Policy Brief

June
1, 2018
Jan 29,2024

Va l é r i e N i q u e t i s s e n i o r
fellow at the Japan Instituteof International A f fairs andTerritorializing Maritime Spaces: The
Case of China
1head of the Asia department

Valérie Niquet

at Foundation for Strategic
Research. She writes
extensively on Asia -Pacif ic
strategic affairs and security.
Her latest book include Taiwan
f ace à la C hine, demain laguerre? publication date : 2023.
You can follow her on twitter@V.Niquet

Disclaimer :The views expressed in thispublication are those of the authorand do not necessarily reflect thepolicy or position of The Japan
Institute of International Affairs or
any other organization with which
the author is affiliated.

The privatization or territorialization of maritime spaces, which
threatens the scope of the United Nations Convention on the Law of
the Sea (UNCLOS), is a phenomenon spreading to varying degrees
under pressure from coastal states.2 The offensive pursued by the
People’s Republic of China (PRC) since the 1980s is part of thisgeneral trend. The economic reforms initiated after the Maoist
period (1949-1978) by Deng Xiaoping enabled the PRC to acquire an
unprecedented naval projection capability and to gradually implement
a strategy of asserting its power in its immediate maritime space,essentially the South and East China seas.
Until the mid-1980s and the efforts of Admiral Liu Huaqing toprovide the PRC with an offshore capability, the Chinese navy, which
did not exist in 1949 and which had long maintained a status far
inferior to that of the People’s Liberation Army (PLA), was limited tocoastal capabilities. It then developed its projection capacity within
the first island chain that closes access to the Pacific from Hokkaido
to the Philippines.
The PRC’s attention to the sea is thus relatively recent andcorresponds to the rise of its economic power, which until now
has been largely based on maritime transport. Despite this recent
interest, however, China’s posture is particularly aggressive. For the
Chinese authorities, and even more so since 2012 and Xi Jinping’s
rise to power as head of the Communist Party and then of the Stateand the Central Military Commission, it is all about implementing
a strategy of revenge, the Chinese dream of the “great rejuvenationof the Chinese nation.” This dream is also expressed throughirredentist claims to a maritime space, the control of which also
plays the role of a marker of power: China must take revenge on
1 A second Policy Brief will be published, focusing on capabilities.
2 J ean-François Pelliard, La territorialisation des espaces maritimes: enjeux
pour la France et vision prospective , 09-03-2023, https://fmes-france.org/
la-territorialisation-des-espaces-maritimes-enjeux-pour-la-france-et-visionprospective/.

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the Western (and Japanese) powers that camefrom the sea, but also on its own past as aweakened continental power that, after Zheng
He’s expeditions in the first quarter of the 15th
centur y, chose to scuttle its navy and turn its
back on the ocean at a time when the West,on the contrar y, set out to conquer the world
with great maritime expeditions. For reasonsof prestige linked to the legitimization of theCommunist Party, China is also trying to impose
a return to a highly fantasized notion of imperial
rule of all “under the sky,” based on a tributarysystem that would be imposed on all of Beijing’s
neighbors. The analysis of this tributary system
of Tianxia ( 天 下 ) has seen a resurgence ofinterest in China since the 2000s. 3 Reflecting
this hierarchical view of the world with China at
its center, Foreign Minister Yang Jiechi told theASEAN Regional Forum in Hanoi in 2010: “China
is a big countr y and you are small countries;
that’s a fact.”4a very broad interpretation of UNCLOS, which
can go so far as to question its legitimacy, to“lawfare,” one of the “three warfares” theorizedby Chinese strategists, which has resulted in
the adoption of several important legislative andadministrative texts on the law of the sea.5
An extensive interpretation of UNCLOS
China signed the United Nations Convention
on the Law of the Sea (UNCLOS) in 1982 andratified it in 1996, two years after the Convention
entered into force, with a reser vation clauseon sovereignty issues. It was this reser vation
clause that allowed the PRC to deny thelegitimacy of the Hague Arbitral Tribunal when
the Philippines presented a case against China
regarding the South China Sea in 2013 and toreject its conclusions in 2016.6
Beijing’s interpretation remains vague,
though, allowing it to adapt its claims toopportunities and the actual balance of power.
Nevertheless, the PRC considers the disputed
maritime features in the South China Sea tobe areas of full sovereignty, contrar y to theprinciples of UNCLOS. If we follow the Chinese
claims, more than 80% of the South China Sea
would be territorialized in favor of the PRC
within a line of 9 or 10 or 11 points, the numberof which has varied with time and circumstance.

