Conflicts over specific rules lie at the heart of China’s maritime disputes, which are about much more than sovereignty over islands and rocks in the South and East China Seas. Rather, the main contests concern the strategic maritime space associated with those islands. To consolidate control over these vital areas, China’s leaders have begun to implement “China’s law of the sea”: building domestic legal institutions, bureaucratic organizations, and a naval and maritime law enforcement apparatus to establish China’s preferred maritime rules on the water and in the diplomatic arena.
In China’s Law of the Sea, Isaac B. Kardon examines China’s laws and policies and analyzes other claimants’ reactions to China’s practices, because other states must acquiesce for China’s preferences to become international rules.
In an interview conducted on April 28, 2023, Isaac Kardon discusses with Bonnie Glaser China’s legal and policy efforts to defend, exploit, administer, and patrol disputed waters.
Transcript
BONNIE GLASER: Hello, my name is Bonnie Glaser, and I’m managing director of the Indo-Pacific Program at the German Marshall Fund of the United States. On behalf of the National Committee on U.S.-China Relations, I’m pleased to be here with you to talk with Isaac Kardon. He’s a senior fellow for China Studies at the Carnegie Endowment for International Peace. And his new book, which is what we’re going to talk about today, is titled China’s Law of the Sea: The New Rules of Maritime Order. So, welcome, Isaac.
ISAAC KARDON: Thank you, Bonnie. Glad to be here.
GLASER: So, let’s start by telling me, what motivated you to write this book, and what is the main question that you try to address in it?
KARDON: I felt for a long time that this is a book that needed to be written, and not just because I had to, but because this is the area of China’s foreign policy where they’re most directly in conflict with their neighbors as well as the United States. And we know from international history that territorial disputes are a very common, perhaps even the most common, cause of interstate war, and there’s lots of potential per escalation. And yet in the maritime domain, we see something somewhat different. And we see China having essentially no resolved maritime boundaries, no resolved status, all the resources in its near seas, as they call it, the Yellow East and South China Sea.
And so, I was very motivated to understand what it was that China was doing, and that’s basically what I mean by China’s Law of the Sea. It’s a story about China and whether and how the international law of the sea, especially the treaty, the UNCLOS Treaty, apply. And more specifically, it’s about what China is doing, what they’re putting out there, and whether or not it’s making the rules. That’s sort of the big question, I’m responding.
This has become even more acute since I started working on this, I guess in earnest, starting about 2009 when I really started focusing on this, when the Chinese published that now infamous nine-dash line map. And I think this discussion of what the rules are, why they’re important, whether or not China is changing them in some meaningful way, has really just been an important question. And that’s what I’ve tried to do with the book.
GLASER: There’s quite a bit of debate among experts on China about whether or not China is challenging the existing international order, whether it’s trying to fundamentally revise the order, is it nibbling around the edges? And so, you are asking this question essentially about whether China’s to change the rules in the maritime order and how.
And so, in order to assess that, I think first maybe it would be helpful to tell our viewers whether in the maritime area China was involved in writing the international rules, because China often claims the international rules were written by the West and China was excluded, and so, now China wants to be a player, not just a rule taker, but a rule maker.
So, can you explain what China’s role was in the negotiations on the UN Convention of the Law of the Sea, and whether it was a major player in the formulation of those rules?
KARDON: This is a really important question, and it does come up often in our discussions with China on maritime disputes and law of the sea issues, and certainly in China’s discussions with other parties, which is really what I’m focused on in some fundamental ways in this book. And the short answer is China was quite intensively and consequentially involved in the development of the UN Convention on the Law of the Sea III, UNCLOS III, that was open for signature in 1982 and reached the required number of ratifications in 1994. The People’s Republic of China ratified it in 1996.
