Tuesday, June 28, 2011

Troubled Waters - China’s EEZ, the United States and UNCLOS

Limiting practices in China’s Exclusive Economic Zone (EEZ)

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) created the exclusive economic zone (EEZ) in waters previously regarded as high seas. The aim of the convention was to accord new rights to coastal states to manage resources found in their adjacent seas, extending outwards to a maximum of 200 nautical miles, whilst maintaining freedom of navigation and movement for other states. “Roughly 36 percent of the world’s oceans lie within 200 nautical miles of a coastline, and currently the vast majority of international trade flows as a matter of right on and over the EEZs of coastal states”.[1]

The creation of the UNCLOS agreement seemed to be particularly aimed at developing countries, whose seas may be the source of great resource wealth yet do not have the maritime power to protect them from exploitation by larger, established powers. However, the apparent ‘nobility’ of the convention to allocate the wealth of the seas accordingly has somewhat backfired as the convention is now cited by conflicting sides to either curb or expand maritime sovereignty into the EEZ.

China has slowly risen to the heart of this contention and its views on its EEZ have gradually hardened as its ability to enforce them has increased. Historically, there are many comments on how the established maritime powers saw UNCLOS during its creation period. “President Ronald Reagan made this point clearly when he established the US EEZ in 1983 and confirmed that in the zone, all states would continue to enjoy high seas freedoms of navigation and overflight”,[2]

Obviously, as the predominant naval power of the time, the US had the ability to impose whatever restrictions it wished upon its newly designated EEZs, some of the largest in the world, and in doing so, set the tone for other countries. What emerged after the initial signing of UNCLOS was that freedom of the seas would be maintained, whilst exploitation of the sea’s resources would be controlled by the coastal state. This practice was highlighted in a number of contentious issues throughout the proceeding decades including, European fishing fleets clashing over fish reserves and military reconnaissance flights of NATO and the Soviet Union in each other’s EEZ throughout the Cold War. Writing at the time, one Nigerian scholar expressed the view that,

“the EEZ . . . is a zone sui generis with special rights reserved for the coastal State and the traditional freedoms of the high seas . . . maintained for other States.” The sovereign rights of the coastal state within the EEZ relate only to the natural resources of the sea; the coastal state cannot interfere with the other traditional freedoms of the high seas, in particular the right of navigation and overflight. In other words, special economic rights and jurisdiction over the resources and installations are granted to the coastal state, whilst the traditional freedoms of the high seas, including in particular the right of navigation and overflight, are maintained”.[3]

There have been challenges to the UNCLOS from a number of developing states seeking greater sovereign control of their EEZ, led notably by Brazil. These were eventually rejected, both in practice and law by the major status quo powers and Brazil has now reduced its claims significantly. In response to Brazil’s assertive action in the 1980s to limit military actions or overflight in their EEZ the US responded,

“The Convention recognizes the interest of the coastal State in the resources of the zone and authorizes it to assert jurisdiction over resource-related activities therein. At the same time, all States continue to enjoy in the zone traditional high seas freedoms of navigation and overflight… Military operations, exercises and activities have always been regarded as internationally lawful uses of the sea. The right to conduct such activities will continue to be enjoyed by all States in the exclusive economic zone”.[4]

This remains the current US opinion on EEZs and Brazil’s backing down may not only be attributed to the economic and political clout of the US, but also the willingness of the US military to ensure freedom of navigation across the globe for its military and trade. A precedent was set before UNCLOS came into existence when “Libya unilaterally asserted full sovereignty over the waters of the Gulf of Sidra in the central Mediterranean Sea north of latitude 32°30' north”.[5] Libya was seeking to deny access to any unwelcome ships into the gulf, namely the US Navy. With the signing of UNCLOS, it was agreed that Libya had coastal state rights for the resources in parts of the Gulf of Sidra, but could not restrict freedom of navigation or overflight for civilian or military passage. This unresolved problem finally came to a head in 1986. “During exercises in the Mediterranean Sea involving thirty US naval warships, including three aircraft carriers, the United States sent three vessels into the Gulf of Sidra as a Freedom of Navigation Operation to assert the right of all states to navigate in and above these waters. Libya launched several salvos of surface-to-air missiles against the US naval aircraft operating in the airspace over the gulf, and the United States responded with air-to-surface and surface-to-surface fire, destroying or damaging four Libyan naval vessels and two missile sites”.[6]

