On the Potential of Cooperation between China and Small Island Developing States in the Construction of International Maritime Legal Order

LIU Xinxin,XU Peng

Abstract:As the existing international maritime legal order is mainly constructed by the traditional maritime powers,the emerging developing countries represented by China are inevitably in a passive position when applying international law to the protection of maritime rights and interests.To change this situation,it will take more than China’s efforts alone.As a group of developing countries closely related to the ocean,small island developing States (SIDS) have the basis and potential to cooperate with China in building an international legal order for the ocean.Both China and SIDS are defenders of the maritime rights and interests of developing countries and important participants in the international maritime law organization.Over the years,China has also made important contributions to the sustainable development of SIDS.In terms of cooperation areas,in addition to economic cooperation,China and SIDS can strengthen cooperation under international law in global fishery management,exploitation of seabed mineral resources and response to sea level rise.To this end,China should strengthen the training of marine-related legal personnel,build a platform for international exchanges on maritime affairs,and continue to deepen cooperation with SIDS in various fields,so as to create conditions for the two sides to jointly build a new international maritime legal order.

Key Words:China;Small island developing States;International maritime legal order;Cooperation potential

As a result of the strong monopoly of voice in the oceans after World War II,“the power to interpret and define important international conferences on the oceans,negotiations on maritime issues,signing of agreements on maritime treaties,and settlement of disputes and emergencies over maritime activities rested entirely in the hands of the maritime large powers led by the United States (US).”1ZHANG Ersheng,PEI Guangyi,CHEN Yuyi &LI Xuejing,The Weakness of Marine Discourse Power and China’s Maritime Power Strategy,Forum of World Economics and Politics,Vol.34:2,p.139 (2014).(in Chinese)China,on the other hand,is in the position of passively accepting the rules of the game.In January 2021,the CPC Central Committee issued thePlan on Building the Rule of Law in China (2020–2025)for the purpose of accommodating the needs of high-level opening-up,improving the system of laws and rules concerning foreign affairs and making up for the shortcomings,so as to comprehensively improve the level of rule of law in foreign-related work.It is explicitly proposed that China will “actively participate in the formulation of international rules and promote the formation of a fair and reasonable international legal system”.2China Issues Plan on Build Rule of Law,GovCN (10 Jan 2021),http://www.gov.cn/zhengce/2021-01/10/content_5578659.htm?trs=1.(in Chinese)The Plan shows a clear objective,i.e.,gradually getting hold of the rights to theoretical definition,issue setting,organization construction,as well as the rights to rule-making,interpretation and change in international law in the process of participating in the formulation of rules of international law.3MENG Yuqun,The Generative Logic of Discourse Power in International Law and the Construction of China,Nanjing Journal of Social Sciences,Vol.32:2,p.102 (2021).(in Chinese)Meanwhile,efforts shall be made to advance the international legal order towards becoming more fair and reasonable,and to better safeguard China’s national interests.“China is a maritime large power but not a maritime great power.”4YI Shi,YAO Zhongcai &CHEN Zhenguo,The South China Sea! The South China Sea!,Guangdong People’s Publishing House,2009,p.20.(in Chinese)A sound international maritime legal order is crucial for China to safeguard its maritime rights and interests,develop its marine economy and protect its marine ecosystem.In this connection,China should take an active part in the building of a new international maritime legal order that is fairer,more reasonable,and more perfect.It is necessary to be aware that small island developing States (SIDS),given their status as key actors in international maritime affairs,should not be underestimated.In this regard,there lies a certain potential for cooperation between China and SIDS in the course of building an international maritime legal order.

I.Profile of SIDS

A.Political and Economic Status of SIDS

As small island States are largely developing States,the economically underdeveloped small island States with flat coasts are often referred to by the international community as small island developing States (SIDS).Of the world’s 58 SIDS,5See Small Island Developing States,DSDG (15 May 2021),https://sustainabledevelopment.un.org/topics/sids/list.eight are still considered to be among the least developed States worldwide,according to the latest figures from the United Nations Economic and Social Council.6As of February 11,2021,the least developed countries among SIDS include:The Comoros,Guinea-Bissau,Sao Tome and Principe,Haiti,Kiribati,Solomon Islands,Timor-Leste and Tuvalu.See List of Least Developed Countries,UNLDC Data (11 Feb 2021),https://www.un.org/development/desa/dpad/least-developed-country-category/ldc-data-retrieval.html.