China’s determination to asser t its powerincludes an attempt to territorialize its near seas.
This is not a strategy of exclusive influence, as
the Monroe Doctrine may have been for theUnited States, but rather an asser tion of fullsovereignty over these maritime areas, withsecurity implications that extend far beyond theregion. The issues of sovereignty, economic
interests related to fishing and the exploitationof fisher y resources, and power are therefore
par ticularly complex and destabilizing. The
PRC has fortified itself with an equally complex
arsenal to deal with these issues, ranging fromIn the South China Sea, China is also
attempting to impose the principle of anarchipelagic state on what it unilaterally

 un Tang, “The State of the Field Report X: Contemporary Chinese Studies of Tianxia (All-Under-Heaven),” 30-06Y
2023, https://link.springer.com/article/10.1007/s11712-023-09896-6.; Zhang Feng, “The Tianxia System: World
Order in a Chinese Utopia,” , 03-2023, China Heritage Quarterly , http://www.chinaheritagequarterly.org/tien-hsia.
php?searchterm=021_utopia.inc&issue=021.
4 Gordon G. Chang, “China’s Conception of the World and Model of Global Governance,” https://www.hoover.org/
sites/default/files/gordon_chang_paper.pdf
5 Tara Davenport, “’Lawfare’ in the South China Sea disputes,” 01-04-2022, https://www.lowyinstitute.org/theinterpreter/lawfare-south-china-sea-disputes.; Michael Clarke, “China’s Application of the Three Warfares in theSouth China Sea and Xinjiang,” 01-2019, https://nsc.crawford.anu.edu.au/sites/default/files/publication/nsc_
crawford_anu_edu_au/2019-05/chinas_app_of_the_3_warfares_in_xj_and_scs.pdf, 01-2019.
6 The South China Sea Arbitration, https://pca-cpa.org/en/cases/7/.
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defines as its territorial sea around features notrecognized as islands giving rights to territorial
waters or an exclusive economic zone (EEZ).

the coasts of the country claiming these rights.
At the same time, the PRC uses the conceptof “history” to lay claim to the Japanese Senkaku
archipelago. Beijing bases its claim on the fact
that, during the Ming dynasty (1368-1644), thearchipelago was used by ships as a navigational
point, and that, according to Beijing, is thebasis for why the archipelago should have beenreturned by Japan to the Republic of China
in 1945, along with Taiwan. In 2012, Beijing’s
White Paper on the Diaoyu Islands proclaimed
in its preamble: “Diaoyu Dao is China’s inherent
territor y in all historical, geographical andlegal respects, as well as traditional fishinggrounds.”10 China’s main goal is also to erase
the fact that, until recently, in the early 1970s,
the PRC had not made any specific claim to thearchipelago.11

The PRC has also relied on Ar ticle IV
of UNCLOS, which applies only to Statesrecognized as archipelagic, to apply the straightline principle in defining the baselines aroundthe features it claims, thereby greatly expanding
the territory in question. Similarly, against theadvice of the arbitral tribunal in The Hague,
China has attempted to impose rights attached
to islands on rocks or features that are often
covered by water and other wise ar tificiallycreated by land reclamation and infrastructure
construction.7 China has artificialized the sevenfeatures it controls in the Spratly archipelago,
increasing its territory by more than 3,200 acres(13 km2), and has built various types of militaryand civilian infrastructure in the Paracels.8

In the East China Sea, the PRC is also using
the argument of its continental shelf to claim
an EEZ up to the Okinawa Trough.12 China has
built several platforms to explore and exploit
the natural gas reser ves of the Chunxiao（Shirakaba）field at the limits of the medianline separating the EEZs of Japan and the PRC,
which are not officially recognized by Beijing,and is trying to push its advantage in a variety
of ways, depending on the reactions of Tokyoand the international community. These claims
also became an adjustment variable in relations
between the PRC and Japan.

The definitions of ter ritorial waters andadjacent waters are also crucial because the
PRC, again in a ver y broad interpretationof UNCLOS, does not recognize the rightof innocent passage of foreign vessels in its
territorial and adjacent waters and requires such
vessels to register.9
The PRC also uses the controversial conceptof “historical rights” to bolster the legitimacy
of its territorial claims. In reality, this concept,
particularly when it comes to defining historicalfishing zones, only applies to areas defined
as bays and r equir es the consent of theneighboring countries. According to UNCLOS,
it cannot be used for territorial claims to vast
maritime areas in international waters far from

Finally, in the Taiwan Strait, China has since2022 rejected the principle of international
waters off an island that Beijing considers partof Chinese territor y. On June 13, 2022, the

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8
9

Idem
https://amti.csis.org/island-tracker/china/中 华人民共和国领海及毗连区法 (Law of the PRC on the Territorial Sea and the Contiguous Zone) , 25-02-1992,
www.gov.cn/gongbao/shuyu/1992/gwyb199203.pdf.
10 D iaoyu Dao, an inherent territory of China , 10-09-2012, https://english.www.gov.cn/archive/white_
paper/2014/08/23/content_281474983043212.htm.
11 In an atlas published in the PRC in the 1950s, the Senkakus are attributed to Japan.
12 “China submits outer limit of continental shelf in East China Sea to the United Nations,” Xinhua News , 05-11-2012.