It’s noteworthy that the American naval strategy was not immediately confrontational to Libya’s demands in its EEZ, but instead channeled objections via diplomatic means. It took another four years before the US Navy openly challenged Libya’s claim, but one could argue that this eventuality was inevitable. Having seen that the US Navy has both the ability and the will to impose freedom of the seas and will not tolerate any reinterpretation of UNCLOS away from how it interprets it to be, most developing states originally making stringent restrictions for their EEZs have since dropped them. States that still maintain restrictions like North Korea, Iran, Ecuador and Peru have very little ability to enforce them, so the restrictions remain in existence through local unenforceable laws only. Of the states that have signed UNCLOS, 159 states recognize the rights of freedom of navigation and overpass for both military and civilian craft within EEZs. 21 states still maintain some form of extra sovereign control in their EEZs, but it’s China’s viewpoint that remains the most contentious globally.

China and its EEZ

China’s input into this debate has been relatively new. Throughout the signing of UNCLOS, no objections were raised by China, but it has since aimed to galvanize the “re-interpretation movement” of UNCLOS and now vociferously objects to the US consensus of the convention. “China holds the view that a coastal state is entitled to control its EEZ more strictly according to its needs”.[7] For China, the EEZ is more like the territorial sea than the high seas. China’s EEZ claims remain contentious to its neighbours and have yet to be resolved officially, as it also claims exclusive rights on the continental shelf.

This gives rise to the characteristic ‘cow tongue’ or dotted line that can be seen on all maps produced in China, represented in the diagram above as a red dotted line.

Chinese academics and military leaders now seek to afford the EEZ with all the sovereign rights and restrictions of the 12mile territorial zone. Interestingly, Maj. Gen. Peng Guangqian, People’s Liberation Army, described China’s seas, which includes its EEZs as China’s “blue-colored land”.[8] A term not to be found anywhere else in the lexicon of the sea other than China, and represents an attempt to present a major revisionist way to look at the two thirds of the world’s surface. According to Peng,

“China owns five big sea areas from north to south, respectively named the Bo Hai Sea, Yellow Sea, East China Sea, South China Sea, and the Pacific area east of Taiwan”.[9]

This apparent ‘ownership’ of huge swathes of seas, which are intersected by some of the most important sea-lanes of communication (SLOCs) creates an eventual collision course with the US, just like Libya in 1986, and is the heart of China’s modern Anti-Access policy (A2AD). Limiting what is allowed in China’s EEZ has many dimensions, but in particular China’s attempts to limit the actions of the US military. In doing so, China hopes to manipulate the outcomes of its other regional disputes. For instance, if the US military has restricted freedom of movement, this could greatly help in resolutions favorable to China on Taiwan and the South and East China Sea disputes.

