To what extent does the law of the sea influence PRC decisions about maritime policy? If there is any influence, does it on balance play a constraining or enabling role in Beijing’s decisionmaking in this domain? This brief, mostly conceptual article argues that the enabling effects are more significant. For Beijing, UNCLOS III functions to create options for policymakers who view it as an instrument (mostly rhetorical) to protect Chinese maritime security and economic interests (mostly static). Although the black letters of UNCLOS III grant coastal states only modest legal authority beyond their 12 nautical mile territorial sea, Beijing’s legal advisers read the treaty opportunistically and inconsistently. Their input into the policy process tends to encourage and legitimize expanding PRC control over maritime space beyond the normal, narrow limits of coastal state jurisdiction – often at the expense of other legitimate users.

In formulating and implementing maritime policy, China’s maritime policymakers construe the PRC’s claimed maritime rights as broadly (and vaguely) as possible while downplaying or ignoring the unwelcome legal obligations paired with those rights. Beijing’s purposeful interpretation of the treaty’s rules and norms enables it to assert nominally legal authorities to (i) expand and regulate Chinese actors’ and firms’ exploitation of marine resources, (ii) prescribe and enforce PRC jurisdiction through legislation, regulation, and practical maritime law enforcement (MLE), and (iii) formally deny (or at least complicate) access and use of waters under China’s claimed jurisdiction by other states’ militaries (especially the U.S. Navy).

Pursuing those more or less fixed ends, Chinese central leadership solicits legal advice on the law of the sea from specialized academic institutions and think-tanks.[1] These maritime law and policy experts (as well as the many non-experts crowding into what is now an attractive and lucrative policy arena) help Beijing maintain the diplomatic premise that China is acting within constraints described by international law, even as it pursues high-priority economic and security interests that are frequently in tension with international rules and norms. More positively, these analysts are helping Beijing craft maritime policy that leverages China’s size and growing capacity to exploit the evolving law of the sea regime by way of “creeping jurisdiction.” That is, China draws on questionable “expert” readings of the treaty to claim steadily broader and deeper legal rights, backed up by legally significant practical assertions of those rights.[2]

This specialized community rarely, if ever, provides analysis or advice that acknowledges – much less prescribes – legal constraints on China’s pursuit of broader rights to control and regulate claimed maritime space. Their contributions resemble those of a lawyer whose difficult client has already decided upon a risky course of action. Believing that neither litigation nor legal punishment poses a realistic threat, the client is not moved by lawyerly concerns about legal defects in the plan. The lawyer’s job is therefore to reverse-engineer a legal basis for the desired actions. Indeed, China’s law of the sea and international law specialists thus tend to work backwards from existing or planned maritime policy decisions. They cherry-pick rules and principles from international law, loosely appeal to “history” as a trump, and develop arguments couched in the language of maritime law to promote those policies. Ministry of Foreign Affairs spokespeople then draw on these legal justifications (some of them directly produced or commissioned by the State Council bureaucracy and its growing number of maritime “research” organs)[3] to market PRC maritime policies to the international community as lawful practices. Sometimes the parameters of UNCLOS III serve to fine-tune elements of policy implementation;[4] in other cases, a political demand to satisfy legal tests for effective control appears to drive the time and place of a variety of “assertive” behaviors by MLE and naval forces.[5]

So what? Observers of the China’s generally hostile attitude toward international law will recognize that its participation in international treaty regimes like UNCLOS III is a fairly new and uncertain enterprise. Beyond its extensive use of WTO arbitration procedures and acceptance of some adverse awards, there is little evidence that China respects or accepts the legitimacy of rules that are not to its direct advantage. Observers of international law generally will also note that states, especially great powers like China, can “auto-interpret” treaty obligations that require domestic implementation, meaning that they are unlikely to internalize costly rules or norms without enforcement. National courts may be sufficient to give treaties some “bite” in rule of law systems, but no such constraint exists in contemporary China.

