A Legal Voyage Through the Troubled Waters of the South China Sea

Navya Bhandari & Pratham Pratap Mohanty*

“Whosoever commands the sea commands the trade; whosoever commands the trade of the world commands the riches of the world; and consequently, the world itself.”^[1]

The South China Sea has gained unprecedented popularity over the past few years due to the contradictory territorial claims of various Southeast Asian countries over it. However, there are other clashes which have links to this primary disagreement and have caused tensions between China, Taiwan, Vietnam, the Philippines, Indonesia, Malaysia and Brunei. Like every other conflict, this one too involves the U.S., and subsequently the military. This monetary run might end into a third world war.

How Events Unfolded

The islands of South China include two chains, the Parcels and the Spratly Islands. Post the Second World War, no country occupied these landmasses. Problems started in the 1940’s when China occupied a few islands in the archipelago. A few weeks later, the French and Vietnamese made their landfall on Pattle Island. After the defeat from Mao’s Communists, the Chinese forces retreated. However, in 1955 and 1956, China and Taiwan established their existence again.

In the 1970s, in a series of new movements, the Philippines followed by the Chinese occupied the islands again for economic considerations. Then came the Vietnamese and the quest continued. It was only in 2002 that ASEAN and China signed the Declaration on the Conduct of Parties in the South China Sea^[2], which brought the argument to a halt. But in 2009, Malaysia and Vietnam sent a statement to the Commission on the Limits of the Continental Shelf,^[3] which was established by the UN to settle claims of the UN Convention on the Law of the Sea.^[4]This unleashed fresh claim from other nations, who objected to these submissions. China replied to the statement by giving a map containing the ill-reputed “nine-dash” line. Beijing then said that China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, seabed and subsoil thereof.

In 2012, China took away the Scarborough Shoal from the Philippines when it claimed illegal poaching by the Chinese Fishermen. In a comeback, Manila filed for an arbitration proceeding under UNCLOS.  The claims centred around maritime issues, and Beijing believed that they cannot be resolved unless territorial disputes are sorted. It, therefore, refused to participate in the arbitration.

In 2014, a Chinese company was allowed to put rigs into seawaters claimed by Vietnam. Then in 2015, China started pouring sand onto its occupied islands to expand them, claiming 2000 acres of additional land even when Hague has ruled Chinese claims have no legal significance. And then the U.S. intervened and sent a warship which drove within 12 nautical miles of the artificial islands. China also retaliated, thus militarising the issue. As China started building military bases on the artificial islands in 2017, the U.S. also increased military activities and labelled it as the freedom of navigation operations.

Legal Aspects Of The Issue

The U.S. China Conflict and Militarisation

The dispute has found its place in the UNCLOS, which is called the Constitution of the Oceans. Article 3 of the Convention states that a country has a territorial claim over the sea waters up till 22 nautical miles from the coastline and has an Exclusive Economic Zone in the waters adjacent to the territorial sea, not exceeding 200 nautical miles.^[5] Areas not covered in any country’s territorial sea or EEZ are the high seas and according to Article 58, all nations enjoy the freedoms granted in Article 87 i.e. Freedom of Navigation and Freedom of Overflight. 

China asserts a violation of right over territorial waters of the islands^[6] and rights over the EEZ^[7] off the coast of China by steering military operations. It justifies its claims by stating that these islands fall within the infamous ‘nine-dash line’.^[8] This line first appeared on a map in 1947 and covered 90% of the South China sea’s area.  Thus, it argues that the islands are within its dominion. Moreover, it submits that the Freedom of Navigation Patrol is not expressly stated in the UNCLOS.^[9] However, it may be exercised post permission from the State, which was not the case with the U.S.^[10]

The U.S. claims that Freedom of Navigation Patrol is legal under the UNCLOS. It also contests the authority of the nine–dash line in light of the Convention.^[11] It says that military activities in other countries’ EEZ are not prohibited by the Convention^[12] and that it is hypocritical for China to dispute this because China also carries on military operations in other countries EEZ, as it admits.^[13] Moreover, it argues that all islands built by China are beyond its EEZ^[14] and fall within the Philippines EEZ.^[15] Thus, all claims of the Chinese counterpart about the U.S. carrying on military operations within the territorial waters of the Spratly archipelago are baseless. A legal expert from the Chinese government also said that he didn’t know the basis for the nine-dash line to be drawn.^[16] The Convention also states that no islands made further than the EEZ and a 500-meter safety zone around it may be permitted and artificial islands have no territorial waters.^[17] Thus, all U.S. military activities can be allowed.

