanding in lockstep with Chinese capabilities and overseas equities, are clear enough: China seeks to push out interior defensive lines, secure exclusive rights to potentially rich resources, and make good on long-running nationalist propaganda hyping the “unification” of lost territory.
The connection between interests and legal rights, however, is obscure. There is remarkable imprecision in PRC code about the scope and content of China’s putative maritime rights in the waters surrounding the Spratlys. Whereas the PRC declared baselines surrounding its other contested island claims (to the Paracel Islands in 1996, and to the Diaoyu/Senkaku Islands in 2012), Beijing has yet to make such a declaration regarding the Spratlys. Why is this the case? Which substantive rights does the PRC claim in maritime zones surrounding the Spratlys? Are they uniform throughout the waters circumscribed by the notorious U-shaped line? What are the practical implications of China’s undefined jurisdictional claims in these contested waters?
Beijing’s apparent interest in maintaining an ambiguous posture with respect to its desired sovereign rights and specific jurisdiction arise from both strategy and incapacity. Strategically, studied ambiguity allows the PRC to tailor its maritime law enforcement (MLE) practices to match the varied operational and diplomatic demands thrown up by intermittent spikes in conflict over specific parts of the South China Sea; it also affords a degree of flexibility for Beijing to determine the time and place of those confrontations. From a bargaining standpoint, it gives China a bit more house money to gamble away in an eventually settlement: it is not a loss if China does not ultimately enjoy rights that it never formally claimed or exercised.
Whatever the strategic merits of this position, Beijing may also be unable to articulate a proper claim. This inference is supported by observation of China’s evident incapacity to effectively and continuously administer and control all of the space within the U-shaped line. That incapacity is not merely a function of inadequate resources and personnel to patrol all of the waters. There has been a 25% increase in deployed MLE vessels over the past decade – many of which are large, capable People’s Liberation Army Navy (PLAN) vessels painted white and granted various “jurisdictional” competencies. It is also a function of China’s dysfunctional domestic legal order. China suffers from insufficient legal expertise and endemic disrespect for law within the Party, government, and Chinese society at large. These legal shortcomings exacerbate inadequate political will at the center to definitively and unequivocally announce maritime claims. Why do so when weak legal institutions in the PRC cannot effectively direct central, provincial, and local actors and agencies to adhere to legal rules?
This legal incapacity is palpable in national laws intended to bring the PRC into something resembling compliance with UNCLOS, which it ratified in 1996. These broad legislative pronouncements are only slowly but incompletely being implemented through State Council administrative regulations, and departmental and local rules. The process of importing UNCLOS rules and norms into domestic code is complicated – and perhaps fatally compromised – by a political-legal system deeply penetrated and distorted by political forces. The 1982 PRC Constitution makes no express provisions for incorporating treaty law, and those lower-level legal instruments that purport to do so always use indeterminate language that, in practice, permits ad hoc political discretion to override international legal obligations (e.g., the 1990 Law on the Procedure of the Conclusion of Treaties). This despite the fact that President Xi prioritized the campaign to “rule the country by law” [依法治国] at the Fourth Plenum of the 18th Party Congress in October 2014, and enshrined that goal as one of his “Four Comprehensives” [四个全面] for governance early this year.
Tracking dysfunction in PRC law more generally, the practical realization of a maritime legal system remains quite a ways off. So too, are legally cognizable PRC claims to maritime jurisdiction in disputed waters. The existing domestic legal regime might be better rendered as the PRC’s “maritime legal scheme,” and consists of a variety of laws, rules and regulations that partially delegate tasks to administrative agencies, vaguely promote environmental conservation, and prescribe hazy procedures and regulations for the economic and scientific use of China’s still-undefined “three million square kilometers” of claimed maritime jurisdictional space. Some two thirds of that space is in the South China Sea yet only the narrow band of territorial sea (12nm) surrounding the Chinese mainland, Hainan Island, and the disputed Paracel island group can be said to have a definite and comprehensive set of rights and obligations within PRC law. The Spratlys are represented only in a shrill – but prima facie legitimate – claim to sovereignty. Users of the congested space surrounding and above these features are waiting for the other shoe to drop in terms of PRC law and practice.
What does this imply for other users of the vast but undefined area that the PRC represents as an area of some type of “historical” rights? For the territorial claimants (viz., the Philippines, Brunei, Malaysia, Vietnam, and Taiwan), it is certain from PRC legislation that China intends to exercise something amounting to full sovereignty over the insular features within the U-shaped line; they can further discern that Beijing believes these features (collectively or individually) generate a territorial sea, EEZ, and continental shelf. Where, exactly, that U-shaped line is, how it relates to UNCLOS zones, and how those zones map out given opposing coastlines within 200nm, however, remains a mystery. Growing Chinese capacity to operate in that area has made it clear that the 12nm surrounding the eight PRC-occupied features in the Spratlys are off limits, a circumstance that has obtained at least since the 2012 Scarborough Shoal standoff. Whether and how the PRC’s putative rights and interests will be asserted in the waters beyond 12nm remains unknown, though the placement of the CNOOC Haiyang Shiyou 981 17nm from the nearest PRC-occupied feature in May 2014 is a strong indication that EEZ rights will be asserted if and when China has capacity to do so.
