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“Maritime Rights and Interests”: A Vague Concept in China’s Maritime Power Ambition

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In the context that the 21st century has been termed the century of the seas, Chinese leaders have cried for transforming China into a maritime power. To that end, China has made assertive advances into the seas without any regard to the interests of other countries. China’s moves have caused tension and upset the status quo of the region during the past several years. [READ MORE]

At the 18th CPC National Congress that took place in November 2012, the then Chinese President Hu Jintao, for the first time, called for “safeguarding China’s maritme rights and interests, and building China into a maritime power”[1]. Chinese President Xi Jinping again underlined that safeguarding China’s “maritime rights and interests” (haiyang quanyi) should be the core in building China into a maritime power. However, the concept “maritime rights and interests” termed by Chinese leaders is somewhat unclear:

First, China claimed that its rights and interests are legitimate. The legitimacy of its maritime claims has been underlined by China in order to justify its assertive actions in the South China Sea. The term repeatedly used by China is “undisputed”/“indisputable”. Externally, China has demanded other countries to respect its ambitious actions regardless of the scale of the actions. Internally, China has been working to harmonise the “maritime rights and interests” and “territorial integrity”, “core interests” and other national priorities in order to strengthen the state authorities’ grip of power.

The ambiguity of China on legitimacy has two parallel targets: (i) to assimilate maritime rights and interests with all the sovereign rights and jusridiction prescribed by the United Nations Convention on the Law of the Sea (UNCLOS) for the different water areas, including the territorial sea, contiguous zone, exclusive economic zone (EEZ) and continental shelf (CS); (ii) China’s maritime rights and interests have gone beyond the scope of the law of the sea, therefore, in the future, the law of the sea needs to be revised in a way to accommodate its ambitious claims. This has been articulated in the Position Paper submitted by China in December 2014 with respect to the Philippines’ lawsuit to the arbitral tribunal established under the Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS).

In addition, the legitimacy that China has invoked also displays its historical perspective. China attempted to incorporate the “maritime rights and interests” into the territories that had fallen into the hands of Japan and Western imperialists during the “century of humiliation”.[2] China has argued that the unequal historical context had awarded China the legitimacy for its claims today, and that China should retrieve the lost territories, and this has greater legitimacy than laws and codes, ratified or unratified. The argument has been widely disseminated and invoked to support the historical rights in the “cow - tongue line” map as well as the legislation by China.

Second, China has also claimed that its rights and interests had been threatened by other countries. The popular views from China is that its self - restraint and reactive approach, which lasted for too long, had enabled other countries to undertake actions that undermined its rights and interests. In a meeting of the CPC Politburo in July 2013, President Xi Jinpin emphasized that greater priority must be accorded to safeguarding rights (wei quan) than to maintaining the stability (wei wen). The formula put forth by President Xin Jinpng has triggered China’s maritime law enforcement agencies to conduct more aggressive actions that disregard any possible consequences, diplomatically or on the field. The activities have been camouflaged as emergency responses against incidents emerging from maritime disputes in the East and South China Seas. Furthermore, China also voiced that there were other threats from the naval forces of the United States and several other countries. The 2015 White Paper published by China claimed that some countries outside the region had intervened into the South China Sea by conducting maritime and aerial surveillance patrols against China.

Third, China views the maritime rights and interests as an exclusive right over maritime resources. Therefore, any country uses the waters that fall within China’s sovereignty claims without prior permission or without paying royalties would be seen as having damaged its reserves of natural resources. The issue has been growing in significance as China’s domestic demands for energy, natural resources and seabed minerals have been surging. This has become a factor that has driven China’s assertive actions at sea in attempt to compete for the maritime resources.

Fourth, China’s maritime rights and interests have also expanded over time. What makes it difficult to determine the limits of China’s maritime rights and interests is that China has foreseen its possible expansion along with the evolution of the international law of the sea. China has been particularly ambitious about the expansion of jurisdiction at sea and been watching the developments of the law of the sea mechanism. China assumes that while the limits between the areas of water barely change, the contents of the rights prescribed under the law of the sea may evolve. In other words, the law of the sea will evolve and be adjusted to match political realities, hence new rights. In fact, new areas of water were generated and rights over them were awarded to littoral states after sea conferences had been convened by the United Nations. Most notably, the 200 nautical mile exclusive economic zone emerged as a result of the UNCLOS III (1973 - 1982) conference. Prior to the conference, China did not have the exclusive economic zone and had no concrete interests in maintaining control over defined maritime geographical areas. The birth of UNCLOS gave China (as well as other littoral states) the rights to manage, and the sovereign and jurisdictional rights over economic activities in their vast exclusive economic zones. Furthermore, the power of littoral states has been extended to include the economic rights in the extended continental shelf (up to 350 nautical miles from the baseline), and the rights to engage in deep seabed mining in the high seas. This triggered China’s expansionist ambition, which has been stated by the Liu Cigui, former Director of the State Ocean Administration (SOA) as that China’s maritime rights and interests were not only confined to the areas of water under its jurisdiction but also in the waters beyond. Meanwhile, the Chinese domestic laws, including the Law on Surveying and Mapping 2002, also provided for a geographically unidentified scope by using the term “other areas of water” apart from the areas of water contained in the UNCLOS.

