The legality of US and Chinese positions in the South China Sea

Spearhead Analysis – 15.10.2018

By Hira A. Shafi
Senior Research Analyst, Spearhead Research

South China SeaThe rise of China and US-Sino power rivalry has exacerbated existing tensions in the South China Sea.  The dispute gained global attention from 2001 onwards when the US and Chinese differences in the sea manifested. Reportedly, a Chinese frigate came within 100 meters of the U.S. Navy’s unarmed hydrographic survey vessel collecting data in the Yellow Sea, the Chinese viewed the surveillance exercise with suspicion and pushed back the US vessel- such incidents became a norm.

In January 2003 China issued a new decree extending its control over the 200-mile economic zone from its coast. This development was seen by the US as inconsistent with International law and a violation of freedom of the high seas.

Tensions flared in January 2010 after China announced plans to develop high-end tourism on several of the Paracel Islands. Alongside, In March 2010 Assistant Minister of Foreign Affairs Cui Tiankai told visiting Deputy Secretary of State James Steinberg and the US National Security Council’s Jeffrey Bader that China viewed the South China Sea as part of China’s “core interests”, on a par with Taiwan and Tibet.  In response, back then- Secretary of State Hillary Clinton, stated that: “The United States, like every nation, has a national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China. In June 2011 the U.S. Senate unanimously approved resolution S.Res.217, deploring the use of force by China in the South China Sea and calling for a peaceful, multilateral resolution to maritime territorial disputes in Southeast Asia.

By mid-June 2011 tensions between China and Vietnam and Philippines were rising over their disputed claims in the South China Sea.

 In 2013, the Philippines submitted a case to the International Court of Justice’s Permanent Court of Arbitration. Reportedly, after this, China accelerated the alleged construction of artificial islands in the South China Sea. This was supposedly done in part to change the “facts on the ground” so that an island as per the UNCLOS can extend Chinese EEZ claims. Nonetheless, On July 12th 2016, the International Court ruled in favour of the Philippines and declared the nine-dash line claim as invalid under international law.

This ruling provided US with further justification to denounce Chinese actions in the South China Sea. Washington believes China will use the islands and its military presence on them to deny access to strategic routes. The United States Seventh Task Fleet has been present in the region since 1947, responsible for freedom and security of the high seas. China views US military vessels near its territory as a threat to its sovereignty and sees US naval maneuvers aimed to dominate the Pacific. Whereas, US rejects the Chinese 9-dash line, Chinese construction of artificial islands and alleged militarization of the seas.

Legal Dimensions

Issue of Historic rights

China bases its claims over the maritime features on historical evidences supposedly dating back to as early as 200 B.C.  In 1947, the Ministry of Interior China published its map of the region, and locations of South China Sea islands. In the Chinese view, since the release of this map, no protests or opposition were lodged by the international community or neighbouring Southeast Asian littoral states – till at least the early 90’s.  Furthermore, the Chinese state that it would have been impossible for China to draw maritime boundaries in accordance to UNCLOSIII which had not even been codified at the time it presented its territorial claims. Some legal experts point that a long-standing exercise of sovereignty over an area of the sea cannot be suddenly be invalidated because it is not in conformity with the general rules being formulated- adding that the formulation of UNCLOS deliberately avoided the issue of historic rights or historic waters and that UNCLOS is not entitled to rule on a matter that would involve negating a state’s historic rights.

However, on the other hand, China has ratified the UNCLOS, thereby acknowledging to the new principles stipulated in the legal texts. According to which the 200-mile EEZ principle would hold more weight. The tribunal decision on China and the Philippines trial, indicating that the historical arguments are weak is case in point.

Freedom of Navigation

The United States protests the restrictions on navigation in the waters surrounding the disputed features in the South China Sea, and the alleged Chinese militarization of the South China Sea. In the first three freedom of navigation operations, the United States conducted operations challenging the requirement that ships provide notification or obtain permission before transiting through another state’s territorial sea under innocent passage.

However, According to UNCLOS, Meaning of innocent passage 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device

The Chinese views US military vessels near its waters with suspicion of threat to its sovereignty. Furthermore, UNCLOS does not clarify the specific issue of military activities in the EEZ. UNCLOS repeatedly emphasizes that various maritime activities should be conducted ‘for peaceful purposes.

Some states interpret that the UNCLOS prohibits foreign military activities in the EEZ, as military activities are inherently non-peaceful. While on the other hand, some believe that military manoeuvres and exercises for maritime peace and security are compatible with UNCLOS.

Artificial Island and militarization:

UNCLOS defines three kinds of maritime features: (1) islands; (2) rocks; and (3) low-tide elevations. Each of these three features generates different maritime zones:

  1. islands generate a territorial sea, a contiguous zone, and an exclusive economic zone
  2. rocks generate a territorial sea and a contiguous zone, but no exclusive economic zone
  3. low-tide elevations generate nothing, unless they are within 12 nautical miles of land or an island, in which case they can be used as starting points from which the territorial sea, the contiguous zone, and exclusive economic zone can be measured

According to the UNCLOS, the construction of artificial islands over other features does not change their designated maritime zone. Moreover, stationing of military forces cannot be valid either as the EEZ is not intended to serve as a security zone. 

Conclusion:

The South China Sea disputes find themselves exacerbated due to China-US divergences – the hedging strategies of the ASEAN states further complicate the tensions in the South China Sea. The US, despite its support for freedom of navigation has not yet ratified the UNCLOS, its military maneuvers for the peace and security of the seas may be developed by taking China on board. As for the regional territorial disputes, China and the ASEAN states may consider abiding by the maritime zones stipulated in the UNCLOS and develop a regional resource sharing mechanism in the overlapping territories.

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