The Arbitration At Hague

This issue came to the judicial purview when Philippines invoked Part XV of the UNCLOS which establishes a variety of “compulsory procedures entailing binding decisions” including arbitration but in confirmation to procedures laid down in Annexure-VII through a statement of claim on 22^nd January 2013.^[18] Though both the Philippines and China are signatories of the UNCLOS, the latter rejected the initiation of arbitration proceedings on the ground of lack of jurisdiction of the Tribunal. However, the Tribunal was created^[19] at The Permanent Court of Arbitration at Hague, in accordance with the convention. The Tribunal bifurcated the case into the jurisdiction and the primary issues. The question on jurisdiction over the case was clarified vide a judgement on 29^th October 2015 by confirming its jurisdiction with a few left for the merits phase of the further proceedings.^[20] Even though the same was rejected by China, the Tribunal went onto further the proceedings and clarified it to be “final and binding without any appeal”.^[21]

The Tribunal gave its final judgement on 12^th July 2016 in favour of Philippines, addressing all the major issues of the case, including historic claims, China’s nine-dash lines and status of insular features.^[22]The claims on the islands were rejected by the Tribunal, clearing the mist hovering above the uncertainty of various Chinese maps showing the islands to be its sovereign part. While assessing China’s actions inside its claimed nine-dash lines, the Tribunal was of the view that these represent, “constellation of historic rights short of the title”.^[23] The Tribunal ruled that any historic right has extinguished and therefore, is incompatible with UNCLOS because the convention was designed to decide the claim of resources of maritime zones  based on Exclusive Economic Zones and their respective coastal shelves, while leaving no room for the assertion of historic rights, whatsoever.^[24]

While assessing the issue on the regime of islands, the tribunal clarified one of the ambiguities in Article 121 on distinguishing between above high-water insular features which have maritime claims and those that should be classified as rocks, which in accordance with Article 121(3), “cannot sustain human habitation or economic life of their own”^[25] and “shall have no EEZ or continental shelf”^[26]. The Tribunal laid the assessment of such features should not be based only on “geographical or geomorphological criterion”^[27] but on its natural capacity to sustain human habitation or economic life of its own, “without any external modification or addition intended to increase its capacity” irrespective any historical claims.^[28]

It further made it clear that the wordings of Article 121 are disjunctive and need to satisfy either of human habitation or economic life to evade the feature to be classified as a “rock”.^[29] Relying on the above classification, the Tribunal concluded that none of the high-water features in the Spratlys satisfy the requisite criteria and are, therefore, incapable of being in the EEZ or the coastal shelves.^[30] Consequently, these rocks cannot be used to extend the 12 nautical miles maritime EEZ. It further clarified that the no low-tide elevations are entitled to extend EEZ or continental shelf, although Article 13(2) doesn’t explicitly say so.^[31] Using the available evidence and applying the above reasoning the Tribunal ruled in favour of Philippines and rejected China’s claims on Mischief Reef and Second Thomas Shoal, as both of the LTEs form parts of the territorial EEZ and continental shelf of Philippines.^[32]

In furtherance to the above finding, the Tribunal found China guilty of violating the sovereign rights of being Philippines under Article 60 and 80 of UNCLOS by building artificial islands near these LTEs.^[33] The past actions of China including preventing maritime exploration, a hindrance to fishing practices of Philippines and activities of Chinese Law enforcement authorities were found to be violative of Article 77, 56, 94 of UNCLOS and various provisions of COLREGS respectively.^[34] The Tribunal found China had violated its obligation to protect and preserve the environment in international waters by its continuous building activities near the corals and adoption of harmful practices by Chinese fishing vessels in the region.^[35]

Aftermath Of The Judgement

Though the judgement failed to address the cause of the issue or dispute between the nations, it brought in major clarification on the legality of the claims of the nations. While making it clear that any historical right over the disputed islands vanished upon becoming a party to UNCLOS, it rejected the historical evidence of China on sovereignty over the islands. Although it fails to address individual claims of each claimant nation, it puts light on the illegal encroachment of Chinese authorities over the entire South China Sea.