At the heart of the argument lies what constitutes ‘peaceful passage’ of military crafts in an EEZ. As stated earlier, the US sees the EEZs as synonymous with the high seas, and as the high seas have been a legitimate place for military crafts to pass, train and reconnoiter for centuries, so it will remain now and into the future. From the US side, all actions of the military are defined as peaceful, unless war is declared, then a coastal state would have a legitimate right to defend its economic interests within its EEZ from its enemy. It has to be stressed however, that even in wartime, EEZs would not become exclusive sovereign territory. The right of free passage would still exist for non-combatants unrelated to the fight, and only enemy combatants and commerce would be engaged by the coastal states. From the US point of view, any coastal state that completely closed its EEZ to peaceful passage would be in violation of the Law of the Seas.[10] EEZs are for resource management only and the coastal state has no right to inhibit passage, either military or civilian. For the US, the name also infers a lot – The Exclusive ECONOMIC Zone, implies that the coastal state maintains an exclusive economic advantage in the zone for the economic exploitation of resources. The economic emphasis is key and there is no mention of other factors, namely military. Compare this to the Territorial Zone, which is heavily weighted with sovereignty. Across the world Territorial Zones and Economic Zones are widely understood. Compare the Territorial Zone of France with the Economic Zone of the European Union. In this case, France has full sovereignty over its territory, but only economic advantage in the European Union. They exist in the same space, but different rights are recognized, especially when it comes to military intervention, or the lack of it. China’s mixing of territorial and economic spheres of influence are seen as major hindrances to future peace from the perception of the US. For the most part, China’s understanding of the EEZ is consistent with international norms.[11] Where China differs is in its definition of peaceful military passage. The Chinese side first argued that no military activity, other than continuous through passage, can be deemed “peaceful” therefore any actions carried out by the US military within 200 nautical miles of China’s coastline prejudices its sovereignty and security. General Peng elaborates,

“When a vessel navigates in the exclusive economic zone of a coastal state, its actions should be “harmless,” undertaken in “good faith” and with “no abuse of rights.” If a military surveillance ship conducts military intelligence-gathering activities in another state’s exclusive economic zone, it is hard to explain this as friendly behavior that is “harmless” and undertaken in “good faith”.[12]

At a conference on confidence-building with the US military, General Peng described how he saw the EEZ, in a very land-based analogy.

“He described a Chinese-style house surrounded by a wall with few windows and a gated entrance. A home owner who sees a man peering in his window suspects him to be a thief and treats him accordingly, but a man who comes to the front gate and requests the home owner to allow him to enter is treated as a friend, welcomed in, and offered tea”.[13]

The story is quaint and certainly touches on traditional Chinese values easily understood by the greater population of China, but it has no relevance in the international law of the sea. Its major premise assumes that the ‘home owner’ owns the area around his house and has even a semblance of sovereignty over it. But ‘land’ analogies like this have no precedent in the thousands of years of sea faring. Even the acclaimed Zheng He relied on freedom of navigation and the sovereign immunity of military ships while sharing the global commons. He wouldn’t have got very far in the Asian littoral if he’d based his sea exploration on this notion of ownership of the seas being akin to ownership of the land.

Throughout the Cold War, neither the USSR or the US sort to restrict each other’s military actions in EEZs. Japan stalked Russia’s subs off its coast, while TU-95 Bears regularly buzzed the UK airspace.[14] Military engagements within EEZ were commonplace and seen as legitimate practices for both sides to practice military maneuvers and collect intelligence on one another. Even at the height of the British Empire, the Royal Navy commanded the seas but never sought to exclusively limit access to other military vessels as long as they were engaged in ‘peaceful’ passage. Even the US Monroe Doctrine did not bar navies from passage. There are many precedents for the free reign of military ships across all the seas of the world in peacetime. Great navies have developed knowing that if every foreign military ship is seen as a hostile, enemy combatant all of the time in all places then normal commerce and stability will quickly derail into paranoia and conflict. A mutual understanding and tolerance of military passage and maneuver is therefore seen as a prerequisite for global trade and more importantly, peace.

Having failed to create a consensus from other UNCLOS signatories on defining military reconnaissance as neither ‘peaceful’ nor legitimate maritime research, China upped the ante and brought in its owns laws, which it has overlaid on its understanding of UNCLOS. “On 19 January 2007, China adopted Temporary Management Measures on Surveying and Mapping Activities Conducted by Foreign Organizations or Individuals in China. Article 3 articulates three principles to be observed by foreign surveying vessels within the Chinese areas: they must comply with the Chinese laws, regulations, and relevant rules; their activities may not involve state secrets of China; and they may not damage China’s national security”.[15]