But in this whole period of its negotiation and the long period of it being open for signature, I think it’s fair to describe China as one of the key leaders of this treaty coming into force. It bears noting for students of Chinese foreign policy, of which I know the National Committee has many illustrious students and practitioners of this subject, they will know that China joined the United Nations in 1971. They may not know that at precisely that moment, that’s when the Seabed Committee that eventually produced a full up United Nations conference on the Law of the Sea beginning in 1973, that was just getting off the ground. There’s been some rousing speeches in the General Assembly over the course of the late ’60s. And this was a movement led primarily by the developing world against and over the objections of the Americans, the Soviets, the Japanese, most of the Western Europeans who as traditional maritime powers or as aspiring maritime powers, basically were not interested in a new set of rules that were going to regulate their activities because they were relatively strong.
And so, China coming into the United Nations having quite a, let’s say, at a minimum, here at nearly at the height of the Cultural Revolution, quite a hostile attitude towards the international legal system as a whole viewed participating in the development of a new Law of the Sea as using what they call the weapon of international law to pursue their broader foreign policy objectives. And those primarily in that moment, important to note, had to do with opposing Soviet hegemony, and then secondarily, American hegemony. But ultimately, the Chinese imprint is very clearly on the treaty in the form of they championed the developing world’s interests.
And this baked in an interesting problem for them, which is that China, despite professing to be a developing state in some ways is emphatically not one anymore. And its maritime power and its maritime interests are somewhat more aligned with the great powers who were a little bit wary of this set of new rules, this UNCLOS III that came into effect. So, there’s a sort of more complicated story under the table here, which is that China’s actually quite involved in the latest version of the Law of the Sea, this treaty.
The Law of the Sea, of course, is also a body of customary international law or general international law that’s developed and accreted over time, quite a long time. That part of it China wants to play up as being something that they’ve been excluded from. And there is a very strong anti-imperialist type of story that can be told about that and that does have a lot of appeal precisely with the developing world group. This was the beginning of the G77, which is now on the order of 170 states, I believe, maybe someone will correct me on that. But this is the constituency that China is engaging when they talk about the rules in the Law of the Sea.
GLASER: So, let’s dig into a couple of specific issues. And there’s obviously been quite a lot of competition over interpretation of maritime law in the South China Sea. And China has had in its history, even going back to when it was the Republic of China and eleven-dash line, which later became a nine-dash line and now is ten dashes. But it does appear to define an area where China has some claims, but it’s not really clear what those claims are.
So, why is it that China hasn’t clearly defined what its claims are, and what are the conditions that would be necessary for it to do so? You know, I remember when China built the artificial islands after they were dredging sand in the Spratly [Islands], and many experts predicted that the Chinese would establish baselines. They would declare an air defense identification zone as they had done in November 2013 in the East China Sea. But that hasn’t happened. So, can you give us a sort of a quick summary of what’s going on in that area?
KARDON: Yes. And as I mentioned this nine-dash line or ten- or eleven-dash line or dotted-dash line, or whatever you wanna translate it, was the first thing that turned me on to studying this subject to begin with. I was in Taiwan in May 2009 when they published it. And, you know, in response to your quite nuanced question on this, and you of course, Bonnie, have probably forgotten more about a lot of these subjects than I’ll ever know about it and are quite well versed on all the details here. So, I appreciate the close and tough question. There is no specific claim underlying the nine-dash line. It hasn’t been articulated in any way that’s recognizable as a legal claim. They’ve said a number of things about it that have some legal implications.
And I refer you to a lot of the book. It’s sort of shot through the book because there’s a lot of different types of jurisdictional claims that are associated with some type of historic claim represented by this map, published originally by the Republic of China government starting in the 1930s, developing maps of the area and eventually inherited, as we often hear from the People’s Republic of China, inherited by the current government, and only really surfaced in 2009 from the standpoint of the international community. If you’re gonna talk to people in Indonesia and elsewhere in the region, they’ve been familiar with this for some time and had been part of the discussion in a confusing way, and I would argue, continues to confuse the discussion and confound the discussion because ultimately, it’s coming in parallel with China’s Law of the Sea-type claims.