Politically,with a long-held position on the edge of the world’s political scene,it is difficult for SIDS to have their interest appeal heard in the international community.Recent years,however,have seen a rise in the voice of these SIDS in the international arena with the establishment of organizations and platforms such as the Alliance of Small Island States (AOSIS) and the Pacific Islands Forum.In particular,they have been active in discussions on international issues such as sea level rise and climate change.

Economically,SIDS suffer from general backwardness and therefore get caught in numerous obstacles to their development.Firstly,due to the relatively small population and natural resources,SIDS have difficulties in forming largescale industries and thus rely mainly on imports for their economic development.Secondly,there is a high cost of transportation in the process of importing commodities due to the distance problem,resulting in a high impact from the international market.Thirdly,SIDS are greatly affected by marine disasters,and their economies are vulnerable to severe damage in the event of natural disasters such as tsunamis.Finally,these SIDS are generally low in per capita income and less resilient to natural disasters.7Stephen Pratt,The Economic Impact of Tourism in SIDS,Annals of Tourism Research,Vol.52,p.148-149 (2015).For States highly dependent on tourism,few can recover quickly from extreme weather events on their own without support from others.8Prosper F.Bangwayo-Skeete &Ryan W.Skeete,Modelling Tourism Rresilience in Small Island States:A Tale of Two Countries,Tourism Geographies,Vol.23:3,p.454 (2021).As global warming intensifies and severe weather events occur,the survival of SIDS is becoming increasingly alarming.

B.Ocean Development Strategies of SIDS

As threatened and challenged by global warming and sea level rise,SIDS are making active adjustments to their ocean development strategies to meet the needs of sustainable national development.

Firstly,SIDS aim at sustainable development and fully uncover the potential of exploitation of marine resources.With the aim of achieving prosperity,stability and sustainable development in the country,Vanuatu developed theNational Sustainable Development Plan 2016 to 2030.According to the plan,the government of Vanuatu seeks to capitalize on other States’ rapid advances in technology and innovation to better utilize their natural assets on land and at sea,in order to ensure their food and energy security.9See HE Guangshun et al.eds,Research Report on Foreign Marine Policies (2018),China Ocean Press,p.227-230 (2019).(in Chinese)In this sense,the active leveraging of foreign funds and technology to achieve full utilization of local marine resources can help SIDS,which are short of both land and population,to address the plight of lack of funding and technology.

Secondly,SIDS focus on developing the blue economy and strengthening international cooperation with China and other States.SIDS have long maintained economic cooperation with Australia,New Zealand,the U.S.,the European Union(EU),etc.Recent years,however,have seen China becomes increasingly popular with these SIDS.This is because only China’s economic aid and cooperation are considered politically unambitious with “no strings attached”.10YANG Jian,China in the South Pacific:Hegemon on the Horizon?, The Pacific Review,Vol.22:2,p.139 (2009).TheBelt and Road Initiativeand the21st Century Maritime Silk Roadproposed by China are perfectly suited to the practical needs of Pacific island States in their economic development by promoting infrastructure construction,improving economic development conditions and facilitating the lives of islanders.These initiatives have boosted the rapid development of economic and trade cooperation between China and the Pacific island States.11See CHEN Dezheng &LV Guixia eds.,Annual Report on Development of Pacific Island Countries (2020),Social Sciences Academic Press (China),2020,p.9-10.(in Chinese)The year 2020 alone witnessed a year-on-year rise of 1.3%to US $9.04 billion in China’s trade in goods with the Pacific Island region.Among them,China’s exports amounted to US $5.2 billion,up 22.4% year on year,and China’s imports totaled US $3.84 billion,down 17.8% year on year.12See Briefing on China’s Trade and Investment with Pacific Island Countries,MOFPRC (25 Jul 2021),http://mds.mofcom.gov.cn/article/Nocategory/200210/20021000042986.shtml.(in Chinese)

Thirdly,SIDS focus on enhancing inter-regional cooperation to improve their voice internationally as a whole.Organizations such as the AOSIS and the Pacific Islands Forum are outcomes of SIDS’ efforts to explore regional governance.In July 2017,the Pacific Islands Forum Secretariat released the 2017Framework for Pacific Regionalism.Guided by the Framework,South Pacific States aim to work as a collective to capitalize on the advantages of the Pacific Ocean’s maritime geographical location and marine resources to achieve the sustainable development goals of the region.13Supra note 9,HE Guangshun et al.,p.358-368.The voice of SIDS as a collective in the international arena has also grown in recent years,making them a force to be reckoned with in the international arena in the process of addressing climate change and participating in ocean affairs.