Bringing in a law that prevents any ship from engaging in activities that may involve state secrets or national security basically shuts the door on any ship, doing anything within the Chinese EEZ without permission, as obviously, terms like ‘state secrets of China,’ are unknowable to outsiders and can be transposed onto anything. Through these laws it is now illegal under Chinese law, for all military ships or planes to engage in any action inside its EEZ, as this can be construed as endangering national security. As UNCLOS states that all ships must respect the laws of the coastal states, the law technically becomes de facto and binding, at least in the eyes of China. Military ships may still argue peaceful passage, but the new laws leave the definition of ‘peaceful’ entirely in the hands of the enforcer. As stated previously, the generally accepted definition of peaceful passage can involve the gathering of military intelligence. This is something that China rejects outright; it can not reconcile any kind of military intelligence gathering as peaceful.[16] This is the fine point that will be critical in determining future relations with China and the US.

What does China stand to gain by limiting its EEZ?

In his piece on the Jurisprudence of Military Surveillance in EEZs, Yu Zhirong gives many reasons why he believes military surveillance should not take place, including, combining military and marine research into one entity, pollution of the marine environment and semantic arguments about the nature of ‘international waters’ in comparison to the rights of EEZs. Whether one finds his arguments valid or not, the underlying unspoken message and principle reason for limiting military activities is because it is part of a broader strategy of A2AD that the PLAN[17] aims to enforce, especially in times of heightened tension.[18]

China’s desire to create A2AD strategy had its birth in the 1996 Taiwan Crisis and has developed incrementally over the years. Not surprisingly, it has been tested by the US on a number of occasions. For example, it is widely accepted that the USS Impeccable incident occurred because it was tracking the passage of Chinese subs coming in and out of the new submarine base on Hainan Island. The PLAN now seeks to limit the US Navy’s reach inside its EEZ by interpreting UNCLOS in a manner that suits their more conservative, secretive approach to seafaring near its coast. With no relevant precedents in place even from the Cold War,[19] the potential for conflict is great as neither the US nor China seems willing to back down from their opposite views. In fact the US Navy’s unwavering commitment to protecting its interpretation of UNCLOS will continue to test China’s resolve. If one considers the latest US official military Strategy for 2011, then there is no question about the American stance on this,

“We will continue to monitor carefully China’s military developments and the implications those developments have on the military balance in the Taiwan Strait. We remain concerned about the extent and strategic intent of China’s military modernization, and its assertiveness in space, cyberspace, in the Yellow Sea, East China Sea, and South China Sea. To safeguard U.S. and partner nation interests, we will be prepared to demonstrate the will and commit the resources needed to oppose any nation’s actions that jeopardize access to and use of the global commons and cyberspace, or that threaten the security of our allies”.[20] (emphasis added by author)

Clearly, we can expect more naval incidents in China’s EEZ, like the ones involving the USS Impeccable, USS Boswitch, USS John McCain, naval drills of the entire 7th fleet in the Yellow Sea or joint exercises like those taking place between Vietnam and the Philippines. It remains to be seen whether the PLAN is prepared to push its convictions upon the US military by any measure in future. History shows us that the US navy’s response may not be immediate, but it will eventually come and will be entirely consistent with the view it has held for the last seventy years – freedom of the seas for its military is paramount and will not be sacrificed.

China’s potential to revise the general consensus on UNCLOS remain marginal at best. If in future China were able to argue a successful case in an international court the repercussion across global EEZs would be catastrophic and global trade would cease to flow as we know it today. Choke points right through Asia, the Gulf of Aden, the Mediterranean, Panama and the Caribbean would foul up, as nation states sought to exercise their new found rights in their EEZs. As China’s national laws deliberately leave vague the idea of ‘national security,’ any ship could technically be stopped and confiscated for any reason in any EEZ. Imagine a world where every coastal state sort to exercise their sovereignty in such vague ways based on local laws? For one, China’s merchant naval fleet and PLAN would have no access to any high seas as they pass through any number of potential adversaries’ EEZ, which could be construed as endangering national security of that coastal state. In reality China knows this, and has no interest in pushing their arguments to final arbitration. Instead, China’s stance is purely for domestic consumption. The easily digestible ‘land’ arguments and the novel phrasing of the “blue land” all play to Chinese nationalistic sentiments as a firmly grounded, land power tentatively expanding out into the sea. So, in the case of any future conflicts with the US, the Chinese people will be able to clearly see the impropriety of the US contravening an international convention. China’s population will be presented a succinct line, where China’s internal laws are consistent with their interpretation of UNCLOS and the US would be in contravention of both, therefore justifying any action both legally and morally to the Chinese people. The Chinese military knows that it can not permanently prevent the US from freedom of navigation within its EEZ, but if the time ever comes to limit it, it will justify its actions from a legal perspective and embed it deeply into UNCLOS and it’s own local laws. Therefore China’s claimed limitations on its EEZ represents the legal arm for military actions and is an integral part of its A2AD policy. It remains to be seen whether China and the US will be able to address their significant disagreements on this issue and continue the relative peace and security that Asia has enjoyed for the last 70 years.

