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Reuters/Erik De Castro
Rules of its own.
YOU KNOW THE DRILL

China illegally cordoned off a huge part of the South China Sea for military drills—and will likely do so again

By Steve Mollman

China wrapped up military drills in the South China Sea today (July 11). Before the drills, which began on July 5 and included live-fire war games, Chinese authorities issued a notice that the exercise area was off limits.

Its warning to stay away from the area was short and to the point. After giving the geographic coordinates and dates of the drill, the brief statement read simply: “No entry.” One problem: China had no authority to block off that part of the sea. It’s just the latest example of Beijing’s disregard for the UN Convention on the Law of the Sea (UNCLOS), which is the basis for international maritime law and which China signed in 1996.

The drill took place in a vast stretch of sea encompassing a little over 100,000 sq km (38,610 sq miles), with a perimeter of just over 1,300 sq km. It extended from China’s Hainan Island to the Paracel Islands, which China controls but that are also claimed by Vietnam and Taiwan.

No entry.

Much of the area was within China’s exclusive economic zone (EEZ). As defined by UNCLOS, coastal nations get an EEZ extending 200 nautical miles (370 km, 230 miles) from the shore baseline. Most of the exercise area fell within the EEZ that extends from Hainan Island.

historicair/Wikipedia, CC-BY-3.0
UNCLOS territorial jurisdictions.

But an EEZ is not territorial sea. Under UNCLOS, an EEZ grants a nation sole exploitation rights over all natural resources, but other nations still enjoy the freedom of navigation and overflight. Conducting a military exercise doesn’t change that.

“Declaring an exercise area does not allow the exercising state to make waters and airspace beyond its territorial sea off-limits to other states,” explained Jonathan G. Odom, a military professor at the Daniel K. Inouye Asia-Pacific Center for Security Studies in Honolulu, in an email to Quartz.

As Odom further explained,

When nations exercise their rights, freedoms, and lawful uses of the sea, the international law of the sea requires that they have “due regard” for the rights, freedoms, and lawful uses of the sea guaranteed to all other nations. The negotiating history of UNCLOS indicates that “due regard” was intended to mean that states would not “interfere” with other states’ freedoms.

State practice has been that states conducting military exercises will maintain due regard by issuing notices to mariners and notices to airmen about the dates, times, locations and activities that will be conducted in the exercise. This puts other vessels and aircraft (civilian and military) on notice to the potential risks of transiting and operating in those locations. This applies for exercises on the high seas, as well as exercises within a state’s EEZ or territorial sea.

When an exercise area is announced, commercial vessels and aircraft might decide to stay outside of the area, to avoid all risk. Other militaries might decide to stay out of the area, but they might also decide to continue operating in the area. Regardless, they must ensure that they maintain due regard—that is, not interfere—with the exercising state’s military exercise.

China, along with a small group of other nations (including Iran, North Korea, and Saudi Arabia), takes a different view of what an EEZ means. As Ronald O’Rourke, a specialist in naval affairs, wrote in a report for the US Congressional Research Service published in late May (pdf, page 16)

The position of China and some other countries (i.e., a minority group among the world’s nations) is that UNCLOS gives coastal states the right to regulate not only economic activities, but also foreign military activities, in their EEZs.

US planes and ships operating in China’s EEZ have often been harassed—the report provides five examples in recent years (pdf, page 17). In one, a Chinese fighter jet flew dangerously close to a US Navy aircraft about 215 km (135 miles) east of Hainan Island. In a string of others over a number of years, Chinese ships and aircraft harassed US naval ships.

But China is operating on a double standard. In July 2014, it sent an uninvited intelligence-gathering ship into the EEZ off Hawaii to observe biennial naval exercises. The US had no problem with this, because it’s permitted under UNCLOS. Yet when the US tries to do the same in the EEZ of China, its ships and planes are liable to face warnings and harassment.

China has done little to address this contradiction. In his report, O’Rourke cites Isaac Kardon (pdf, page 87), a China maritime legal specialist, on one possible line of reasoning (“AGI” in the below refers to an intelligence-gathering vessel):

China interprets the EEZ articles in the United Nations Convention on the Law of the Sea (UNCLOS) as granting a coastal state jurisdiction to enforce its domestic laws prohibiting certain military activities—e.g., those that it interprets to threaten national security, economic rights, or environmental protection—in its EEZ. China’s domestic laws include such provisions, while those of the United States do not. Those rules would allow China to justify its seemingly contradictory approach to AGI operations—or, as Kardon put it, “to have their cake and eat it too.”

In other words, Beijing demands high seas freedoms in the US’s EEZ because of US principles; however, it denies such freedoms to other nations in its own EEZ, because of its own, less liberal principles.

Beyond the military

The attitude extends beyond the military sphere, especially within the nine-dash line, which encompasses most of the sea. Everything within it, China asserts, is its territory. That’s one reason China uses mostly coast guard rather than Navy vessels in the sea—because it’s considered national jurisdiction (pdf, page 8).

Within that zone,  China doesn’t hesitate to apprehend or warn off other nations’ fishing vessels, even when those vessels are well outside China’s own EEZ (as defined by UNCLOS) and it has no right to do so. Yet it also routinely sends its own fishing vessels into other nations’ EEZs, backs them with its coast guard, and raises diplomatic protests when such vessels and their crews are apprehended.

China cannot tolerate other nations operating in its own EEZ, but it has tried to set up oil rigs in contested waters that Vietnam considers part of its own EEZ.

At the same time, China is pushing for what it calls a “win-win” strategy in the sea, where if other nations have oil and gas reserves that fall within the both their own EEZs and China’s nine-dash line, then the two parties should share revenue on the project. Needless to say, other nations are not too keen on the idea (pdf, page 19).

The military drills ended one day before a ruling of an international tribunal on maritime disputes between the Philippines and China. The ruling is expected to favor the Philippines and undermine some of China’s sweeping claims in the South China Sea.

Beijing has said it will ignore the ruling. Considering it already selectively applies UNCLOS rules to benefit itself, that should surprise nobody.