JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that, in order to counter China’s attempts to expand its maritime jurisdiction, the US must become a party to the UN Convention on the Law of the Sea…

US Secretary of State Hillary Clinton had her diplomatic hat handed to her in Beijing last month as she visited China to work on developing better bilateral relations. China’s renewed assertion of claims to wide swaths of ocean in the teeth of counter-claims by rival powers like Japan and smaller states like Vietnam and the Philippines have pushed the US into the awkward position of reassuring regional states that it backs stability and security in the area while at the same time not provoking one of its largest trading partners. As a non-party to the UN Convention on the Law of the Sea (UNCLOS), the US has failed in both tasks.

Thus it was that Clinton endured repeated attacks in Chinese state-run media declaring the US a “sneaky troublemaker” that was pushing other states to challenge Chinese sea claims. Indeed, there is much hand-wringing among the great powers over the rise of China. After displacing Germany and Japan as the world’s second largest economy last year, a spot that alternated between both for decades, China is poised to claim the mantle of “great power.” With that title comes natural ambitions. One of these, for China, is a dramatically increased oceanic presence.

Three areas of renewed Chinese focus in this regard are assertions of sea claims in the East China Sea, much larger sea claims in the South China Sea and meaningful participation in the Arctic Council now that significant polar ice melt has opened trans-Arctic sea lanes. To be sure, as the globe’s manufacturing hub, China’s vault into great power status rests on expansive foreign trade — which requires secure trade routes for large fleets of merchant vessels and, eventually, a deployable blue water navy [PDF] (which they are quickly developing). But Chinese assertiveness of late has bordered on belligerency.

China’s claim over the Senkaku Islands (or “Diaoyu” in Chinese), which are small uninhabited islets in the East China Sea south of Japan and north of Taiwan, overlaps with Japan’s own claim and actual possession. This has led to unfortunate incidents such as Chinese fishing trawlers colliding with Japanese patrol boats, prompting Japan to actually purchase the islands from the Japanese family that owned them — a move which China regarded in its official press as “the most blatant challenge to China’s sovereignty since the end of the second world war.”

While a successful Chinese claim would yield valuable new exclusive fishing and natural resource development zones of an approximately 200 nautical mile radius extending from each islet in the Senkaku chain, this pales in comparison to China’s most spectacular claim — the entire South China Sea. The extent and audacity of China’s claim extending south from Hainan Island all the way to Malaysia is breathtaking. Not only does it trample on the rival claims of several Southeast Asian states that enjoy greater proximity to the Sea itself, China’s claim also presents the US with a geo-strategic quandary.

Since the collapse of the Union of Soviet Socialist Republics (USSR), the US has enjoyed unchallenged primacy in possessing the world’s largest blue water navy. The US has not shied away from deploying this force to further its interests — including to the South China Sea — but such force projection requires freedom of navigation, a right guaranteed by UNCLOS. Moreover, as half the world’s shipping — worth over $5 trillion annually — passes through the South China Sea, protecting this right is paramount.

Signed in 1982 and in force since 1994, UNCLOS establishes the legal framework for nautical sovereignty claims of coastal states. Such states may claim a 12-nautical-mile band of water immediately offshore as their territorial sea and an additional 200 nautical miles of water as their exclusive economic zone, within which they may assert dominance over natural resource exploration and exploitation. In the South China Sea, this amounts to vast fishing rights and control over oil reserves estimated at 213 billion barrels (larger than Saudi Arabia’s reserves). But within such waters, coastal states must also guarantee freedom of navigation rights for other states.

This basic framework of oceanic sovereignty is an extension of territorial sovereignty. As such, sea claims “run with the land.” So in order for China’s claims to go forward, it must successfully assert sovereignty over bits of land from which it can draw those lines. The following map shows the overlapping sovereignty claims of China, Vietnam, Brunei, the Philippines and Malaysia in the South China Sea:

To shore up its island claims, China has begun building on, populating and militarizing these specks of land, taking a page from Japan’s own playbook as it built up the Okinotori reefs in the 1980’s to bolster its own claim. Japan, however, did not face competing claims at that time. In this case, the Chinese government has moved 620 “residents” to Yongxing Island where they are provided with electricity, drinking water, an airstrip and military protection. The residents have since elected a 45-person legislature. This islet is less than a square mile and lies due south of Hainan.