II.Potential for Cooperation between China and SIDS on the Construction of an International Maritime Legal Order

China is a developing State as most SIDS,enjoying the jurisdiction over extensive sea areas and boasting a large number of islands.In the process of building a sound international maritime legal order,China has a solid foundation for cooperation with SIDS.

A.Both China and SIDS are Important Defenders of the Maritime Rights and Interests of Developing Countries

In its involvement in international maritime affairs,China also renders extensive support to developing States in various ways.During negotiations on BBNJ international agreement,China expressed its non-support for the consideration that making strategic environmental assessment an obligation of the BBNJ international agreement would impose an unreasonable burden on developing States and subject them to unreasonable environmental obligations.14SHI Yubing &CHEN Shuai,On the Applicability of Strategic Environmental Assessment in BBNJ International Agreement,China Oceans Law Review,Vol.16:4,p.16.(in Chinese)Aiming at facilitating developing States’ engagement in the affairs of the International Seabed Authority (ISA),China has over the years continuously contributed to the Voluntary Trust Fund of the ISA to finance the participation of developing States members in meetings of the Legal and Technical Commission and the Finance Committee.15Research Group of Institute of Marine Development Strategy,State Oceanic Administration,Report on the Development of Ocean Society of China (2017),China Ocean Press,2017,p.214.(in Chinese)China’s participation in the building of the international maritime legal order,whether in terms of public statements or financial support,has manifested China’s responsibility and commitment as a large developing State.According to some scholars,“It is precisely because of the lack of a voice in the construction of the UNCLOS-centered contemporary maritime legal system that China is,to a certain extent,in a passive position in safeguarding its maritime rights and interests.”16YANG Zewei,Deficiency and Improvement of UNCLOS,Law Review,Vol.33:5,p.64(2012).(in Chinese)For this reason,China has been attaching increasing importance to its participation in the negotiation of international maritime legal affairs in recent years.

“When it comes to ocean issues,which are regional or even global in nature,any State can hardly face or solve them alone.And it is not possible for one or some States to complete the change and improvement of the legal rules of the ocean,such as UNCLOS,on their own.”17PEI Kun,Research on the International Maritime Legal Order,Master’s Dissertation,Wuhan University,2017,p.35.(in Chinese)It is therefore essential for China to pool more strengths and voices of developing States.As important States Parties to the United Nations Convention on the Law of the Sea (UNCLOS)18Nearly 40 of the 58 SIDS (including 38 UN Member States) are parties to UNCLOS.See UN Treaties Collection (28 July 2021),https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en.and leaders in safeguarding the maritime interests of developing States in international ocean affairs,SIDS play an irreplaceable role in safeguarding the maritime rights and interests of developing States.As global warming and sea level rise become increasingly prominent,issues concerning baselines,legal status of islands and reefs,boundary treaties and climate refugees bear directly on the survival interests of SIDS.Once the rule that an island loses its territorial status upon being permanently submerged is recognized by international law,SIDS will suffer more than a loss of sovereignty;they will lose their right to survival.It is foreseeable that SIDS’ efforts to safeguard their own development interests in the process of improving the international maritime legal order will,to some extent,also have a positive impact on the protection of China’s rights and interests of islands and reefs.

B.Both China and SIDS are Important Participants in the International Maritime Law Organization

Official bodies such as the International Court of Justice (ICJ) hold undoubtedly an important influence in the law-making process of the international law of the sea.As of February 2021,among the current ICJ judges,there is one from the small island State Jamaica,and among the former ICJ judges,there was one from Guyana.19All Members,ICJ (28 July 2021),https://www.icj-cij.org/en/current-members.In the case of the International Tribunal for the Law of the Sea(ITLOS),its current judges also include representatives from Cape Verde,Malta,and Jamaica.20Members,ITLOS (28 July 2021),https://www.itlos.org/en/main/the-tribunal/members/.Historically,SIDS such as Malta,Trinidad and Tobago,Grenada,Jamaica,and Cape Verde have all played a significant role in the ITLOS.21Members of the Tribunal since 1996,ITLOS (28 July 2021),https://www.itlos.org/en/main/the-tribunal/members-of-the-tribunal-since-1996/.Among the Member States of the Council of the ISA,SIDS such as Fiji and Jamaica have remained members of Group D since 2017,while Morocco,Tonga,and Trinidad and Tobago have repeatedly joined the Council as members of Group E.22The Council,ISA (28 July 2021),https://www.isa.org.jm/authority/council/members.The future may see more SIDS join these international organizations related to the law of the sea.SIDS will constitute a force to be reckoned with in the law-making process of the international law of the sea.

