China’s strategy of creeping jurisdiction

The essence of the strategic issue in the seas around China can be summarized as the US determination to secure a cordon of island chains to contain China, and the latter’s attempts to breach this confinement. In so doing, China interprets its obligations under the UN Convention on the Law of the Sea (UNCLOS) in a manner at odds with other countries and therefore not in line with international order because UNCLOS has the widest subscription and compliance of any agreement in the UN system other than the UN Charter itself. 

China’s attitude to maritime and territorial sovereignty is fluid and essentially long-term. Control of the maritime space is important also because it is directly linked to the control of a nation’s airspace and, apart from rights of navigation, fisheries and oil and gas exploration and exploitation are affected by the maritime boundary.

China’s actions are not contextually a China-US issue, which relates to the US placing stress on freedom of navigation and China making claims on other coastal countries regarding how maritime boundaries are drawn and disputes about sovereignty and resources resolved. China has no settled maritime boundary with any country except, in a small sector, with Vietnam in the Gulf of Tonkin.

China wants its neighbouring coastal countries, and the US, to keep out of what it considers its waters, and it keeps up the pressure with its coastguard’s presence as it tries to prevent others, such as Japan, from accessing those waters, thereby exercising physical possession on the basis that this will sustain its claims of sovereignty.

There is therefore a capital-intensive deployment of maritime vessels by China. Small uninhabited rocks have been turned into habitations which help in assertions of sovereignty. This can be termed creeping or incremental jurisdiction, and Chinese domestic law legitimizes such control.

China and Taiwan have a median line between the Taiwan coast and mainland China which China had observed for several years but no longer does because Taiwan is a strategic objective for China. This is a slow, patient, and deliberate process of non-observance of the median line, which affects both the maritime boundary and airspace, and is an incremental assertion of sovereignty. For China, the Taiwan Strait is within its exclusive economic zone since it does not recognise Taiwan’s sovereignty. After the January presidential election in Taiwan, which brought into power a leader opposed to reunification with China, this trend of intrusion will be enhanced and China’s tactics of creeping jurisdiction will intensify, with the greater erosion of the median line and Taiwan’s contiguous zone.

It needs to be noted that China is conservative in considering how much risk its policy may involve. Its general position is strategic ambiguity, which could be intensified to heighten or reduced to lessen tension. What the policy is aimed at is to both create a new normal of customary law and also to display evidence of its capabilities.

The international community does not favour unilateral activities. However, the position of the US, which is in the forefront of contesting China’s policy, also has strategic and tactical limitations. While it is party to three 1958 conventions on Territorial Sea, Contiguous Zone, Continental Shelf and the High Seas, which it invokes, it has failed to ratify UNCLOS and consequently, in public opinion, looks unprincipled and without locus standi. This makes the regional countries somewhat sceptical about American intentions.

Besides this, the freedom of navigation principle strongly advanced by the US is only theoretical as far as Vietnam and Philippines and other coastal nations are concerned, because they do not have the air or sea power to exercise it. This permits China to assert that US policy is a sign of the American desire for domination, power projection and militarisation. 

Accordingly, the US needs to focus on the resources and claims of the exclusive economic zones, especially regarding fishing. This would interest all of China’s coastal neighbours, including Japan, Korea, Malaysia and Brunei. And the US should use its coastguard ships instead of naval military vessels, because only the coastguard can frustrate China’s extensive fishing in contested waters and marketing the catch at lower-than-competitive prices.

However, it is not all one-way traffic to China’s advantage on the sea. To counter China’s island-building, countries like Philippines and Vietnam, in particular, have shown themselves to be ready to take some risks in copying the same techniques and, while keen to avoid any incidents, have set up maritime military units on the Chinese model, and have used similar tactics while running the gauntlet of Chinese water-cannons aimed to deter them.

China’s policy typically is non-precise, non-determinate, flexible, non-uniform and non-systematic, and would frustrate the attempts of international lawyers to make any sense of it. The nebulous 9-dash claim line is a typical example; another is the unilaterally declared 12-nautical-mile territorial sea in 1958 so as to include the off-shore islands of Quemoy and Matsu.

China subscribes to UNCLOS but at the same time wishes to modify it under the pretext of securing its own sovereignty. China has focused on control of maritime and air space under its theoretical jurisdiction and is much less concerned about regulations applicable in waters elsewhere. Therefore, the Chinese have little interest in the rules which have universal application. Their objective is to make UNCLOS less effective, less important, and less capable of being cited against them. 

Apart from the general principle of compliance with an international convention, what should be of interest to India is the relevance and comparison of China’s policy on its assumed maritime boundaries to China’s claims on the India-China land boundary. 

(Krishnan Srinivasan is a former Foreign Secretary )