There are indications that New Zealand is becoming increasingly concerned over China’s excessive maritime claims. The Royal New Zealand Navy frigate HMNZS Te Kaha recently joined a U.K. Carrier Strike Group in traversing the contested South China Sea en route to the Bersama Gold 21 joint military exercise in order to ensure freedom of navigation in the area.
To a small state that has a heavy trade dependency on China, worth some $33 billion per year, New Zealand’s relevance to the South China Sea disputes might sound symbolic and far-fetched. New Zealand, even Australia, would have never confronted China if they’d had other choices. Therefore, the fact that Wellington feels the need to stand up to Beijing’s violation of international law sends a clear signal that China has to answer to the world and cease self-interpreting international law.
The South China Sea is not only an arena of strategic competition between China and the United States. Considering China’s straight baseline strategy, the South China Sea is a crucial test case of whether the world can reject interpretations of international law with Chinese characteristics. If not, the South China Sea will become an example of a magnificent failure to uphold the principle of freedom of navigation, and China’s controversial interpretation of international law will become customary international law.
Small states, especially coastal and archipelagic states that benefit significantly from a law-based international order and the law of the sea, will suffer the most.
So, what is a straight baseline, and why should it warrant greater scrutiny?
UNCLOS and Straight Baselines
Under the 1982 United Nations Convention for the Law of the Sea (UNCLOS), a baseline is the line along a coast from which the seaward limits of a state’s territorial sea and certain other maritime zones of jurisdiction are measured. A baseline, either normal or straight (Article 5 and Article 7 of UNCLOS, respectively), determines rights to maritime and super-adjacent airspace jurisdiction of both the coastal state itself and foreign nations. While normal baselines apply to coastal states, straight baselines are exclusive to archipelagic states, which are constituted wholly by one or more archipelagos and may include other islands.
Basically, straight baselines grant an archipelagic state special legal rights over the internal waters between its islands, which includes the air space over the territorial sea as well as its bed and subsoil. At the same time, according to Article 52 and Article 53 of UNCLOS, ships of all states enjoy the right of innocent passage through archipelagic waters and the rights of archipelagic sea lanes of passage.
An archipelagic state may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Moreover, an archipelagic state may designate sea lanes and air routes suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. UNCLOS does not allow coastal states to use straight baselines to connect the islands of an offshore archipelago.
What will happen to international law and rights of the international community if China, a continental state, successfully gains archipelagic status for its baseless claims over islands, reefs, and other features in the contested waters in the South China Sea?
International Law with Chinese Characteristics
In May 1996, China issued a declaration declaring straight baselines along its coast and promulgated its geographic positions, much of which the United States found “does not meet either of the two Law of the Sea Convention geographic conditions required for applying straight baselines.” Still in July 2016, China said it would apply the straight baselines method to measure the breadth of its territorial seas, contiguous zones, and other claimed maritime zones.
China wants the waters between its claimed islands and features in the South China Sea recognized as internal waters. Within the 200-nautical-mile exclusive economic zone (EEZ) projected from these straight baselines, China wants to control military activity, and not just economic activity as per international law. In addition, China wants a 12-nautical mile territorial sea from the Paracel Islands baseline and from constructed islands in the Spratly Islands. China wants exclusive access to its neighbors’ resources even if this encroaches their EEZs. China wants rights of jurisdiction to “historic waters” within its nine-dash line claim, which covers virtually all of the South China Sea islands and their adjacent waters, a claim which was repudiated by the South China Sea Arbitration in 2016. Regardless, China is determined to apply a straight baselines to the “four shas” that it claims: the Dongsha or Pratas, the Xisha or Paracels, the Nansha or Spratlys, and Zhongsha or Macclesfield Bank. Now China wants foreign ships to seek its approval for commercial transit through its “territorial waters.”
China wields a large policy toolbox, including militarization, “wolf warrior” diplomacy, debt traps, Mekong River dams, and lawfare, with which to turn its straight baseline ambition into reality – in other words, to gain ownership over the South China Sea. If successful, China first of all will gain, at significant losses to the international community of rights, a tremendous and unprecedented amount of leverage against its neighbors. Second, China’s interpretation of international law shall become customary international law, which could prove perilous to other seafaring societies in the long term.
Since 2015, the United States has been aggressively challenging China’s excessive claims by conducting frequent freedom of navigation operations (FONOPs) in the South China Sea. More recently, the U.S. has built a coalition of allies and partners to not only patrol the contested waters but to raise legal concerns in the United Nations. However, more of such measures will be necessary to change China’s ways of interpreting international law in its favor.
This is where small and non-claimant states, which benefit the most from a law-based international order in general and UNCLOS in particular, matter. If they fail to form a consensus that views the South China Sea disputes and China’s interpretation of the law as a national threat, the repercussions will not stop at the water’s edge of current claimants such as Vietnam, the Philippines, Indonesia, Malaysia or Brunei. Small coastal and archipelagic states will incur expensive long-term costs for inaction. Through inaction, small states can effectively pave the way for a future where China will interpret the law for them.
China’s bending the rules in its neighbors’ waters should send a sobering warning to the nations of Oceania. In particular, there are important political and security implications for New Zealand.
New Zealand’s Security and Regional Stability
New Zealand has a leadership role in the neighborhood of small coastal and archipelagic states in Oceania, and its national security is closely connected with the security and prosperity of the Pacific island nations. When addressing the challenge of balancing the vulnerability of its trade dependency on China and increasing tensions between Canberra and Beijing, New Zealand’s Foreign Minister acknowledged that while trade was important, “so is regional peace and stability.”
To the small states of Oceania, fisheries are life. In the South China Sea, China never allows other countries to enter its claimed EEZs but reserves the right to intrude into others’ waters and overfish there.
As China grows richer and mightier, is it possible for China to draw a straight baseline around claimed islands and features that may threaten New Zealand’s EEZ, one of the largest in the world? Possibly. From a regional perspective, who can guarantee that China will never intrude into the EEZs of Pacific states which control vast swaths of resource-rich ocean? Under the definition of national security offered by the New Zealand government, China’s straight baseline strategy and interpretation of international law and UNCLOS can certainly read as a threat to the nation’s security.
The unity of the Pacific states is fragile, and China is increasingly using economic tools to achieve strategic ends. Beijing has established itself as an important partner for Pacific states. From 2000 to 2017, according to a recently published report from AidData, China provided Oceania with $2.4 billion in aid for 628 projects and $8.7 billion in loans for 95 projects. The ratio of Chinese aid to loan commitments to Oceania was 1:3.6, meaning that Chinese debts dominate the sources of Chinese financing in the region. Moreover, China has demanded high degrees of collateralization and has no qualms about its state-owned enterprises seizing assets from their partners overseas.
However, such debts can’t be compared to the prospects of losing vital fishing grounds due to the future application of “international law with Chinese characteristics.” And this is something that New Zealand and Pacific states can’t afford to wait to delay responding to. Once China succeeds in forcing states to accept its interpretation of international law, the costs that small states incur will only become larger.