The United Nations Convention on the Law of the Sea defines an archipelagic state as an island country that consists of an archipelago. The Bahamas, Fiji, Indonesia, Papua New Guinea, and the Philippines are the five original sovereign states that obtained UNCLOS approval. Currently, the list of countries that qualified as archipelagic states has expanded to 22, and China is not one of them.
One of the benefits of archipelagic status is that the waters between islands are considered internal waters. Other countries have no right to transit these waters without permission. This archipelagic status is conferred through the United Nations, and only 22 nations claim it. And China is not one of them.
In an article published by the Lowy Institute—How China is bending the rules in the South China Sea—Oriana Skylar Mastro said that China flagrantly violates international law, but it does so while simultaneously creating a veneer of legal legitimacy for its position.
“While China has not been specific about the extent of its claims, it uses a ‘nine-dash line’ which ‘swoops down past Vietnam and the Philippines, and towards Indonesia, encompassing virtually all of the South China Sea,’ to delineate its claims. On the surface, it appears that Chinese leaders are relying on a historical argument to buttress their claims—China traces its interaction with the South China Sea back to the Western Han Dynasty. Thus, Beijing’s narrative about its claims begins as early as the 2nd century BCE, when Chinese people sailed in the South China Sea and discovered some of the region’s land features,” Mastro said.
However, the UN Convention for the Law of the Sea does not grant signatories the right to make claims based on historical legacy, and the concept of “historic claims” has no basis in international law.
“But this is not actually how China lays claim to 90 percent of the South China Sea. China’s abuse and misapplication of international law is a bit more complex. There are levels that build on one another,” Mastro said.
“First, China claims it has the same rights as archipelagic states. Then it drew straight baselines around the Paracel Islands and claimed the waters between the islands to be internal waters. Beijing has not done this explicitly for the Spratly islands area, but its reaction to the activities of other countries suggests that is its interpretation. China then claims a 12-nautical-mile territorial sea from the Paracel baseline, not from the individual islands, and in the Spratlys from many features that under international law are not awarded this right, such as artificial islands. Moreover, China’s interpretation of the territorial sea is that the state has the exclusive right to make, apply and execute its own laws in that space without foreign interference.”
But UNCLOS says that all ships, civilian or military, enjoy the right of innocent passage through other states’ territorial seas. Moreover, the contiguous zone is considered part of international waters, and states do not have the right to limit navigation or exercise any control for security purposes.
Lastly, China claims 200 nautical miles from the end of the territorial sea as its exclusive economic zone, where it claims to have the right to regulate military activity. The US insists that freedom of navigation of military vessels is a universally established and accepted practice enshrined in international law—in other words, states do not have the right to limit navigation or exercise any control for security purposes in EEZs.
Through these three positions alone on internal waters, territorial seas and EEZs, China lays claim to approximately 80 percent of the South China Sea. Then China uses the nine-dash line to cover the remaining territory and provide redundancy by claiming “historic waters,” a view that has no basis in international law.
Mastro said Washington’s ongoing refusal to ratify UNCLOS undermines the general effectiveness of pushing back against Beijing with legal tools of statecraft. “Additionally, Washington squandered an opportunity to support the Philippines in enforcing the international legal tribunal’s 2016 ruling in its favor, further reducing the attractiveness for other claimants to challenge Beijing on legal grounds.”
By ordering a special operation to dismantle the floating barrier that China installed at the Scarborough Shoal, President Marcos sent a strong signal to Beijing that henceforth, he will push back against China’s aggression. That he is prepared to stop China’s misapplication of international law in Philippine waters and exclusive economic zone to protect Philippine territories from Chinese encroachment.
It would do well for the Marcos administration to use all the tools of statecraft at its disposal to defend our territorial integrity and protect Philippine sovereignty.