In one stroke, a tribunal verdict has shifted the strategic landscape in the South China Sea. The ruling puts an end to the age of ambiguity that has characterized the game nations have been playing in the South China Sea for decades. It also creates the conditions for a more binary configuration of how states line up on the issue. Although the tribunal has no army to enforce its verdict, its decision has legitimacy. And those who directly benefit from the ruling will try their best to make it enforceable.3
On 12 July 2016, The Hague-based ad hoc Arbitral Tribunal that was constituted 3 years earlier in 2013 under Part xv and Annex vii of the United Nations Convention on the Law of the Sea (unclos) issued its ruling on the merits of the case The South China Sea Arbitration (The Republic of the Philippines vs. The Peopleâs Republic of China).4
The Tribunal invalidated Chinaâs claim for historic waters in its 9-dash line map.5 It likewise clarified the character of the relevant features in the Spratlys
As a result, the area in the South China Sea that China claimed has been significantly reduced. In other words, the vast sea space including some reefs and shoals that may otherwise be considered disputed because of Chinaâs claim absent an arbitration is now unquestionably beyond dispute as China could not claim them under international law, specifically unclos.10
The Spratlys alone comprise no more than 5 km2 of land feature, and more than 410,000 km2 of maritime space. This entire area used to be disputed because of the 9-dash line claim of China and the lack of clarity on the extent of maritime entitlements that each of the relevant features in the Spratlys are entitled to. Ambiguities both in the claim of China and the character of the relevant features cloaked Chinaâs aggressive assertion over the entire area with some semblance of legitimacy. As a result of the 2016 Ruling, Chinaâs supposed ârightâ to dispute is now significantly reduced to the 5 km2 of land feature plus the 12 nm Territorial Sea that may be individually appropriate on the relevant features. In effect, only about 13,000 km2 out of the more than 410,000 km2 sea space in the Spratlys which would otherwise be wholly disputed without arbitration, now remains disputed.11
Likewise, on the maritime side of the Philippines, about 500,000 km2 out of the 550,000 km2 of its eez was impacted by the 9-dash line claim of China together with the ambiguous character of the features in the Spratlys. With arbitration, about 540,000 km2 of the Philippinesâ eez is now unambiguously out of any dispute from China including Recto Bank. Only about 13,000 km2 remains arguably disputed because of the relevant land features in the Spratlys.12
More significantly, the 2016 Arbitral Ruling stripped China of any legal justification for its expansionist claim and creeping assertion in the South China Sea and the West Philippine Sea. Absent such legal cover, Chinaâs creeping assertion simply amounts to nothing but pure and simple aggression. Should China persist on pursuing the same course of action despite the 2016 Ruling, such action would constitute a violation of the jus cogens principle of international law against the use of force or threat of use of force.
Suddenly China is faced with a difficult policy dilemma. How would China behave towards the Arbitral Ruling? What would be its attitude in the South China Sea in light of the 2016 Arbitral Ruling? Will it eventually comply with the 2016 Arbitral Ruling and behave responsibly? It appears that China would have three possible policy responses: one, to recognize and comply with the Arbitral Ruling as a responsible member of the international community (Rule Of Law Approach); two, to continue with its belligerent attitude and not recognize the 2016 Arbitral Ruling in utter disregard of the rule of law, and continue with its creeping assertion without legal justification (Power Politics or âWho Caresâ Approach); or three, to not recognize the arbitration, continue with its creeping assertion but justifying the same under another âinternational lawâ principle (Hybrid Power Politics and Rule of Law Approach).
Instead of honorably and humbly accepting the outcome of the Arbitration as India did in its dispute with Myanmar, Chinaâs policy response was to not recognize the ruling, undermine its enforcement, continue with its creeping assertion, cloak its expansive claim within a new legal framework of Archipelagic Concept and straight baselines, and try to preserve them within the context of bilateral mechanism and the proposed regional Code of Conduct.
This paper will try to examine Chinaâs policy response to the South China Sea Arbitration and the 2016 Arbitral Ruling. To do this, it will first, attempt to
1 Chinaâs Expansionist Policy & Creeping Assertion
The Philippines filed the suit in 2013 against China in light of the latterâs claim of âindisputable sovereigntyâ and jurisdiction over almost the entire South China Sea as expressed in its 9-dash line map. On the basis of that claim, China interfered with the Philippinesâ right to exclusively explore and exploit its resources in its 200 nm Exclusive Economic Zone (eez) and Continental Shelf.
The freedom of the Philippines, and for that matter all the other littoral States in the semi-enclosed sea, to peacefully explore and exploit their own resources is seriously threatened by Chinaâs expansionist policy and creeping assertion in the West Philippine Sea and South China Sea.
Although there exists a territorial dispute between the Philippines and China (together with other States such as Vietnam, Malaysia, and Brunei) on some or all the relevant features13 in the Spratlys, and a maritime dispute on their overlapping eez and Continental Shelf north of Luzon, the real serious threat to peace and even to the existential interest of the Philippines is the expansionist policy of China of preposterously expanding these limited disputes beyond where they may reasonably be14 to areas where they legally ought not to be.15
In 2009, China for the first time officially declared to the world its claim to a vast area of the South China Sea in order to protest the unilateral and Joint Submissions of Vietnam and Malaysia for extended continental shelf in the semi-enclosed sea. It did so by attaching a 1947 Chinese map to its protest Note showing an arbitrary drawing of 9 dashes or dotted lines on the South China Sea map. The map per se indicates nothing. However, the covering Diplomatic Note implies that China exercises âindisputable sovereignty and jurisdictionâ over all the areas enclosed by the 9-dotted line. In other words,
Unfortunately, the 9-dotted line goes beyond Chinaâs 200 nm eez and extends very deeply South into the 200 nm eez of the other littoral countries surrounding the semi-enclosed South China Sea including the Philippines, Malaysia, Brunei, Indonesia and Vietnam. This means that China shares ownership and jurisdiction with all the aforementioned coastal States in the overlapped areas. In effect, all of the affected States will have to share their resources with China. Put in another way, none of the affected States would have the unilateral right to explore and exploit resources found in the overlapped area, without Chinaâs approval or concurrence.
Accordingly, Vietnam and Malaysia cannot submit unilaterally or jointly a claim for an Extended Continental Shelf in the South China Sea since these are situated within the âindisputable sovereignty or jurisdictionâ of China.
In the case of the Philippines, it cannot fish in its 200 nm eez or drill oil in its 200 nm Continental Shelf including Recto Bank without the consent of China. About 80 to 85 percent of the waters and continental shelves of the Philippines are impacted by this sweeping claim of China.
All the affected countries obviously do not agree with Chinaâs claim. From their perspectives, Chinaâs claim is not just expansive. It is also preposterous and devoid of any legal basis. Amid the protestations of all the affected States, China has been asserting its absurd claim in a creeping manner. Strangely, Chinaâs assertion very much preceded the official announcement of its claim, which was represented by its self-serving and legally-irrelevant 1947 map.16
As early as the 1970s, China forcibly took control of the Paracels from Vietnam.17 In the 1980s, China went down South in the Spratlys and took control of the Fiery Cross Reef after a naval battle with Vietnam, which resulted in the death of 72 Vietnamese.18 Then in the 1990s, China began occupying Mischief Reef, which is about 126 M from the coast of the Philippine island of Palawan.
The assertion continued in a quiet manner with the aggrieved country being forced to suffer in silence the impact of such assertion within the confines of its bilateral dialogue with China. China was obviously using bilateral dialogue as a trap to suppress the noise of its oppressive assertion from spilling into the international arena. During this time, China was telling the Philippines that it cannot exploit Recto Bank without violating the doc. Chinaâs approval was also asserted as necessary before the Philippines could proceed with any development of the area. It proposed joint development of the Philippinesâ Recto Bank as the way forward.
With the official announcement of its 9-dash line map in 2009, China stepped up its creeping assertion. This time, Chinaâs assertion became more intense, aggressive, and wider in coverage: harassment of vessels in the Recto Bank (Reed Bank) continental shelf (2010);19 laying of claim on Philippine oil blocks 3 and 4 (2011); forcible occupation of Philippinesâ Scarborough Shoal (Bajo de Masinloc) (2012); imposition of fishing bans on Vietnam and Philippinesâ eezs (2012);20 frequent sovereignty patrols along the area covered by its 9-dash line claim;21 use of water cannons and other harassment tactics to forcefully drive away Filipino fishermen from Bajo de Masinloc;22 public bidding of 9 oil blocks within the eez of Vietnam (2012); show of force in the James Shoal in the coast of Malaysia and Brunei (2013);23 naval blockade on the Philippinesâ Second Thomas Shoal (Ayungin Shoal);24 deployment of an oil
1.1 International Dilemma: Appeasement vs. Rule of Law
Amid Chinaâs aggression, two main divergent international views have emerged. One view is more accommodating to Chinaâs expansive claim and overlooks the dangers of its aggressive assertion. It sees no urgency in the resolution of territorial or maritime disputes, and seems to consider that the interests of the weaker littoral countries are not so vital as to elicit a firmer international response. This perspective regards international law as important but is likely to overlook its application for politically expedient reasons. Because of its resemblance to the original Appeasement policy of former British Prime Minister Neville Chamberlain in the 1940s, it may be referred to as Neo-Appeasement or the New Appeasement.