Fifth, China’s intentional ambiguity is even more dangerous as it is used as a pretext to develop its navy, law enforcement forces and “maritime militias”[3] (a large fleet of fishing vessels) and undertake assertive actions to safeguard the vague so - called “maritime rights and interests”. Law enforcement and fishing vessels have engaged directly in acts of expanding the controlled maritime zones, and are permanently assisted by the Chinese naval ships, which are ready for combat in case of emergencies and outbreaks.

The Chinese PLA Navy possesses Asia’s largest fleet, comprising more than 300 warships, submarines, landing ships and missile corvettes. In 2014, more than 60 navy ships were commissioned and in 2015, a similar figure of navy ships was built by China. In terms of quality, China has focused on developing its navy airpower, submarines as well as missiles that can attack targets that are located thousands of kilometers from its mainland.[4] It is more dangerous as China, alongside the buildup, has undertaken massive reclamation to transform seven features that it occupied in the Spratlys into artificial islands with various purposes including militarization.[5]

In March 2013, China merged the four law enforcement agencies[6] to form the Chinese Coast Guard (CCG) under the umbrella, administratively, of the State Oceanic Administration (SOA), and operatively, of the Chinese Ministry of Public Security. The report of the US Office of Naval Intelligence suggests that China had planned to build an additional of 30 large patrol vessels and more than 20 armed patrol vessels for its Coast Guard between 2012 and 2015. This will add another 25% on the total of 205 Chinese law enforcement vessels (95 large cutters of over 1,000 tons and 110 small boats of 500 - 1,000 tons). The majority of Chinese law enforcement vessels are armed with guns ranging from 12.7 mm, 14.5 mm and 30 mm. The large vessels may also have helicopter decks and shelters.[7]

Meanwhile, Xi Jinping once called on the Chinese “maritime militias” to pioneer not only in fishing activities but also in collecting maritime information and assisting the construction of islands. On that basis, China has invested in developing large fleet of large fishing vessels, equipped with advanced electronic and communication facilities, including radars that enable them to interact with the Chinese PLA Navy and Coast Guard. Many of them are even equipped with satellite - based positing system to monitor and track opponents’ warships, collect maritime intelligence. This makes it difficult to tell whether they are fishing vessels or warships.[8]

Furthermore, since China has not clarified its maritime claims, it is difficult to determine the thresholds where China may resort to the use of force at sea. The military, paramilitary and militias have been used in China’s territorial disputes with other claimants as well as in efforts to expand its military presence in the South China Sea in order to directly challenge the US, intervene and oversee the freedom of navigation and aviation of military vessels and aircrafts in the region. This is a dangerous plot disguised under the pretext of protecting China’s “maritime rights and interests”.[9]

In conclusion, China’s so - called “maritime rights and interests” under international law, is a messy and ambiguous concept that displays its hegemonic ambitions and is a source of instability for the region. Although there is a long way before China can truly become a maritime power, it has already been aggressive. If countries fail to take preventive actions promptly, it would be too late once China has successfully transformed into a China - style maritime power./.



[1] Full speech delivered by President Hu Jintao at the CPC National Congress in 11/2012: http://news.xinhuanet.com/english/special/18cpcnc/2012-11/17/c_131981259.htm

[2] Merriden Varral, “How China's Worldviews Are Manifested in the South China Sea, National Interest, December 16, 2015: http://nationalinterest.org/blog/the-buzz/how-chinas-worldviews-are-manifested-the-south-china-sea-14642

[3] Andrew S. Erickson and Conor M. Kennedy, “Tanmen Militia: China’s 'Maritime Rights Protection' Vanguard”, National Interest, May 06, 2015: http://www.nationalinterest.org/feature/tanmen-militia-china%E2%80%99s-maritime-rights-protection-vanguard-12816

[4] Office of Naval Intelligence, The PLA Navy: New Capabilities and Missions for the 21st Century, United States Navy, April 09, 2015.

[5] Ben Dolven, et al. “Chinese Land Reclamation in the South China Sea: Implications and Policy Options”, Congressional Research Service Report No. R44072, June 18, 2015.

[6] The four merged law enforcement agencies include (i) Fisheries Law Enforcement Command (FLEC): an organ of the Fisheries Management Bureau under the Ministry of Agriculture. It was charged with protecting Chinese fishing vessels and personnel, resolving disputes in fishing activities, preventing illegal fishing, and protecting maritime resources; (ii) Chinese Marine Surveillance (CMS): a core maritime law enforcement agency under the auspices of the State Oceanic Administration. Founded in 1998 as a paramilitary force equipped with patrol ships and helicopters, and charged with maritime law enforcement, and protecting navigation security in the waters claimed by China. CMS was the main force engaging in the incidents of USNS Impeccable in 2009 and the Scarborough stand-off with the Philippines in 2012; (iii) Chinese Coast Guard (CCG): formerly a branch of the Public Security Border Troops under the leadership of the Ministry of Public Security. In 2013, the Chinese Coast Guard was merged into the State Oceanic Administration. Its mandates involve patrolling territorial waters, EEZs and coastline, protecting the marine environment, natural resources, and engaging into search and rescue at sea; (iv) Maritime Safety Administration (MSA): under the auspicies of the Ministry of Transportation. It is in charge of the maritime safety issues, pollution control and main rivers and coastline. More reference in: Lyle J. Goldstein, “Five Dragons Stirring Up the Sea: Challenge and Opportunity in China’s Improving Maritime Enforcement Capabilities”, China Maritime Study No. 5, US Naval War College, April 2010.

[7] Office of Naval Intelligence.

[8] Andrew S. Erickson and Conor M. Kennedy.

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