Countering China’s Actions in the South China Sea

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For many who follow developments in the South China Sea, the July 2016 tribunal ruling in the Philippines’ case against China has become the equivalent of the birth of Jesus in the Gregorian calendar: Developments are considered B.A. and A.A.—Before Award and After Award.

In the first year after the award, compliance was fair: Beijing largely kept its actions, if not its words, within the letter of the ruling.

In late July 2017, however, things went south. The Chinese government insists that the situation in the South China Sea is “calm” and that the region is “in harmony”; it accuses the United States of stirring up trouble. But any stability in the past year has largely been the result of smaller countries in the region resigning themselves to the notion that the weak suffer what they must.

Two years on from the ruling, the stakes are clear: The challenge immediately after the award was getting smaller countries on China’s periphery to be less risk-averse in openly supporting the rule of law; now, the test has become whether the United States and its allies can help countries stand firm against incursions into their exclusive economic zones and defend a rules-based order.

Exclusive Economic Zone Encroachments

The main significance of the 2016 ruling was to clarify resource rights. An international tribunal in The Hague ruled that China cannot claim historic rights to resources in the waters within a “nine-dash line” encompassing much of the South China Sea if these waters are within the exclusive economic zone, or EEZ, of other coastal states. Such rights, the tribunal determined, were extinguished when China ratified the United Nations Convention on the Law of the Sea (UNCLOS) in 1996.

The tribunal also clarified that none of the features in the Spratly Islands—a group of features in the south of the South China Sea that China and five other actors claim—generates an exclusive economic zone that China can claim overlaps with the exclusive economic zones of coastal states. Taken together, the findings make clear that coastal states in the South China Sea are entitled to full 200-nautical-mile exclusive economic zones unencumbered by any Chinese claims.

Although the award is not technically binding except between the parties to proceedings, namely, the Philippines and China, it was clear on China’s maritime entitlements. Beijing should adhere to its findings.

Instead, shortly after the one-year anniversary of the award, Beijing reportedly threatened Vietnam with military action if Vietnam did not stop drilling in its own exclusive economic zone. Prompted by concerns that Washington did not have its back, Hanoi stopped its operations. The Association of Southeast Asian Nations and the rest of the international community averted their gaze. This might well come to be regarded as the point when a rules-based order began unraveling in the region. In March and May this year, Vietnam again attempted to drill for oil and gas in its exclusive economic zone, and Beijing issued similar warnings.

Vietnam is not the only country Beijing has leaned on. Brunei, Malaysia and the Philippines have all come under pressure to concede “joint development” in their exclusive economic zones, a term that has come to suggest legitimate overlapping claims: Where there are such claims, the U.N. Convention on the Law of the Sea stipulates that parties should seek to enter into “provisional arrangements of a practical nature” prior to delimitation of the exclusive economic zone or continental shelf.

Fortresses in the Sea

In recent months, Beijing’s militarization of the South China Sea has escalated. In April, it deployed anti-ship cruise missiles, surface-to-air missiles and electronic jammers to Fiery Cross Reef, Subi Reef and Mischief Reef in the Spratlys. In May, it landed long-range bombers on Woody Island in the Paracels, features to the west of the South China Sea.

The tribunal did not directly address the question of whether the militarization of features was lawful. It considered only whether Beijing’s island-building activities in the South China Sea were military in nature to determine whether it had jurisdiction to rule on these activities. Under the U.N. Convention on the Law of the Sea, when a state signs, ratifies or accedes to the convention, it may declare that it does not accept compulsory procedures entailing binding decisions in certain categories of disputes, including military activities. China availed itself of this option in 2006. The tribunal determined that for ascertaining whether the exclusion applied to deny it jurisdiction, it would take Beijing’s word when it insisted that activities were not military in nature.

Still, China’s activities on features in the South China Sea are problematic. Beijing maintains that it is entitled to do as it wishes on its territory and that this is allowed by international law.

But Mischief Reef is not China’s territory. While the tribunal did not have jurisdiction to rule on competing claims to sovereignty, it did have jurisdiction to determine whether a feature is, at first instance, entitled to an independent sovereignty claim. The tribunal made clear that jurisdiction over a low-tide elevation lies with the country in whose territorial sea or exclusive economic zone it is located. Because Mischief Reef is a low-tide elevation in the Philippines’ exclusive economic zone, the Philippines has jurisdiction over it.

https://www.lawfareblog.com/countering-chinas-actions-south-china-sea

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