[1] Caelum Liberam: Air Defense Indentification Zones Outside Sovereign. Peter Dutton. US Naval War College. 2010

[2] Caelum Liberam: Air Defense Identification Zones Outside Sovereign. Peter Dutton. US Naval War College. 2010

[3] United Nations Convention on the Law of the Sea. Possible Implications for International Air Law. Tare C. Brisibe. Michael Milde, 8 ANNALS AIR & SPACE L. 167, 191 (1983).

[4] Note by the Secretariat, UN Doc. A/CONF.62/WS/37 (1983), in 17 THIRD UNITED NATIONS CONFER-

ENCE ON THE LAW OF THE SEA, OFFICIAL RECORDS 240 – 44, UN Sales No. E.84.V.3 (1984).

[5] Yehuda Z. Blum, The Gulf of Sidra Incident, 80 AJIL 668 (1986).

[6] Caelum Liberam: Air Defense Identification Zones Outside Sovereign. Peter Dutton. US Naval War College. 2010

[7] (Xue Guifang (Julia) Issues and Prospects Surveys and Research Activities in the EEZ. US Navy War College 2009

[8] Military Activities in the EEZ. A U.S.-China Dialogue on Security and International Law in the Maritime Commons. Peter Dutton. U.S. Naval War College China Maritime Studies. 2010

[9] Military Activities in the EEZ. Dutton. 2010

[10] Interestingly, the US has not ratified UNCLOS

[11] A norm being that 160 or 88% of signatories of UNCLOS agree with the U.S, with 21 countries having varying disagreements.

[12] Military Activities in the EEZ. A U.S.-China Dialogue on Security and International Law in the Maritime Commons. Peter Dutton. U.S. Naval War College China Maritime Studies. 2010

[13] Military Activities in the EEZ. Dutton. 2010

[14] My bother is an air traffic controller in Scotland and this still goes on regularly today even though the Cold War has long since finished.

[15] Xue Guifang (Julia) Issues and Prospects Surveys and Research Activities in the EEZ. US Navy War College 2009

[16] Strangely, China has very strong views on the term peaceful and how it clearly indicates non-military, yet it describes its own rise as ‘peaceful’ even though it involves a significant military rise in its capabilities. Based on China’s very own definition, if China’s rise truly were peaceful, then it would follow that it could not involve a military build-up. This as we know, is simply not the case as China’s preparation for war is unprecedented in peacetime, and I would say even greater than pre-war Japan’s.

[17] People’s Liberation Army Navy

[18] Yu Zhirong. Jurisprudential Analysis of the U.S. Navy’s Military Surveys in the Exclusive Economic Zones of Coastal Countries. US Navy War College 2009

[19] Yu cites the cases of the shooting down of the R-47 and the U2 over Russia, but these cases only go to prove that in over 50 years of heightened Cold War tensions and the prospect of MAD, how much restraint and understanding existed between the two sides. Both the USSR and NATO regularly patrolled each others EEZs and managed to limit any misunderstandings to just two incidents that were relatively easy to resolve.

[20] The National Military Strategy for the United States of America. Feb 2011

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