Chinese naval ambitions likely to drive changes in the customary international law of the sea

The U.S.’s post-World War II record of success in shaping a favorable law of the sea agenda was achieved without a serious rival. For decades, developing nations looked to the Soviet Union for leadership in opposing perceived imperialistic trends in U.S. foreign policy. However, within the law of the sea, the Soviet antagonist was notably absent. As the nation most capable of challenging U.S. operations and underlying legal doctrines, the Soviets had no interest in doing so. The U.S. and Soviet Union were, in effect, law of the sea allies.⁵³

Today, China shows far less inclination toward cooperation. Although Chinese legal arguments are not entirely original, what separates China from the traditionally ineffectual opponents of military maritime mobility is China’s ambitious naval modernization.⁵⁴ The Chinese have served notice they intend to be at least a regional maritime power and perhaps more. Moreover, the Chinese intend to protect their maritime interests by redefining key aspects of the maritime legal regime.⁵⁵

If indeed the Chinese are inclined to lead a law of the sea insurgency from a position of maritime strength, the international political climate for doing so is more favorable today than 1982, when UNCLOS opened for signature, or even than 1994, when UNCLOS entered into force. Today, states with coastal concerns and interests of their own may find China’s arguments useful in their own contexts. Two especially fertile justifications for increased regulation are protecting the coastal marine environment and ensuring off-shore security.