Another is a perspective that puts emphasis on the full and decisive application of international law in the resolution of disputes in the South China Sea. While this approach recognizes and encourages the peaceful rise of China and the opportunities brought about by its development, it does not accept the thinking that Chinaâs rapid development can be used as an excuse to disregard international law in asserting what it thinks is its rightful claim. Every country, big or small, must abide by the rule of law.27 Because of its adherence on the
1.2 The Lure of Appeasement: False Sense of Peace
Appeasement, the policy of making concessions to an opposing power to avoid conflict, is most often identified with the foreign policy of Prime Minister Neville Chamberlain as he dealt with Hitlerâs Germany from 1937â1939.28
The attitude of appeasement in the current context could perhaps be observed from the statement of former US Secretary of State Henry Kissinger29 that âThe U.S. and China should look to the example of Deng Xiaoping when it comes to defusing Chinaâs territorial spats in the South China Sea.â30 According to Kissinger, âChina and the U.S. should remove the urgency of the debate.â He added that âDeng Xiaoping dealt with some of his problems by saying not every problem needs to be solved in the existing generation.â He said, âLetâs perhaps wait for another generation but letâs not make it worse.â31
Unfortunately, this approach of appeasement and accommodation â though perhaps well-intentioned â became the genesis for Chinaâs continuing pattern of expansion and creeping assertion in the South China Sea. It all began with the much-celebrated US-China Rapprochement in 1972.
Against the backdrop of an escalating conflict in Vietnam in the late 60s to the 70s, the United States under President Richard Nixon explored ways of improving relations with the Peopleâs Republic of China. The thinking at the time was that improvements in the US-China relations would lessen the conflict between the United States and China; weaken the bond between the communist Parties from China, Vietnam, North Korea and the Union of Soviet Socialist Republic (ussr), and in the process isolate the government of North Vietnam. US Secretary of State Henry Kissinger shuttled between Beijing and
To pave the way for the full normalization of relations with China, the US supported Chinaâs entry and assumption of a seat in the UN Security Council. It also agreed on the one-China policy that recognizes Taiwan as part of China. With these major concessions, procâs Mao Zedong received US President Nixon in Beijing during the latterâs historic trip to China February 21â28, 1972. During that trip, the two governments signed the Shanghai Communique which articulated the aforementioned fundamental principles on the Taiwan issue.33
Indeed, US-China Rapprochement is a milestone in US-China relations. But it may also be a double-edge sword. On one hand, one may argue its positive impact in the de-escalation of tension between the US and China and the re-shaping of the Cold War, perhaps even of its demise. But on another, it may also have the unintended consequence of encouraging Chinese adventurism in the South China Sea with disastrous implications four decades afterwards.
On January 16, 1974, two years after the Nixon visit to China and the signing of the Shanghai Communique, China took advantage of the normalization in US-China relations and the downscaling of US presence in the South China Sea by launching an invasion of the Crescent Group in the Paracel Islands.34 This area was previously held by Republic of Vietnam or South Vietnam. The Chinese takeover by force was a surprise. Prior to this, China had never taken any unilateral action that subverted the status quo in the Paracel Islands.35 Despite being an ally to South Vietnam, the United States and practically the World cast a blind eye on Chinaâs actions.
Emboldened by its successful occupation of Paracels without international opposition, China continued with its creeping assertion in the South China Sea, methodically altering the status quo via a pattern of âgrab, pause & stay.â First, China grabs or occupies a limited piece of its neighborâs territory or maritime space. The grab is done either surreptitiously or by force. Second, China would then pause to observe international reaction. Third, when tension arises,
This pattern is repeated over and again. Each time, the existing status quo is altered and a new one is created. After a period of time, China would negotiate an agreement or a modus vivendi that legitimizes the new status quo. Ironically, the asean-China doc served this purpose in 2005. The future asean-China Code of Conduct (coc) will also most likely legitimize the gains of China in the second phase of its creeping assertion after 2005 â the conversion of almost the entire South China Sea into a âdisputed area,â takeover of Scarborough Shoal, and the construction and development of reefs into artificial islands in the Spratlys.
Thus, after more than four decades, the status quo in the South China Sea has been unilaterally altered by China â from the forced expulsion of the Vietnamese from the Paracels in the 70s, through the forced occupation of Fiery Cross Reef in the 80s, Mischief Reef in the 90s, Scarborough Shoal in 2012, and the massive conversion of reefs into artificial islands in the West Philippine Sea and the Spratlys.
Years from now, China will consolidate all these gains by using the international modality of acquiring territories which is âEffectiviteâ or Effective Jurisdiction. Luckily, the 2016 Arbitral ruling may have strategically pre-empted this China ambition.
In the final analysis, Chinaâs series of creeping assertion in the South China Sea and the West Philippines Sea became possible because of international apathy, accommodation and appeasement. The evil that appeasement sought to avoid is instead materializing and gaining significant momentum.
1.3 Philippine Experience: The Paradox of Appeasement
The Philippines also experimented with appeasement in its engagement with China. The experimentations may have arguably gained the Philippines some short-term tactical benefits but definitely caused it disastrous long-term strategic loss and disadvantages.
The Philippines first toyed with the idea in the late 1990s after China occupied Mischief Reef. Mischief Reef is a low-tide elevation about 126 nm off the Philippine Island of Palawan. Between 1994 to 1997, China surreptitiously
China applied soft diplomacy and convinced the Philippines to stop internationalizing. China urged the Philippines to engage instead in bilateral discussions. Having gained no ground and support from the international community including its ally, the United States, the Philippines relented and abandoned its initial policy of internationalizing Chinaâs occupation of Mischief Reef. Over a karaoke sing-along of âLove me Tenderâ by Elvis Presley and âLet Me Call You Sweetheartâ aboard the Presidential yacht, brp Ang Pangulo, between President Ramos and Premier Jiang Zemin, the matter of Chinaâs occupation of Mischief Reef was swept under the rug.36 The issue quieted down and China remained in Mischief Reef. Today, the Reef is converted into an artificial island with military installations complete with an airstrip and concrete piers.
The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays and other features and to handle their differences in a constructive manner.37
Unfortunately, this was not going to be the case. Soon after the jmsu took effect, China was invoking its provisions to tell the Philippines it cannot issue a license to a private company, British Forum, to drill oil or natural gas at Recto
By that time, it was becoming clear that China is now unilaterally broadening the area of dispute by arbitrarily expanding its claim. Chinaâs claim is no longer confined to the rock features (above water at all times) in the Spratlys and as well as the low-tide elevations (visible during low tide, but disappears during high tide) in the western continental shelf of the Philippines such as Mischief Reef. China was also now claiming completely submerged areas outside of the Spratlys and within the Philippinesâ 200 nm Continental Shelf.
Suddenly, Recto Bank is a âdisputedâ area, only because China says so. As a âdisputedâ area, the Philippines could not develop it unilaterally. The Philippines therefore must negotiate with China for the future of Recto Bank. In order to avoid conflict while at the same time appearing as a magnanimous neighbor, China would use Deng Xiaopingâs formula of setting aside disputes and engage in cooperation. Specifically, China is proposing joint development of Recto Bank by the Philippines and China to manage the alleged âdisputeâ on the Reef. By laying claim on Recto Bank and creating an appearance of a dispute, China is now able to leverage for itself free access to resources in an area that would otherwise be only for the exclusive benefit of the Philippines.
Later, China would also lay claim and dispute Philippine oil blocks 3 & 4, which are 36 and 34 nm away respectively from Palawan.
The third time the Philippines played appeasement with China was during the administration of President Rodrigo Duterte. Immediately after taking office in June 2016, the Duterte Government warmed relations with China. Later, the Government would project mixed signals regarding the rulings of the Arbitral Tribunal after its publication on July 12, 2016, affirming it on one point then downplaying it on another; resume bilateral dialogue with China; distance itself from the Philippinesâ traditional ally, the United States; and abandon internationalization of Chinaâs aggression in the South China Sea within and outside of asean. The Administration would later call this new foreign policy approach âIndependent Foreign Policy.â
Yet, despite the governmentâs âIndependent Foreign Policyâ and the warming of relations with China, the latterâs expansion and aggression in the South China Sea never stopped. On the contrary, China became more aggressive,
Based on the Philippine experience, one could observe that appeasement may allow a temporary de-escalation or lull in tension, but its long-term consequence may be much worse, for it allows a tyrannical mindset to develop unscathed and turn into a dangerous habit of unfettered bullying and aggression.
1.4 Appeasement: Lessons from the Past
Clearly, appeasement has not worked. Appeasement did not work in the past.38 It is still not working now. It will also not work in the future.
China is still going full speed with its creeping assertion. Even more intensely and with impunity and with no end in sight. In a manner of speaking, it was no longer subtle (e.g., when it occupied Mischief Reef in the 1990s), but more blatant in its creeping assertion (e.g., open grab of Scarborough, massive island building, sovereign patrols, etc.). The Philippines and the other littoral States
There are several theories as to why appeasement failed that we could ponder upon in the present context. Hans Morgenthau (1967), renowned scholar of political realism, regards appeasement as âa corrupted policy of compromise, made erroneous by mistaking a policy of imperialism for a policy of the status quo.â39 By offering Czechoslovakia, Britain and France expected to satisfy Hitler enough to settle for the status quo. In reality, Hitler would not settle for less than the world. Moreover, they believed Germany would act in good faith and keep its promises. It is apparent now that Germany had no interest in the status quo other than to break it.
For a nation with an expansionist agenda, small âsacrificesâ â even offerings of small countries â are never enough. In Morgenthauâs (1967) words, âSuccessive demands are but links of a chain at the end of which stands the overthrow of the status quo.â40
While nations continue to appease China on the belief that it would change its ambitions, China has been building artificial structures and fortifying its military presence in âdisputed waters.â Inarguably, these acts are deliberate attempts to change the status quo right under the worldâs nose.