There are some attempts here and there to reconcile aspects of the nine-dash line to the Law of the Sea regime, but I think the South China Sea arbitration probably put an end to any hope for that in Chinese policies. There are a lot of people who are very skeptical about whether or not that award was particularly effective. I believe it was quite effective, just not in the ways that we imagine. It’s certainly not enforceable. But what it’s done is I think made it very clear as a matter of at least one very authoritative international legal decision on it, that you can’t reconcile the idea that China has some sort of historic sovereign rights and jurisdiction. Those are the terms that the Law of the Sea contemplates for describing what a state can possibly have authority over in maritime space. It’s just not compatible with the regime of the exclusive economic zone and the continental shelf.
And the Chinese lawyers that you and I both know, Bonnie, are aware of that contradiction. And I think there’s, you know, people like Gao Zhiguo and Jia Bingbing, one of whom is a senior official, Gao Zhiguo, and the other a very senior and distinguished scholar, wrote a piece for the American Journal of International Law and basically just set them aside one another. Here’s UNCLOS and here’s this historical process of China developing some type of authority here. And, you know, we’re relying on both, I think is the way that they put it.
And so then when you ask, just to comment on your more specific, very important technical question about, well, what are the implications of that for China doing things like declaring airspace off-limits or under China’s jurisdiction or under China’s control in some meaningful way? And I think the short answer is, it doesn’t have any determined implications for it. China has steadfastly resisted ever specifying in positive terms, here’s what the nine-dash line is, here are the rights and authorities that we claim within it. What we see, and what I document very extensively in the book is a pretty non-uniform and inconsistent way of expressing that. We know some of the pieces of it. There’s a historical basis for it, but other than that, it means a lot of different things in a lot of different contexts.
GLASER: So, I want to ask you a bit about Taiwan because it was not too long ago that Beijing declared that the Taiwan Strait is basically not international waters. And I think it’s really important as we look at the increasing risk of conflict in the Taiwan Strait to understand how China’s Law of the Sea applies in the Taiwan Strait, and how its maritime claims and practices in the Taiwan Strait play a role in its overall policy toward Taiwan. So, can you help us understand what’s going on in the Taiwan Strait as it relates to China’s practices and interpretations?
KARDON: Yeah. So, Taiwan, the dispute is not part of the story that I’m telling, but the second order consequence of it, specifically that China, the mainland China claims, the maritime space that would be entitled to the island of Taiwan, is something that you can really get at by looking at China’s Law of the Sea. What is it that China’s telling us the rules are in their maritime space? That’s basically what I mean when I say China’s Law of the Sea is as the shorthand. What have they prescribed in their domestic law, their domestic rules, their statements up to the UN and diplomatic statements, as well as what they physically do? What are they telling us about what the rule is?
And you can say only a couple things about the Taiwan Strait, in part because of this determinacy in the way that they describe policy. But it is certainly exclusive economic zone from China’s standpoint. There is no such regime as the U-shaped line, even if that U-shaped line goes out to the east side of Taiwan in some of these new maps, and I know you alluded to that, Bonnie. I’m curious about that too. But what I see in their practice and anything they’ve said about it is that it is a distinct domain. They haven’t attempted to enforce any of those specific U-shaped line or nine-dash line-related historic or traditional types of rights.
What they have done, and this is one of the main chapters in my book, is they have steadily begun to erode navigational freedoms across the Taiwan Strait. You raised this issue of international waters. Our colleague, Peter Dutton, will be better placed to read us chapter and verse about why this is probably not the right term for the United States to be using. We might as well use exclusive economic zone. And it’s interesting, this is the starting point for both the United States and China in talking about this. Then, we would agree it’s exclusive economic zone. We wouldn’t agree that it’s PRC, exclusive economic zone on the east side of the Strait, but from the PRC standpoint, it is, and that’s a key insight because they have a specific regime for their exclusive economic zone (EEZ) that among other things purports to limit military navigation of some undefined types that they periodically enforce in varied ways.
