Photo by NASA/Goddard/Ocean Color on Wikimedia

China’s Law of the Sea

Isaac B. Kardon—

China’s Law of the Sea tells the story of the international order now emerging in the littorals of East Asia. The book is about the People’s Republic of China’s (PRC’s) most explicit bid to make “the rules” of international law, the law the sea in particular. This body of rules regulates the use of the world’s oceans, and has become a critical arena for the great power strategic competition underway between China and the US.

However, China’s law of the sea not a simple US-China story. First and foremost, China’s maritime practices are challenging its regional neighbors. Arrayed against the PRC’s extravagant maritime claims and growing capability and capacity to enforce them, these smaller states must contend with a pattern of Chinese behavior that jeopardizes their recourse to international law and restricts their freedom of action.

In effect, “China’s law of the sea” means that the littoral states of East Asia cannot exercise the full extent of their rights under the law of the sea. Although all have signed and ratified the same UN Convention on the Law of the Sea treaty, China has no settled maritime boundaries with North and South Korea, Japan, the Philippines, Malaysia, Brunei, Indonesia, Vietnam, and Taiwan. This leaves the East Asian littoral a patchwork of competing jurisdictional claims, and a major flashpoint for actual and potential international conflict. China’s claims also challenge the navigational and overflight rights and interests of the US, Australia, and European partners, providing yet another major arena of friction on, above, and below the waters of East Asia.

China’s Law of the Sea goes under the hood of the Chinese party-state to understand how it approaches international law generally, then zeroes in on the specifics of the law of the sea as it functions within the People’s Republic. The heart of the book tackles the specific claims and principles that Beijing has put into practice in the South China Sea, East China Sea, Yellow Sea, and the Taiwan Strait. China’s distinctive vision for “the rules” in maritime East Asia emerges from this systematic look into its domestic law and regulation, diplomatic conduct, and physical operations in both disputed and undisputed maritime space.

Yet, China’s preferred rules for boundaries, for resources, for navigation, and for dispute resolution are generally ill-defined and remain indeterminate in key respects. This limits China’s rule-making potential. Even China does not clearly follow its own rules. Still less do other states, who by and large oppose (or quietly object) to China’s maritime claims. Without buy-in from specially affected states, China’s ability to establish broader regional and global rules will remain quite constrained.

This does not mean that China’s law of the sea is without major consequence. China is almost definitely not making the rulesrather, China is making the rules less effective. With some success, Beijing has narrowed the scope and importance of the law of the sea treaty and played up customary normsinternational law that emerges from patterned practice over time. Customary international law is therefore also the type of rule that is most susceptible to change in order to accommodate China’s growing maritime power. China’s struggle to shape the international law of the sea to its advantage will remain a central front of geopolitical competition in the 21st century.

Isaac B. Kardon is senior fellow for China studies at the Carnegie Endowment for International Peace. He is an adjunct professor at Johns Hopkins School of Advanced International Studies and was formerly assistant professor at the U.S. Naval War College’s China Maritime Studies Institute. He is also a term member of the Council on Foreign Relations and an associate in research at Harvard’s Fairbank Center for Chinese Studies.

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