UNCLOS and the South China Sea

In the course of the last several weeks, the People’s Republic of China, or PRC, and the United States of America have been positioning themselves for a lengthy legal battle over territorial waters in the South China Sea. The United Nations Convention on the Law of the Sea, or UNCLOS, is a set of international treaties dictating a nation’s influence on coastal regions. China, being a signatory to UNCLOS, must abide by its laws, which in turn means that China is capable of enforcing its claims under UNCLOS in the international courts. Through this international legitimacy, the PRC hopes to solidify its claim to the South China Sea, and in turn make use of the region for strategic and economic reasons.

Since the Summer of 2014, China has been building artificial islands in the South China Sea to serve as military bases and to provide legitimacy to their claims in the area. The South China Sea is a nautical region rich in natural resources and highly important to international shipping lanes, lying to the south of China. This region has been one of long running dispute between the nations that border it, however China has begun the unprecedented initiative by turning reefs and atolls in the region into military bases and outposts. Using these bases, China hopes to claim large swathes of the region as EEZs, or Economic Exclusion Zones, allowing them extraction of the resources held on the seabed such as oil and precious metals. China, acknowledging the importance of international law in claiming territory in the modern era, has begun using UNCLOS to provide legitimacy to its claims. Two months ago, however, China made a move that would provide basis for an international court to deny China’s claim to the region.

On the 2nd of September, five Chinese naval ships entered within 12 nautical miles of Alaska’s coast, in other words, the national territorial waters of America as set forth by UNCLOS. Warships are permitted to enter territorial waters under the innocent passage clause of UNCLOS, which states that the ship must be moving through the territorial waters so as not disrupt the peace. While this event was certainly a marked expression of aggression by the Chinese government, it in itself this did not present a violation under UNCLOS as they abided by the innocent passage clause.

Last month on October 27, the American navy navigated the USS Lassen, a guided missile destroyer, within 12 nautical miles of several Chinese made islands in the South China Sea to challenge China’s claims in the region under the so-called Freedom of Navigation Operation. While America is not a signatory to UNCLOS, the USS Lassen abided by the innocent passage clause of UNCLOS, and no acts of aggression were made by the ship. China responded to this by dispatching a frigate and destroyer to follow the Lassen’s path. Chinese officials also called the act “illegal”, and argued that the USS Lassen entered Chinese waters without permission from the government, and threatened regional peace and stability.

Most telling by this is the fact that China is projecting its national laws on its claims in the region, despite UNCLOS and other related international maritime treaties. While this doesn’t mean China is completely disregarding international law, it’s certainly a sign that China does not wish to abide by the international order. It also shows that China is continuing its practice of pragmatic foreign policy, choosing to apply differing rulesets whenever it fits the party’s goals. Whether or not China will continue its practice of applying its own national law to the South China Sea is yet to be seen, it’s certainly a large factor in how both America and China are handling the situation. In the international courts, this uneven application of law does little good for their claims and undermines the benefits of its claims in the international arena.

This response greatly weakens China’s claims in the regions because they had done a similar exercise 2 months prior in Alaskan waters, meaning China would either have to admit their wrong-doing in Alaska or they would have to give up the legitimacy provided by UNCLOS to the claims of the South China Sea. In addition, the ability of artificial islands to create national territorial waters and economic exclusion zones around them is already a grey area and not likely to stand heard by an international court. While it is unlikely that China would obey the rulings from an international court, a ruling against China’s claims would severely weaken their legitimacy in the region and provide a basis for America and its allies to denounce and take measures against China. In any case, the consequences from the events that occur from within the South China Sea are certain to permanently change the geopolitical landscape of South-East Asia, and affect the course of the Sino-American relationship.

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Categories: Current Events

1 reply

  1. Living in China I actually pay close attention to this matter, yet this is the first time I read of China’s traversing US waters. That does put a very different spin on the US’s Oct. 27 passage in the South China Sea.

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