In parallel with the Chinese government’s support for the cause of sustainable development in SIDS,the latter also provide active support for China’s ocean affairs.According to incomplete statistics,more than 230 political parties from over 90 States have expressed their support for China’s position on the South China Sea since the South China Sea Arbitration took place.23See ZANG Xiaocheng,More than 230 Political Parties from over 90 States Expressed Their Support for China’s Position on the South China Sea,Scio (20 Apr 2021),http://www.scio.gov.cn/37259/Document/1597609/1597609.htm.(in Chinese)They include many SIDS such as the Comoros,Guinea-Bissau,Maldives,Fiji,and Papua New Guinea.24See Over 90 States State Their Support for China’s Position on the South China Sea (partial list attached),Yicai (20 Apr 2021),https://www.yicai.com/news/5042113.html.(in Chinese)With the gradual recognition of the “maritime community with a shared future”advocated by China among SIDS,there will be an increasing number of these States supporting China’s proposition on various international occasions.This is of great significance to China’s participation in building an international maritime legal order.

C.China is a Firm Supporter of the Sustainable Development of SIDS

China has been supporting SIDS in various ways throughout their quest for sustainable development.When meeting with Fijian Prime Minister at the Great Hall of the People in May 2013,President Xi Jinping stated that China will support Fiji’s reasonable appeals regarding energy security,climate change and the protection of maritime resources and will join the efforts with Fiji to promote further development of bilateral relations.25XI Jinping Meets with Prime Minister of Fiji Bainimarama at the Great Hall of the People,GovCN (29 May 2013),http://www.gov.cn/ldhd/2013-05/29/content_2414007.htm.(in Chinese)In parallel,SIDS are also embracing China’s participation in the cause of their marine sustainable development.In September 2017,heads of delegations from 12 States,including Antigua and Barbuda,Cape Verde,and Fiji,opened a dialogue in Pingtan,China and culminated in thePingtan Declaration.The Declaration expressed the desire for China to help island States in strengthening maritime capacity building,establishing China-island States maritime cooperation projects,and carrying out technical exchanges and project cooperation,personnel training and operational training.26See HU Meidong,Pingtan Declaration:Building a “Blue Partnership” Based on Maritime Cooperation,China Daily (22 Sep 2017),http://fj.chinadaily.com.cn/2017-09/22/content_32326346.htm.(in Chinese)

The exchanges and cooperation between Fiji—the first Pacific island State to establish diplomatic ties with the People’s Republic of China—and China can be considered a model for cooperation between Pacific island States and China.Amidst the ravages of the COVID outbreak,President Xi Jinping had another phone conversation with Fijian Prime Minister Bainimarama in June 2021,conveying that China is ready to continue to provide vaccines and other supports for Fiji in the fight against the pandemic,and will set up a China-Pacific Island Countries reserve of emergency supplies to help Fiji and other island States improve their ability to cope with major public health events and natural disasters.27See XI Jinping Speaks with Fijian Prime Minister Bainimarama on the Phone,GovCN (24 June 2021),http://www.gov.cn/xinwen/2021-06/24/content_5620613.htm.(in Chinese)In addition to Fiji,China has also made donations of vaccines and other epidemic prevention supplies to Timor-Leste,Seychelles,Mauritius,Trinidad and Tobago,Cape Verde,Comoros,Maldives and other SIDS.China has always upheld the concept of equal diplomacy to cooperate with all SIDS,big or small,strong or weak,on the basis of respecting their development interests.

