US State Department study finds sweeping claims of PRC in South China Sea unlawful and without basis

"In the years since the Department of State published Limits in the Seas No. 143 in 2014 and the arbitral tribunal issued its decision in The South China Sea Arbitration in 2016, the PRC has advanced a new articulation of its maritime claims in the South China Sea. These expansive maritime claims are plainly inconsistent with international law as reflected in the Convention. 

First, the PRC’s claims to sovereignty over maritime features that do not meet the international law definition of an “island” and fall entirely beyond a lawful territorial sea are inconsistent with international law and not recognized by the United States and other States. This includes any claim to sovereignty over entirely submerged features like James Shoal, Vanguard Bank, and Macclesfield Bank. It also includes any claim to sovereignty over low-tide elevations, such as Mischief Reef and Second Thomas Shoal, which fall entirely beyond a lawful territorial sea entitlement and which are not subject to appropriation under international law. 

Second, the PRC’s baselines enclosing Xisha Qundao (Paracel Islands) and its asserted intention to establish baselines around other “island groups” in the South China Sea are also inconsistent with international law. None of the four islands or island groups that the PRC considers to comprise “Nanhai Zhudao” meet the geographic criteria for straight baselines reflected in Article 7 of the Convention. Notwithstanding the Convention’s comprehensive regulation of baselines, the PRC also attempts to argue that there is a separate body of customary international law, outside of the Convention, that justifies its straight baseline claims in the South China Sea. This PRC position, which is examined in the State Practice Supplement to this study, has no merit. The evidence compiled in the Supplement demonstrates conclusively that the requirements for the formation of customary international law relating to outlying island groups have not been met and, therefore, there are no customary international law rules that provide an alternative legal basis for continental States, such as China, to claim straight baselines around outlying island groups.

Third, the PRC’s claim to maritime zones “based on Nanhai Zhudao” is similarly inconsistent with international law. Any assertion of internal waters, territorial sea, exclusive economic zone, or continental shelf based on treating South China Sea island groups “as a whole” is not permitted by international law. Within its claimed maritime zones in the South China Sea, the PRC also makes numerous jurisdictional claims that are inconsistent with international law. These include the PRC’s requirement of prior permission for warships exercising innocent passage in the territorial sea; its asserted authority to prevent and punish violations of its “security” laws in the contiguous zone; and its restrictions on military activities in the EEZ.

Finally, consistent with the findings in Limits in the Seas No. 143, the PRC’s claim to “historic rights in the South China Sea” is plainly inconsistent with international law to the extent it exceeds the PRC’s possible maritime entitlements provided for in the international law of the sea, as reflected in the Convention. The PRC’s historic rights claim has been protested by the United States and many other States and was rejected by the tribunal in The South China Sea Arbitration. 

The overall effect of these maritime claims is that the PRC unlawfully claims sovereignty or some form of exclusive jurisdiction over most of the South China Sea. These claims, especially considering their expansive geographic and substantive scope, gravely undermine the rule of law in the oceans and numerous universally recognized provisions of international law reflected in the Convention."

- Excerpted Conclusion of the US Department of State position paper, Limits in the Seas No. 150, entitled "People's Republic of China: Maritime Claims in the South China Sea" 

Chinese Foreign Ministry dismissed Philippine arbitral win as rubbish

On the occasion of the fifth anniversary of the Philippine win over China in the arbitration case involving the West Philippine Sea, Chinese Foreign Ministry Spokesperson Zhao Lijian declared it as rubbish. In a decision handed down on 12 July 2016, the Permanent Court of Arbitration (PCA) in The Hague, Netherlands, ruled in favor of the Philippines in the dispute between the two countries over the West Philippine Sea. China has made a sweeping and baseless claim of ownership over the entire South China Sea through its so-called nine-dash line, disregarding the United Nations Convention on the Law of the Sea (UNCLOS) to which China is a signatory. The PCA invalidated the nine-dash line in its ruling.

The South China Sea is bounded by the Philippines, Taiwan, China, Vietnam, Indonesia, Malaysia, and Brunei. According to the UNCLOS, each of these countries have exclusive economic zones (EEZ) 200 nautical miles from their shores, and region outside the EEZ are considered international waters where freedom of navigation can be exercised by any country. China, on the other hand, wants to have the region exclusively for itself in a greedy grab and expansionist policy. China shares borders with 14 countries, but in fact has border dispute with 18.