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spokesman of the Chinese Ministry of Foreign
Affairs said about the Taiwan Strait: “There isno such thing as international waters in the Lawof the Sea; the countries concerned claim thatthe waters of the Strait are international waters;
their intention is to find excuses to manipulate
the Taiwan issue.”13

The 1992 Law on the Territorial Sea and theContiguous Zone
The law pr omulgated by the National
People’s Congress on February 25, 1992, is the
bedrock of the legislative edifice that the PRC
has gradually built to legitimize its ambitions.
Right from Article 1, the tone is one of command
and will to control, with uses of the Chinesecharacter quan ( 权 ): “The law is for the PRC
to exercise sovereignty (zhuquan [ 主权 ]) overits territorial sea and control ( 管 治 权 ) overits contiguous zone and safeguard its national
security and maritime rights and interests.”15
The law defines Chinese territorial waters as
the mainland, the coastal islands, Taiwan and all
the islands belonging to it, as well as the Diaoyu
Islands, Penghu, Dongsha, Xisha, Zhongsha,
Nansha and other islands belonging to the
PRC The vagueness of this last addition allows
the PRC to extend further claims southward,
in par ticular towards the Natuna Islands(Indonesia) or Malaysia’s exclusive economic
zone, where several incidents have alreadyoccurred.16 The law restricts innocent passage
through these vast territorial waters. Article 11
states: “All international organizations, foreignorganizations and individuals shall obtain
permission from the People’s Republic of China
to conduct scientific research, marine operations
and other activities in the territorial waters of
the People’s Republic of China.” According toBeijing, this covers all the areas defined above,
paving the way for numerous incidents as the
projection capabilities of the Chinese coast
guard and navy (PLAN) are strengthened.

Waging “lawfare” to enforce Beijing’s
maritime territorial claims
In suppor t of all these claims, which go
beyond the limits set by UNCLOS, China hasenacted an arsenal of laws and regulations
that theoretically enables it to act by force andexercise control over a vast area improperly
defined as “territorial waters.” This arsenal
and the PRC’s attempts to utilize it have ver y
wor r ying implications for the freedom ofnavigation, despite Beijing’s claims that China
has never restricted or attempted to restrict
the freedom of movement of civilian vessels,
par ticularly in the South China Sea. These
threats also affect the freedom to explore andexploit oil, gas, and fishery resources in areasthat Beijing unilaterally claims as its own.
Incidents have multiplied, with Malaysia overdisputed fishing zones, with Vietnam, whose
oil exploration activities have been challenged
on several occasions since 2014, and with thePhilippines. China has been constantly on guardof f Scarborough Atoll since 1995 to prevent
Philippine fishing boats from entering thelagoon and has set up a net to physically blockpassage.1413

国 际 海 洋 法 上 根 本 没 有 国 际 水 城 , 13-06-2022, https://news.sina.cn/gn/2022-06-13/detail-imizirau8185090.
d.html.
14 In September2023, the Philippines Coast Guard succeeded in cutting the net; “PCG removes hazardous floating
barrier in compliance with presidential instructions”, https://coastguard.gov.ph/index.php/news/11-news/5345pcg-removes-hazardous-floating-barrier-in-compliance-with-presidential-instruction-2, 26-09-2023
15 Law of the PRC on the Territorial Sea and the Contiguous Zone, op. cit.
16 Angeline Tan, Understanding Chinese Behavior: Opportunities for Malaysia-Japan Cooperation in the South China
Sea ,” 24-10-2023, https://www.jiia-jic.jp/en/news/mt_items/2023-10-24_3.pdf.

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The 1998 Exclusive Economic Zone andContinental Shelf Law
The Law on the Exclusive Economic Zone
and the Continental Shelf of the People’s
Republic of China, adopted on June 26, 1998,
complements the 1992 law in defining the areasthat the PRC seeks to control.17 In the 1998 Law,
the continental shelf extending to its outer limits
takes precedent over the 200-mile principle thatgenerally defines a state’s EEZ. In Articles 3
and 4, Beijing defends the principle of the fullsovereign rights of a coastal state, in this case
China, over its EEZ and continental shelf. It is
specified that all international organizations,foreign organizations, and individuals mustobtain permission from Beijing to explore,
exploit or conduct research in areas defined as
its EEZ or its continental shelf as defined solely
by Beijing. With respect to Japan, Beijing claims
that the EEZ extends to the Okinawa Troughand that it alone may authorize any exploitationof oil and gas resources in the East China
Sea. Finally, Beijing claims authority over, andcontrol of, the laying of pipelines and cables in
its EEZ or on its continental shelf.