Sharing extensive common interests has set the stage for exchanges and cooperation between China and SIDS,during which,however,there still exist unfavorable factors that need to be taken into account.First,there were once disagreements between China and SIDS over the issue of climate change responsibility.At the Copenhagen Climate Change Conference in 2009,the AOSIS demanded that large developing States implement higher standards for reducing greenhouse gas emissions and raised discontent about the increased flow of funds and technologies to large developing States under the Clean Development Mechanism (CDM) and Global Environment Facility (GEF) in the international climate sector.28CAO Yabin,The Alliance of Small Island States in Global Climate Negotiations,Contemporary International Relations,Vol.31:8,p.41 (2011).(in Chinese)China,one of the “BASIC” States,has borne the brunt of this discontent.Second,subject to the influence of regionalism and nationalism,island States actively seek to maximize their own interests while engaging in “group cooperation”,which inevitably leads to differences in the process of collective decision-making,thereby posing a certain degree of influence on the cooperation between Pacific island States and large States.Third,China’s cooperation with island States is vulnerable to the influence of large States both inside and outside the region.In the case of the Pacific island States,for example,Australia is a major power in the South Pacific region,so any involvement by China is hardly free from the concerns and opposition of the Australian side.In 2017,Solomon Islands announced that Huawei would undertake its submarine high-speed cable project to Sydney,a project in which China failed to participate after Australia exerted diplomatic pressure on Solomon Islands.Finally,China’s Taiwan region is a factor that cannot be ignored in China’s efforts to strengthen exchanges and cooperation with SIDS.Some of the SIDS are “diplomatic allies” that the China’s Taiwan region authority actively strives for,which to some extent hinders China’s normal diplomacy.29ZHAO Shaofeng,From “Going Global” to “the Belt and Road Initiative”:China and Pacific Island Countries in Four Decades,Research on Pacific Island Countries,Vol.2:1,p.40-43 (2019).(in Chinese)These challenges,albeit posing resistance to cooperation between China and SIDS,do not impede the promotion of overall cooperation.In recent years,China has maintained dialogue and cooperation with SIDS on the basis of the“Five Principles of Peaceful Coexistence” and has earnestly helped them develop their economy,which has won the support of increasingly more SIDS.

III.Cooperation areas between China and SIDS on the Construction of an International Maritime Legal Order

Besides cooperation in basic areas such as developing blue economy,protecting ecological environment and coping with climate change,there still exists a potential for cooperation between China and SIDS on the building of international maritime legal order in such areas as global fisheries governance,exploitation of seabed mineral resources and joint response to the international law of the sea challenges brought about by sea level rise,and further deepening of cooperation is urgently needed.

A.Global Fisheries Governance

SIDS,albeit with relatively small population size and land area,have a combined sea area of more than one-fifth of the earth’s surface area under their jurisdiction and are rich in marine fishery resources.30See LIN Xianghong &ZHOU Tong,Blue Economy in Pacific Small Island Countries and Territories,Blue Economy, Vol.3:4,p.62 (2013).(in Chinese)As a major consumer of fishery resources,China has been adhering to the framework of international fisheries management in conducting distant-water fishing activities.Recent years have seen China’s active efforts to deepen bilateral fisheries cooperation with SIDS.At the national level,the Ministry of Agriculture and Rural Affairs held the Agriculture Ministers’ meeting and fishery cooperation forum between China and South Pacific Island States and signed the Nadi Declaration,and actively pushed to strengthen fisheries cooperation with Kiribati and Solomon.31See Highlights of the 13th Five-Year Plan for Fisheries | Highlights of the 13th Five-Year Plan for China’s Distant-Water Fisheries,MOAPRC (4 Jan 2021),http://www.yyj.moa.gov.cn/gzdt/202101/t20210104_6359366.htm.China has successively signed theMemorandum of Understanding on Fisheries Cooperationwith Micronesia(2003),Fiji (2018),Vanuatu (2019),Papua New Guinea (2019) and other SIDS,and has acceded to theSouthern Indian Ocean Fisheries Agreementand theConvention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean.At the non-governmental level,such Chinese enterprises as China National Fisheries Corporation and Shanghai Fisheries have taken Fiji as their base to fish in the South Pacific and boost the development and improvement of local personnel and technology.32DENG Yuan,GU Rui &ZHANG Xuebiao,Status Quo and Outlook of China-Fiji Agricultural Cooperation,Agricultural Outlook,Vol.14:11,p.104 (2018).(in Chinese)Such comprehensive cooperation from the government to the non-government level has laid a foundation for further deepening fisheries cooperation between China and SIDS.

The illegal,unreported and unregulated fishing (IUU) activities constitute a major threat to the sustainable development of fisheries in SIDS.The fisheries economy is seen as an important economic pillar for SIDS.In this regard,IUU activities in the absence of adequate monitoring,control and surveillance capabilities are undoubtedly an existential threat to these developing States that depend primarily on fisheries for food,livelihoods,and income.33Abdimalik Jama Omar,Ayub Abdirahman Mohamed &Sulaiman Abdullahi Bambale,Impacts of Illegal,Unreported and Unregulated (IUU) Fishing on Developing Countries:The Case of Somalia,Asian Research Journal of Arts and Social Sciences,Vol.9:4,p.1-2(2019).SIDS have relatively higher regulatory obligations and costs than maritime large powers in promoting fisheries in line with sustainable development requirements and avoiding IUU activities.34See YING Xiaoli &CUI Wanglai,An Evaluation of Regional Cooperation on Fisheries Management of Small Island Countries in the Pacific Ocean,Pacific Journal,Vol.46:9,p.75 (2017).(in Chinese)This is detrimental to the participation of SIDS in global fisheries governance and the promotion of sustainable development of fisheries.SIDS currently face a major challenge in fisheries governance due to the lack of management capacity over a large sea area,which has a bearing on the effectiveness of global fisheries governance capacity.For this reason,it is necessary to establish a sound institutional system to support SIDS in strengthening their fisheries governance capacity.This requires the joint efforts of SIDS and fishing nations,including China.

