The Impeccable Affair: Analysis of China’s new twist to the Law of the Sea Convention and its definitions

Commander James Kraska’s article provides an accurate description of the various legal views surrounding the maritime incident between China and the United States involving USNS Impeccable, with a necessary focus on the very fanciful nature of China’s legal argument.

The article also underlines this action is but one of a series of “special” Chinese maritime legal stands, of which the most egregious is her "special economic zone."  As the diagram below shows, this represents an EEZ that goes beyond the mandated 200 miles to actually stretch some 900 miles from her coastline.  It also attempts to take from Vietnam, the Philippines, Brunei, Malaysia, Taiwan and Japan their more modest EEZs to achieve this.  Separately, I have suggested this is the equivalent of Canada unilaterally extending her Atlantic EEZ 900 miles down to Florida.

As Commander Kraska points out, the Chinese claim is often based on their military clinging to rocks which in no way satisfies the UNCLOS  requirement of being able to sustain human habitation, as the photos below make clear.  The requirement for the claiming state to have exercised continuous administration over them is also overlooked.

Most worrying is the fact that on at least twelve occasions since 1988 China has used her navy to enforce this claim.  The most dangerous incidents involved a 1988 naval battle with Vietnam that killed 70 of the latter’s sailors, and a 1996 naval gun battle with forces from the Philippines.

While these actions protected her claim, the results were not very satisfactory to her in the long run.  Actual oil and gas finds in the South China Sea have been disappointingly small.  More seriously, China’s aggressiveness encouraged Singapore to offer the US Navy critical basing rights for the latter’s carriers and the Philippines invited the US military back under a new Status of Forces Agreement.  Thus, all China achieved was a strengthening of the US position in the South China Sea.

This makes China’s actions over the “Impeccable Affair” particularly curious as the US will not retreat from the area.  Further, China has at least as a great an interest in the freedom of the seas and the safe passage of sea trade as the US.  In fact, her need for maritime commerce and sustained economic growth is probably greater than most, given that such growth is critical to the Communist Party maintaining domestic peace.  This readily explains her very recent contribution to the counter piracy effort off Somalia.  Why she would disregard the UNCLOS legal regime that bolsters high seas’ freedoms and security at sea with her actions against USNS Impeccable is, thus, a return to very short term thinking. Commander Kraska correctly points out China will ultimately have to join those that support UNCLOS, and we can, hopefully, treat the 'Impeccable Case' as an aberration.

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