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On China

2:44 PM, Jul 29, 2011 • By DANIEL HALPER
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Second, China rejects the interpretation of customary international law used by the United States and most signatories to the UN Convention on the Law of the Seas that nations have free maritime surveillance and passage rights in coastal states’ exclusive economic zones (EEZs).   Beijing has made its position clear:  coastal states like China are allowed to determine which vessels are entitled to pass through its EEZ and what activities they are allowed to conduct.   Though UNCLOS may not be as clear as it should be, the U.S. and the majority of UNCLOS signatories have engaged in peaceful maritime surveillance activities in EEZs for decades – such activity has become customary international law.

Turning back to China’s territorial claims, they are clearly in conflict with those of several American allies and partners in the region. The Philippines claims Scarborough Reef and some of the Spratlys. Vietnam claims the entirety of the Paracels as its own. Malaysia, Brunei, and Taiwan are also claimants. Indonesia, which considers itself a non-claimant in the South China Sea, has an EEZ extending from the Natuna Islands in the southwest South China Sea that overlaps with China’s nine-dotted line. In recent years, Chinese fishing vessels illegally entered the Natuna waters, and Beijing reportedly asserted last year that these waters are China’s fishing territory.

If China succeeds in establishing South China Sea sovereignty, it could claim ever more expansive legal rights that would keep U.S. naval vessels out of the sea while building up the naval power to enforce its “rights.”

For example, it could claim the land features in the Paracels and the Spratlys and then create new Chinese territorial waters and new EEZs that restrict U.S. maritime activity in wide swaths of the South China Sea.

Militarily, if China gains sovereignty over the islands in and the waters around the South China Sea it could militarize them by constructing way stations for Chinese military flotillas. Control of this region could also enable China to deploy tenders for sea-based logistics near the islands that would allow the PLAN to operate its ships like its fast attack craft at longer distances and for much longer periods of time.  Finally, the Chinese could deploy shore-based anti-ship cruise missiles on some of the islands, which would give the PLA the ability to deny foreign vessels access to the Malacca Strait and other passageways that connect the Indian to the Pacific Ocean.  In short, “sovereignty” over the islets in the SCS could lead to a form of “sea control.” 

The United States has long taken a hands-off approach to these South China Sea territorial disputes but has continued to exercise its maritime rights in China’s EEZ in accordance with its interpretation of customary international law.  China’s aggression is in part prompted by continued lawful U.S. activity in China’s EEZ’s.

As tensions rose last year on both issues—the question of U.S. activity in China’s EEZ and China’s expansive South China Sea claims—Secretary of State Clinton made a strong statement on the subject while in Hanoi. She declared that the United States “has a national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China Sea.” She then expressed US opposition to the use of force or coercion to settle disputes and explained that while the US takes no position “on the competing territorial disputes over land features in the South China Sea, we believe claimants should pursue their territorial claims and accompanying rights to maritime space in accordance with the UN convention on the law of the sea.”

Speaking just last Friday, Secretary Clinton asserted that, “consistent with international law, claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.”

In short, according to the U.S. State Department, American objectives in the South China Sea are as follows:

1.     peaceful resolution of disputes in accordance with UNCLOS;

2.     freedom of navigation for commercial and military vessels;

3.     multilateral resolution of disputes based on claims to legitimate land features rather than claims based on historical boundaries.

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