China is a menace to the law of the sea and maritime order.
Of interest, the Law of the Sea Treaty is an example of customary international law. It started as a treaty (as the name implies) but important maritime powers, to include the US (and China) didn't sign it. Since then, the US has accepted it as customary international law and follows it. China does not.
China’s Challenge to the Global Maritime Order
he rules of the international law of the sea are largely codified in the 1982 Third United Nations Convention on the Law of the Sea (UNCLOS). The Convention and the customary international law established by the long practice of nations comprise the basic elements of the maritime order for nearly three-quarters of the surface of the earth.
In his new and seminal work, China’s Law of the Sea: The New Rules of Maritime Order, Isaac B. Kardon offers readers a well-informed and objective assessment of China’s sense of the existing global maritime order and how and why Chinese leaders seek to change the rules of the international law of the sea (ILOS). This book is not about China’s compliance with the existing rules of the established maritime order—or, more to the point, its widespread, repeated, and flagrant instances of noncompliance. Rather, it is about the party-state directed plan to control the international rules and set new rules more favorable to China’s national interests and regional and international ambitions. China’s Law of the Sea describes Chinese leaders’ vision for those rules as shaped by the party-state’s broader maritime practices that include “actions on, under, and above the world’s oceans, in its domestic maritime law and policy, and in the global arena.”
Kardon is uniquely qualified to assess China’s maritime practices. In 2012, Kardon was a language and foreign area studies fellow in Beijing when he was invited to one of the first conferences of Chinese experts convened to discuss the law of the sea. In the succeeding years, he was both an observer and a participant in maritime law workshops and conferences in China. He was appointed a visiting scholar at the People’s Republic of China (PRC) National Institute for South China Seas and later to a position at Taiwan’s national Academia Sinica. His decade-long studies and visits abroad in Asia have focused on China’s development of maritime power, with research on China’s maritime disputes and law of the sea issues, global port development, and Peoples Liberation Army Navy (PLAN) overseas basing. Formerly associate professor at the U.S. Naval War College’s China Maritime Studies Institute, Kardon is now a senior fellow of China studies in the Asia Program of the Carnegie Endowment for International Peace.
Ideology, Solidarity, and Geography
Kardon notes both the United States and the PRC acted, ironically, to create much of China’s dissatisfaction with UNCLOS and fuel its maritime disputes in Asian waters. In 1945, U.S. President Harry Truman issued two executive orders—the Truman Proclamations—that asserted U.S. jurisdiction and control of the natural resources of the continental shelf (the seabed beneath shallow coastal waters) contiguous to the United States, and U.S. rights to control fisheries in the high seas contiguous to the United States.
With the stroke of a pen, the leading defender of freedom of the seas ushered in an era of “ocean closure” and ”creeping jurisdiction” that would soon be embraced most enthusiastically by the developing world. . . states mounted ambitious new claims to rights for fishing and resource exploitation, and they established new patterns of practice by enforcing those rights when other states objected or interfered.Kardon explains how China, for its part, aligned itself with the developing world. Its UN delegates helped shape UNCLOS for the benefit of coastal states: the Chinese agreed to a 200 nautical mile Exclusive Economic Zone (EEZ), and all the resources therein, for every littoral nation. “The PRC had helped create a new multi-lateral treaty that marshalled the voting power and the voice of the developing world against the Soviets and the Americans.” As a result, “China’s ideological commitment to sovereignty and Third World solidarity that sat at cross purposes with its material interests” engendered future maritime disputes, especially in the East Asia seas region.
China’s ocean frontage in the region runs along the South China, East China, and Yellow Seas. These are narrow bodies of water that produce overlapping jurisdictional claims from other nations—Vietnam, the Philippines, Brunei, Malaysia, Indonesia, and Taiwan—exercising their EEZ entitlements across 200 nautical miles. UNCLOS thus codified China’s disadvantage relative to the legal entitlements of these nations and prompted Chinese delegates to add signatory caveats when it ratified the Convention: China’s right to delimit the EEZ, to deny the compulsory jurisdiction of dispute resolution bodies (to overlapping EEZ claims), to lay sovereignty claim to islands and archipelagos in disputed areas, and to oppose “innocent passage” through its territorial seas without prior notice.
China’s Law of the Sea explains clearly—with telling insight and objective analysis—how those caveats have become the specific objects of state-party practice on the high seas and the rules at issue in Beijing’s maritime disputes. Kardon also shows how China’s maritime practice has shaped both bilateral and multilateral relations throughout East Asia; more than half of China’s three million square kilometers of claimed jurisdiction in waters in this region are in dispute.
Practice, Uniformity, and Consistency
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Originally Posted by RMNIXON