B.Joint Exploitation of Seabed Mineral Resources

Some SIDS are open to joint exploitation of seabed mineral resources.The commercial exploitation of seabed mineral resources has been included in the areas where investment is encouraged,according to information published on the government website of the Federated States of Micronesia in 2006.35See WANG Yanfang,Tax,Investment,Labor and Immigration Policies and Regulations of the Federated States of Micronesia,MOFCOM (22 July 2015),http://fm.mofcom.gov.cn/article/ddfg/tzzhch/200606/20060602542506.shtml.(in Chinese)In November 2014,China and Vanuatu signed theMemorandum of Understanding on Cooperation in the Marine Sector between the Governments of China and Vanuatu,which proposes that China and Vanuatu will prioritize the promotion of cooperation in the areas of marine observation and forecasting and early warning of marine disasters,marine ecosystem conservation,exploration and exploitation of marine resources,and marine scientific research.Vanuatu is a typical case of SIDS,which are generally characterized by small population,insufficient capacity to cope with climate change,and limited capacity to exploit marine resources.These are precisely complementary to China’s strengths.36See WANG Tao,Chen Lianzeng Meets with Prime Minister Sato Kilman of Vanuatu to Strengthen Bilateral Maritime Cooperation to Tackle Global Climate Change,GovCN (7 Sep 2015),http://www.gov.cn/guowuyuan/2015-09/07/content_2926141.htm.(in Chinese)Given the fact that there are many SIDS like Vanuatu that are rich in marine resources but less able to exploit them,it is of great significance to help these States fully leverage their marine resources to achieve sustainable development.September 2018 saw the signing of theMemorandum of Understanding on Cooperation in the Marine Sector between the Ministry of Natural Resources of the People’s Republic of China and the Ministry of Environment,Energy and Climate Change of the Republic of Seychelles for the Blue Partnership.37See Cooperation Document Signed between the Ministry of Natural Resources of China and the Ministry of Environment,Energy and Climate Change of Seychelles,GovCN (3 Sep 2015),http://www.gov.cn/xinwen/2018-09/03/content_5318853.htm.(in Chinese)In the context of the21st Century Maritime Silk Road,there is a great potential for cooperation between SIDS and China in the maritime sector.

A number of nations have made attempts to exploit mineral resources in the international seabed area (hereinafter “the Area”),with China,for example,also obtaining its own development blocks.Nevertheless,subject to the relatively large financial and technical costs,there are only a few nations able to participate in the exploitation of minerals in the seabed area.SIDS are even less able to participate.It is really a pity for these SIDS possessing vast sea areas under their jurisdiction but unable to fully exploit them.In the meantime,we also observe that the lack of capacity to independently exploit seabed mineral resources in the vast number of developing States represented by SIDS does not disqualify these States from legislating for domestic seabed mineral resources development.The small island State Tonga,for example,has enacted a law specifically to regulate the engagement in seabed mineral resource activities in the sea area under national jurisdiction as well as in the regional part,namely theSeabed Minerals Act 2014.38See ZHANG Zitai,SHEN Hao &ZHANG Wenzhao,Research on the Law on Exploration and Exploitation of Deep Seabed Resources,Fudan University Press,2015,p.163-164.(in Chinese)The Area is the common heritage of all mankind,on which the majority of developing States have difficulties in striking a balance for their interests due to the infancy of the exploration and exploitation and the immaturity of the mechanism of benefit distribution.As a result,for SIDS,it will be a win-win situation if foreign enterprises with exploitation capabilities can be brought in to help them exploit seabed minerals in areas under their national jurisdiction and cooperate through technology transfer or a regime similar to international oil exploitation contracts.The current regime for the exploitation and protection of seabed mineral resources under the jurisdiction of a State remains to be improved and is also an area of concern in the law-making process of international law of the sea.

