THE US State Department has scrutinized anew China’s claim over the South China Sea and found, as the United Nations arbitral tribunal did, that China’s assertions are “unlawful” and the claim “gravely undermines the rule of law” in the oceans.
The State Department’s Bureau of Oceans and International Environmental and Scientific Affairs has been examining maritime claims of coastal states all over the world since 1970 to “assess their consistency with international law.” In its latest “Limits in the Seas” series published Thursday, the study is on China.
First in line of US scrutiny was China insistence that it owns South China Sea based on maps that show drawings of dash lines around the Sound China Sea. The US State Department appended its 2014 analysis on the dashed-line claim and cited a number of points raised by The Hague-based special arbitral tribunal—whose verdict was sought by the Philippine government unilaterally in 2013.
According to the US State Department study, there is “no provision” in the United Nations Convention on the Law of the Sea (Unclos) that allows countries to claim based on “historic rights.” It says there is no uniform understanding of what “historic rights” mean under international law. There were references on “historic bays” or “historical title” but those terms have limited scope to fishing rights or rights of access, and not claim on sovereignty, it added.
The US cited the Chamber of International Court of Justice (ICJ) judgement on its dispute with Canada over their maritime boundaries in the Gulf of Maine. The ICJ said the Unclos provisions on exclusive economic zones, continental shelf and high seas override any arguments of prior usage or rights over a maritime area. “The Convention’s maritime zones and their geographic limits set forth the framework governing all parts of the sea, a framework from which no reservations are permitted,” the US State Department report read.
The US also debunked the ownership or sovereignty claims of China over the four island groups —Spratly Islands, Paracel Islands, Scarborough Shoal and Pratas Island. It said China cannot claim sovereignty even on land features that are submerged or low-tide elevations in their natural states such as the Mischief Reef, Second Thomas Shoal and Reed Bank. “While taking no position on the PRC’s sovereignty claims to particular islands in the South China, the United States has rejected assertions of sovereignty based on features that do not meet the definition of an island or are not within the lawful limits of the territorial sea.”
The US also argued that China is not an archipelagic state and therefore cannot assert sovereignty over waters and submerged features within its claimed “island groups.” Archipelagic states, such as the Philippines, would need to draw archipelagic baselines and enclose such features within its island group to be able to assert sovereignty over submerged features and identify its maritime zones. China has not done such thing, the US added.
What China did, said the repport, was draw straight baselines around each of the four archipelagos to justify its claims for maritime zones—12 nautical mile territorial limit and internal waters.
The US said the baselines drawn by China on the four archipelagos were “inconsistent with international law.” Australia, Japan, New Zealand, the Philippines, Vietnam, the United Kingdom and the US protested the baselines drawn on Paracel Islands and Spratly Islands, with France and Germany joining the protest in the case of the Spratlys.
“None of the four ‘island groups’ claimed by the PRC in the South China Sea…meet the geographic criteria for using straight baselines under the Convention. Additionally, there is no separate body of customary international law that supports the PRC position that it may enclose entire island groups within straight baselines,” the US report explained.
In a series of communiques to the UN Secretary General, China insisted that the Unclos “does not cover everything about the maritime order.” It cites the Unclos preamble that “rules and principles of general international law” still apply on matters that are not covered by Unclos.
“Unclos does not exclude a coastal State’s historic rights that have been established in the long-term practice. Relevant international judicial cases have recognized the historic rights,” China wrote in its August 16, 2021 communique to the UN Secretary General, in answer to the communication of New Zealand.
US made a separate fact-check on this claim by China and their findings show that “most States rely expressly on the provisions of the Convention with respect to outlying archipelagos.” There were “few cases” where other countries engaged in similar practice but other states protested formally.
However, the US has no claim over the South China Sea and the UN’s hand is tied in terms of policing China—with its veto power at the Security Council.
“With the release of this latest study, the United States calls again on the PRC to conform its maritime claims to international law as reflected in the Law of the Sea Convention, to comply with the decision of the arbitral tribunal in its award of July 12, 2016, in The South China Sea Arbitration, and to cease its unlawful and coercive activities in the South China Sea.,” the US State Department said in its press statement.
Image credits: Bloomberg