SUMMARY

This paper was presented by Retired Justice Antonio T. Carpio at the South China Sea Contemporary Issues Workshop organized by St. Anthony’s College of the University of Oxford on November 9, 2022.

There are two recent significant developments in the South China Sea maritime dispute.  The first significant development is the enactment by China of its new coast guard law, which took effect on February 1, 2021. This new law authorizes China’s coast guard to use “all necessary means” to protect China’s resources within waters under its jurisdiction.  

The term “all necessary means” includes the use of firearms, canons or missiles on ships of other states that conduct “economic activities” within China’s jurisdictional waters.  The term “economic activities” includes fishing, or exploring for oil and gas, in waters falling within China’s jurisdictional waters. 

In the South China Sea, China’s jurisdictional waters are encompassed by its nine-dash line, extending beyond the territorial sea, exclusive economic zone (EEZ) and extended continental shelf (ECS) of China. China claims all the natural resources within its nine-dash line, constituting 85.7% of the South China Sea. China’s claim encroaches on the high seas, and on the EEZs and ECSs of the Philippines, Vietnam, Malaysia, Brunei, and Indonesia.  

What has prevented a third world war are two provisions in the 1945 United Nations Charter. The first provision outlaws the threat or use of force to settle disputes between or among states while the second provision mandates the peaceful settlement of international disputes. These two provisions compulsorily prescribe that “All Members shall” (1) “refrain xxx from the threat or use of force against the territorial integrity or political independence of any state”; and that they shall (2) settle all their disputes through “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”  

Before the adoption of the 1945 UN Charter, the threat or use of force, if successful, was a legitimate means of acquiring territory. Before the adoption of the 1945 UN Charter, the rule in international law was “might is right,” otherwise known as the law of the jungle. 

UNCLOS, which governs maritime issues, mandates that “States Parties shall settle any dispute concerning the interpretation or application of this Convention by peaceful means” in accordance with the two foregoing provisions of the UN Charter. In short, international law, including UNCLOS, prohibits the threat or use of force to settle territorial or maritime disputes between or among states, and mandates the peaceful settlement of such disputes through negotiation, mediation or arbitration. Armed force can be used by a state only in self-defense, whether individually or collectively, or when authorized by the UN Security Council to maintain world peace.  

Under UNCLOS, the fish in the high seas belong to all mankind and any state in the world, coastal or landlock, has the right to fish in the high seas of the South China Sea. About 25% of the waters of the South China Sea are high seas. China claims ownership of all the fish in the high seas of the South China Sea. With its new law, China’s coast guard can now fire on fishing vessels of other states that fish in the high seas of the South China Sea.  

China’s new law is per se an actual threat of force on fishing vessels of all states that fish in the high seas of the South China Sea. The Philippines officially protested this new coast guard law of China. Then Philippine secretary of foreign affairs Teodoro Locsin called this new coast guard law of China “a threat of war to any country that defies the law.” By any standard, this law is a clear violation of the UN Charter and of UNCLOS. 

China’s nine-dash line encroaches on the EEZs of the five ASEAN coastal states. With its new law, China’s coast guard can now fire on Vietnamese fishing vessels that fish within Vietnam’s EEZ that overlap with China’s nine-dash line. The threat or use of force violates the UN Charter and UNCLOS. 

An UNCLOS arbitral tribunal has ruled on July 12, 2016 that the Philippines has a full EEZ in the West Philippines Sea, invalidating China’s claim to 80% of this Philippine EEZ. Under international law, this Philippine EEZ, which includes Reed Bank, can no longer be disputed by China.  

However, under its new law, China’s coast guard can now fire on Philippine vessels that conduct surveys or drill in Reed Bank. Under this new law, China’s coast guard can also fire on Philippine vessels that fish within Philippine EEZ in the West Philippine Sea. This threat or use of force against Philippine vessels is even a more blatant violation of the UN Charter and of UNCLOS.    

If China’s new coast guard law is allowed to stand, both the UN Charter and UNCLOS will no longer apply in the South China Sea and even in the East China Sea. These two seas will revert to the situation that existed before the last world war, where states acquired territories or maritime areas through threat or use of force. China’s new law is a grave threat to world peace. 

Ironically, in Orwellian doublespeak, China’s Foreign Minister Wang Yi, during the Symposium on Global Maritime Cooperation and Ocean Governance held in Hainan Province this November, told claimant states in the South China Sea not to use force or threat of force. Wang insisted that the South China Sea dispute should be resolved only through peaceful means and called on all nations to clearly reject maritime hegemonism. Obviously, it is only China, among all the claimant states, that is actually using force or threatening to use force. It is also only China that is actually seeking hegemony in the South China Sea. 

The second significant development in the South China Sea dispute are the actions taken by Malaysia, Indonesia and the Philippines to find new oil and gas fields within their respective EEZs in the South China Sea since their existing oil and gas fields are now being exhausted. Thus, the stage is set for a confrontation with China which insists on the validity of its expansive nine-dash line despite the 2016 Hague arbitral ruling. 

