Analysis of China’s new twist to the Law of the Sea Convention and its definitions

On 8 March 2009, according to the Pentagon, “five Chinese vessels shadowed and aggressively maneuvered in dangerously close proximity to USNS Impeccable in an apparent coordinated effort to harass the US ocean surveillance ship while it was conducting routine operations in international waters.” In fact, the incident took place approximately 70 nautical miles to the southeast of Hainan Island, placing the location within the Chinese 200-mile Exclusive Economic Zone (EEZ).  Commander James Kraska, a professor of International Law a the U.S. Naval War College at Newport, RI, has argued that, according to the legal terms and zone definitions of the United Nations Convention on the Law of the Sea (UNCLOS), China’s actions are based on a very fanciful legal argument.[1]

Kraska’s 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,” which 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.  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.

[1] James Kraska, “The Legal War Behind the Impeccable Incident,” World Politics Review, available online,