UNCLOS and the South China Sea Crisis: How Maritime Law is Being Ignored

At present, there is a major international crisis occurring in the South China Sea. China, the Philippines, Vietnam, Malaysia, and other nations have overlapping claims on both terrestrial and maritime areas in the region; these areas particularly contain large deposits of valuable natural resources (such as hydrocarbons and natural gas).[1] Given China’s creation of artificial islands along the Paracel and Spratly island chains to increase their potential regional military presence as well as the increase in militarization from other nations, the South China Sea crisis looks to be an intricate geopolitical crisis.[2]

The South China Sea Crisis, at its core, reflects major disputes regarding the role of the United Nations Convention on the Laws of the Sea (UNCLOS) in governing maritime law. China is using historical claims as a basis for their legal argument, claiming that they have sovereignty not only over the islands within the sea, but over the nearby waters as well.[3] China has utilized the “nine-dash line,” an extensive outward territorial demarcation of the South China Sea that delves straight over other nations’ claims, in order to represent their historical sovereignty over the region.[4] However, as Tuan N. Pham of The Diplomat notes, “There is no legal basis for an [sic] historical rights claim to an EEZ [exclusive economic zone].”[5] A careful analysis of UNCLOS itself, therefore, is essential to fully understand the legality behind China’s claims.

As per UNCLOS’ Article V, an exclusive economic zone (EEZ) is “an area beyond an adjacent to the territorial sea” which extends up to 200 nautical miles from where “the breadth of the territorial sea is measured.”[6] Countries with the EEZ are able to use it as per the provisions outlined throughout UNCLOS’ Article V, and countries that operate in another nation’s EEZ are entitled to follow the laws that the nation with the EEZ maintains.[7] In particular, states with an EEZ have “exclusive sovereignty over exploring, exploiting and conserving all natural resources.”[8] It is important to note that China itself has ratified UNCLOS (and thus, the provisions in Article V that center around exclusive economic zones).[9] That being said, China’s claim is that UNCLOS does not have any power to determine “territorial sovereignty,” and nor does the Tribunal involved in the Philippine case against China have the power to determine this sovereignty.[10]

Article 2 of UNCLOS clearly denotes a section determining sovereignty, with Section 3 of Article 2 clearly noting that “[t]he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.”[11] It is almost abundantly clear that UNCLOS is the guiding international doctrine on the law of the seas. The question, then, is why China is bringing doubt to clear and present aspects of the law. Pham regards this questioning of the UNCLOS as a “legal warfare strategy” in order to “maintain a lack of legal clarity regarding maritime delimitations and the sovereignty of various geographic features in the SCS [South China Sea].”[12] With this line of action, China is able to keep raising legal questions, hindering the progress of the other arbitrators in the South China Sea, while continuing its activity within the region.[13]

That being said, whether a historical claim supersedes UNCLOS is a point to deliberate upon. The 2016 Permanent Court of Arbitration case, The Republic of the Philippines v. The People’s Republic of China, brought forth by the Philippines against Chinese activity and claims in the South China Sea, the Tribunal under UNCLOS’ Annex VII established its authority to deliberate upon “the historic rights” presented before it by China with regards to the South China Sea.[14] And, with the establishment of this authority, the Tribunal found that although China and its constituents historically had made use of the islands, no evidence was there to suggest China had had “exclusive control over the waters or their resources,” and therefore that the nine-dash line claims were invalid.[15] With the rejection of China’s historical claim, UNCLOS’ authority with regards to this issue was cemented. The Tribunal also found that Chinese activity (ranging from the interference of the Philippine petroleum industry to the creation of man-made islands within the sea) in the Philippine-EEZ areas of the South China Sea “violated the Philippine’s sovereign rights.”[16] China was not present in these proceedings, but the Tribunal made clear that UNCLOS’ Annex VII holds that one party’s absence does not preclude judgement of a case.[17]

This judgement was a clear rebuke of China’s overt subversion of UNCLOS and violation of the rights of the nations with EEZ’s that extended into the South China Sea. As noted before, China’s disputes against both UNCLOS’ application to sovereignty and the Tribunal’s authority to rule on the South China Sea issue have been found to be invalid; thus, as per the Tribunal, China’s actions in the South China Sea clearly violate international law as per the United Nations Convention on the Law of the Seas. This ruling upheld the authority of UNCLOS and international maritime law and dispelled China’s vague claims over the entire region; it seemed to provide the necessitated clarity that the region would need. Nevertheless, at the time of the judgement’s release, there were already doubts about the effectiveness of such a decision. As Max Fisher of The New York Times noted in 2016, “while the ruling is considered binding, there is no enforcement mechanism.”[18] This means that while the Tribunal’s ruling invalidated China’s claims and ruled in favor of the Philippines, there was no real power by the Tribunal to reverse China’s encroachment in the region. Indeed, looking back two years after the decision, the conflict within the region has only intensified: The Japan Times notes how China has gotten “effective control over a strategic sea that is … 50 percent bigger than the Mediterranean Sea.”[19]