Smaller states with overlapping claims in the South China Sea have worked within the Association of Southeast Asian Nations (ASEAN) political apparatus to arrive at a multilateral solution. However, the draft ASEAN “code of conduct” in the South China Sea, which seeks to settle disputes peacefully and keep the waters mostly demilitarized, was scuttled by Cambodia, the regional host for the July 2012 ASEAN meeting, at China’s urging. China understands it would lose in a multilateral environment with an array of states working against it. Thus, it prefers to deal with states (much smaller states) in bilateral settings where it can better leverage its power.

That said, China realizes that it cannot bully larger states to get its way in oceanic matters. The waters of the Arctic Ocean are largely controlled by the eight polar states: Canada, Russia, Norway, Sweden, Finland, Iceland, the US (via Alaska) and Denmark (via Greenland). Collectively, they set policy for the region through the Arctic Council which was created in 1996 to promote cooperation and coordination of activities. Since the opening of trans-Arctic waterways in the wake of global climate change-induced ice melt, this has suddenly become a very important body of water for states that do a lot of global shipping, as well as states that are home to petroleum exploration companies seeking to develop the vast hydrocarbon reserves that are now becoming accessible.

China possesses these twin interests. But it does not possess a seat on the Arctic Council or even permanent observer status. As an “ad-hoc observer,” China must go through the humiliating process of requesting to attend each individual meeting of the Council. China very much wants to advance its status to permanent observer (like Britain, France and Germany) so it can attend all the meetings as of right and potentially participate in working groups and task forces — clearly forums that help shape access policies with respect to navigation and natural resource development.

But Norway opposes China’s entry on human rights grounds. A diplomatic spat occurred in the wake of Chinese dissident Liu Xiaobo winning the Oslo-based Nobel Peace Prize in 2010, and Beijing has not sufficiently made amends with the Norwegians — who could block China’s advancement in the organization. Unable to intimidate European states as it is able to do elsewhere, China must resolve this issue diplomatically if its more pragmatic oceanic interests are to be pursued.

All of the above states are parties to UNCLOS except the US. Even though the US recognizes many of the UNCLOS provisions as binding custom, it is still the “outsider.” As such, it is difficult for the US to force compliance with UNCLOS provisions and impossible to avail itself of dispute resolution features as a party — the threat of which could induce better Chinese cooperation, especially in the case of island claims.

The rest of the permanent members of the UN Security Council belong to UNCLOS, as do the rest of the Arctic Council members, all of the Antarctic claimants, all of the South China Sea claimants and all of the other North Pacific regional powers except North Korea. Not only will the US not be able to contain China through UNCLOS, as a non-party, it will not be able to stake its own nautical claims for fossil fuel development or even challenge the claims of others like Russia — which has staked out a region in the Arctic the size of France and Spain combined for exclusive Russian oil and natural gas development.

It is manifestly in America’s interest to ratify UNCLOS in the next session of Congress. Republican and Democratic presidents alike have supported ratification, in addition to the Pentagon and the environmental lobby. The original hesitancy by private industry in the US of handing deep seabed mining authority over to the UN in the recovery of manganese deposits has evaporated. The benefits of joining clearly outweigh any vague sovereignty concerns. Perhaps the biggest immediate benefit would be the ability of the US to throw the rulebook at China’s feet on its oceanic claims in the same way that it can with respect to China’s trading practices within the World Trade Organization — an analogously effective tool that Washington uses to help manage China’s rise to great power.

Michael Kelly is a Professor of Law and Associate Dean for Faculty Research & International Programs at Creighton University School of Law. He is co-author with Professor Sean Watts of a geo-strategic legal analysis of the collective security issues in Northeast Asia raised by China’s burgeoning status, Rethinking the Security Architecture of Northeast Asia.

Suggested citation: Michael Kelly, China’s Blue Water Ambitions and the Law of the Sea, JURIST – Forum, Oct. 4, 2012, http://jurist.org/forum/2012/10/michael-kelly-china-unclos.php.