It is worth contemplating whether or not the appeasing side even has the capability to satiate the opposing partyâs demands in the first place. JL Richardson (1988) opines that âthe fundamental reason for the failure of appeasement was that Hitlerâs goals lay far beyond the limits of reasonable accommodation that the appeasers were prepared to contemplate.â41 This was a problem with Hitler, whose demands are essentially too large to fulfill.
Chinaâs claim is not exactly world domination, but the territory and natural resources within its vaunted nine-dash-line comes close. It overlaps many interests, not only of the claimants themselves but also those of major powers
Another problem with appeasement is that it causes belligerent nations to grow more brazen. China is obviously not the Germany of the past. However, Chinaâs creeping assertion in the South China Sea and the West Philippine Sea is eerily reminiscent of Germany and Italy in the pre-wwii years. Hitler and Mussolini realized that its neighbors were determined to avoid confrontation, and thus continued to test their limits with initially tentative and then increasingly flagrant violations of international norms. In October 1935, Mussolini invaded Abyssinia with little more than token sanctions from the League of Nations. In March 1936, Hitler blatantly violated the Treaty of Versailles by remilitarizing the Rhineland, again without facing the expected reprisal from the British and the French. During the Spanish Civil War, Germany and Italy sent military troops and assets to rebels despite a standing Non-Intervention Agreement.43 Impotent responses from the international community showed Nazi Germany that they had a very wide berth when it comes to employing normally unacceptable behavior. Steve Chan (1984) believes that âtheir concession â made at the expense of their ally Czechoslovakia â appears only to have whetted Hitlerâs appetite for additional territory. According to the appeasement theory of war, World War ii might have been averted if the democracies had been more resolute in their opposition to Hitlerâs earlier aggressions. The moral of the lesson of Munich is that appeasement discredits the defendersâ willingness to fight, and encourages the aggressor to escalate his demands.â44
Over the past decades, countries continue to accommodate China. asean has also done so to a significant degree. The United States is notable in that despite its collective security agreement with the Philippines under the 1947 Mutual Defense Treaty, it kept a blind eye on Chinaâs expansionism multiple times, i.e., Chinaâs occupation of Fiery Cross Reef, Mischief Reef and Scarborough Shoal. After the Scarborough Shoal fiasco, the US began to
It is worth noting that decades of this approach have not resulted in less aggressive behavior in the South China Sea or the East China Sea. In fact, it seems to have bolstered Chinaâs assertiveness and encouraged threatening language towards the region. Continuing to appease China is unlikely to change, much less improve its behavior, especially when escalating belligerence is consistently met with mild reproaches from the international community.
Perhaps it is easy for certain nations to opt for appeasement towards China because of distance and detachment. During Chamberlainâs time, Hitlerâs designs on Czechoslovakia was a major concern yet remains the problem of âthe other.â This distinct uncoupling is reflected in Chamberlainâs words when he called the crisis âa quarrel in a faraway country, between people of whom we know nothing.â45 No country expects another state to be its keeper. However, we live in an interconnected world where promoting and maintaining a stable and rules-based environment â one where states abide by certain normative behavior and do not just claim whatever territory they desire â is in everyoneâs interest. The eventual war in Europe despite the Czech matter being simply a quarrel in a âfaraway countryâ is a fine example of why nations should care for anotherâs troubles. This is even more evident in our time, where geographic stability reaps economic dividends not only for individual countries but for entire regions. Even more apropos is this scenario where many of the nations involved are connected via a formal âasean Communityâ as full members and dialogue partners. Where is the sense of community, and how should such stakeholders behave when the region is on the precipice of regressing into an environment driven by brute might rather than rule of law?
The region and the rest of the world would benefit from a peaceful, rules-based environment. Similarly, no one gains from having an empowered and increasingly belligerent power. There are no dividends to be had in allowing a blossoming region to transform into one that allows blatant disregard of internationally accepted norms. Belligerent behaviour should not be fostered with appeasement, because this will only encourage an even more aggressive behaviour. When the region finally does reach its âbreaking point,â it may be too late.
1.5
Therefore, for a small country like the Philippines, the choice is clear. True peace in the South China Sea must be anchored on the rule of law. Rule of law is the supremacy of international law in the conduct of inter-state relations; it is the maxim that constrains states in their behavior vis-a-vis each other.46
From the Philippine perspective, rule of law in the South China Sea context is the respect for relevant applicable international law, particularly the universally-recognized âConstitution for the Oceansâ â the UN Convention on the Law of the Sea (unclos). unclos provides a comprehensive regime in the use and management of the seas and oceans. It sets out the legal framework which serves as the basis of the legitimate maritime entitlements and maritime rights of coastal States. A country cannot claim maritime rights that go beyond the rights accorded by the unclos. Therefore, Chinaâs 9-dash line claim which encroaches on the legitimate maritime entitlements of other littoral States in the South China Sea contravenes unclos.
Rule of law also refers to the observance and respect of international norms, particularly the norms of conduct and principles that are designed to manage disputes such as the peaceful resolution of disputes, non-use or threat of use of force, and sovereign equality. Rule of law likewise means respect for the institutions and mechanisms that have been established to implement and promote international law such as the dispute settlement mechanism under unclos including arbitration.
Ironically, China uses international law as pretext for its expansive claims and aggression on the territorial and maritime spaces of others. Chinaâs leadership has invoked the international legal concept of historic rights allegedly evinced by its 1947 map. All the littoral States in the semi-enclosed sea impacted by that claim obviously disagree with China also on the basis of international law including unclos. Therefore, a clarification of these conflicting rights by the same measure of international law that China uses to justify its actions may perhaps help de-escalate the tension and allow the Philippines to enjoy its own maritime space and resources. As Johann Wolfgang von Goethe once observed, âAnd the law can only bring us freedom.â47
The hope is that an arbitral clarification may bring back sense to China to behave within the limits of international law. This hope, however, is based on
But what if this belief is not sincere? What if international law is not really the reason why China is doing what it is doing? What if China merely uses international law or its interpretation as mere instrument to cover its real intention? What if the real reason is really to expand and control the South China Sea and gain free access to the resources of its littoral neighbors? Does this make Arbitration a futile exercise? Does it mean that the Philippines should not have taken the pain of filing and going through Arbitration?
The author believes otherwise. It is with more reason that Arbitration should be pursued. The Philippines was right in pursuing this course of action. If indeed expansionism and power politics are the real compulsion for Chinaâs actions, then Arbitration was a correct path to take. As Abraham Lincoln once said, âLet us have faith that right makes might, and in that faith let us to the end dare to do our duty as we understand it.â48
The epidemic of world lawlessness is spreading. When an epidemic of physical disease starts to spread, the community approves and joins in a quarantine of the patients in order to protect the health of the community against the spread of the disease â¦. The will for peace on the part of the peace-loving nations must express itself to the end that nations that may be tempted to violate their agreements and the rights of others will desist from such a course. There must be positive endeavors to preserve peace.49
To do nothing would be negatively consequential. We and the rest of the world will pay a high price if we neglect this responsibility. As John Locke articulated more than 300 years ago in his Second Treatise of Government in 1690: âWherever
Tyranny is a mindset. It is a contagion. It is also addicting, especially when it meets no opposition. Unopposed, Chinaâs aggression in the South China Sea will not stop there. Potentially, such mindset will carry over in its conduct of foreign relations elsewhere.
A case in point was Chinaâs aggressive assertion in the Senkaku Islands following its successful takeover by force of the Philippinesâ Scarborough Shoal, 124 nm off Luzon. In April 2012, China wrested control of Scarborough Shoal from the Philippines by initially provoking the latter with Chinese fishing vessels poaching in the Shoal, followed by a Chinese white vessel coming to their aid, allegedly in response to their harassment by the Philippine Navy. Not too far away from the area was a grey pla big ship. Eventually, multiple fishing vessels manned by pla personnel squeezed the lone Philippine Coast Guard vessel and the Philippine civilian research vessel into moving out of the area. This became known as the âCabbage Strategy.â52 This same strategy was employed by China immediately thereafter on the Senkaku Islands, which are occupied and administered by Japan but disputed by China. Japan, however, stood firm and employed forces to repel Chinese attempts. The United States also stood by Japan. China relented. The Senkaku islands thus remained in the hands of Japan.
History proves that dictatorships do not grow out of strong and successful governments, but out of weak and helpless ones. If by democratic methods people get a government strong enough to protect them from fear and starvation, their democracy succeeds; but if they do not, they grow impatient. Therefore, the only sure bulwark of continuing liberty is
a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over its government.53
In the absence of a supreme government in international relations, it is important to have a strong rule of law in lieu of it. When rule of law is absent or weakened, international relations will be dominated instead by power politics and âpower politics is the diplomatic name for the law of the jungle.â The law of the jungle is described in the poem âLaw of the Yukonâ by Robert Willian Service, to wit -
True peace in the South China Sea could only come if there is a strong rule of law.
