The South China Sea: What China Could Say to Clarify its Claims and Actions
by Mark J. Valencia
The United States and several ASEAN nations have repeatedly asked Chinato clarify its position regarding its maritime claims and actions in the South China Sea. China should oblige them by issuing a statement along the following lines.
1. As stated in its Law on the Exclusive Economic Zone and the Continental Shelf,China claims historic rights in much of the South China Sea. This claim is symbolized by the nine dashed line map. This claim includes sovereignty over all the islands, rocks, reefs and banks within this nine-dashed line. It also includes the living and non-living resources as well as the quality of the marine environment. The extent of this claim, the sharing of resources within it, and the details of the regime itself are subject to negotiation.
2. The 1982 UNCLOS does not define historic title, historic rights or historic waters. China’s claim of historic rights is distinct from the concept of historic waters in that the latter is commonly considered to imply a regime of internal waters that does not permit freedom of navigation and over flight.Chinahas not and will not impede the freedom of navigation for commercial and normal peaceful purposes.
3. Regarding creation, evolution and interpretations of international law, it should be borne in mind that the United States itself unilaterally initiated the concept of “extended maritime jurisdiction” via the 1945 Truman Proclamation on the Continental Shelf. It justified doing so by “the long range world-wide need for new sources of petroleum and other minerals”; that “efforts to discover and make available new supplies of these resources should be encouraged”; and that “recognized jurisdiction over these resources is required in the interest of their conservation and prudent utilization when and as development is undertaken.”
4.Chinaalso reserves its rights under the 1982 UNCLOS to claim territorial waters, continental shelf, extended continental shelf, and EEZs from its sovereign territory in this area.
5. Since maritime boundaries in this area have not been agreed and the area is in dispute, there should be no unilateral drilling for hydrocarbons. The claimants should enter into interim arrangements of a practical nature such as joint development of resources in disputed areas.
6. Regarding the recent Hainan Provincial government regulations , they simply implement the 1982 UNCLOS Articles 19 and 21, by specifying activities that render passage non-innocent in the territorial sea. Moreover they apply only to the coastal waters ofHainanat this time. The regulations do not expand the scope of a 1999 regulation that stipulates enforcement powers of local authorities
7.Chinahas been consistent in its policy of being willing to negotiate these issues. Chinahas proven its sincerity in negotiating and abiding by conflict management agreements in similar situations such as withVietnamin the Beibuwan, withJapanin the East China Sea regarding oil and gas, fisheries and scientific research, and with theRepublicofKoreain theYellow Searegarding fisheries. Chinahas also offered to fund cooperative activities in theSouth China Seawithout prejudice to any state’s claims to the area.
8.Chinabelieves that despite its claims to the contrary, theUnited Statesis not neutral in this matter. TheU.S.insists thatChinamust base its claims solely on the 1982 UNCLOS although theU.S.itself has not ratified it. TheU.S.insists that any claims to maritime jurisdiction in the South China Sea must be from land implying thatChina’s claim to historic rights in theSouth China Seais invalid. TheU.S.also insists thatChinanegotiate these issues multilaterally with a bloc of claimants and non-claimants. This matter does not involve theUnited States. Its demands are unacceptable toChina.
9. China maintains that other claimants are violating the 20002 ASEAN- China Declaration on Conduct in the South China Sea (DoC) by undertaking activities in disputed areas that exacerbate the situation such as occupying or building structures on disputed features, unilaterally exploring for petroleum, internationalizing the issues, conducting military exercises with outside powers, and violating China’s fisheries laws. Chinaurges other claimants to abide by the DoC and refrain from such activities.
10.Chinais hopeful that a mutually agreeable Code of Conduct can be negotiated with ASEAN claimants. The CoC should be a crisis management mechanism not a dispute settlement mechanism.Chinabelieves that the CoC and dispute settlement should be negotiated by the parties directly concerned and that non-regional parties should not be involved. Indeed, internationalization of the disputes will not contribute to peace and stability in theSouth China Sea.
11. Re: The Impeccable Incident
According to the US Pentagon, on 8 March 2009, , “five Chinese vessels shadowed and aggressively maneuvered in dangerously close proximity to USNS Impeccable in an apparent coordinated effort to harass the US ocean surveillance ship while it was conducting routine operations in international waters” [China’s Exclusive Economic Zone (EEZ)].Chinahas also objected verbally and physically to so-called “hydrographic surveys” by such US Navy vessels as the US Bowditch in its EEZ. These are not issues or constraints regarding freedom of navigation but rather issues stemming from violations of the spirit and letter of the 1982 UNCLOS.
a. There is no such thing as “international waters.” According to the 1982 UNCLOS, there are internal waters, territorial waters, the exclusive economic zone and the high seas, each with their own regime regarding freedom of navigation. “International waters” is a term used by the US Navy to indicate areas where it thinks it has unconstrained navigational freedom. The term is imprecise and confusing and its use should be discontinued.
