International Court to Arbitrate Conflicting Claims
By Shashi P.B.B. Malla
This week, a landmark ruling on an arbitration case filed by the Philippines that seeks to contest China’s expansive territorial claims in the South China Sea (SCS) will lay the future contours of International Law in particular, and International Politics in general. The UN Permanent Court of Arbitration in The Hague will rule on the basis of the United Nations Convention on the Law of the Sea (UNCLOS). Both China and the Philippines are among the more than 160 signatories of the 1982 convention that governs and stipulates the rights of countries in using the world’s oceans.
China is a party to multiple maritime territorial disputes in the South China Sea (SCS), including the following:
A dispute over the Paracel Islands (international parlance) which are claimed by China and Vietnam, and occupied by China. These islands are south-east of China’s southern Hainan island and east of Vietnam (Da Nang), and are in the northern part of the South China Sea (SCS). China refers to these islands as the Xisha islands.
A dispute over the Spratly Islands, which are claimed entirely by China, Taiwan and Vietnam, and in part by the Philippines, Malaysia and Brunei, and which are occupied in part by all of these countries except Brunei. These islands lie in the southern South China Sea (SCS) between southern Vietnam and the Philippine island of Palawan. China refers to these islands as the Nansha islands.
A dispute over Scarborough Shoal, which is claimed by China, Taiwan, and the Philippines, and controlled since 2012 by China. The shoal lies due west of the main Philippine island of Luzon. China calls it the Huangyan island.
These island groups are not the only land features in the South China Sea (SCS), which also feature other islands, rocks and shoals, as well as some near-surface submerged features. The territorial status of some of these other features is also in dispute.
Maritime territorial disputes in the South China Sea (SCS) date back many years, and have frequently led to incidents and periods of increased tensions. The disputes have intensified in the past few years, leading to many confrontations and incidents involving fishing vessels, oil exploration vessels and oil rigs, coast guard ships, naval ships and military aircraft. The intensification of the disputes in recent years has substantially heightened tensions between China and other countries in the region, particularly the Philippines and Vietnam.
In addition to maritime territorial disputes in the South China Sea (SCS), China is involved in a dispute, principally with the United States, over whether China has a right under international law to regulate the activities of foreign military forces operating within China’s “Exclusive Economic Zone” (EEZ). The position of the United States and most countries is that while the “United Nations Convention on the Law of the Sea” (UNCLOS), which established “Exclusive Economic Zones” (200 nautical miles outward from the coast) as a feature of International Law, does give coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical mile territorial waters. The position of China and some other countries (a minority group of 27 among the world’s nations, including Bangladesh, Burma, China, India, Malaysia, Myanmar, North Korea, Pakistan, Sri Lanka, and Vietnam) have a contrary view, supporting restrictions inconsistent with the Law of the Sea Convention.
The United States maintains that there has been an unprecedented rise in unsafe activity by China’s maritime agencies in the South China Sea (and also in the East China Sea), because of its expansive interpretation of jurisdictional authority beyond territorial sea and air space. It also contends that its objectives underline safeguarding the freedom of the seas and promoting adherence to international law and standards. Although the US Senate has still not ratified the United Nations Convention on the Law of the Sea (UNCLOS), a presidential statement of March 1983 virtually accepted adherence as it “contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states.”
China bases its claims in the South China Sea using the “map of the nine-dash line” (also called the U-shaped line or the cow tongue) – a Chinese map of the South China Sea (SCS) showing nine line segments that, if connected would enclose an area covering nearly 90 percent of the SCS – a claim that is unpalatable to the other maritime states of the SCS. These assert the area inside the nine line segments far exceeds what can be claimed as territorial waters under customary international law as reflected in UNCLOS and, includes waters that are within the Exclusive Economic Zones (and in some places even within the 12-nautical mile territorial seas) of the Philippines, Malaysia, Brunei and Vietnam.
However, there is ambiguity whether China actually claims full sovereignty over the entire area enclosed by the nine-dash line, or only over the island groups within. Some observers contend that China deliberately preserves flexibility, making it difficult for other parties to define specific objections or pursue legal challenges to its alleged claims. Others characterize China’s approach for asserting and defending its territorial claims in the SCS as a “salami-slicing” strategy that employs a series of incremental actions to gradually change the status quo in its own favour. One Chinese official used the term “cabbage strategy” to refer to a grand design of consolidating control over disputed islands (and other maritime features like rocks, outcrops, atolls, under water land) by wrapping those features, like the leaves of a cabbage, in successive layers of occupation and protection formed by fishing boats, Chinese Coast Guard ships and then finally Chinese naval ships. Other observers have seen in China’s actions a game plan of ‘creeping annexation’ or ‘creeping invasion’, or as a ‘talk and take’ strategy, meaning one in which China engages in (or draws out) negotiations while taking covert (or overt) actions to gain control of contested areas.
Last year, the international arbitral tribunal in The Hague ruled in the jurisdictional phase that it would determine the legal entitlements of ten disputed features in the South China Sea. The merits decision – due this week – will not decide which states ultimately have sovereignty over any of the disputed features, but will (probably) recognize that the small reefs and islands at issue are entitled to either none or very small maritime zones. The tribunal will also consider whether China’s island-construction campaign is inconsistent with its obligations to protect and preserve the marine environment under Article 192 0f UNCLOS.
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Sources: Agency Reports/The Diplomat/Council on Foreign Relations/US Congressional Research Service/Center for a New American Security/International New York Times/The Chinese Journal of International Politics