2 Arbitration to Restore Rule of Law
On 22 January 2013, the Philippines initiated arbitral proceedings against China under Article 287 and Annex vii of the United Nations Convention on the Law of the Sea (unclos). After it was constituted and organized pursuant to Annex vii of unclos, the Tribunal conducted hearings on Jurisdiction and Admissibility on 7â13 July 2015. The Tribunal published its Award on Jurisdiction and Admissibility on 29 October 2015. After which, the Tribunal proceeded with the hearings on the Merits from 24â30 November 2015. On 12 July 2016, the Tribunal issued its Ruling on the Merits.55
- âThat Chinaâs claim of historic rights over all the waters enclosed in its 9-dash line map (Figure #1) is without basis under public international law especially unclos.61 Accordingly, the rights of the Philippines under unclos over its territorial sea, contiguous zone, 200 nm Exclusive Economic Zone, and continental shelf prevail over Chinaâs unsubstantiated claim of historic rights over the same;
- âThat none of the relevant geological features including Scarborough Shoal constitute an island under Article 121 of unclos. These features are either ârocksâ or âlow-tide elevationsâ (ltes) in accordance with the Convention;62
- âThat China had violated the Philippinesâ sovereign rights in its exclusive economic zone through (a) interference with Philippine fishing and petroleum exploration,63 (b) construction of artificial islands,64
and (c) failure to prevent Chinese fishermen from fishing in the area;65 and - âThat China committed destruction of the marine environment in and around the relevant geographical features of the Spratlys and Scarborough Shoal.66
The Tribunal likewise ruled that Itu Aba is not an island under Article 121 of unclos. Rather, that is a rock. As such, it is only entitled to a 12 nm Territorial Sea and not the maximum 200 nm eez. Taiwan, in lieu of the proc, had submitted a Position Paper arguing that Itu Aba is an island under Article 121 of unclos.67 This allowed the Tribunal to dwell extensively on the question of Itu Aba.
A year earlier in 2015, the Tribunal issued a separate preliminary ruling affirming its jurisdiction over the case and the issues raised by the Philippines consistent with Article xv and annex vii of unclos, thus paving the way for the aforementioned Tribunal to finally rule on the merits of the case.68
3 Chinaâs Policy Response to Arbitration
When the Tribunal in the South China Sea Arbitration invalidated Chinaâs claim for historic waters under its 9-dash line map and clarified the rock or low-tide character of the relevant features in the Spratlys including Itu Aba, a large part of the South China Sea ceased ipse jure to be disputed.
The 2016 Ruling laid bare Chinaâs creeping assertion in the South China Sea and the West Philippine Sea as nothing but pure and simple aggression. Now devoid of any legal cover, China has to explore for an alternative legal justification to sustain its unfinished expansion while consolidating the gains from its creeping assertion and convert the same into a new status quo in the South China Sea. China needs to protect the supposedly new status quo it had generated from its previous assertive actions. It also needs for that ânew status quoâ to have some international recognition and acceptance including the norms, practices, and protocols that China would slowly impose over a period
A possible route which China could perhaps take to accomplish all of the above objectives with some semblance of normality and legality would be to: first, impugn and undermine the South China Sea Arbitration; second, adopt a new legal framework as an alternative or in addition to its claim for historic waters that would accord Chinaâs creeping assertion some semblance of legitimacy. It would not matter even if such legal framework is invalid in the context of the South China Sea situation. All that is important is that it must have some iota or semblance of validity and connection with international law, specifically unclos, to create doubt (on the 2016 Arbitral Ruling). Chinaâs policy mix of soft and hard power is expected to fill any remaining legal gap, and; third, preserve such claim under the cloak of another multilateral understanding with the other littoral States in the South China Sea including the Philippines that in effect would countervail the legal implications of the South China Sea Arbitration. A good candidate for this purpose would be the proposed asean-China Code of Conduct.
A cursory observation of evolving developments in the South China Sea seems to indicate such a trend.
3.1 On Chinaâs Attempt to Cloud 2016 South China Sea Arbitration
Perhaps due to lack of confidence as to the validity of its claim or out of sheer arrogance as a big and powerful country, China refused to participate in the third-party adjudication of its claims and assertions in the South China Sea. At the very outset, China had tried to block, stop and subvert the arbitration process.
In its 19 February 2013 Reply-Note to the Philippines, China expressed its opposition to the formerâs filing of a complaint against the latter and expressed the view that on the South China Sea, its position âhas been consistent and clear.â It added that â[a]t the core of the disputes between China and the Philippines in the South China Sea are the territorial disputes over some islands and reefs of the Nansha Islands.â It pointed out that [t]he two countries also have overlapping jurisdictional claims over parts of the maritime area in the South China Sea,
Instead of participating officially in the Arbitration, China submitted its legal position to the Tribunal in several indirect ways. For example, at the initial stage of the proceedings, China deposited with the Permanent Court of Arbitration (pca) as Register of the Tribunal a copy of its âPosition Paper of the Peopleâs Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,â which it published on 7 December 2014. In its note verbale to the Tribunal transmitting said Position Paper, the Chinese Embassy in the Netherlands reiterated its non-acceptance of the Arbitration proceedings initiated by the Philippines and a caveat that the Paper should not be construed as acceptance by China of the Arbitration process.70
The award rendered on 29 October 2015 by the Arbitral Tribunal established at the request of the Republic of the Philippines ⦠on jurisdiction and admissibility of the South China Sea arbitration is null and void, and has no binding effect on China.
- i.China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. Chinaâs sovereignty and relevant rights in the South China Sea formed in the long historic course, are upheld by successive Chinese governments, reaffirmed by Chinaâs domestic laws on many occasions, and protected under international law including the United Nations Convention on the Law of the Sea (unclos). With regard to the issues of territorial sovereignty and maritime rights and interests, China will not accept any solution imposed on it or any unilateral resort to a third-party dispute settlement.
- ii.The Philippines unilateral initiation and obstinate pushing forward of the South China Sea arbitration by abusing the compulsory procedures for dispute settlement under the unclos is a political provocation under the cloak of law. It is in essence not an effort to settle disputes but an attempt to negate Chinaâs territorial sovereignty and maritime rights and interests in the South China Sea. In the
Position Paper of the Government of the Peopleâs Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, which was released by the Chinese Ministry of Foreign Affairs on 7 December 2014, upon authorization, the Chinese government pointed out that the Arbitral Tribunal has no jurisdiction over the arbitration initiated by the Philippines, and elaborated on the legal grounds for Chinaâs non-acceptance of and non-participation in the arbitration. The position is clear and explicit, and will not change. - iii.As a sovereign State and a State Party to the unclos, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiation and consultations. Since the 1990s, China and the Philippines have repeatedly reaffirmed in bilateral documents that they shall resolve relevant disputes through negotiations and consultations. The Declaration of Conduct of Parties on the South China Sea (doc) explicitly states that the sovereign states directly concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means through friendly consultations and negotiations. All these documents demonstrate that China and the Philippines have chosen, long time ago, to settle their disputes in the South China Sea through negotiations and consultations. The breach of this consensus by the Philippines damages the basis of mutual trust between states.
- iv.Disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the Declaration on optional exceptions made by China in 2006 under Article 298 of the unclos, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the unclos, completely deviated from the purposes and objectives of the unclos, and eroded the integrity and authority of the unclos. As a State Party to the unclos, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the unclos, and calls upon all parties concerned to work together to safeguard the integrity and authority of the unclos.
- v.
The Philippinesâ attempt to negate Chinaâs territorial sovereignty and maritime rights and interests in the South China Sea through arbitral proceedings will lead to nothing. China urges the Philippines to honor its own commitments, respect Chinaâs rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations.71
The Chinese side will neither accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. The long-standing position is fully supported by international law and subject to no change.
In the hearing, the Philippine side attempted to negate Chinaâs sovereignty over the Nansha Islands and deny the validity of the Cairo Declaration and the Potsdam Proclamation in disregard of historical facts, international law and international justice. It testifies to the fact that the South China Sea dispute between China and the Philippines is in essence a territorial dispute over which the arbitral tribunal has no jurisdiction. It also shows that the so-called arbitration is a political provocation under the cloak of law aiming at negating Chinaâs sovereignty and maritime rights and interests in the South China Sea instead of resolving the disputes.
It is the Chinese people rather than any other individuals or institutions that master Chinaâs territorial sovereignty. When it comes to issues concerning territorial sovereignty and maritime delimitation, China will not accept any dispute settlement approach that resorts to a third party. The Chinese side urges the Philippine side to cast aside illusions, change its course, and come back to the right track of resolving disputes through negotiations and consultations.72
China has made it clear on multiple occasions that because the Arbitral Tribunal clearly has no jurisdiction over the present Arbitration, the decision to be made by such an institution that lacks the jurisdiction to do so has obviously no legal effect, and consequently there is no such thing as the recognition or implementation of the Award. Some people wonder whether Chinaâs position above is consistent with international law. Today, I would like to elaborate on Chinaâs position from the international perspective â¦.
The first question is what is the scope of the jurisdiction of the Tribunal?
⦠to settle international disputes by peaceful means is one of the fundamental principles of international law. However, it should be noted that there are a variety of means to settle disputes peacefully, and compulsory arbitration is merely a new type of procedure established under the unclos. Compulsory arbitration is subsidiary and complimentary to negotiation and consultation, and its application is subject to several preconditions â¦
First, compulsory arbitration can only be applied to settle disputes concerning the interpretation and application of the unclos. If the subject matters are beyond the scope of the unclos, the disputes shall not be settled by compulsory arbitration. The issue of territorial sovereignty is one such case. Consequently, States shall not initiate compulsory arbitration on disputes concerning it; and even if they do, the arbitral tribunal has no jurisdiction over them.
Second, a State Party to the unclos may declare in writing that it does not accept compulsory arbitration with respect to disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, etc. Such exclusions are effective to other State Parties. With respect to disputes excluded by one party, other parties to the dispute shall not initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over them.
Third, if parties to a dispute have agreed on other means of settlement of their own choice, no party shall unilaterally initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over the dispute.
