1 China and the Law of the Sea: Historical Aspects
11
(1966–1977),—a most catastrophic era in Chinese history. As a result, China used
this international forum attacking the two China-perceived superpowers—the former
Soviet Union and the United States, accusing of their hegemonism in the global ocean
rather than joining other countries in deliberating detailed provisions in favour of its
national interests. For the whole process, China only submitted three short and simple
working papers to the conference.
36 As a prominent scholar has observed, China had
little involvement in and no expertise on the 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 coalition”.
37 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 favourable for China,
such as the definition on the continental shelf. But at the final stage of the conference,
it was extremely difficult for China to revise such provisions. Thus on the occasion of
signing the LOS Convention, the head of the Chinese delegation made a statement,
expressing disappointment with some provisions concerning the continental shelf
and innocent passage.
38
During UNCLOS III, China submitted a working paper specifically on “General
Principles for the International Sea Area”. According to the Chinese view, the ocean
and the sea should be divided into two parts under the law of the sea: sea area within
the limits of national jurisdiction and the international sea area which included “all
the sea and ocean space beyond the limits of national jurisdiction”.
39 The international sea area and its resources are, in principle, jointly owned by the people of all
countries.
40 It is clear that China’s concept of the “international sea area” is different
from that of the “international seabed area” in the sense that the Chinese concept
does not limit itself to the deep seabed only.
China did not use the term “high seas” referring to the international sea area as
China viewed the term “high seas” as obsolete, appearing in the four 1958 Geneva
Conventions to which the PRC did not accede, and in China’s eyes, the Geneva
Conventions were representative of the old law of the sea. While the old law of the
sea served only the interests of a few big powers, the new LOS Convention laid
36 They are concerning sea areas within national jurisdiction, marine scientific research, and international sea area respectively and reprinted in Division of International Law of the Department of Law,
Peking University (ed.), Collected Materials on the Law of the Sea (Beijing: People’s Publishing
House, 1974)(in Chinese), 73–76, 78–79 and 81–82.
37 See Edward 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.
38 See Han Xu, Statement on 9 December 1982, UNCLOS III, Official Records, XVI; Summary
Records of Meetings, 1982, 102.
39 “Working Paper on General Principles for the International Sea Area”, A/AC.138/SC.II/L.45, 6
August 1973, reprinted in Jeanette Greenfield, China’s Practice in the Law of the Sea (Oxford:
Clarendon, 1992), at 235.
40 Ibid.
11
(1966–1977),—a most catastrophic era in Chinese history. As a result, China used
this international forum attacking the two China-perceived superpowers—the former
Soviet Union and the United States, accusing of their hegemonism in the global ocean
rather than joining other countries in deliberating detailed provisions in favour of its
national interests. For the whole process, China only submitted three short and simple
working papers to the conference.
36 As a prominent scholar has observed, China had
little involvement in and no expertise on the 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 coalition”.
37 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 favourable for China,
such as the definition on the continental shelf. But at the final stage of the conference,
it was extremely difficult for China to revise such provisions. Thus on the occasion of
signing the LOS Convention, the head of the Chinese delegation made a statement,
expressing disappointment with some provisions concerning the continental shelf
and innocent passage.
38
During UNCLOS III, China submitted a working paper specifically on “General
Principles for the International Sea Area”. According to the Chinese view, the ocean
and the sea should be divided into two parts under the law of the sea: sea area within
the limits of national jurisdiction and the international sea area which included “all
the sea and ocean space beyond the limits of national jurisdiction”.
39 The international sea area and its resources are, in principle, jointly owned by the people of all
countries.
40 It is clear that China’s concept of the “international sea area” is different
from that of the “international seabed area” in the sense that the Chinese concept
does not limit itself to the deep seabed only.
China did not use the term “high seas” referring to the international sea area as
China viewed the term “high seas” as obsolete, appearing in the four 1958 Geneva
Conventions to which the PRC did not accede, and in China’s eyes, the Geneva
Conventions were representative of the old law of the sea. While the old law of the
sea served only the interests of a few big powers, the new LOS Convention laid
36 They are concerning sea areas within national jurisdiction, marine scientific research, and international sea area respectively and reprinted in Division of International Law of the Department of Law,
Peking University (ed.), Collected Materials on the Law of the Sea (Beijing: People’s Publishing
House, 1974)(in Chinese), 73–76, 78–79 and 81–82.
37 See Edward 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.
38 See Han Xu, Statement on 9 December 1982, UNCLOS III, Official Records, XVI; Summary
Records of Meetings, 1982, 102.
39 “Working Paper on General Principles for the International Sea Area”, A/AC.138/SC.II/L.45, 6
August 1973, reprinted in Jeanette Greenfield, China’s Practice in the Law of the Sea (Oxford:
Clarendon, 1992), at 235.
40 Ibid.