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Chinese Double Standards in the Maritime Domain
The Arleigh Burke-class guided-missile destroyer USS Dewey (DDG 105) transits the South China Sea with the Japan Maritime Self-Defense Force ship JS Izumo (DDH 183) in May 2017.

Chinese Double Standards in the Maritime Domain

 
 

Last month, China deployed two People’s Liberation Army-Navy (PLAN) intelligence-gathering ships (AGI) off the coasts of the United States (Alaska) and Australia (Queensland). China was speculated to be observing the United States’ first-ever interception test of an intermediate-range ballistic missile by the Terminal High Altitude Area Defense (THAAD) anti-ballistic missile system in the first instance; while in the latter Beijing was believed to be observing a major joint military exercise between the United States Navy and Royal Australian Navy (Talisman Sabre 2017). Both AGI apparently operated for several days well inside the American and Australian exclusive economic zones (EEZs).

While not unprecedented and not in violation of international law, the deployments nonetheless remind the region, the United States, and the world that China is a rising power (and major maritime power) willing to fully leverage its maritime rights as “interpreted” under UNCLOS. That, in turn, underscores Beijing’s “double standards,” in terms of selectively choosing parts of UNCLOS that it likes and ignoring (or reinterpreting) parts that it does not like or find incongruent with its national interests. While Washington and Canberra tolerated, exercised restraint, and even downplayed the presence of the AGI within their respective EEZ; Beijing has more-often-than-not admonished the offending nation(s) for violating its territorial sovereignty and sometimes even harassed the such ships from other nations.

What is different this time around is that Beijing’s muted defense of its latest out-of-area maritime operations and an interesting commentary from one of its top think tanks shortly thereafter that tries to explain and justify the AGI activities. When questioned about the AGI operating off the coast of Alaska during a press conference on July 14, the Ministry of Foreign Affairs (MFA) spokesman claimed ignorance and deferred the matter to the Ministry of National Defense (MND), which had no comments. There were no press queries to the MFA or MND on the other AGI, nor would they have voluntarily brought it up. Three weeks later, a scholar from the National Institute for South China Sea (SCS) Studies published a piece in the IPP Review (republished by The Diplomat) that aims to undercut the prevalent indictment of hypocrisy that China undertakes intelligence, surveillance, and reconnaissance (ISR) missions in other countries’ EEZ while opposing those of the United States and others in its own EEZ. The article also seeks to dispel the notion (a “false hope”) that Beijing will eventually “see the light” and quietly assent to maritime activities it considers threatening because it is undertaking “similar” maritime activities.

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Legal and Diplomatic Position (Standing)

The Chinese argument on the permissibility of military activities in the EEZ is legally and diplomatically expansive and evolving; and counter to the U.S. position that coastal states under UNCLOS have the right to regulate economic activities in their EEZ, but do not have the right to regulate foreign military activities in their EEZ. Beijing contends that military activities – such as ISR flights, maritime survey operations (SURVOPS), and military exercises – on the high seas and in the EEZ are unlawful based on the legislative spirit of UNCLOS and a requirement from that treaty that the high seas be used only for peaceful purposes. Though the language in UNCLOS mentions only the high seas, Chinese legal scholars and diplomats further assert that military activities are unlawful in the EEZ as well. The logic is that if UNCLOS requires states to use the high seas only for peaceful purposes, then foreign activities in the EEZ (special area governed by the coastal state) must also be peaceful and so contradicts military activities which are inherently not peaceful. American legal scholars and diplomats have counter-argued that military activities have been a recognized lawful activity on the high seas and in the EEZ under customary international law and subsequently preserved under Article 58 of UNCLOS. In sum, China objects to ISR flights, maritime SURVOPS, and military exercises in its EEZ and other claimed maritime areas because it regards these activities as unacceptable violations of its territorial sovereignty, unlawful under international law, and a national security threat.

Latest Legal and Diplomatic Justification (Evolving)

The author of article referenced above offers an interesting twist to extant legal and diplomatic arguments justifying PLAN maritime activities in foreign EEZ. He makes the case against Chinese hypocrisy largely on the grounds that there are significant differences in scale, technological capability, methods, and objectives between what China and the United States are doing. He contends that the scale of U.S. ISR missions against China is an order of magnitude greater than that of China against the United States; Chinese ISR capabilities are so substantially inferior to those of the United States as to be in a separate and much lower category; Chinese ISR operations are mostly passive listening versus U.S. active probing and electronic interference with, and even manipulation of, communications; and U.S. ISR operations are intended to collect intelligence as part of its “preparation of the battlefield” which constitutes a violation of the United Nations Charter as well as UNCLOS.