Fourth, at the procedural level, parties to a dispute are obliged to first exchange views on the means of dispute settlement. Failing to fulfill this obligation, they shall not initiate compulsory arbitration; and even if they do, the arbitral tribunal has no jurisdiction over the dispute. The above four preconditions act as the âfour barsâ for States Parties to initiate compulsory arbitration, and for the arbitral tribunal to establish its jurisdiction. They form a part of the package system of dispute settlement, which shall be interpreted and applied comprehensively and in its entirety.
⦠if we apply the four preconditions to the arbitration initiated unilaterally by the Philippines, it is not difficult to see that the Philippines, by initiating the arbitration, has violated international law in at least four aspects.
First, the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the unclos. Second, even assuming some of the claims were concerned with the interpretation or application of the unclos, they would still be an integral part of maritime delimitation, which has been excluded by China through its 2006 Declaration and consequently is not subject to compulsory arbitration. Third, given that China and the Philippines have agreed to settle their disputes in the South China Sea through negotiation, the Philippines is precluded from initiating arbitration unilaterally. Fourth, the Philippines failed to fulfill the obligation of exchanging views with China on the means of dispute settlement.
In summary, the Philippinesâ initiation of the arbitration is a typical abuse of the compulsory arbitral procedures stipulated in the unclos ⦠in 2014 the Chinese Government issued a Position Paper to elaborate, from an international law perspective, on the question why the Tribunal lacks jurisdiction over the Arbitration â¦
However, the Tribunal is not objective or just. On several occasions, it distorts the provisions of the unclos to embrace the claims of the Philippines. In violation of the fundamental principle that the jurisdiction shall be established based on facts and law, the Arbitral Tribunal concluded that it had jurisdiction over the Philippinesâ claims, which is neither convincing nor valid in international law. For such an award, China certainly has good reasons not to recognize it. The opinions made by the Tribunal,
as an institution that manifestly lacks jurisdiction and should not exist in the first place, are personal views of the arbitrators at best and are not legally binding, not to mention its recognition or implementation.73
Five years after the promulgation of the ruling on the South China Arbitration, China still maintains its position rejecting the said ruling as being null and void. Chinaâs Foreign Ministry Spokesperson Zhao Lijan issued on 12 July 2021, during the fifth year anniversary of the Tribunalâs ruling, the following remark, âThe award of the arbitration is illegal, null and void. It is nothing more than a piece of wastepaper.â
China has been thought to have hosted or supported international fora and conferences of international law academics and practitioners that produced papers critical of the Arbitration and its ruling. Other countries have also been reportedly approached to support Chinaâs position.
Amid Chinaâs efforts, the provision of unclos in Article 296 on Finality and binding force of decisions, is clear and unequivocal, to wit:
- 1.Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.
Chinaâs effort to undermine the South China Arbitration never gained traction. In contrast, many countries have expressed support for the South China Sea Arbitration and its 2016 Arbitral Ruling including the United States, Australia, Japan, Vietnam, Indonesia, India, and European States, among others.
In April 2021, US State Department Spokesperson Ned Price indicated that âWe [meaning US] have reiterated our strong support for the Philippines and we have called on the prc to abide by the 2016 arbitral tribunal award under the Law of the Sea Convention, which is final and legally binding on all parties.â The statement was issued at the height of the Whitsun incident when Chinese vessels were reportedly swarming the said reef similar to what they did at Bajo de Masinloc (Scarborough Shoal).74 Most recently, during the fifth year anniversary of the Arbitral Ruling, US Secretary of State Antony Blinken called on Beijing to âabide by its obligations under international law, cease its provocative
3.2
China appears to be resorting to the use of the archipelagic concept and the use of archipelagic baselines under Article 46 and 47 of unclos, or straight baselines under Article 7 of unclos, to try to preserve its assertion and claim on a large body of water and continental shelf in the South China Sea that it had lost because of the 2016 Arbitral Ruling.
On 12 December 2019, Malaysia submitted to the United Nations Commission on the Limits of the Continental Shelf (clcs) its claim for Extended Continental Shelf (ecs) in the South China Sea.77 The recent submission for ecs claim is a partial submission for the âremaining portion of the continental shelf of Malaysia beyond 200 nautical miles in the northern part of the South China Sea.â78 Malaysia, together with Vietnam, previously submitted an ecs claim in the South China Sea, which was deferred for consideration of the clcs in view of the protests made by China and the Philippines.
China has sovereignty over Nanhai Zhudao, consisting of Dongsha Qundao, Xisha Qundao, Zhongsah Qundao and Nansha Qundao; China has internal waters, territorial sea and contiguous zone, based on Nanhai Zhudao; China has exclusive economic zone and continental shelf, based on Nanhai Zhudao; China has historic rights in the South China Sea. The above positions of China comply with relevant international law and practice. They are clear and consistent, and are known to the international community including the Government of Malaysia.79
China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as seabed and subsoil thereof (see attached map). The above position is consistently held by the Chinese Government, and is widely known by the international community.
While the formulation differs, Chinaâs meaning and intent remain the same: that it has sovereignty claims over the islands and a large swathe of maritime area in the South China Sea.
However, from a straightforward 9-dash line claim, they are now laying sovereignty claims on the alleged four island groups: (1) Dongsha Qundao (Pratas Islands); (2) Xisha Qundao (Paracel Islands); (3) Zhongsah Qundao (Macclesfield Bank; and (4) Nansha Qundao (Spratly Islands). This makes it appear that their claim for 200 nautical miles (M) Exclusive Economic Zone (eez) and 200 M Continental Shelf is unclos-based.
In particular, Chinaâs statement appears to claim that the island groups, specifically the Spratly Islands, can be treated as archipelagoes and can be enclosed within a system of archipelagic baselines or straight baselines, and consequently accorded with concomitant maritime entitlements. This Paper argues that China cannot use archipelagic baselines or straight baselines in the island groups in the South China Sea. This is because the use of such baselines is allowed only under certain conditions as provided for under the UN Convention on the Law of the Sea (unclos), and Chinaâs application of archipelagic baselines or straight baselines in the island groups in the South China Sea, particularly the Spratly Islands, would be contrary to unclos.
3.2.1 unclos Provisions on the Baselines
Baselines are the reckoning point from which the maritime limits and boundaries of a coastal States are measured. It serves as a fence that separates the internal waters and archipelagic waters from the territorial sea and other maritime zones. Taking into account the varying geographic configuration of countries, unclos provides various types of baselines that could be applied by states as follows: (1) normal baselines; (2) straight baselines; and (3) archipelagic baselines.
Specifically, Article 7 of unclos provides:
- 1.In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
Article 46 Use of terms.
For the purposes of this Convention:
- (a)âarchipelagic Stateâ means a State constituted wholly by one or more archipelagos and may include other islands;
- (b)âarchipelagoâ means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.
- 1An archipelagic State may draw straight baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main island and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
- â¦
By using either the straight baselines under Article 7 or Article 47 of unclos, China would supposedly be able to continue making claim on a sea space that it otherwise would have none in light of the ruling in the South China Arbitration.
An examination of Article 7 and Article 47 of unclos vis-Ã -vis the features in the South China Sea including the Spratlys indicates that China cannot use either the straight baselines under Article 7 to enclose the group of features as a single entity or Article 47 as an archipelagic state.
3.2.2 On Article 7, Straight Baselines
As stated, the use of straight baselines under Article 7 is applicable in a situation âwhere the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.â This concept originated from the Anglo-Norwegian Fisheries case decided in the 1950s where the validity under international law of the methods used to delimit Norwayâs territorial sea/ fisheries zone was questioned by the United Kingdom. Specifically, the United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea.82 Because of the special circumstances of its coast which is deeply indented, Norway applied straight baselines to connect the outermost points of its coast including the outlying features. Norway considered the skjaergaard as constituting a whole with the Norwegian mainland, with the waters between the baselines of the belt of territorial waters and the mainland considered
A closer examination of the Spratlys clearly indicates that its coasts are not deeply indented as that of the skjaergaard of Norway. It is not configured as to constitute a fringe of islands grouped around or in the immediate vicinity of one or more larger islands. The extensive sea areas surrounding these very tiny features also do not meet the requirement of being âsufficiently closely linked to the land domain to be the subject to a regime of internal waters.â
3.2.3 On Article 47, Archipelagic Baselines
The use of archipelagic baselines in the Spratlys under Article 47 of unclos would also be inappropriate. It cannot be given an archipelagic status entitled to archipelagic baselines since neither the Spratlys itself nor China which is claiming it is an archipelagic State is an archipelagic State. Under Article 47 in relation to Article 46 of unclos provides that only an archipelagic State is entitled to use archipelagic baselines.
Further, the water to land ratio in the Spratlys does not satisfy the ratio requirement under Article 47, which âis between 1 to 1 and 9 to 1.â The Spratlys comprise no more than 5 km2 of land territory, and more than 410,000 km2 of maritime space. Therefore, the water to land ratio would be approximately 82,000:1.85
The matter of whether or not the concept of archipelagic concept or single entity can be applied in the Spratlys was also addressed by the Tribunal at a supplemental stage of the proceedings.