If China’s political leaders want the Spratly Islands (and any artificial islands created in their vicinity) to generate an exclusive economic zone (EEZ) in which the PRC enjoys special “security” jurisdiction not prescribed in the treaty, or to reject the legitimacy of a compulsory arbitral award, or to deny the existence of international disputes over seabed resources and fisheries, its legal system is simply not empowered to check that practice. Individuals specialized in law of the sea and maritime policy issues, who in other circumstances might counsel restraint, not only lack incentives to do so – they are mandated to produce legal justifications for maritime policy decisions undertaken by political elites. China is by no means alone among parties to UNCLOS III in turning practices that are plainly non-compliant into state policy,[6] but it is nearly unique in its capacity to mobilize personnel and resources at scale to steadily push the international community toward accepting those practices. The upshot is that the South and East China seas are beginning to look like a sui generis maritime zone uncontemplated in UNCLOS III, and unaccountable to the legal and prudential constraints that maritime policy decisionmakers in other states observe. The various obligatory constraints on rights and practices mandated in the treaty do not surface in China’s policy consultation process, and cannot be expected to moderate Beijing’s continuing efforts to consolidate effective control in its “near seas.”

[1] e.g., The PRC National Institute for South China Sea Studies in Haikou, the South China Sea Center at Xiamen University Law School, the Collaborative Innovation Center for South China Sea Studies at Nanjing University, the international law faculty at Tsinghua and Wuhan Universities, Oceans Universities in both Dalian and Qingdao, a specialized department on Shipping and Maritime Law at the East China University of Politics and Law, and many others enjoy substantial financial and political support from the central government (the Ministries of Education and Foreign Affairs prominent among them). They also train an increasing number of Chinese law undergraduates and law masters students who are oversubscribe to classes on the application of the law of the sea to contemporary policy issues.
[2] This is not a phenomenon limited to the core issues of sovereignty. Nearly every aspect of China’s policies concerning the law of the sea – its default to straight baselines, drawing of archipelagic baselines around island groups, legislation pronouncing “security” rights in contiguous and exclusive economic zones, and so on – attempts to seize broader and deeper rights than the Convention permits. These non-compliant claims do not become more lawful by repeated practice, but they do become more “normal” and difficult to oppose politically and operationally.
[3] For example, the Department of Boundary and Ocean Affairs was created in 2009 and staffed with law of the sea experts, some on loan from universities, some merely hired as expert consultants; the State Oceanic Administration’s in-house think-tank, China Institute for Marine Affairs (CIMA), is staffed by experienced law of the sea analysts and directed by a sitting judge on the International Tribunal for the Law of the Sea.
[4] The “981” controversy from summer 2014 is an interesting illustration of how the various parameters of UNCLOS zones define the specifics of a policy: China chose to deploy the rig more than 12nm from any feature, and kept it on the Chinese side of a notional median line with Vietnam. This placement indicated not simply that China maintained a sovereignty claim to the Paracel Islands, but that China asserted an EEZ from the Paracels that should have at least partial effects, therefore diminishing the scope of Vietnam’s EEZ.
[5] For example, the PRC’s decision to deploy MLE vessels to the territorial seas around the Senkaku/Diaoyu Islands in 2012 was expressly designed to undermine Japan’s effective control and administration of a specific jurisdictional zone described in UNCLOS. Had China’s intent been simply to show it could send government or military vessels to Japanese-claimed waters, or that it rejected Japan’s claim to sovereignty over the islands themselves, there would have been no cause to adopt a policy that hinged specifically on operating within 12nm and conducting law enforcement missions.
[6] Peru’s 200nm territorial sea claim is a vivid example.

About Isaac B. Kardon

Isaac B. Kardon (孔适海) is a Ph.D. candidate in the Government Department at Cornell University and a Visiting Scholar at NYU Law. He holds an M.Phil in Modern Chinese Studies from Oxford University, a B.A. in History from Dartmouth College, and studied Mandarin at Peking University, Taiwan Normal University, and Tsinghua University.