But, China has abruptly rejected these findings of the Tribunal as it claims to have excluded all disputes from “compulsory dispute settlement” as against Article 298 via a declaration in 2006.^[36] The Tribunal has made clear the extinguishment of historical rights but the convention is devoid of any specific provision of historical rights. Moreover, it acknowledges the concept in Article 10(6) which provides that “the foregoing provisions do not apply to so-called ‘historic’ bays”. There have also been other cases related to historic rights on international water regions like those between Norway v. the United Kingdom^[37], the Soviet Union for the Peter the Great Bay^[38] and Libya’s claim on the Gulf of Sidra.^[39]

China had also accused Manila of not honouring the pact signed by the two nations in 2002 to resolve these disputes by bilateral negotiations only and exclude any third party intervention via a Declaration of Conduct regarding SCS disputes.^[40] Therefore, the act of invoking the clauses of UNCLOS resulted in the international norm of pacta sunt servanda and the same was in bad faith. It further alleges that the Tribunal had no jurisdiction over the issue because of the existing pact and it can only hear the dispute upon failure of bilateral negotiations between the parties, which was never brought to the table.^[41] Further, the judgement was questioned to be ultra vires to the powers conferred to the Tribunal by UNCLOS as the same is not entitled to decide matters of sovereignty and the judgement was covered in a veil of confirming to the provisions of UNCLOS.

 How Can The Waters Of The South China Sea Be Calmed?

Though the dispute has been addressed by the Tribunal judgement, the same has seen no effect in reality. However, it has significantly altered the position of law for the future dialogues in the process of dispute resolution between all the claimants. The judgement has brought the claimant nations to a better position on the table and fostered the resolution of the dispute over the South China Sea. 

Article 59 of the UNCLOS provides the basis for resolution of conflicts, and states that in an event of no defined rights, the basis for resolution of conflict should be equity and should take into account respective interests of parties as well as the international community. However, China has excused itself from all such methods and the International Tribunal for the Law of the Sea.^[42] While the convention is unambiguous on artificial islands, there is scope for more clarity on the freedom in EEZ and whether states can make territorial claims outside the EEZ. An amendment in the Convention will help solve these doubts.

As of now, China refuses to accept the 2016 verdict of Hague and wants the issue to be solved among the parties who have unsettled claims, observing the Declaration on Conduct of Parties in the South China Sea. However, this would mean pushing the smaller nations to a side-line. As Barak Obama had said, “We think this can be solved diplomatically, but just because the Philippines or Vietnam are not as large as China doesn’t mean that they can just be elbowed aside.”Thus, ASEAN may be a possible stage to solve the dispute by negotiating with China, as the platform gives the smaller nations a stronger bargaining power against Beijing. And since China is conscious of its international reputation, the U.S. can push China to give UNCLOS due regard and also a negotiation with ASEAN. The current crisis of a pandemic has significant implications on the dispute. The region has been witnessing active conflicts between the claimant nations with increased activity of Chinese surveillance vessels. Reports revealed a recent standoff between Vietnamese fishing vessels and Chinese military vessels which resulted in the sinking of the former.^[43] The snail slow negotiation process with soared bilateral relations between the nations has thus further degraded. China being an economically stronger party, has larger chances of dominating the region even further as it would be lesser affected by the setback. While other claimant nations could be a victim of a severe recession and the result might shift towards Beijing.

*Navya Bhandari & Pratham Pratap Mohanty are students of the second semester at National Law University, Jodhpur(NLUJ) and have a keen interest in International law, it’s conflicts and developments. 

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[1] Walter Raleigh was an English adventurer and writer, a favourite of Queen Elizabeth I, who knighted him in 1585. Accused of treason by Elizabeth’s successor, James I, he was imprisoned in the Tower of London and eventually put to death.

[2] 2002 Declaration On The Conduct Of Parties In The South China Sea, ASEAN – China, 4 November 2002, https://cil.nus.edu.sg/wp-content/uploads/2017/07/2002-Declaration-on-the-Conduct-of-Parties-in-the-South-China-Sea.pdf.

[3]The Commission on the Limits of the Continental Shelf is one of the institutions established under the United Nations Convention on the Law of the Sea. 

[4]United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter ‘UNCLOS’].

[5] Supra note 4, Art. 55 & 57.

[6]Ben Blanchard & Andrea Shalal, Angry China Shadows U.S. Warship Near Man-Made Islands, Reuters, http://www.reuters.com/article/2015/10/27/us-southchinasea-usa-idUSKCN0SK2AC20151027.

[7]James W. Houck & Nicole M. Anderson, The United States, China, and Freedom of Navigation in the South China Sea, 13 Wash. U. Global Stud. L. Rev. 447 (2014).