C.Addressing International Law Challenges Posed by Rising Sea Levels

China’s cooperation with SIDS should not be limited to the economic and technical aspects;exchanges should be enhanced in the field of international law.As pointed out by some scholars,realizing sustainable development through the construction of islands and reefs in the context of sea level rise is more than an issue of science and technology,which also involves sensitive issues concerning international law and regime.39See MA Bo,Rising Sea Levels:Challenges and Responses for Small Island Developing States from the Perspective of International Law—The Prospect of Cooperation between China and Small Island States,Chinese Review of International Law,Vol.5:6,p.55 (2018).(in Chinese)China is currently home to 5,400 islands,both large and small,covering a total area of 38,700 square kilometers.40National Bureau of Statistics &Ministry of Ecology and Environment of People’s Republic of China eds,China Statistical Yearbook on Environment,China Statistics Press,2019,p.3.(in Chinese)With the rising sea level caused by global warming,SIDS and China share the challenges in international law.

Sea level rise poses common challenges in international law to China and SIDS in four main ways.First,the impact of sea level rise on baselines.The certainty of baselines makes the foundation for securing no dispute over maritime jurisdiction between States,but the rising sea level will undoubtedly exert an impact on the original national jurisdiction.Second,the impact of sea level rise on the legal status of islands and maritime delimitation.An island,once permanently submerged,can no longer meet the basic criteria for islands as required by UNCLOS,which is to be “able to sustain human habitation or economic life of their own.” The challenges in international law posed by sea level rise to SIDS cannot be underestimated for China.The delimitation of maritime boundaries will be even more impossible once the islands are sunk.Third,the impact on the effectiveness of maritime boundary treaties.The sea level rise leads to a loss of the guarantee of the effectiveness of UNCLOS on maritime rights in the maritime boundary treaties among States,leaving the maritime boundaries among States in an unstable state.Fourth,the challenge posed to the principle that “the land dominates the sea” established by UNCLOS.41FENG Shoubo,Sea-level Rise and the International Law of the Sea:Challenges and Responses,Journal of Boundary and Ocean Studies,Vol.5:1,p.33-39 (2020).(in Chinese)It is controversial whether the island should be recognized as a legal subject after its permanent sinking.If it is recognized,it will go against the aforesaid fundamental principle;if not,this leads to the question of how the legitimate rights and interests of SIDS and archipelagic States can be safeguarded.In spite of the widespread application of techniques for the construction of islands and reefs by many States,there is still an obvious lag in UNCLOS from the perspective of international law with regard to the new hot issue of sea level rise.In this regard,research on the impact of sea level rise on SIDS and the significance of the construction of islands and reefs is a major issue facing the international community in order to safeguard human rights to sustainable development.42Supra note 39,MA Bo,p.46.Therefore,China and SIDS should play leading roles in the research of issues related to the challenges of international law posed by sea level rise.

IV.Suggestions for China to Cooperate with SIDS to Build International Maritime Legal Order

Firstly,China should strengthen the training of maritime legal personnel in an all-round way to provide intellectual support for the government’s participation in international maritime affairs.Recent years have witnessed the Chinese government’s constant efforts to strengthen maritime force building.The Aircraft Carriers Liaoning and Shandong have been successively delivered to the PLA Navy,significantly enhancing the navy’s combat capability.The official entry into force of theCoast Guard Law of the People’s Republic of Chinahas empowered the Coast Guard with a reliable legal guarantee for the law enforcement of China’s maritime rights protection.However,there is still a large shortage of professional legal personnel in the settlement of disputes over international law of the sea,as well as insufficient attention to the development of the discipline of maritime law.For this reason,as stated by ZHANG Haiwen,Director of China Institute for Marine Affairs,Ministry of Natural Resources,“[i]t is proposed to set up international law as a first-class discipline,increase the proportion of space and quantity of articles on the law of the sea published in academic journals,and establish additional academic journals specializing in international law and the law of the sea”.43ZHANG Haiwen,Strengthening the Capacity Building of Legal Service Teams on the Law of the Sea:the Issue of Construction of “National Teams”,Chinese Review of International Law,Vol.7:3,p.23 (2020).(in Chinese)The purpose is to put efforts into cultivating and establishing a team consisted of excellent marine-related legal personnel.To raise the degree and quality of China’s involvement in the process of building the international maritime legal order,there must first be a group of professional and inter-disciplinary talents who master the history of China’s maritime development,are familiar with the international law of the sea,and can resolutely defend China’s maritime rights and interests in the international arena.Personnel training is a long-term project,but it is a necessary element for participation in the building of the international maritime legal order.Professional maritime legal personnel are indispensable in maritime affairs,regardless of whether China is in a cooperative or competitive relationship with other countries.