Philippine Vice President Leni Robredo, on the other hand, said that the statement of the Chinese foreign ministry spokesperson is not unexpected because governments are expected to advance the interests of their own countries. Thus, Mr. Lijian is expected to advance the interests of China. The Vice President added, however, that one can only hope that the Philippine government will also do the same. The Philippine government under President Rodrigo Duterte parrots the China narrative. In fact, Duterte himself has declared the PCA ruling as rubbish. In a statement, the Vice President said that “if only we can remember, if only we can unite, if only we can rediscover our spirit and once again stand for what is right— we will find, beneath the rubble of cowardice and neglect, our courage, our dignity, and our national pride.”

Sources:

https://www.philstar.com/headlines/2021/07/12/2112031/waste-paper-china-still-refuses-recognize-5-year-old-arbitration-award

https://newsinfo.inquirer.net/1459260/sana-all-robredo-hopes-ph-govt-would-fervently-push-for-wps-claims-like-china

Fifth Anniversary of the Philippine Win in the Permanent Court of Arbitration

Statement of Vice President Leni Robredo on the 5th Anniversary of the Philippine victory at the Permanent Court of Arbitration in the Hague 

Today marks 5 years of missed opportunities regarding the West Philippine Sea. On July 12, 2016,  the Permanent Court of Arbitration in the Hague enshrined in international law the validity of our claims in the West Philippine Sea. Since then, national leadership has yet to fully flex the ruling as an instrument to pursue our national interests, failing to invoke it in strong enough terms in the forums that matter most. Our fisherfolk remain unable to enter areas that have been the source of livelihood for generations of Filipinos. Alliances that could have been strengthened were allowed to erode, while those who bully their way into our waters have been treated with deference, and at times, subservience. The dream of a regional architecture founded on respect and mutual prosperity has become even more elusive. 

The Hague ruling is now a definitive part of international law. It cannot be erased from the history books, and cannot be denied despite the unending lies spewed forth by a formidable machinery of disinformation. Filing the case before the tribunal— standing up for what is right, against the economic and military might of a world power— yielded the admiration and respect of the entire world. Today’s commemoration is a reminder, a challenge, and a promise: That if only we can remember, if only we can unite, if only we can rediscover our spirit and once again stand for what is right— we will find, beneath the rubble of cowardice and neglect, our COURAGE, our DIGNITY, and our NATIONAL PRIDE.

Free Talk on the Issue of Enforcement in International Law

Dr. Lowell Bautista, an expert in the law of the sea, particularly in the area of territorial and maritime disputes in the Asia-Pacific, will be talking about The South China Sea Arbitral Award and the Enforcement of Judgements in International Law on 30 July 2021 (Friday) 4PM Philippine Time live via Zoom. He will be sharing his insights on the South China Sea Arbitral Award which the Philippines won 5 years ago and situate them within the broader question of enforcement of judgements in international law.

Dr. Bautista is a Senior Lecturer and Head of Postgraduate Studies at the School of Law and the Australian National Centre for Ocean Resources and Security (ANCORS), Faculty of Business and Law, University of Wollongong. His talk is organised by the Cities and Environments Research Network (CERN) based in Melbourne as part of its CERN Discussion Series. CERN is composed of Filipino postgraduate scholars, PhDs, postdocs, and lecturers based at Australian Universities with research interests in the Philippines at the junctures of planning, development, disaster, education, design, art, communication, and ecology.

To register for the event, visit https://bit/ly/scsenforcement.

The West Philippine Sea Institute is not affiliated with CERN, and is providing the foregoing information as part of its advocacy to improve public education in the matters concerning the West Philippine Sea.

Where exactly is the West Philippine Sea?

Map showing the West Philippine Sea (in heavy blue) which is contiguous with the South China Sea.

In general, South China Sea is that body of water west of the Philippines, a region bounded by the Philippines, Taiwan, China, Vietnam, Indonesia, Malaysia, and Brunei. Centuries ago, Europeans sailed through this sea to access China and thus named it the South China Sea. It does not mean, however, that the sea belongs to China, just as the Indian Ocean does not belong to India. Like the South China Sea, the Indian Ocean got its name because Europeans sailed through that ocean to go to India.

Within the region known as South China Sea are islets, atolls, reefs, cays and other features. Countries around the region each have separate claims of ownership over these features, and these claims often overlap. One feature may have two or more claimants. Each of these claimants will have to contend with China, which is claiming ownership over all of the South China Sea and its features through its nine dash line policy.

In 2012, the late President Benigno Aquino III issued Administrative Order No. 29 which officially named the waters west of the Philippine archipelago and within the Philippine exclusive economic zone (EEZ) as the West Philippine Sea (WPS). The Philippine EEZ was first established by the late President Ferdinand Marcos in 1978 through Presidential Decree 1599, which was consistent with the United Nations Convention on the Law of the Sea (UNCLOS), signed in 1982. Under the UNCLOS, a country bordered by water will have 200 nautical miles of waters from its shore as exclusive economic zone or EEZ. The Philippines, as with China, Vietnam and other claimants of features in the South China Sea, is a signatory of the UNCLOS.