Last May 2020, Malaysia sent its survey ship West Capella to explore in its EEZ off the coast of Borneo in an area falling within China’s nine-dash line. China warned Malaysia not to proceed with the exploration.  Chinese Coast Guard vessels shadowed the West Capella. Malaysian coast guard and navy vessels, however, accompanied the West Capella and protected it until it completed its exploration work.  

Interestingly, three US warships and an Australian frigate conducted naval drills near the area to lend moral support to the Malaysians. Thus, Malaysia, even without an arbitral award and without a mutual defense treaty with a nuclear-armed power, asserted successfully its sovereign rights in its EEZ despite threats and bullying from China. 

Last October-November 2021, Malaysia sent again its drilling ship to the same area off the coast of Borneo. China warned Malaysia not to proceed with the drilling. Chinese coast guard vessels harassed the Malaysian drilling ship almost every day. But with the Malaysian coast guard and navy ships protecting the Malaysian drilling ship, the drilling was completed. China, despite its threats of war and harassment, again failed to stop Malaysia from asserting its sovereign rights in Malaysian EEZ. 

In mid-2021, Indonesia sent its drilling ship to drill test wells in its EEZ off the coast of the Natuna Islands facing the South China Sea, within the area encompassed by China’s nine-dash line. China warned Indonesia to stop the drilling, and a four-month standoff ensued between Indonesian coast guard and navy ships and Chinese coast guard vessels. 

The Indonesians, declaring that they were drilling in an area where they have sovereign rights, proceeded with, and completed, their drilling. China failed to stop the Indonesians. Interestingly, the US also sent its aircraft carrier Ronald Reagan near the drilling site to lend moral support to the Indonesians. 

Thus, Malaysia and Indonesia successfully asserted their sovereign rights in their respective EEZs despite threats of war from China and harassment from Chinese coast guard vessels. Malaysia and Indonesia successfully asserted their sovereign rights even without an arbitral award or a mutual defense treaty with a nuclear-armed state.

In contrast, in April 2022 when someone from China “whispered” to former president Duterte of the Philippines not to cross China’s redline, Duterte slavishly ordered Forum Energy, the service contractor in Reed Bank, not to send its survey ship to Reed Bank. Malampaya, which supplies 40% of the energy requirement of Luzon, will run out of gas in three to five years.  

The only possible replacement for Malampaya is Reed Bank. Without Reed Bank, the Philippines will have to import LNG – Liquified Natural Gas – to feed its gas-fired power plants in Luzon. This will send the Philippines’ energy costs, already the highest in Asia, soaring through the roof, burdening the consuming public and driving away potential investors. 

Obviously, if the Philippines wants to keep its energy costs within reasonable levels, and if it wants to unburden its people from exorbitant energy costs, the Philippines must follow the example of Malaysia and Indonesia in asserting its sovereign rights in its own EEZ. This requires political will which the Duterte administration was in severe deficit of when dealing with China.  

Recently, the Department of Energy under the new Marcos administration announced that it was in “talks with existing service contract holders so they can proceed with their work programs” to survey and drill in Reed Bank. Thus, Forum Energy, which holds Service Contract 72 over Reed Bank, is now preparing to send its survey and drilling ships to Reed Bank.   

Hopefully, the new Marcos administration will find the courage to exercise the much-needed political will to protect the survey and drilling ships, otherwise Filipinos will be condemned to suffer even higher energy costs than what they are already experiencing today. 

As far as the five ASEAN coastal states prejudiced by China’s nine-dash line are concerned, the South China Sea dispute with their common adversary – China – is a battle over the exploitation of maritime resources in the South China Sea. These ASEAN coastal states need to exploit the oil and gas in their respective EEZs for their economic development, but China is preventing them from getting the oil and gas that belong to them.  

On the other hand, the dispute between China on one side, and the US and its allies on the other side, is a dispute over freedom of navigation and overflight in the EEZs and high seas of the South China Sea.  

These two disputes, however, converge at the most crucial point. When the US and its allies assert freedom of navigation and overflight in the EEZs and high seas of the South China Sea, they necessarily uphold that the five ASEAN coastal states have their own EEZs, and that about 25% of the South China Sea are high seas. This debunks China’s claim that it owns all the natural resources within its nine-dash line which includes the entire high seas in the South China Sea well as large areas of the EEZs of five ASEAN coastal states.  

As long as China insists on enforcing its nine-dash line, the peoples of these five ASEAN coastal states can never consider China as a true friend. Instead, they will always see China as a bully – using its military might to grab for itself the natural resources that under international law legitimately belong to the peoples of these ASEAN coastal states. 

The peoples of these ASEAN coastal states will naturally support the US and its allies as the true friends who are helping them repulse the country that is bullying them to steal their natural resources.