And what we’ve seen is precisely that type of creeping change to the scope and intensity of how they want to enforce certain navigational restrictions. The main thing that we see, and I think the main thing that we can learn from thinking of China’s Law of the Sea holistically and then looking at the individual rule sets and domains is that removing that median line is one of the things that China is working quite steadily and I would argue somewhat effectively towards accomplishing over the last several years.
This was just beginning to percolate as I was finishing revisions on this book, but I’ve captured what that dynamic is and what we should be looking for in China’s practice there. And so, I think there’s something there for us in recognizing that they’ve first deliberately and quite minimally transgressed this de facto median line, but now are operating in the regularized normal way to assert China’s Law of the Sea, China’s jurisdiction, China’s sovereign rights, specifically to regulate military navigation in further and further areas of the Strait, to include having no-fly and no-sail zones as they do exercises. These are all of a piece of saying, “This is our jurisdictional space. We’re gonna use it in the ways we deem fit.”
GLASER: I want to get at the, really, I think the overall thesis of your book where you state China’s not so much changing the rules as it is reducing the importance of the rules. And specifically in regard to UNCLOS, you argue that Beijing is narrowing the scope of the application of UNCLOS rules in China’s claimed waters.
And I’ll read one other sentence from the book where you wrote, “Rather than changing the rules, China is changing the international environment in which those rules take effect.” So, can you elaborate on this point and why it’s significant and, and, and how that fits into this whole debate that’s underway about whether China’s a status quo power or a revisionist power?
KARDON: Right. So, as you’ll have detected going through the book and hearing me talk about it, I’m quite focused on specific rules of international law. And that’s one way to get at this analytically. But I think one of the things that I learned in doing this project over a long period of time, and also working from the outside in, as it were on other elements of China’s maritime power out of area in the far seas, as they say, is that the law of the sea is just one of many parts of the maritime order that is in place in maritime East Asia. And that’s really where I think China’s changing the international environment.
If you look at the East Asian littoral, and I’m not just talking about the South China Sea, I’m talking about the East China Sea, Yellow Sea, South China Sea, Taiwan Strait, this is all one body of water effectively, and it is not, coincidentally, these are the areas that China claims jurisdiction. These are not coincidentally, also areas where China has a variety of disputed sovereignty claims. The mother of them all, of course, is Taiwan, but they’re also islands in this China Sea disputed with Japan, islands all over the South China Sea disputed with Taiwan among others, but also all the Southeast Asian claimants.
In those areas, I would say just observing it, not as a matter of international law and jurisprudence, but as an analyst of international politics and a scholar of China, the Law of the Sea is not very effective in these spaces for those regional states. They’re not exercising their resource entitlements as guaranteed under the Law of the Sea. They’re entitled ipso facto to a continental shelf to exploit oil and gas resources. Tell that to the Vietnamese that the Law of the Sea is effective for them or the Philippines.
And yet interestingly, I chose those two countries deliberately. Talk to the Malaysians, talk to the Bruneians, talk to the Indonesians where China also as the same claim on paper, in effect they’re saying this is either our nine-dash line, traditional rights or our exclusive rights under the Law of the Sea, the kind of outside-in or inside-out approach, as Peter Dutton has put it. They’re not actually able to exercise their rights under the law of the sea. The United States, in its concerted efforts to uphold our rights to fly, sail and operate wherever international law allows, I believe, does still enjoy most of the rights and freedoms afforded under the law of the sea in that space. But most states don’t. China has changed how much the Law of the Sea is able to govern that space, is able to provide order for that space.
And what they’ve created in effect is a system that’s somewhat more hierarchical, for lack of a better word. If you are Vietnam or the Philippines or Indonesia or Malaysia or Brunei, and I would say to some extent, Japan, Korea, and other regional states, there’s not a direct recourse to the Law of the Sea to uphold your rights. What China is saying, and this comes through very clearly when I look at how they have put forward their preferred rules for resolving disputes about the law of the sea, it’s about bilateral political negotiation. There’s not a lot of room for the Law of the Sea to impinge on that for them.