For the non-territorial claimants, the story is even more confusing. For example, Indonesia has an undisputed claim to the Natuna Islands in the southwest part of the South China Sea. These populous islands rate an EEZ, which easily projects into the area enclosed by the U-shaped line yet does not come within 200nm of any Spratly feature. If China intends to translate its claim to “maritime rights and interests” in this area into a legal claim sovereign rights and jurisdiction, Indonesia will further intensify its domestic campaign to build capacity to effectively administer and control its UNCLOS-defined zones. Growing friction between Chinese and Indonesian MLE vessels and fishermen in this area is the product of as-yet unaccountable Chinese exercises of maritime rights.
For the United States, a non-claimant but frequent user of the South China Sea, the imprecision of Chinese rights claims is also problematic. If China intends to treat the waters beyond 12nm of claimed features as EEZ, the problem is at least fairly well-defined: China claims a right to regulate (and, effectively, prohibit) foreign military activities within its EEZs. Rules regulating such conduct remain unarticulated in PRC domestic law, but diplomatic statements coupled with periodic operational contestation of U.S. Navy intelligence, surveillance, and reconnaissance (ISR) operations makes it clear enough that the PRC hopes to deny access for US military vessels and aircraft in as broad a swathe of maritime space as possible. If, however, China intends to claim something more than EEZ rights – which appears to be the case, based on intermittent efforts to prohibit US military aircraft from transiting international airspace above its putative EEZ – then the imprecision in China’s maritime legal scheme will pose a growing problem as China steadily resolves its incapacity issues. Continued U.S. freedom of navigation (FON) assertions are likely to draw out this distinction over time, but may generate unintended and escalatory encounters in South China Sea airspace that spike Chinese nationalism and further politicize the messy process of defining PRC claims in domestic law.
To conclude, the development of “maritime rights and interests” in PRC law provides insights into how Beijing prosecutes its disputed claims: by converting its growing geopolitical interests in the Asian littoral into cognizable legal rights. All that is missing is sufficient capacity – legally and operationally – to practically enforce them. In representing their claims in terms of capital-L “Law,” PRC leaders aim to extract maximum legitimacy for Chinese claims – all without actually submitting to the legal restraints that would in fact make their actions lawful and legitimate. While UNCLOS-based legal instruments will not necessarily constrain PRC freedom of action, attention to the pseudo-legal domestic basis for a variety of “assertive” PRC behaviors offers a privileged glimpse into Beijing’s maritime playbook.
 The criteria for whether a feature can be considered an island and entitled to the full panoply of maritime zones are laid out in UNCLOS III Article 121, but the indeterminacy of the language of that short article leaves significant doubt about the entitlements of all but the most substantial of islands.
 The PRC Ministry of Land and Resources’ State Oceanic Administration publishes a comprehensive annual report on “China’s Ocean Development” that has included a section on “maritime rights and interests” since 2013, but even this document resists specifying the specific jurisdiction claimed in non-UNCLOS zones.
 For analysis of the strategic value of the maritime space under dispute, see Peter Dutton, “Testimony before the House Foreign Affairs Committee,” Hearing on China’s Maritime Disputes in the East and South China Seas (January 14, 2014).
 Peter Dutton, “China’s Claims are Unambiguously Ambiguous,” AMTI Brief (June 16, 2015), http://amti2016.wpengine.com/chinas-claims-are-unambiguously-ambiguous/
 Department of Defense, Office of the Secretary of Defense, Annual Report to Congress on Military and Security Developments Involving the People’s Republic of China (2015).
 The claim is legally sound to the rocks and islands, but not to reefs and other submerged features, which are not susceptible to sovereign ownership and are rightly considered parts of the continental shelf – even if artificial islands are constructed on top of them.
 Article 14 of the 1998 PRC Law on the Exclusive Economic Zone and Continental shelf states: “The provisions in this Law shall not affect the rights that the People’s Republic of China has been enjoying ever since the days of the past. [本法的规定不影响中华人民共和国享有的历史性权利].”
 See China’s notes verbale in April 2011 to the Commission on the Limits of the Continental Shelf, the 1992 PRC Law on the Territorial Sea and Contiguous Zone, and the 1998 PRC Law on the EEZ and Contintental Shelf.
 See the Department of State Office of the Geographer’s December 2014 Limits in the Seas No. 143 for detailed analysis of the line.
 Tama Salim and Bagus T. Saragih, “Indonesia takes on China,” The Jakarta Post (January 25, 2015), http://www.thejakartapost.com/news/2015/01/25/indonesia-takes-china.html#sthash.JpeJMf0v.dpuf