The use of archipelagic baselines (a baseline surrounding an archipelago as a whole) is strictly controlled by the Convention, where Article 47(1) limits their use to âarchipelagic statesâ â¦
China, however, is constituted principally by territory on the mainland of Asia and cannot meet the definition of an archipelagic State â¦
⦠Article 47 of the Convention limits the use of archipelagic baselines to circumstances where âwithin such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.â The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines.â¦86
⦠the Tribunal is aware of the practice of some States in employing straight baselines with respect to offshore archipelagos to approximate the effect of archipelagic baselines. In the Tribunalâs view, any application of straight baselines to the Spratly Islands in this fashion would be contrary to the Convention. Article 7 provides for the application of straight baselines only â[i]n localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.â These conditions do not include the situation of an offshore archipelago. Although the Convention does not expressly preclude the use of straight baselines in other circumstances, the Tribunal considers that the grant of permission in Article 7 concerning straight baselines generally, together with the conditional permission in Articles 46 and 47 for certain States to draw archipelagic baselines, excludes the possibility of employing straight baselines in other circumstances, in particular with respect to offshore archipelagos not meeting the criteria for archipelagic baselines. Any other interpretation would effectively render the conditions in Articles 7 and 47 meaningless.87
3.3 On the Code of Conduct Preserving Chinaâs Expansionist Policy
Although the ruling in the South China Sea Arbitration is final and legally binding on the China and the Philippines,88 nonetheless, there is nothing in the said ruling or international law that prevents the parties to the said dispute from entering into a subsequent agreement that differs from the said ruling. Such agreement may be in the form of a bilateral agreement or may also be contained in a multilateral agreement such as the proposed asean-China Code of Conduct. China seems to be taking this path in order to protect its
No wonder, Chinaâs attitude vis-Ã -vis the conclusion of the Code of Conduct (coc) has taken a sharp turn-around. Since the 1990s, the Philippines had been pushing hard for the conclusion of a Code of Conduct with China initially through bilateral diplomacy, and later multilaterally via the asean platform. China, on the other hand, was never keen on its conclusion and dragged its feet despite public articulations to the contrary. Worse, it used coc discussions as cover to mask its continuing assertion on the ground, deflect international attention, and contain international protests and fallout after every aggressive action it intermittently initiates. At most, it only agreed to a watered-down Declaration of Conduct of Parties in the South China Sea in 2005, which it disregarded later.
This is how it was until the Philippines filed the arbitration against China in 2013. Suddenly, China appeared to be interested in a Code of Conduct with the Philippines and the other nine members of asean. China initially dangled the possibility of agreeing to a negotiation on the Code of Conduct, so as to entice the Philippines, and for asean to persuade the latter from proceeding with the arbitration. When this failed and the Arbitration nonetheless proceeded and ended up with its 12 July 2016 Ruling, China shifted gear and suddenly agreed to expedite negotiation and conclusion of the Code of Conduct. For this purpose, China agreed with asean on a single negotiating draft. asean and China have recently agreed on the Preambular provisions of the Code of Conduct. China also expressed optimism that China and asean would be able to complete the coc in 2022.
However, a closer examination of the single negotiating draft and the possible use of the coc to subvert the 2016 Arbitral Ruling, it seems that the South China Sea is better off without the asean-China Code of Conduct. A Code of Conduct that is shaped and formed based on the current negotiating text would be more detrimental rather than beneficial to the peace and security of the South China Sea region.
Of course, it is just a negotiating text, a draft. So far, asean and China have only agreed on the preambular paragraphs. The main body or the operative paragraphs are yet to be argued and agreed upon. These may still change, or, they may not. Either way, there is a strong indication that the âstrategic ambiguitiesâ that have been deliberately embedded into the draft to accommodate
China and the other Claimant countries went into the coc negotiations with differing objectives. On one hand, China is using the coc to preserve its expansive claim over almost the entire South China Sea (initially, as âhistoric waterâ covered by the 9-dash line map, and later through the concept of archipelago under unclos). On the other, Vietnam and the Philippines are trying to protect the 2016 ruling on the South China Sea Arbitration in the coc.
In its current state, the coc89 looks more like a chop suey â a mix of varying and often contradictory interests. It lacks focus and direction. A cumulation of various competing interests fitted together within the negotiating framework of âagreeing to disagreeâ especially on the matter of territorial and maritime claims. Deliberate ambiguity in the coc would allow all the Parties to go along with the conclusion of the coc. From the public relations standpoint, it will be good for asean. It will also be good for China. But in reality, it would be a huge strategic blunder with far-reaching consequences and fundamental implications on the peace, stability and security in the South China Sea region. The deliberate ambiguity in the Code of Conduct would augur well for China and will be exploited by it in the same way it exploited the 2002 Declaration of Conduct (doc) of State Parties in the South China Sea. The 2002 doc is being hailed as a milestone document for asean and China in the attainment of durable peace and security in the South China Sea. It may be so. But perhaps it may not.
If one has to use the standard of frequency and magnitude of aggression, tension and conflict, one can empirically come to the conclusion that the South China Sea is a more dangerous place after the conclusion of the doc in 2002 than before it. Of course, it would not be fair to attribute the rise in tension in the South China Sea solely to the doc. Nonetheless, there is no doubt that the doc was exploited by China as an important tool for its expansionist policy in the South China Sea.
The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.
China was able to abuse the provision of paragraph 5 because of the ambiguity in the definition of disputed areas in the South China Sea. The doc does not contain any provision defining the areas of dispute in the South China Sea. China exploited this ambiguity by claiming almost the entire South China Sea through its assertion of historic waters allegedly evinced by its 9-dash line map (impliedly in 2005 and expressly in 2009). By doing so, China forced a dispute (though illegally) on the entire high seas (so-called donut hole), approximately 80â90 percent of the Exclusive Economic Zones and continental shelves of the Philippines, Vietnam, Malaysia, and Brunei and to lesser degree that of Indonesia (around the Natuna Island). By doing so, China is able to argue for the applicability of the doc, particularly paragraph 5 even on the Exclusive Economic Zones and continental shelves of the littoral States.
Further, China began its third wave of creeping assertion in the South China Sea highlighted by its seasonal fishing ban on the South China Sea, forced occupation of Scarborough Shoal, building of artificial islands, and increased sovereignty patrols on the land and sea-space covered by its 9-dash line claim.
Because Chinaâs claim is both ambiguous and lacking in international legitimacy, it thrives in unclear and ambiguous concepts and agreements to hide and preserve the same. This, in fact, is the reason why it disdains the clarity and transparency in the ruling of the international Arbitral Tribunal in the South China Sea Arbitration.
China is again repeating the mistakes of the doc by pushing asean (asean Claimant Members) to the point of deliberate ambiguity in the coc. By doing so, it can allow the survival and preservation of its expansive claims in the South China by using the coc as a legal platform to modify the effects of the 2016 Arbitral Ruling. The sum effect of such legal ingenuity on the part of China is the eventual archiving of the Arbitral Ruling as a mere historical record.
Under such circumstances, the South China Sea will again be pushed back to its helpless period before the 2016 Arbitral Award, although with significant differences: China would have achieved its strategic objective and would have consolidated the same with some semblance of legitimacy provided by the
South China Seaâs peace and security will then become volatile and precarious. In such a post-Code of Conduct scenario, the South China Sea will be less stable, less safe and less secured. Instead of creating a condition for durable peace and security in the South China Sea, it can breed the emergence of a fourth wave of Chinaâs creeping assertion to now spill over into the Pacific Ocean, the Indian Ocean and the East China Sea.
This is the reason why it is imperative not to de-link the coc from the 2016 Arbitral Tribunal. The coc cannot afford not to integrate the ruling in its substance. The ruling is the best security for the coc in terms of its clarity as antidote to the ambiguity that China is deliberately trying to force on the coc. That ambiguity will create the vacuum that is so abhorred by security. Thus, asean should not allow a dichotomy between the 2016 Arbitral Ruling and the Code of Conduct. This is the only way by which the Code of Conduct becomes relevant. Either come up with a Code of Conduct that is linked with the 2016 Arbitral Ruling, or; or leave the South China Sea without a Code of Conduct. In case of the latter, the 2016 Arbitral Ruling provides a good safety net even in the absence of a Code of Conduct.
4 Conclusion
The 2016 ruling in the South China Sea Arbitration is a major contribution for the rule of law in the region. The Ruling clarified the maritime entitlements of the Philippines. It also clarified what China can and cannot claim under international law, specifically unclos. It is fair for the Philippines. But it is also fair for China. Despite Chinaâs protestations, the Ruling did not strip it of any entitlements that it is otherwise entitled to under unclos. The Tribunal likewise clarified the objective character of the relevant features without regard to who has title over them. In effect, the Tribunalâs clarification only stripped China of what it could not claim under a Convention that it negotiated and agreed with together with the rest of the other 168 countries that also signed and ratified the same. More than that, the Ruling also clarified indirectly the maritime entitlements of other littoral States by implication despite the fact that the ruling is only legally binding to the parties to the arbitration. In the context of a semi-enclosed sea that is critical in the exchange of goods via its sea lanes of
Despite the fairness and reasonableness of the Tribunalâs Ruling, China has opted not to recognize the ruling and instead engaged in undermining the same, most recently by implying the use of archipelagic baselines and straight baselines. This is for China not only to recover as much sea space that has otherwise been lost in arbitration, but more importantly, to have a semblance of legal justification for its expansionist policy. Fortunately, this particular matter has already been resolved by the same Tribunal in the South China Sea Arbitration. Chinaâs behavior in the aftermath of the Ruling only confirms the thinking that the problem in the South China Sea is not the existence of overlapping territorial and maritime claims. Rather, at the root of the disputes in the South China Sea and West Philippine Sea is the expansionist policy of China. This hegemonic ambition is the main driver behind Chinaâs creeping assertion in the South China Sea.
Appeasement has reinforced this mindset. It took some time for many countries to realize this. By the time they realized this, China has already extensively altered the status quo in the South China Sea with its quick and massive assertions. Fortunately, there was the South China Sea Arbitration. Its clarification of the disputes in the South China Sea has allowed other stakeholders to weigh in correctly on the matter. It also drew the line for China. Now it is up to the international community to work together for the enforcement of the Ruling. The Ruling is not only a just cause for the Philippines. It is as well for the rest of the international community. If the world has to avoid a conflagration in the future, it must take the necessary policy approach now with clear resolve and commitment.
