When China ratified the United Nations law of the sea treaty in 1996, it was hailed as an important step toward stability and peaceful settlement of disputes in East Asia’s vast, valuable but conflict-riven offshore zone.
So the recent move by the Philippines to turn to the U.N. for a ruling on whether China’s sweeping claims to ownership and control over nearly all of the South China Sea in the maritime heart of Southeast Asia is in line with the 1982 treaty seemed like a perfectly law-abiding step.
But China’s Xinhua news agency said the Philippines’ referring the issue to a U.N. tribunal for compulsory arbitration was “Manila’s latest attempt to show its hardline position toward China” on their territorial disputes in the South China Sea.
When Beijing ratified the treaty establishing the legal framework for conduct in the world’s oceans and seas, known by its full title as the U.N. Convention on the Law of the Sea (UNCLOS), it registered some points about the application of the treaty, as member states are entitled to do.
Two of the points are relevant to the launch by the Philippines of UNCLOS arbitration proceedings against China.
The first is that in ratifying UNCLOS in 1996, China reaffirmed sovereignty over all its archipelagos and islands listed in Article 2 of a 1992 law adopted by the National People’s Congress, China’s legislature. This law on the territorial sea and the contiguous zone states that the land territory of China includes the mainland, its coastal islands, and some other groups of islands.
Those enumerated in the last category are Taiwan (which China regards as a rebel province) and the nearby Diaoyu (Senkaku) Islands in the East China Sea. The Senkakus are administered by Japan but bitterly contested by China.
In the South China Sea, the islands belonging to China under the 1992 law are, from north to south, the Dongsha (Pratas) Islands, occupied by Taiwan; the Xisha (Paracel) Islands, occupied by China but claimed by Vietnam; the Zhongsha (Macclesfield Bank) Islands; and the Nansha (Spratly) Islands, over which China, Taiwan, Vietnam, the Philippines and Malaysia have conflicting claims.
The second point registered with UNCLOS by China came 10 years later, in 2006, when Beijing gave notice, as it was entitled to do, that it did not accept any international court or arbitration in disputes over maritime boundaries, islands or military activities.
China’s position is that this is a question of Chinese sovereignty, not international law of the sea, and that the former, established for centuries by prior occupation and administration, must take precedence over the latter.
In April last year, as China and the Philippines struggled for control of Scarborough Shoal anchorage and fishing grounds, which Manila says is within its Exclusive Economic Zone established by UNCLOS, a Chinese Embassy spokesman Zhang Hua acknowledged that the treaty allowed countries EEZs but said that they could not exercise sovereignty over areas within those waters that were owned by other countries, in this case China.
Scarborough Shoal is some 870 kilometers from China’s Hainan Island province, its closest uncontested territory in the South China Sea. The shoal is just 230 km from the main Philippine island of Luzon. Beijing ignores the fact that no other country recognizes its South China Sea claims, although Taiwan maintains a similar position in its East and South China Sea claims to those of Beijing.
In 2009, China sent a letter to U.N. Secretary General Ban Ki Moon saying that it had “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 the seabed and subsoil thereof.”
Attached to the letter was a map showing the extent of China’s claim in the South China Sea, marked by a nine-dash line stretching as far south as James Shoal, just 80 km from Bintulu, in the Malaysian state of Sarawak, and about 1,800 km from the Chinese mainland.
A Xinhua report in April 2012 described the shoal as “the southernmost point of China’s territory.”
China’s use of its nine-dash claim to support its sovereignty claims in the South China Sea, and its references to “historic rights” in waters inside this imprecisely defined line, have provoked controversy and given Southeast Asian claimants the opportunity to argue that China is not acting in conformity with UNCLOS and international law.
In its Jan. 22 appeal to the U.N., the Philippines asserted that China’s maritime claims in the South China Sea within its nine-dash line map were contrary to UNCLOS and invalid. It is also asked for a ruling that China bring its domestic law into conformity with its obligations under UNCLOS, and that Beijing desist from activities that violate Philippine rights in its maritime domain.
Julian Ku, a law professor in the U.S., who follows the issue closely, described Manila’s case as the most important ever to have been filed under the dispute resolution procedures of UNCLOS. “I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China,” he wrote.
Ku added that if Manila managed to get past the jurisdictional hurdle, it would have “a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.”
UNCLOS defines the rights and jurisdiction of China in maritime zones subject to its sovereignty, namely its internal waters and territorial sea, a belt stretching out nearly 19 km from its coast.
The treaty also defines China’s authority in maritime areas that are outside its sovereignty, including the EEZ, high seas, contiguous zone, continental shelf and the deep seabed — zones that can stretch 370 km or more from the coast. Yet in its 2009 letter to Ban, Beijing appeared to be claiming sovereign rights over this second category of maritime areas in the South China Sea, contrary to UNCLOS.
Only predominantly island nations, such as the Philippines and Indonesia, are recognized by UNCLOS as archipelagic states. The waters linking their islands fall within their sovereignty, but even this is subject to certain defined limits. Is China planning to become a latter-day archipelagic state based on its offshore island claims, by far the most extensive of which are in the South China Sea?
One thing is certain. China plans to reinforce its already substantial body of domestic law on its claimed maritime and offshore island rights.
Xinhua reported on Dec. 28 that China was likely to enact its first law on the exploration, development and management of deep sea resources within five years, as part of its policy to “resolutely safeguard maritime rights and build itself into a maritime power.”
The official news agency said that international seabed areas refer to the ocean floor and subsoil below the high seas, or waters beyond the limits of any national jurisdiction. It added that such areas were believed to be rich in strategic resources, including minerals, natural gas hydrates and biological resources.
Michael Richardson is a visiting senior research fellow at the Institute of South East Asian Studies in Singapore.