The author downplays China’s growing and improving ISR capabilities and capacities; and overlooks the increasing and expanding Chinese ISR operations in the Asia-Pacific, Indian Ocean, and perhaps beyond in the future. The ISR technological and operational gap is quickly shrinking as the PLA presses forward with its ambitious modernization and reform plans. PLAN blue-water operations and overseas presence continue apace to expand outside the confines of the first island chain – pushing ever further into the Indian Ocean, Arabian Sea/Gulf of Aden (Djibouti), Mediterranean Sea, Baltic Sea, Pacific Ocean, Arctic Ocean, and the waters off Antarctica. Overall, he circuitously invokes an old argument that China should be given a pass because it is not yet at the level of capability of the United States. Beijing has made the same argument for economic (currency manipulation, trade imbalance, steel dumping, weak enforcement of intellectual property agreements, overregulation of foreign enterprises) and climate change (CO2 emission, coal consumption) issues — a harder sell now considering China is the second largest economy in the world.

Does the presented case represent the possibility for a nuanced pivot in Chinese legal and diplomatic position or simply a trial balloon to test if the new arguments have any legs and perhaps set the conditions for future increased and expanded ISR operations in a new global order? The answer may be “yes” to both. Beijing may be subtly and incrementally laying the groundwork to eventually take the same legal and diplomatic stance as Washington (and thus pivot) once it achieves military, economic, and diplomatic parity with the United States. For now, as the purported weaker nation, it feels compelled not to do so until it is a comparable equal to the U.S. in terms of global power and influence.

Must Eventually Address Inconsistency

As the PLAN continues to operate in distant waters and in proximity to other nations’ coastlines, Beijing may have no choice but to eventually address the inconsistency between policy and operations — and either pragmatically adjust its standing policy or continue to assert its untenable authority to regulate military activities in its EEZ. The former is more likely, while the latter carries more risks in terms of the legal validity of its own maritime sovereignty claims, international credibility, and world standing. In fact, Beijing has begun incrementally and subtly nuancing its legal and diplomatic positions at various Track 1.5/2 Dialogues as well as with its MFA talking points. The Chinese now appear to not necessarily object to ISR flights, maritime SURVOPS, and military exercises in their EEZ per se; rather they object to the scope, scale, and frequency of the aforesaid activities in the EEZ. They also seem to no longer view such activities as intrinsically unlawful under international law, but still regard those activities as threatening to their peace and security as well as destabilizing to the region and why the activities must stop.

A potential bellwether of where and how Beijing may proceed in the future is the development of its domestic maritime laws to fill domestic legal gaps that China sees as hindering its ability to defend territorial maritime claims and justify its activities in international waters. Earlier in the year, Beijing announced its intent to revise (and create where necessary) domestic maritime laws in support of its evolving maritime strategy, part of a continuing effort to set the terms for international legal disputes it expects will grow as its maritime reach expands. These developing domestic maritime laws bear watching as a public expression of Beijing’s strategic intent in the maritime domain; possible harbinger for the other contested domains of air, space, and cyberspace; and attempt to right a perceived historical wrong. China feels disadvantaged by (and taken advantage of) a Western-dominated system of international maritime laws established when it was weak as a nation and had little say in its formulation.

At the end of the day, despite all of China’s grandiloquence about Chinese maritime rights under UNCLOS and accepted international norms, Beijing is still conveniently disregarding several provisions therein to support its national interests and complement its strategic narratives. This is specious, and should not go unchallenged. If Beijing wants to be a respected major player in the global arena, then it must abide by and uphold the rule of law. China cannot play by its own set of rules or worse flaunt its exceptionalism on the world’s stage for all to see. Beijing needs the international community to believe that its commitments under international law are sincere and credible, especially in the maritime trade realm on which its growing economy relies. By the same token, the world needs a rising China to be a responsible global leader respectful of the rule of law.

Tuan N. Pham has extensive experience in the Indo-Asia-Pacific, and is widely published in national security affairs. The views expressed here are his own and do not reflect the official policy or position of the U.S. government.

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