China’s Maritime Expansion Strategy:
Administrative Measures
In 2007, the PRC created the Sansha
administrative unit, which includes the Paracel(Xisha), Spratly (Nansha), and Zhongsha
archipelagos. This entity is par t of Hainan
Province, and its capital was established on
Woody Island (Yongxing) in the Paracels in2012. Once again, the purpose is to “legitimize”
a de facto situation and to tr y to bolster
Chinese claims by asser ting continuous
administration, regardless of the legitimacyof this administration and the protests of thewronged states, first and foremost Vietnam and
the Philippines. The PRC also organizes “tourist”
trips, again essentially to back up its claims witheffective administration under international law.
In 2013, the PRC also established an Air
Defense Identification Zone (ADIZ) over the
East China Sea that largely encroaches on the
ADIZs of neighboring states, including Japanand South Korea. Most importantly, contrar y
to usage, the PRC claims to impose a reporting
requirement on all aircraft crossing the zone,
rather than only on those bound for Chinese
territory.

Status of the Taiwan Strait
In another extension of Chinese ambitions,
China has challenged the universally accepted
principle of international waters in the Taiwan
Strait (see above), paving the way for a potential
multiplication of incidents with foreign civilianor military vessels.

The Maritime Traffic Safety Law of 2021
Stepping up the pressure tactics used by
the PRC to enforce its territorial claims in the
China Sea, the PRC also passed a new Maritime
Safety Law on September 1, 2021, consistingof 122 articles.18 Under this law, five types ofvessels (submarines, oil and LNG tankers,
nuclear-powered vessels, vessels transportingradioactive material and “any vessels that
may endanger maritime safety”) must declaretheir identity, cargo, origin and destination,and intermediate ports when entering China’s
territorial waters, which, as we have seen, areThese legislative ef for ts, which underpin
Beijing’s legal war, ar e accompanied byadministrative measures with the same
objective.

17

18

 aw on the Exclusive Economic Zone and the Continental Shelf of the Peopleʼs Republic of China, 26L
0 6 - 1 9 9 8 , h t t p s : / / w w w. i l o . o r g / d y n / n a t l e x / d o c s / E L E C T R O N I C / 9 2 6 6 0 / 1 0 8 0 5 3 / F - 2 1 0 6 1 8 5 5 8 3 /CHN92660#:~:text=Article%202%20The%20exclusive%20economic,the%20territorial%20sea%20is%20measured.
Maritime Traffic Safety Law of the PRC, 01-09-2021, http://www.asianlii.org/cn/legis/cen/laws/mtsl239/.

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Policy Briefver y broadly defined. They must also accept
Chinese pilots. China Coast Guard forces havethe right to use their weapons and all othermeans against foreign vessels that have enteredillegally (according to Beijing) and refuse toleave territorial waters, as unilaterally definedby the PRC. Such actions are regularly taken by
Chinese forces against Philippine fishing vessels
or oil exploration vessels from Vietnam or othercountries, using water cannons and attempting
to ram “hostile” vessels at the risk of sinking
them.19

accordance with the “three warfares” principle –legal, psychological, and information warfare –as well as pressure to try to change international
norms to its advantage. Unilaterally changing
the status quo by imposing administrative
measures in an attempt to establish a de facto
situation is also part of this arsenal, at the riskof multiplying incidents, in the Taiwan Strait andin the East and South China seas, not only withall its neighbors but also with external actorsthat enforce the right of freedom of navigation,
including France, which is regularly present in
the South China Sea as well as in the Taiwan
Strait.

Despite this plethora of laws, regulations,and unrecognized concepts such as “historicalrights,” China deliberately keeps its claims
vague. This vagueness is partly the result ofa gradual adaptation of Chinese law, whichseeks to conform to international law while
maintaining maximum leeway to preser ve
China’s positions, in a balancing act between thedesire to appear as a “responsible” great power
and the superior objective not to compromise
the country’s “core interests” in the China Sea.
The ambiguity also stems from postures thatcan vary widely depending on the circumstancesand Beijing’s interests. In the Arctic, forexample, China is trying to impose the conceptof a “quasi-Arctic” state ( 近 北 极 国 家 ), whichallows it to challenge the rights of littoral states,
including Russia, while defending these rights
to the hilt in its own case in the China Sea. The
concept of a “Pacific riparian” state has also
allowed China to use the pretext of the releaseof treated water from Fukushima into the Pacific
to impose an embargo on Japanese maritime
products. In all cases, the only criterion taken
into account is not international maritime law– although this can also be used – but Beijing’s
interests and the balance of power.
Today, China is the most systematic actor
attempting to impose abusive territorialization
on a maritime space it unilaterally defines assovereign. To do so, it uses a variety of means in
19

The latest incidents occurred with the Philippines in October 2023.

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