Rising Power, Creeping Jurisdiction: China's Law of the Sea

This study explores the relationship between the People’s Republic of China (PRC) and the international legal system, with empirical focus on the exclusive economic zone (EEZ) regime as codified in the 1982 Third United Nations Convention on the Law of the Sea. The main pattern explained is China’s practice of international law in its maritime disputes, moving beyond a question of “compliance” with the relevant rules to instead address how China shapes the underlying legal norms, and vice versa. The analysis demonstrates that the EEZ regime transforms Chinese interests in maritime space, enabling systematic use of legal means of excluding others from disputed space along China’s maritime periphery. Backed up by growing capacity (i.e., “rising power”) to enforce its claims, China’s purposive interpretation and flexible application of the norms of the EEZ regime manifest as “creeping” claims to jurisdiction and rights beyond those contemplated in UNCLOS III. These nominally jurisdictional claims enable the PRC’s push toward closure, a broader strategic aim to control vital maritime space that includes political, military and economic components. Using a framework adapted from the transnational legal process theory of international law, the study proceeds to analyze Chinese practice in terms of four linked processes: interaction, interpretation, internalization, and implementation. Tracing these processes from China’s early encounters with Western international law, through its participation in the conference to draft the law of the sea convention, and the subsequent efforts to incorporate EEZ rules into PRC law and policy, the empirical analysis reveals that China’s engagement in transnational legal processes does not result in its obedience to liberal rules and norms. Rather, China’s practice in the EEZ transforms the scope and content of those underlying norms, contributing to wider dysfunction in the law of the sea