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Friday, May 31, 2013

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

This report presents policy and oversight issues for Congress arising from (1) maritime territorial disputes involving China in the South China Sea (SCS) and East China Sea (ECS) and (2) an additional dispute over whether China has a right under international law to regulate U.S. and other foreign military activities in its 200-nautical-mile maritime Exclusive Economic Zone (EEZ).

China is a party to multiple maritime territorial disputes in the SCS and ECS, including, in particular, disputes over the Paracel Islands, Spratly Islands, and Scarborough Shoal in the SCS, and the Senkaku Islands in the ECS. Maritime territorial disputes involving China in the SCS and ECS date back many years, and have periodically led to incidents and periods of increased tension. The disputes have again intensified in the past few years, leading to numerous confrontations and incidents, and heightened tensions between China and other countries in the region, particularly Japan, the Philippines, and Vietnam.

In addition to maritime territorial disputes in the SCS and ECS, China is involved in a dispute, particularly with the United States, over whether China has a right under international law to regulate the activities of foreign military forces operating within China’s EEZ. The dispute appears to be at the heart of multiple incidents between Chinese and U.S. ships and aircraft in international waters and airspace in 2001, 2002, and 2009.

The issue of whether China has a right under the United Nations Convention on the Law of the Sea (UNCLOS) to regulate foreign military activities in its EEZ is related to, but ultimately separate from, the issue of maritime territorial disputes in the SCS and ECS. The two issues are related because China can claim EEZs from inhabitable islands over which it has sovereignty, so accepting China’s claims to islands in the SCS or ECS could permit China to expand the EEZ zone within which China claims a right to regulate foreign military activities.

The EEZ issue is ultimately separate from the territorial disputes issue because even if all the territorial disputes in the SCS and ECS were resolved, and none of China’s claims in the SCS and ECS were accepted, China could continue to apply its concept of its EEZ rights to the EEZ that it unequivocally derives from its mainland coast—and it is in this unequivocal Chinese EEZ that most of the past U.S.-Chinese incidents at sea have occurred.

China depicts its maritime territorial claims in the SCS using the so-called map of the nine-dash line that appears to enclose an area covering roughly 80% of the SCS. China prefers to discuss maritime territorial disputes with other parties to the disputes on a bilateral rather than multilateral basis, and has resisted U.S. involvement in the disputes. Some observers believe China is pursuing a policy of putting off a negotiated resolution of maritime territorial disputes so as to give itself time to implement a strategy of taking incremental unilateral actions that gradually enhance China’s position in the disputes and consolidate China’s de facto control of disputed areas. China’s maritime territorial claims in the SCS and ECS appear to be motivated by a mix of factors, including potentially large undersea oil and gas reserves, fishing rights, nationalism, and security concerns.

The United States does not take a position (i.e., is neutral) regarding competing territorial claims over land features in the SCS and ECS. The U.S. position is that territorial disputes should be resolved peacefully—without coercion, intimidation, threats, or the use of force—and that claims

of territorial waters and EEZs should be consistent with customary international law of the sea, as reflected in UNCLOS. U.S. officials have stated that the United States has a national interest in the preservation of freedom of navigation as recognized in customary international law of the sea and reflected in UNCLOS. The United States, like most other countries, believes that coastal states under UNCLOS do not have the right to regulate foreign military activities in their EEZs. If China’s position on the issue—that coastal states do have a right under UNCLOS to regulate the activities of foreign military forces in their EEZs—were to gain greater international acceptance under international law, it could substantially affect U.S. naval operations not only in the SCS and ECS, but around the world.

Maritime territorial and EEZ disputes involving China in the SCS and ECS raise a number of policy and oversight issues for Congress, including the following:

  • the risk that the United States might be drawn into a crisis or conflict over a territorial dispute involving China, particularly since the United States has bilateral defense treaties with Japan and the Philippines; 
  • the risk of future incidents between U.S. and Chinese ships and aircraft arising from U.S. military survey and surveillance activities in China’s EEZ; 
  • the impact of maritime territorial and EEZ disputes involving China on the overall debate on whether the United States should become a party to UNCLOS; 
  • implications for U.S. arms sales and transfers to other countries in the region, particularly the Philippines, which currently has limited ability to monitor maritime activity in the SCS on a real-time basis, and relatively few modern ships larger than patrol craft in its navy or coast guard; 
  • implications for the stationing and operations of U.S. military forces in the region, and for U.S. military procurement programs; 
  • implications for interpreting the significance of China’s rise as an economic and military power, particularly in terms of China’s willingness to accept international norms and operate within an international rules-based order; 
  • the impact on overall U.S. relations with China and other countries in the region; and 
  • the effect on U.S. economic interests, including oil and gas exploration in the SCS and ECS by U.S. firms, and on international shipping through the SCS and ECS, which represents a large fraction of the world’s seaborne trade. 

Decisions that Congress makes on these issues could substantially affect U.S. political and economic interests in the Asia-Pacific region and U.S. military operations in both the Asia-Pacific region and elsewhere.

Legislation in the 113
th Congress concerning maritime territorial and EEZ disputes involving China in the SCS and ECS includes H.R. 772.

Date of Report: May 16, 2013
Number of Pages: 95
Order Number: R42784
Price: $29.95

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