[8]Julian Ku, While the Courts Have Ruled, China Is Not Leaving the South China Sea, Nat’l Int., http://nationalinterest.org/blog/the-buzz/while-the-courts-have-ruled-china-not-leaving-the-south-16980.

[9]Houck & Anderson, supra note 8 at 448.

[10]Jing Geng, The Legality of Foreign Military Activities in the Exclusive Economic Zone Under UNCLOS, 28 Utrecht J. Int’l & Eur. L. 22, 27–28 (2012).

[11]Blanchard  &Shalal, supra note 7.

[12] Marjorie Ellen Gallagher, The Time is Now: The United States Needs to Accede to the United Nations Convention on the Law of the Sea to Exert Influence over the Competing Claims in the South China Sea, 28 Temp. Int’l & Comp. L.J. 1, 22 (2014).

[13]Houck & Anderson,supra note 8 at 445.

[14]Patrick M. Cronin, America Must Take a Stand in the South China Sea, Nat’l Int., http://nationalinterest.org/feature/america-must-take-stand-the-south-china-sea-13779.

[15] Supra note 4, art. 60(8).See Matikas Santos, Key Points of the Arbitral Tribunal’s First Ruling in Philippines vs China Case, Inquirer.net, http://globalnation.inquirer.net/130215/south-china-sea-arbitration-philippines-china-spratly-islands-west-philippine-sea.

[16]David Lague, Analysis: China’s Nine-Dashed Line in South China Sea, Reuters, http://www.reuters.com/article/2012/05/25/us-china-sea-boundary-idUSBRE84O07520120525#wddeZEGcHUAedKyW.97.

[17] Supra note 4, art. 60(8).

[18]UNCLOS, Part XV and Annex.

[19] Article 9 of Annex VII of UNCLOS expressly addresses the issue of a party to an arbitration case initiated under its terms refusing to participate, providing that “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceeding

[20] In its Award the Tribunal confirmed that it had the necessary jurisdiction to address the vast majority of the issues and questions posed to it by the Philippines. See, Award, para. 167.

[21] UNCLOS, Annex VII, Article 11.

[22] “PCA Case No. 2013-9 in the Matter of the South China Sea Arbitration”, 12 July 2016, available at https://pca-cpa.org/en/cases/7/, hereinafter, “Award”.

[23]Award, para. 2.

[24]Award, para. 261. It should be noted that the Tribunal indicated that China may retain some traditional fishing rights at Scarborough Shoal since it found that this feature has been the traditional fishing ground of fishermen of many nationalities “including the Philippines, China (including from Taiwan), and Vietnam. See, Award para. 805 and 812.

[25] UNCLOS, Art.121(3).

[26]Id.

[27]Award, para. 540.

[28]Id.

[29]Award, para. 544.

[30]Award, para. 646.

[31]Award, para. 308.

[32]Award, para. 647.

[33]Award, para. 1043.

[34] See, Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 UNTS 1976. Specifically, China was found to have breached Rules 2, 6, 7, 8, 15, and 16. See, Award, para. 1109.

[35] Specifically, China was found to have “breached Articles 192, 194(1), 194(5), 197, 123, and 206 of the Convention”. See, Award, p 993.

[36] Supra note 2.

[37]Fisheries case, Judgment of December 18th, 1951: I.C.J. Reports 1951, pi 116.

[38]William E. Butler, The Soviet Union and the Law of the Seas, p.110, (1971).

[39]LIBYA’S GULF CLAIM: 13-YEAR DISPUTE WITH U.S., The New York Times , March 25, 1986, https://www.nytimes.com/1986/03/25/world/libya-s-gulf-claim-13-year-dispute-with-us.html.

[40] Supra note 2.

[41] 8 PRC Ministry of Foreign Affairs, “Statement of the Ministry of Foreign Affairs of the People’s Republic of China on Settling Disputes Between China and the Philippines in the South China Sea Through Bilateral Negotiation,” June 8, 2016, http://www.fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/t1370476.shtml.

[42]Truong-Minh Vu & Trang Pham, International Law and the South China Sea, Diplomat, http://thediplomat.com/2014/12/international-law-and-the-south-china-sea/. 

[43]Vietnam protests Beijing’s sinking of South China Sea boat, Reuters, https://www.reuters.com/article/us-vietnam-china-southchinasea/vietnam-protests-beijings-sinking-of-south-china-sea-boat-idUSKBN21M072.