China and America Clash on the High Seas: The EEZ Challenge

"Were the U.S. to accept China’s interpretation of UNCLOS, U.S. military vessels could be barred from operating in the roughly one-third of the world’s oceans that are now EEZs."

During U.S Secretary of Defense Chuck Hagel’s recent trip to China, China’s Minister of Defense, General Chang Wanquan, warned that Beijing would make “no compromise, no concession, [and] no trading” in the fight for what he called his country’s “territorial sovereignty.” Chang told Hagel: “The Chinese military can assemble as soon as summoned, fight any battle, and win.” The comments come amid an escalating campaign by Chinese nationalists to alter the status quo in the Western Pacific that has raised alarm in capitals across the region.

While China’s more aggressive external posture in the East and South China Seas has been on display since 2009, Beijing’s dispute with Japan over the Senkaku/Diaoyu islands and with Vietnam over disputed waters and islands in the South China Sea have grown increasingly volatile over the past year.

Just this February, U.S. Navy Captain James Fanell, Director of Intelligence and Information Operations for the U.S. Pacific Fleet, warned that recent navy war games by the People’s Liberation Army Navy (PLAN) revealed a “new task” for the service:

“To be able to conduct a short, sharp war to destroy Japanese forces in the East China Sea, followed by what can only be expected [to be] the seizure of the Senkakus, or even the southern Ryukus...Tensions in the South China and East China Seas have deteriorated, with the Chinese coast guard playing the role of antagonist, harassing neighbors, while PLAN ships, their protectors, conduct port calls throughout the region, promising friendship and cooperation.”

And this month, China and Vietnam found themselves embroiled in a dangerous game of brinksmanship after China deployed a massive oil rig to waters claimed by both countries near the Paracel islands. Shadowed by dozens of Chinese naval vessels, including a half-dozen PLAN warships, the Chinese flotilla immediately clashed with civilian vessels from Vietnam, where an outburst of anti-China protests has forced the evacuation of thousands of Chinese citizens.

In an attempt to quiet the turbulent waters of the Western Pacific, last month leaders from more than twenty Pacific navies signed the promisingly worded Code for Unplanned Encounters at Sea at the Western Pacific Naval Symposium in Qingdao, China. Unfortunately, the agreement continues the recent trend in regional pacts: marginally productive but lacking in any real teeth.

The resolution is non-binding; only regulates communication in “unplanned encounters,” not behavior; fails to address incidents in territorial waters; and does not apply to fishing and maritime constabulary vessels, which are responsible for the majority of Chinese harassment operations.  Perhaps most important, the code fails to address the principal disquietude in U.S.-China relations: fundamentally contradictory interpretations of a country’s legal rights within its Exclusive Economic Zone (EEZ).

For as the temperature has risen on China’s maritime territorial disputes, the U.S. and China have been struggling to manage their own, altogether separate, conflict of interest at sea. Though it has not garnered the attention of the East or South China Sea disputes, this legal wrangle has the potential to be every bit as dangerous, and has already led to nearly a dozen confrontations at sea between U.S. and Chinese naval vessels.

The Legal Dispute

Historically the oceans of the world were divided into two categories: “territorial seas,” a state’s sovereign waters stretching three nautical miles from its coastline, and the “high seas,” open to unrestricted navigation for all. During decades-long negotiations for the UN Convention on the Law of the Sea (UNCLOS), which took effect in 1994, conferees agreed to extend a nation’s territorial waters from three to twelve nautical miles and create several new maritime boundary designations including an Exclusive Economic Zone (EEZ) extending 200 nautical miles from a country’s coastline. There, the coastal state would enjoy exclusive rights over economic exploitation activities and marine scientific research, among other related things. Though not a party to UNCLOS, the U.S. observes the maritime boundary distinctions in practice.

Maritime Boundary Definitions

Over time different interpretations of a nation’s rights in its EEZ have developed. The U.S. and most other countries of the world treat the EEZ like the high seas when it comes to foreign militaries conducting surveillance: permission is not required from the coastal state. China, by contrast, argues that the EEZ is more akin to a country’s territorial sea, where coastal state permission must be obtained for a foreign military to conduct surveillance activities there.