And this is another reason, again, why I think that that South China Sea arbitration, which again, it’s a United Nations Convention on the Law of the Sea arbitration. It’s not a permanent court of arbitration, it’s not The Hague.
This is a treaty obligation that China willingly and in sound conscience as a sovereign took on itself. That’s created a real problem and a real contradiction because it has brought the of the law to see back into that political negotiation. Because you have to imagine, if you’re Vietnam, which has made what was an interested party and submitted a formal statement saying such during the arbitration and is now contemplating what sort of a suit they might bring. Even if they don’t use the Law of the Sea Convention, the mechanisms for arbitration, they have that award, and specifically its description of the nine-dash line or the Chinese historic rights claim in the South China Sea as being effectively null, that’s changing the discussion.
And so, I don’t think it’s just a one-way street where China has reduced the effectiveness of the law of the sea to a point where it’s no longer providing any order. It’s a struggle, it’s competitive, it’s quite interesting. But I think it’s much… If you look at that region, it’s very difficult to say, oh, this is a universal uniform system of rules, a rules-based international order where the Law of the Sea is really applying. And it’s because China’s Law of the Sea has displaced it to some degree.
So, it’s a type of revisionism. It’s not what people are thinking of when they say, you know, revisionist power and they’re trying to overturn the whole system. I would say far from it, they’re trying to keep certain pillars in place that are quite important. The United Nations and treaties under the United Nations, they’re very much a part of China’s vision of this order. It’s just a matter of what is the substance of them and what is the nature of their relationships with states in it.
So, that’s a little bit more than I think I ought to say on this subject now, because I want to get to a few more. So, go ahead, Bonnie.
GLASER: Okay. I wanna ask you about potential responses. What is the best way for the United States and its like-minded partners to respond to China’s efforts to insert its norms into UNCLOS, and to reduce the application of UNCLOS rules in China’s claimed waters?
And also specifically, as part of this answer, I’d like you to address something that I’m really interested in, which is the question, if the United States became a signatory to UNCLOS, would it have more tools at its disposal? Is that one of the things that we could do in order to prevent China from reducing the relevance of UNCLOS in the Asia-Pacific region?
KARDON: Thank you for those excellent kinds of questions to wrap us up about what do we do about this problem that we’ve been mired in.
And I’ll take the last part of that first, which is that I’m certainly a strong advocate of the United States ratifying the Law of the Sea Treaty. It would need to go up for advice and consent in the Senate. The obstacles to that are many, but ultimately, from an international strategy standpoint, it’s quite cheap for the United States to do. And it provides us with a much stronger and more robust position to engage with allies and partners on this question of maintaining the rules and maintaining order, and maintaining peace and stability in Asia. I think that’s not trivial at all. And I know a lot of people roll their eyes when China wants to start these discussions and say, “Well, why isn’t the U.S.—you know, how can we even talk to you about what the rules are? You won’t even accept them formally.” And that’s a little bit of a throwaway from a technical international law standpoint, but from a public relations standpoint, from a broader general interest standpoint, I think that’s not trivial, and I think we get a lot for not very high cost for doing it.
And the specific things that we get from that would take longer than we have now to really talk about. But I’ll focus on one in particular, which is that if we want to work with our allies and our partners on these issues, which I think is essential, this gives us that opportunity to engage that debate in a meaningful way. The interests of the coastal states, the states along the East Asian littoral are not exactly the same as the U.S. and I think we’ve made a mistake by foregrounding our military navigational interest above more complex or more integrated assessment of what’s going on in the region.