In this context, the Paper notes the overly excessive discussions in some circles as to the enforceability of the Ruling. Unfortunately, in the aftermath of the ruling, the discussions on Arbitration have centered quite extensively (unreasonably from the authorâs perspective) on the issue of whether or not it is enforceable, rather than on how to enforce it. From this paperâs perspective, this overemphasis on the supposed unenforceability of the Tribunalâs ruling detracts from the real and more important issue of how to enforce the same. It also shows a lack of understanding of public international law and its progressive nature.
Many critics of international law have criticized it as not being true law. Their criticisms center on the lack of a supreme authority or government as in a domestic setting. Another is the lack of an international military force to
In like manner, the enforceability of international law is different from the enforceability of municipal laws in a domestic setting. Owing to the unique nature of international law, the enforceability of the ruling is not solely determined by the existence or absence of an international police force, but rather through some other means of international pressure, such as international isolation, international trade or some forms of sanctions, among others. One only needs to have the will and creativity to do it.
Food that is served us on our table will not fill and nourish us unless we physically lift our hands and use our faculties to feed ourselves that food. In the same manner, the Tribunalâs ruling will not benefit us unless we ourselves work for its enforcement.
Though the path to its enforcement may be narrow and difficult; yet the road to peace that the Tribunal has laid out for us is rather clear and decisive. It should not be wasted.
The opinions expressed herein are the authorâs personal views and do not in any way represent the views of his Institution.
Alexander L. Vuving, Professor at the Daniel K. Inouye Asia-Pacific Center for Security Studies
Ibid.
The members of the Arbitral Tribunal were Judge Thomas A. Mensah (President), Judge Jean Pierre-Cot, Judge Stanislaw Pawlak, Prof. Alfred Soons, and Judge Rüdiger Wolfrum. Details and materials on the case may be accessed at
Award, pca Case No 2013â19, In the Matter of the South China Sea Arbitration Before an Arbitral Tribunal Constituted Under Annex ii to the 1982 United Nations Convention on the Law of the Sea Between the Republic of the Philippines and the Peopleâs Republic of China, 12 July 2016, p. 111â116.
Ibid., pp. 253â254.
Ibid., pp. 143â144.
Ibid., pp. 143â174.
Ibid., pp. 261â286.
âWith these key judgments, a vast swath of the South China Sea is legally no longer disputed. The ruling has in fact reduced the disputed area from more than 80 percent of the South China Sea to less than 20 percent of it. What remains under dispute is now only pockets of 12-nm radius circles from the disputed features, plus the overlapping areas of the EEZs from the mainland of the coastal states.â, Vuving, Op. Cit.
Figures are approximations using the Geographic Information System (gis).
Ibid.
Rocks.
The overlap in their 200 nm eez north of Luzon and South of mainland China; Rock features in the Spratlys. The 9-dash line claim extended these disputes up to the limits of the 9-dotted lines.
Second Thomas Shoal, Mischief Reef and other low-tide elevations which form part of the Continental Shelf of the Philippines, Recto Bank, Areas 3 & 4, water surfaces that forms part of the Philippine eez.
This is the reason why the 1947 9-dotted line map is not the problem per se, but the expansionist ambition of the Communist Leadership of China. The map is being used as a convenient excuse by the leadership for its real expansionist agenda. âGrab now, Explain Laterâ creeping policy.
Marwyn Samuels, Contest for the South China Sea (New York and London: Methuen, 1982), at 100â101.
Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea (Honolulu: University of Hawaii Press, 1997), at 21â22.
Simone Orendain, âPhilippines Says China Harassed Oil Exploration Vessel,â 4 March 2011, at
âChina starts annual South China Sea fishing ban,â English.xinhua.cn, 16 May 2013, at
Paterno Esmaquel iii, âPhilippines slams China over âsovereignty patrolsâ, Rappler.com, 18 August 2014, at
âChinese navy flexes muscles in South China Sea,â March 27, 2013, at
Jaime Sinapit and Pots de Leon, âChinese vessels harass, but fail to stop, resupply mission for PH Navy ship at Ayungin Shoal, â InterAksyon.com, 29 March 2014, at
Chris Brummit, âVietnam tries to stop China oil rig deployment,â May 7, 2014, at
Vu Trong Khanh and Nguyen Anh Thu, âVietnam, China Trade Accusations of Vessel -Ramming Near Oil Rig,â June 24, 2014, at
As President Barack Obama has stated, âObviously, with a huge population, a growing economy, we want to continue to encourage the peaceful rise of China. I think thereâs enormous opportunities for trade, development, working on common issues like climate change with China. But what weâve also emphasized â and I will continue to emphasize throughout this trip â is that all of us have responsibilities to help maintain basic rules of the road and an international order so that large countries, small countries, all have to abide by what is considered just and fair, and that we are resolving disputes in peaceful fashion.â President Barack Obama, Delivered at a Joint Press Conference with President Obama and Prime Minister Abe of Japan, Tokyo, Japan, April 24, 2015.
Frank McDonough, Hitler, Chamberlain and Appeasement (Cambridge Perspectives in History), (Cambridge University Press, 2002); Alice Mary Smyth (ed), The Oxford Book of Quotations (Oxford University Press, 1941). âPeace for our timeâ was a phrase spoken by Prime Minister Chamberlain on 30 September 1938 in his speech concerning the Munich Agreement after ceding Sudetenland to Nazi Germany. The lines read, âMy good friends, for the second time in our history, a British Prime Minister has returned from Germany bringing peace with honour. I believe it is peace for our time.â
Henry Kissinger was the Secretary of State during Richard Nixonâs presidency. He was the architect of Nixonâs historic 1972 trip to China that led to the opening of diplomatic ties between the two countries.
Sharon Chen and Andrea Tan, âKissinger Urges Return to Dengâs Way on South China Sea Spat,â March 29, 2015, at
Ibid.
âRapprochement with China, 1972â, Office of the Historian, Foreign Service Institute, United States Department of State,
Ibid.
Ngo Minh Tri and Koh Swee Lean Collin, âLessons from the Battle of the Paracels Islandsâ, The Diplomat, January 23, 2014,
ââ¦the status quo ⦠the Amphitrite Group in the eastern Paracels and the Crescent Group were respectively under Chinese and Vietnamese control.â, ibid.
Farolan, Ramon, âMischief Reef â Where It All Startedâ, Philippine Daily Inquirer,
Driven by Adolf Hitlerâs ambitious expansionist agenda, Germany rebuilt its military despite the prohibitions of the Treaty of Versailles. From 1936 to 1938, Germany remilitarized the Rhineland and âunitedâ with Austria. In September 1938, Hitler demanded that Sudetenland, a region in Czechoslovakia with a large ethnic German population, be handed over to Germany. Great Britain took the cudgels of negotiating with Germany. British Prime Minister Neville Chamberlain met with Hitler at Berchtesgaden on 15 September 1938 to resolve the Sudetenland problem. Without discussing with the Czech, Chamberlain pledged to give Germany all areas of Sudetenland with a German population of more than 50 per cent. Hitler agreed, but later on increased his demands and asked for all of Sudetenland. The Munich Agreement signed on 29 September 1938 stated that Germany would receive Sudetenland but would leave the rest of the Czech Republic alone. The Munich agreement became the symbol of the policy of appeasement. The mood at the time is often imputed for the choice of policy. Lingering memories of the First World War had left Europe war weary. Chamberlainâs policy of appeasement was born of a desire to avoid armed conflict. He spoke of this in his famous statement broadcast on radio on 27 September 1938: âI am myself a man of peace to the depths of my soul; armed conflict between nations is a nightmare to me ⦠War is a fearful thing.â Moreover, neither Britain nor France was ready for war military-wise. The economic hardship from the Great Depression, combined with a generally pacifist public sentiment, did not create a favorable environment for rearmament. By 13 March 1939, Germany violated the Munich Agreement by invading the rest of Czechoslovakia. On 01 September 1939, Germany attacked Poland. Honoring their promise to come to Polandâs aid in case of Nazi aggression, Great Britain and France declared war on Germany on 03 September 1939. Chamberlainâs so-called âpeace for our timeâ turned out to be short-lived and eventually led to the most devastating war in human history.
Hans Morgenthau, Politics among Nations: The Struggle for Power and Peace, 4th ed, (New York: Knopf, 1967).
Ibid.
J.L. Richardson, ââNew Perspectives on Appeasement: Some Implications for International Relations,â World Politics, Vol. 40, No. 3, (Cambridge University Press, 1988), pp. 289â316.
United Nations Conference on Trade and Development (unctad), Review of Maritime Transport 2011, as cited in U.S. Energy Information Administration, âAnalysis Brief, The South China Sea,â February 7, 2013, <
Frank McDonough, Hitler, Chamberlain and Appeasement (Cambridge Perspectives in History) (Cambridge University Press, 2002).
Steve Chan, International Relations in Perspective: The Pursuit of Security, Welfare and Justice, (New York: Macmillan, 1984), at 88â89. Britain and Czechoslovakia were not allies.
Broadcast (27 September 1938), quoted in âPrime Minister on the Issuesâ, The Times (28 September 1938), at 10.
Renata Gianini in the Issue brief âThe Rule of Law: State Sovereignty vs. International Obligations,â ga Sixth Committee (Legal) 2010, at
Bartlett, John, Familiar Quotations, 14th Edition, published by Little, Brown and Co., 1968, p. 479.
