The US State Department recently examined 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 studying 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 on January 13, 2022, the study is on China. (Read, “US: China’s maritime claims in South China Sea are ‘unlawful,’” in the BusinessMirror, January 13, 2022).
The US State Department scrutinized China’s insistence that it owns South China Sea based on maps that show drawings of dash lines around the South China Sea. It 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 said 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 judgment 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 said. 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.
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 their island group to be able to assert sovereignty over submerged features and identify their maritime zones. China has not done such thing, the US added.
Australia, in a declaration filed at the United Nations in New York on July 24, 2020, said it too rejected China’s maritime claims around contested islands in the South China Sea as being inconsistent with the UN Convention on the Law of the Sea. “Australia rejects China’s claim to ‘historic rights’ or ‘maritime rights and interests’ as established in the ‘long course of historical practice’ in the South China Sea,” it said. Australia also said it did not accept China’s assertion that its sovereignty over the Paracel Islands and the Spratly Islands was “widely recognized by the international community,” citing objections from Vietnam and the Philippines.
On July 12, 2016, the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines versus The People’s Republic of China) issued a unanimous award largely favorable to the Philippines. The tribunal’s ruling is certainly a legal victory for the Philippines over China as the judges agreed unanimously on almost all the questions submitted by the Philippines, including a declaration from the tribunal that China is obliged to comply with Unclos and that the award is legally binding on China. China has rejected the ruling, but experts said it could be a stepping-stone on the way to a peaceful resolution of the conflict.
Filipinos will choose their next president on May 9, 2022. Here’s one important question we need to ask all presidential aspirants: “If you win, what do you intend to do with the country’s Unclos victory?”