Secondly,China should build a platform for exchanges on the international law of the sea to study the latest practices regarding the international law of the sea.Building a platform for exchanges on the international law of the sea can update China on the latest developments and new trends in the field of international law of the sea,thereby avoiding being caught in a passive position in participating in international maritime affairs.It can also facilitate China to make its voice heard in international maritime affairs and to engage in the rule-making of international maritime affairs.During the cooperation with SIDS on building international maritime legal order,China can hold academic seminars,high-level maritime forums,and dialogues on hot issues concerning the law of the sea and other exchange activities on the international law of the sea,so as to contribute wisdom to the new developments of international law of the sea together with the law of the sea experts invited from SIDS.Sea level rise will exert an important impact on basepoints and baselines,the legal status and delimitation of islands,the effectiveness of maritime boundary treaties,the status of SIDS as subjects of international law,and the resulting “climate refugees”.44Supra note 41,FENG Shoubo.These issues,though not covered by UNCLOS,have real implications for the sustainable development of China and SIDS.In view of the increasingly serious situation of sea level rise,new developments to the international law of the sea will be bound to become an international consensus.Judging from the content,there is little possibility of changing some of the fundamental principles per se established by UNCLOS,as opposed to the existing possibility of making modifications to some specific contents or rules on the basis of adhering to the aforesaid principles Seizing the initiative to participate in the law-making of international law with SIDS is an important opportunity for China to seize the initiative in international maritime legal affairs.45LI Shuangjian,On Marine Strategy of Major Coastal States,China Ocean Press,2014,p.41.(in Chinese)

Thirdly,China should pursue deeper cooperation with SIDS in various fields to expand our “circle of friends” in international maritime affairs.Most SIDS,subject to their special geographical characteristics,suffer from a general survival crisis caused by issues such as sea level rise.In our role as a responsible power,China can proceed to strengthen exchanges and cooperation with SIDS and offer more financial and technical support to SIDS.On September 26,2015,President XI Jinping announced at the UN Sustainable Development Summit that China will write off the debt on outstanding intergovernmental interest-free loans due by the end of 2015 owed by designated least-developed countries,landlocked developing countries,and small island developing countries.46XI Jinping’s Speech at the UN Sustainable Development Summit,GovCN (27 Sep 2015),http://www.gov.cn/xinwen/2015-09/27/content_2939377.htm?gs_ws=tsina_635789483168014923.(in Chinese)On December 8,2017,China and Maldives issued a Joint Press Communique stating that the two sides will deepen cooperation on a wide range of areas including in the fields of marine environment,fisheries and tourism,hold the inaugural meeting of China-Maldives Joint Committee on Marine Cooperation in due time,further strengthen coordination and cooperation in the United Nations and on other multilateral fora,and enhance cooperation on global issues including climate change.47Joint Press Communique between the People’s Republic of China and the Republic of Maldives (full text),GovCN (8 Dec 2017),http://www.gov.cn/xinwen/2017-12/08/content_5245375.htm.(in Chinese)Our continuous assistance to the cause of sustainable development of SIDS has demonstrated the Chinese government’s vision of “a community with a shared future for mankind” and our confidence and determination to jointly promote sustainable development of the global ocean.This is conducive to enhancing the favorable perception of China in international maritime affairs and the recognition of China from the international community,thus enabling China to hold a favorable position in international morality.This will lay a good foundation for China’s engagement in building an international maritime legal order.

V.Conclusion

It is not an easy task to build an international maritime legal order that better suited to the interests of developing States represented by China.For this reason,we should,by insisting on the strategy of “uniting all forces that can be united”,actively build a favorable international environment to expand our “circle of friends” in maritime affairs while improving our overall maritime “hard power”.We should engage in close partnership with developing States,in particular SIDS,on the building of an international maritime legal order.Moreover,the collaboration can extend beyond global fisheries governance,exploitation of seabed mineral resources,and addressing the challenges of international law posed by sea level rise.The increasing focus of the international community on the oceans will expose a growing number of issues concerning the international law of the sea.This will serve as an important opportunity for emerging developing States,which were previously disadvantaged in the law-making process of international law of the sea represented by UNCLOS,to increase their participation.China should also seize this opportunity.China,being an ascendant maritime large power,will keep playing a greater role in the law-making and transformation process of the international law of the sea.This will serve both to safeguard China’s national maritime rights and interests and to shatter the long-standing monopoly of the U.S.-led Western States on maritime voice.It will enable the emerging developing States,represented by China,to fully express their demands for maritime rights and interests,and push for a fair,just,and reasonable international maritime legal order.