b. The text of the 1982 UNCLOS was negotiated as a package deal with many “bargains” between the maritime powers and the developing countries, including extensive navigational rights for maritime powers in exchange for the deep seabed mining provisions. Chinais among some 163 nations that have ratified the Convention. TheU. S.did not hold up its end of the bargains, i.e. it chose not to ratify the Convention and therefore is not a party. It is thus neither fair nor reasonable for theU.S.as a non-party to the agreement, to pick and choose only those parts and interpretations of the text favorable to its position. Moreover, customary law is constantly evolving based on state practice. Indeed this evolution can be rapid due to technological innovations. An example is the rapid change in customary law of outer space when Sputnik was launched.
c. The 8 March 1983USstatement that purports to interpret the navigational regime in the EEZ is legally irrelevant. Indeed such statements, if intended as ‘reservations’ regarding some of the Treaty’s provisions, would not be valid even if it were a party. The notion that it is “well-settled” that the Convention preserves the freedom of all military operations in the EEZ is false. Many nations do not agree with this interpretation, including in Asia,India,Malaysia,Thailand(aUSmilitary ally) andVietnam. As stated by John Norton Moore, a former deputy special representative of theUSpresident to the law of the sea conference, in 2004 testimony before theUScongress “theUnited Statesis legally disenfranchised as a non-adherent and will not receive the full benefits of the Convention without acceding to it.”
d. According to the 1982 UNCLOS, marine scientific research in a foreign EEZ can only be un?dertaken with the consent of the coastal state. This is because such research and activities may have direct bearing on the exploration, exploitation, conservation or management of the coastal state’s living and non-living resources. The research must also be for peaceful purposes only.Chinamaintains that what the Impeccable and Bowditch were doing falls under the marine scientific research provisions of the Conven?tion and that it did not have the required consent. A non-party to the Convention has no standing or credibility to unilaterally interpret such a critical term as ‘marine scientific research’ in its favor. The distinction between different categories of surveying and marine scientific research hinges on more than intent and the initial purpose of collecting the data. The potential economic and security value and utility of the data to the coastal state must also be considered.
e. The mission of the Impeccable is to use passive and active low-frequency sonar arrays to detect and track undersea threats, including submarines. Tracking is a necessary prelude to targeting. China maintains that the collection of such data is a “preparation of the battle field” and thus a threat of use of force - a violation of the UN Charter, and certainly not a peaceful use of the ocean as required by the 1982 UNCLOS. It is also an “abuse of rights” prohibited by UNCLOS Article 300, i.e., the unnecessary or arbitrary exercise of rights, or interference with the exercise of right by another state.
It is generally understood that the UN Charter prohibition on the use or threat of use force includes the use of indirect armed force. Moreover the Charter and subsequent legal developments in the UN system have not taken into account highly advanced technologies, in particular the latest intensive and intrusive electronic warfare capabilities. Chinamaintains that some active SIGINT activities conducted from foreign aircraft and ships inChina’s EEZ are deliberately provocative, intending to generate programmed responses. Other SIGINT activities intercept naval radar and emitters, enabling them to locate, identify and track (and thus plan electronic or missile attacks against) surface ships and submarines. Still others may interfere with communication and computer systems. These activities involve far greater interference with the communication and defense systems ofChinathen any traditionally passive intelligence gathering activities conducted from outsideChina’s territory or territorial sea. Chinamaintains this is a threat of use of force and a violation of its sovereignty.
f. Regarding the confrontation between Chinese vessels and the Impeccable,China’s vessels were not harassing the Impeccable but simply trying to make it cease violating both international and Chinese law and leave the area. Regarding the U.S. contention that “coastal states must not purport to extend authority or control over foreign warships, naval auxiliaries, or other public vessels” in their EEZ due to their sovereign immunity, if such vessels are violating international law they should and can be requested to cease and desist and leave the area. To suggest otherwise is to claim that in the EEZ such vessels can violate the law without ‘due regard’ to the rights of the coastal state. This is neither a fair nor reasonable interpretation of ‘due regard’ – even if the U.S. were a party to the Convention.
g. UNCLOS Article 258 provides that “the deployment and use of any type of scientific research installation or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area.” It seems difficult to avoid the conclusion that this applies to the activities of the Impeccable and the Bowditch and the Impeccable and that their deployment of such equipment in a foreign EEZ requires the consent of the coastal state.
12.Chinaallows normal foreign military activities in its EEZ such as transit and routine maneuvers. Many other countries do not do so. Upon signing, ratifying or acceding to the 1982 UNCLOS, Bangladesh, Brazil, Colombia, Cape Verde, Pakistan, Malaysia, Uruguay, - and most recently, US military ally Thailand - declared that some military activities are not permitted in their EEZ without their consent.
Naval transit and maneuvers are part of the freedom of navigation. ButChinabelieves military maneuvers involving the use of weapons in the EEZ of a foreign state without its consent are not internationally lawful uses of the sea. For example, an extended test of weapons, such as laying of depth charges, launching torpedoes, firing artillery or the covert laying of arms within an EEZ , and military maneuvers and ballistic exercises that temporarily prevent other states from using an area of their EEZ are not among the ‘normal’ uses associated with the operation of ships and aircraft and they do not pay ‘due regard’ to the rights and duties of the coastal state, especially their duty to protect the environment including its fish and mammals.
来源：中国南海研究院，http://www.nanhai.org.cn/news_detail.asp?newsid=5544