The Philippines and other nations have valid claims under UNCLOS, but such nations cannot exercise sovereignty in their lawfully given EEZs due to continued Chinese presence and activity in the region, which in turn is due to a lack of enforcement of international arbitrations such as the 2016 case. As Isaac B. Kardon, Assistant Professor at the China Maritime Studies Institute at the U.S. Naval War College, writes in the University of Pennsylvania Asian Law Review, “Enforcement of judgements under international law is a tall order … especially so when one of the parties has actively sought to delegitimize the procedure. The field appears open for China.”[20] In order to have a consistent and fair transnational system of laws that applies to all nations equally, international jurisdictions need to be enforced. What good is UNCLOS, in all of its provisions regarding the specific rights it allots to coastal nations with EEZs, if countries can simply ignore the law and do as they please?

Until some sudden shift occurs, such gross disregard of international law will continue. It is very likely that the due rights of the Philippines under international law will continue to be infringed upon in the near future as China expands its power base in the South China Sea, potentially impacting international commerce and regional geopolitics to a great degree.

Sources:

[1] China’s Maritime Disputes, Council on Foreign Relations, online at https://www.cfr.org/interactives/chinas-maritime-disputes?cid=otr-marketing_use-china_sea_InfoGuide#!/chinas-maritime-disputes?cid=otr-marketing_use-china_sea_InfoGuide (visited October 17, 2018).

[2] Ibid.

[3] Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, Ministry of Foreign Affairs of the People’s Republic of China (2014), online at https://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml (visited October 13, 2018).

[4] Max Fisher, "The South China Sea: Explaining the Dispute," New York Times(2016), online at https://www.nytimes.com/2016/07/15/world/asia/south-china-sea-dispute-arbitration-explained.html (visited October 13, 2018).

[5] Tuan N. Pham, "South China Sea: A Legal Analysis of China’s Maritime Claims," The Diplomat (2018), online at https://thediplomat.com/2016/06/south-china-sea-a-legal-analysis-of-chinas-maritime-claims/ (visited October 9, 2018).

[6] United Nations Convention on the Law of the Sea, online at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (visited October 13, 2018).

[7] Ibid.

[8] Simon O. Williams, "Law of the Sea Mechanisms: Examining UNCLOS Maritime Zones," The Maritime Executive (2014), online at https://www.maritime-executive.com/article/Law-of-the-Sea-Mechanisms-Examining-UNCLOS-Maritime-Zones-2014-12-01 (visited October 13, 2018).

[9] Patrick M. Cronin and Melodie Ha, Toward a New Maritime Strategy in the South China Sea(2018), online at https://thediplomat.com/2018/06/toward-a-new-maritime-strategy-in-the-south-china-sea/ (visited October 13, 2018).

[10] Tuan N. Pham, "South China Sea: A Legal Analysis of China’s Maritime Claims," The Diplomat(2018), online at https://thediplomat.com/2016/06/south-china-sea-a-legal-analysis-of-chinas-maritime-claims/ (visited October 9, 2018).

[11] United Nations Convention on the Law of the Sea, online at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (visited October 13, 2018).

[12] Tuan N. Pham, "South China Sea: A Legal Analysis of China’s Maritime Claims," The Diplomat(2018), online at https://thediplomat.com/2016/06/south-china-sea-a-legal-analysis-of-chinas-maritime-claims/ (visited October 9, 2018).

[13] Ibid.

[14] [Press Release] The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China), Permanent Court of Arbitration (2016), online at https://www.nytimes.com/interactive/2016/07/12/world/asia/hague-south-china-sea.html (visited October 13, 2018).

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Max Fisher, "The South China Sea: Explaining the Dispute," New York Times (2016), online at https://www.nytimes.com/2016/07/15/world/asia/south-china-sea-dispute-arbitration-explained.html (visited October 13, 2018).

[19] Brahma Chellany, "China Expands its Control in the South China Sea," The Japan Times (2018), online at https://www.japantimes.co.jp/opinion/2018/09/17/commentary/world-commentary/china-expands-control-south-china-sea/#.W8KLDWhKjIU (visited October 13, 2018).

[20] Isaac B. Kardon, “China Can Say “No”: Analyzing China’s Rejection of the South China Sea Arbitration”, University of Pennsylvania Asian Law Review 13, no. 2 (2018): 3, available online at https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1037&context=alr (visited October 21, 2018).