Abraham Lincoln, Farewell Address, Springfield, Illinois [February 11, 1861], Bartlett, John, Familiar Quotations, 14th Edition, published by Little, Brown and Co., 1968, p. 636.
President Franklin Delano Roosevelt, the âQuarantine the aggressorâ speech, Chicago [October 5, 1937], Bartlett, John, Familiar Quotations, 14th Edition, published by Little, Brown and Co., 1968, p. 971â972.
John Locke, Second Treatise of Government [1690], sec. 202, Bartlett, John, Familiar Quotations, 14th Edition, published by Little, Brown and Co., 1968, p. 372.
William Pitt, Earl of Chatham, Case of Wilkes, Speech, Bartlett, John, Familiar Quotations, 14th Edition, published by Little, Brown and Co., 1968, p. 426.
Harry Krazianis, âChinaâs Expanding Cabbage Strategyâ, at
Op Cit, Franklin D. Roosevelt ⦠Fireside Chat [April 14, 1938], Bartlett, John, Familiar Quotations, 14th Edition, published by Little, Brown and Co., 1968, p. 972.
Robert William Service, The Law of the Yukon, Bartlett, John, Familiar Quotations, 14th Edition, published by Little, Brown and Co., 1968, p. 932.
Award., Op. Cit.
The Philippine Submissions No. 1 and 2.
Part viii, Regime of Islands, Article 121:\ 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
The Philippine Submissions No. 3 to 7.
The Philippine Submissions No. 8 to 10.
The Philippine Submissions No. 11 to 14.
See paragraphs 277â278 of The South China Sea Arbitration Award, pp. 116â117.
See paragraphs 643 to 647 of The South China Sea Arbitration Award, pp. 259â260.
See paragraph 716 of The South China Sea Arbitration Award, p. 286.
See paragraph 1043 of The South China Sea Arbitration Award, p. 415.
See paragraph 757 of The South China Sea Arbitration Award, p. 297.
See paragraphs 992â993 of The South China Sea Arbitration Award, p. 397.
Amicus Curiae Submission by the Chinese (Taiwan) Society of International Law (23 March 2016), at
Award on Jurisdiction and Admissibility, 29 October 2015. Accessed at
Award, Op. Cit., p. 12.
Award, Op. Cit., p. 14.
Award, Op. Cit., pp. 20â21.
Award, Op. Cit., p. 28.
Award., Op. Cit., pp. 32â34.
âUS calls on China to abide by arbitral tribunalâs rulingâ, Joyce Ann L. Rocamora, April 8, 2021.
The United States champions a free and open Indo-Pacific. Today we are strengthening U.S. policy in a vital, contentious part of that region â the South China Sea. We are making clear: Beijingâs claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them. In the South China Sea, we seek to preserve peace and stability, uphold freedom of the seas in a manner consistent with international law, maintain the unimpeded flow of commerce, and oppose any attempt to use coercion or force to settle disputes. We share these deep and abiding interests with our many allies and partners who have long endorsed a rules-based international order. These shared interests have come under unprecedented threat from the Peopleâs Republic of China (prc). Beijing uses intimidation to undermine the sovereign rights of Southeast Asian coastal states in the South China Sea, bully them out of offshore resources, assert unilateral dominion, and replace international law with âmight makes right.â Beijingâs approach has been clear for years. In 2010, then-prc Foreign Minister Yang Jiechi told his asean counterparts that âChina is a big country and other countries are small countries and that is just a fact.â
The prcâs predatory world view has no place in the 21st century. The prc has no legal grounds to unilaterally impose its will on the region. Beijing has offered no coherent legal basis for its âNine-Dashed Lineâ claim in the South China Sea since formally announcing it in 2009. In a unanimous decision on July 12, 2016, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention â to which the prc is a state party â rejected the prcâs maritime claims as having no basis in international law. The Tribunal sided squarely with the Philippines, which brought the arbitration case, on almost all claims. As the United States has previously stated, and as specifically provided in the Convention, the Arbitral Tribunalâs decision is final and legally binding on both parties. Today, we are aligning the U.S. position on the prcâs maritime claims in the scs with the Tribunalâs decision. Specifically:
- âThe prc cannot lawfully assert a maritime claim â including any Exclusive Economic Zone (eez) claims derived from Scarborough Reef and the Spratly Islands â vis-a-vis the Philippines in areas that the Tribunal found to be in the Philippinesâ eez or on its continental shelf. Beijingâs harassment of Philippine fisheries and offshore energy development within those areas is unlawful, as are any unilateral prc actions to exploit those resources. In line with the Tribunalâs legally binding decision, the prc has no lawful territorial or maritime claim to Mischief Reef or Second Thomas Shoal, both of which fall fully under the Philippinesâ sovereign rights and jurisdiction, nor does Beijing have any territorial or maritime claims generated from these features.
- âAs Beijing has failed to put forth a lawful, coherent maritime claim in the South China Sea, the United States rejects any prc claim to waters beyond a 12-nautical mile territorial sea derived from islands it claims in the Spratly Islands (without prejudice to other statesâ sovereignty claims over such islands). As such, the United States rejects any prc maritime claim in the waters surrounding Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), waters in Bruneiâs eez, and Natuna Besar (off Indonesia). Any prc action to harass other statesâ fishing or hydrocarbon development in these waters â or to carry out such activities unilaterally â is unlawful.
- âThe prc has no lawful territorial or maritime claim to (or derived from) James Shoal, an entirely submerged feature only 50 nautical miles from Malaysia and some 1,000 nautical miles from Chinaâs coast. James Shoal is often cited in prc propaganda as the âsouthernmost territory of China.â International law is clear: An underwater feature like James Shoal cannot be claimed by any state and is incapable of generating maritime zones. James Shoal (roughly 20 meters below the surface) is not and never was prc territory, nor can Beijing assert any lawful maritime rights from it. The world will not allow Beijing to treat the South China Sea as its maritime empire. America stands with our Southeast Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law. We stand with the international community in defense of freedom of the seas and respect for sovereignty and reject any push to impose âmight makes rightâ in the South China Sea or the wider region. US Position on Maritime Claims, Press Statement, Michael R. Pompeo, US secretary of State, 13 July 2020.
https://2017-2021.state.gov/u-s-position-on-maritime-claims-in-the-south-china-sea/index.html .
Freedom of the seas is an enduring interest of all nations and is vital to global peace and prosperity. The international community has long benefited from the rules-based maritime order, where international law, as reflected in the UN Law of the Sea Convention, sets out the legal framework for all activities in the oceans and seas. This body of international law forms the basis for national, regional, and global action and cooperation in the maritime sector and is vital to ensuring the free flow of global commerce. Nowhere is the rules-based maritime order under greater threat than in the South China Sea. The Peopleâs Republic of China (prc) continues to coerce and intimidate Southeast Asian coastal states, threatening freedom of navigation in this critical global throughway. Five years ago, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention delivered a unanimous and enduring decision firmly rejecting the prcâs expansive South China Sea maritime claims as having no basis in international law. The Tribunal stated that the prc has no lawful claim to the area determined by the Arbitral Tribunal to be part of the Philippinesâ exclusive economic zone and continental shelf. The prc and the Philippines, pursuant to their treaty obligations under the Law of the Sea Convention, are legally bound to comply with this decision. The United States reaffirms its July 13, 2020 policy regarding maritime claims in the South China Sea. We also reaffirm that an armed attack on Philippine armed forces, public vessels, or aircraft in the South China Sea would invoke U.S. mutual defense commitments under Article iv of the 1951 U.S.-Philippines Mutual Defense Treaty. We call on the prc to abide by its obligations under international law, cease its provocative behavior, and take steps to reassure the international community that it is committed to the rules-based maritime order that respects the rights of all countries, big and small. Fifth Anniversary of the Arbitral Ruling on the South China Sea, Press Statement, Antony J. Blinken, 11 July 2021.
See
See Note No. ha 59/19 of 12 December 2019 from the Permanent Mission of Malaysia to the Secretary-General of the United Nations,
See Note No. cml/14/2019 dated 12 December 2019 from the Permanent Mission of the Peopleâs Republic of China to the Secretary-General of the United Nations
Article 5 of the United Nations Convention on the Law of the Sea, Montego Bay, Jamaica, 10 December 1982, in force 16 November 1994,
unclos Article 6.
Anglo-Norwegian Fisheries, U.K. v. Norway, Order, 1951 I.C.J. 117 (Jan. 18),
Ibid.
Ibid.
Supplemental Written Submission of the Philippines to the South China Sea Arbitration.
Award, Op. Cit..
Award, Op. Cit.
Article 296, Finality and binding force of decisions, unclos â1. Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute. â2. Any such decision shall have no binding force except between the parties and in respect of that particular dispute.â
Single Draft Code of Conduct in the South China Sea (coc) Negotiating Text, as of 26/7/2018.
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Alice Mary Smyth (ed), The Oxford Book of Quotations (Oxford University Press, 1941).
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Sharon Tiezzi, âPhilippines accuses China of ramming boats in South China sea,â The Diplomat , February 5, 2015, at http://thediplomat.com/2015/02/philippines-accuses-china-of-ramming-boats-in-south-china-sea.
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United Nations Conference on Trade and Development (unctad), Review of Maritime Transport 2011, as cited in U.S. Energy Information Administration, âAnalysis Brief, The South China Sea,â February 7, 2013, <http://www.eia.gov/countries/regions-topics.cfm?fips=scs>.
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Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea (Honolulu: University of Hawaii Press, 1997).
Alexander L. Vuving, https://thediplomat.com/2016/07/why-the-south-china-sea-ruling-is-a-game-changer.