The WPS is contiguous with the waters in the region bounded by the Philippines, Taiwan, China, Vietnam, Indonesia, Malaysia, and Brunei. It, however, consists only of the region covered by the Philippine EEZ. The South China Sea, on the other hand, continues to refer to that part of the sea outside of the Philippine EEZ (and the EEZ of the other countries) over which no country can claim dominion, much less assert ownership as part of their territory.

The South China Sea is just that sea known to European seafarers of the past as being south of China. It did not, and should not, mean that it belongs to China.

A Rules-Based Order in the Asia-Pacific

 

In this article, Nasu & Tan acknowledged that there are different versions of a rules-based order within and beyond existing framework of international law. In the Asia Pacific, the development of rules-based order depends on the extent to which states in the region can agree on what the rules are and find a common ground to negotiate between China and the US through the shifting balance of power politics.

AUTHOR PROFILE

The following are excerpts from the publication describing the authors:

Dr Hitoshi Nasu is an Associate Professor of Law at the Australian National University, with expertise in public international law, particularly in the fields of international security law and the law of armed conflict. He has written on a wide range of international law issues including peacekeeping, the protection of civilians, the responsibility to protect, human security, national security, regional security in the Asia-Pacific, disaster relief and management, security institutions and international rule of law, and new technologies and the law of armed conflict, with over 60 publications. He holds Bachelor’s and Master’s degrees in Political Science from Aoyama Gakuin University and a Master’s degree and a PhD in Law from the University of Sydney.

Tan See Seng is Professor of International Relations and Deputy Director of the Institute of Defence and Strategic Studies at RSIS. He is an elected member of the NTU Senate. He is the author and/or editor of 15 books and monographs, and has published over 70 scholarly articles and book chapters. He is a regular consultant for international organisations and national governments including that of Singapore, and has held visiting appointments and fellowships at various universities and research institutes. He has BA Honours (First) and MA degrees from the University of Manitoba and his PhD is from Arizona State University.

Click here to download the article 'A Rules-Based Order in the Asia-Pacific' by Dr Hitoshi Nasu and Prof Tan See Seng.

Maritime Zones Under the UNCLOS

 

The United Nations Convention for the Law of the Sea (UNCLOS) is a treaty that defines the law of the sea. It became effective from 16 November 1982. The full text of the UNCLOS is available at the United Nations website (or click here for a PDF copy).

Under Article 5 of the UNCLOS, the reference point for the maritime zones is the low-water mark where dry land ends at low tide. This is called the baseline.

Article 5 — Normal baseline. Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State. 

THE TERRITORIAL SEA

Under Article 3 of the UNCLOS, the coastal state can have up to 12 nautical miles of territorial sea reckoned from the baseline. In other words, 12 nautical miles from the shore is territorial sea.

Article 3 — Breadth of the territorial sea. Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Under Article 2 of the UNCLOS, the coastal state has sovereignty over the territorial sea, its sea bed and subsoil, as well as the air space above it.

THE CONTIGUOUS ZONE

Under Article 33 of the UNCLOS, the coastal state has control of the zone contiguous to its territorial sea, called the contiguous zone. The contiguous zone is measured from the baseline and can extend up to 24 nautical miles. Because the territorial sea consists of the first 12 nautical miles, the contiguous zone is therefore only 12 nautical miles from where the territorial sea ends.

Article 33 — Contiguous zone. (2) The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Under the first paragraph of Article 33 of the UNCLOS, the coastal state will exercise control over the contiguous zone as may be necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea OR to punish infringement of the above laws and regulations committed within its territory or territorial sea.

THE EXCLUSIVE ECONOMIC ZONE

Under Article 57 of the UNCLOS, the coastal state can have up to 200 nautical miles of exclusive economic zone (EEZ). The EEZ is measured from the baseline. Because the first 24 nautical miles from the baseline consists of the territorial sea and the contiguous zone, the EEZ will extend 176 nautical miles from where the contiguous zone ends.

Article 57 — Breadth of the exclusive economic zone. The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Under Article 56 of the UNCLOS, the coastal state will have sovereign rights over its EEZ for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. In addition, the state will also have jurisdiction in the EEZ for the establishment and use artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment, among others.

It is very important, however, to emphasise that under the UNCLOS, other states are free to pass through another state's EEZ. This is called the freedom of navigation and overflight under Article 87, which also includes laying of submarine cables and pipelines.