We share a lot of common interests with all the other littoral states there in the sense that we would like to see the relatively consistent and uniform application of the law of the sea. We don’t want China fencing in lots of underwater features with straight baselines and turning it into internal waters, and neither do they because that’s their fisheries, that’s their oil and gas grounds. And I think the more that we can align towards those within the context of the treaty that we’ve ratified and that says those states have exclusive rights to those resources, that those states in fact have been acknowledged by China to have those rights, because hey, we’re all in the same treaty. We all said this is what we’re doing. I think it creates a new opening for the United States in this regard.
And the last thing I’ll say on this is that there’s a High Seas Treaty that’s sort of adjunct to the law of the sea. It just went up for signature last month. That might be a nice catalyst for getting this conversation going and thinking about what are our actual long-term strategic interests. The United States does not wanna be painted as the outlaw and the transgressor of international law, but I don’t think that that’s such an incredible outcome, at least on these issues. The developing world, and China’s constituency on some of these rules, see and recognize the United States as out of this treaty framework and the United States as just focused on its military navigation as the right that it wants to uphold within that treaty framework, arguably also undermines the law of the sea. So if we are invested in this as a global matter, I think it really pays strategic dividends to advise and consent and ratify that treaty.
GLASER: Great. Let me squeeze in one last question because I think it’s really an important one. What are the signposts that we should look for that really would show us that China’s undertaking a more assertive effort to change the international order in the maritime domain? What are the things we should look for?
KARDON: That’s an awesome question and it tees me up to talk about something that I don’t really know very much about but I want to know more about for precisely, I think you framed the question in a great way.
GLASER: The next book.
KARDON: The next book, maybe. Certainly the next round of research projects, and it’s related to the last thing I said about the High Seas Treaty, which is I feel like I’ve got some insights into China’s jurisdictional maritime claims, the areas that are basically a function of China’s claims to sovereignty. But I am not convinced that that tells us that much about what they want in areas that aren’t touched by China’s territorial sovereignty. And in fact, we see evidence of some very mixed motives for China.
The one that I’m really interested in, and the one that I think is a signpost along the lines of what you’re asking about Bonnie, is there’s a concept called the common heritage of mankind, that’s very deeply—it’s a norm. It’s a principle underlying the Law of the Sea Treaty. And it was again, the rallying cry of the developing world in the 60s and 70s that brought this new treaty into being. And to me, it has a lot of consonance with China’s idea about the common destiny of humankind and various other ways of translating this, sort one of these jewels of Xi Jinping thought that has become integrated into Chinese foreign policy rhetoric, at least. That specific issue may or may not be the one.
But what I would say is what we want to see here is, is China presenting a version of the rules that’s appealing to this broad base of the international community? Or are they just selectively pursuing their interest in resources, for example. There’s overwhelming incentives for China to really not be a very rule-bound actor as we get out into the high seas and the deep seabed because these are areas where they now has superior capacity to just about anybody in some ways.
And the idea that they’re going to want to be restrained by the developing world’s preference for having a more distributive justice, that’s the core norm there. It’s a socialist norm to be specific and descriptive about it. It’s not first come, first serve. It’s not a competitive marketplace for these resources. These are our common heritage, and they need to be stewarded. They need to be managed judiciously in a multilateral way. And I think watching where China goes on that specific issue is going to tell us a lot about what kind of order we want to see.
And neither direction is a particularly great one. One is China’s aligning itself much more with a large group of states in say the global south or the developing world, along with Russia and some of their other natural constituents, around some norms that are really at odds with the way the U.S. thinks about the global commons, a much more liberal individualistic way of thinking about it. So, I think that’s a really key one. That’s again, maybe a little bit more of a long discussion than we have in this format, Bonnie, but I’ll be keen to continue our discussion on this whenever we can.
GLASER: Well, thanks for talking with me, Isaac, and congrats on the book. Once again, it’s called China’s Law of the Sea: the New Rules of Maritime Order. And I hope that everybody will read it and learn from it.
KARDON: Thank you so much, Bonnie, and thanks to the National Committee too. It’s really a privilege to be here.
This transcript has been lightly edited for clarity. Please refer to the video interview to ensure accuracy.
