The Law of the Sea and Ocean Governance
China and the United Nations Convention on the Law of the Sea: Recent Developments and Prospects Zou Keyuan Lancashire Law School, University of Central Lancashire, United Kingdom
INTRODUCTION
The year 2012 is the 30th anniversary of the United Nations Convention on the Law of the Sea (LOS Convention) that was adopted in 1982 and entered into force in 1994.1 It has been widely accepted in the international community, and as of May 2011, there were 161 parties including the European Union.2 The LOS Convention established a new maritime order around the world and is generally regarded as a “constitution for the oceans.”3 While it is admitted that the LOS Convention is not equivalent to the international law of the sea, there is no doubt that this convention is the most important component and principal legal document in the law of the sea branch of international law. There were many profound developments resulting from the LOS Convention, such as the establishment of the exclusive economic zone (EEZ) and international seabed regimes, the creation of a number of international institutions including the International Seabed Authority, the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf, as well as the expansion of elements in the existing regimes for the territorial sea and con- tiguous zone.4 The People’s Republic of China (PRC or China) signed the LOS Convention in December 1982 and ratifi ed it in June 1996. The Third UN Conference on the Law of the Sea (1973–1982) was the fi rst diplomatic conference that the Chinese Government sent its delegation to after the PRC replaced the Republic of China (ROC or Taiwan) for the seat of China in the United Nations in 1971.
1. See LOS Convention text online:
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As a new comer, China might not have been prepared for such a conference. At the time China was highly infl uenced ideologically under Mao as 1973 was within the period of the Cultural Revolution (1966–1977), a catastrophic era in Chinese history. As a result, China used this international forum to attack the two China-perceived superpowers, the former Soviet Union and the United States, accusing them of hegemonism in the global ocean rather than joining other countries in deliberating detailed provisions in favor of their national interests. For the whole process, China only submitted three short and simple working papers to the conference.5 As a prominent scholar observed, China had little involvement in and no expertise on law of the sea matters: “The Chinese delegation sought instead to embarrass the Soviet Union wherever possible and to maintain the ideological and political integrity of the G77 coali- tion.”6 Nevertheless, the negative impact from domestic politics gradually disappeared after 1978 when China began to carry out the economic reform and open-door policy. With diplomatic pragmatism put forward by Deng Xiaoping, China paid attention to some of the provisions in the draft LOS Convention, which might not be favorable for China, such as the defi nition of the continental shelf. At the fi nal stage of the conference, it was extremely diffi - cult for China to revise such provisions. Thus on the occasion of signing the LOS Convention, the head of the Chinese delegation made a statement, express- ing disappointment with some provisions concerning the continental shelf and innocent passage.7 Despite some defi ciencies in the LOS Convention, China upholds the prin- ciples and norms of the Convention as well as most of its clauses. China regards this international treaty as the representative of the new law of the sea as opposed to the so-called old law of the sea, represented by the four Geneva Conventions on the Law of the Sea adopted in 1958 when PRC was still outside the UN system and had no chance to participate in the deliberations of the four conventions. This article is not designed to provide an historic overview of Chinese practices in the law of the sea.8 Rather it attempts to discuss and exam- ine more recent practices from looking into both China’s domestic implementa- tion of the LOS Convention and external interchanges with its neighbors in
5. They are concerning sea areas within national jurisdiction, marine scientifi c research, and international sea area respectively and reprinted in Collected Materials on the Law of the Sea, ed., Division of International Law of the Department of Law, Peking University (Beijing: People’s Publishing House, 1974) (in Chinese), 73–76, 78–79 and 81–82. 6. See E.L. Miles, Global Ocean Politics: The Decision Process at the Third United Nations Conference on the Law of the Sea 1973–1982 (The Hague: Martinus Nijhoff, 1998), 24–25. 7. See Han Xu, Statement on 9 December 1982, UNCLOS III, Offi cial Records, XVI; Summary Records of Meetings, 1982, 102. 8. For a historical perspective, see relevant chapters in Z. Keyuan, China’s Marine Legal System and the Law of the Sea (Leiden/Boston: Martinus Nijhoff, 2005), particularly Chapers 1, 4 and 8.