China Wants to Turn Water Into Territory in the South China Sea (and Beyond)

An F/A-18E Super Hornet launches from the flight deck of the aircraft carrier USS Dwight D. Eisenhower. Flickr/U.S. Navy

Why the world should be concerned.

China’s longstanding campaign to redefine water as territory—territory where the Chinese Communist Party’s (CCP) fiat is law—proceeds apace. Lovers of maritime freedom must reject this campaign in all its forms. In other words, all nations that use the world’s oceans and seas to transact diplomacy, trade and commerce, and martial enterprises must rally against it.

Exhibit A: last week the CCP-affiliated tabloid Global Times reported that Beijing plans to amend its Maritime Traffic Safety Law (1984). The revised law will empower the authorities to “designate specific areas and temporarily bar foreign ships from passing through those areas according to their own assessment of maritime traffic safety.” Among other provisions, it will require foreign submarines to pass through “China’s waters” on the surface while flying their national flags to identify themselves.

CCP potentates are apt to take an extravagant view of what constitutes “China’s waters.”

The Legislative Affairs Office of the ruling State Council further declared that the amendments conform to the UN Convention on the Law of the Sea (UNCLOS), often dubbed a “constitution for the oceans.” And so they may—if China restricts the law to the territorial seas authorized by UNCLOS. For instance, Article 20 of UNCLOS explicitly states: “In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.”

Then why bother tinkering with domestic law? Two possibilities: one, China is making a minor modification to the law to conform to the law of the sea, or two, it has ulterior motives. If the first holds, there’s little point in ballyhooing a banal restatement of international law. But if the second scenario holds, this represents yet another attempt to extend Beijing’s territorial sway through lawfare. Chinese leaders, that is, are shrouding their creeping encroachment in concern for maritime safety.

And that’s the case in all likelihood. If nothing else, Occam’s Razor should incline observers toward the latter reading of Beijing’s motives. China has typecast itself in recent years: everything it does ends up being geared to political ends—ends that typically involve expanding its authority seaward while banishing painful memories. Past performance may be no guarantee of future results, but it’s the safest way to bet. Especially when past performance has been so consistent.

So it’s doubtful in the extreme that China will confine its lawmaking endeavors to the territorial sea, the twelve-nautical-mile belt of sea just off its coasts. What will it do? For one thing, it may apply the law to the seas adjoining underwater rocks that engineers have manufactured into fortified outposts—even though such features are entitled to no territorial sea by treaty. Dredging up seafloor confers no legal prerogatives.

More likely, though, CCP officialdom will try to enforce the law throughout the South China Sea, and probably elsewhere in the China seas to boot. Until Beijing proves otherwise, consequently, we should interpret its latest move as yet another effort to project the force of Chinese domestic law throughout the waters and skies within the “nine-dashed line” inscribed on China’s map of the South China Sea.

Thus the Maritime Traffic Safety Law represents a small part of a larger bid to repeal—not reinforce—the law of the sea in some 80–90 percent of a major waterway.

In other words, it will define the South China Sea—high seas, exclusive economic zones, and all—as territorial waters. After all, if China commands “indisputable sovereignty” (or sometimes “irrefutable sovereignty”) within the nine-dashed line, as spokesmen incessantly claim, then it stands to reason that CCP chieftains are the lawgivers there. Making rules and compelling others to obey is what sovereigns do.

Using the law of the sea to subvert the law of the sea would constitute an impressive if nefarious sleight-of-hand.

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