China has long laid claim to vast parts of the South China Sea, and has come up with a “nine dash line” map of the Sea that China considers that it has full legal rights to. Indeed, to aggravate the matter diplomatically, it has been reported that new Chinese passports feature a map of China that includes this nine dash demarcation.
Such territorial issues are often determined by the provisions of the United Nations Convention on the Law of the Sea (1982) (UNCLOS). Much maligned in places, and often criticised, it has been ratified by most UN member states – including the US, after nearly a decade since it came into force. Under UNCLOS, territorial waters are defined and set out – of course not in a straightforward manner.
Under UNCLOS and other international legislation, a nation’s territorial waters stretches out to 12 nautical miles (Nm) from the baseline (usually the average low water mark) of any coastal state.
However, a coastal nation can claim the waters up to 24Nm form the baseline; this is defined as a contiguous zone where a coastal state can exert limited authority and control for several defined reasons. To complicate matters further, a coastal state can also claim the waters up to 200Nm from the baseline as an Exclusive Economic Zone (EEZ). In the EEZ, the coastal state has control of all the economic resources within it, such as fishing, mining, oil exploration, gas drilling, and similar. However, the control and authority the stars has over those 200Nm is limited, and mostly related to economic activity. Outside the (initial) 12Nm Territorial Waters limit, the sea is considered to be International Waters; fully free and open to any nation’s shipping for either passage or use, subject to any legal claims under UNCLOS or the UN.
To return to China, the People’s Republic has claimed much of the South China Sea as its own. To demonstrate a history of control and use of the sea, to strengthen its legal claims, China has in recent years effectively created islands from rocks, islets and reefs. Small ports and trading stations, and small airports, now exist on those islands but in the sea, as a testament to Chinese ingenuity, vision and engineering. Furthermore, many US and NATO observers and analysts have concluded that the Islands (the Spratly Islands and the Paracel Islands chains mainly) have actually become regional hubs for Chinese military activity. Indeed, the same analysts have seen a greater Chinese military presence in the South China Sea in recent years- and a much more muscular military approach and strategy in the region. The latter has left many nations in the region – particularly the Philippines – wary and concerned.
A further issue is competing legal rights of other coastal nations, such as Malaysia and Brunei. Further, fishing forms a significant part of the economic activity in that maritime area. Any impact on that would see fishermen put out of business, and unable to provide for their families. The rest of the related inshore supply chain regarding seafood would also suffer accordingly.
It is a hallmark of UN principle, and NATO doctrine, and the domestic maritime strategy of many maritime nations, that the high seas should be free and open. Freedom of the Sea, and Safety of Navigation are key concepts; the right of shipping, merchant, passenger, survey, or military vessels, to freely sail in international waters is considered and absolute. An absolute which many nations, including the United Kingdom and the United States, will (and have) enforced.
The concern with the Chinese islands, and the nine dash line, is that this will enable China to assert further control over the South China Sea. If the UN and related courts consider the Islands to be Chinese territory, then China can claim control of the sea beyond the Islands (and many miles away from the Chinese coast) in line with UNCLOS. With that control, the very real fear is that China could act in a way to infringe upon that freedom of the high seas. Already regional neighbours (such as Vietnam) have complained about increasingly aggressive actions by the Chinese Coastguard. According to the various complaints, the Coastguard has stopped vessels, or forced vessels to divert their course, in what could be considered to be international waters.
To look at the region another way, the South China Sea is a major maritime hub. Millions of tonnes of consumer goods transit the region annually, from China, Taiwan, the Philippines and elsewhere, bound for the Americas and Europe. Some nations (such as Vietnam and Thailand) have a booming tourism sector, which sees significant inshore maritime activity. There is also significant maritime merchant traffic from the South China Sea to the Indian Ocean, and from there to North Africa and Europe.
Once again, the fear from many in the maritime sector is that China could threaten that free movement of shipping in the region. The knock on impact of that would be global, as goods would take longer to get to Europe and the Americas. With deteriorating maritime security in the region, other Western governments and Navies might be brought in to keep the sea planes open; diplomacy would suffer, and the region would get more volatile. Further, insurers and underwriter would be forced to out up premiums on ships crossing the South China Sea – which would ultimately mean more expensive goods in the High Street.
Despite those fears, the Philippines have taken action. Several claims were made before an international court by the Manila government, including that the “nine dash line” is unlawful, as is the activity surrounding the Spratly Islands. Fishing rights also formed a part of the claim.
The case eventually found its way to the Permanent Court of Arbitration. Based in the Hague, the Court is the highest international, UN mandated, Court. Although binding, its things are not enforceable. The Court recently delivered its ruling in the matter, ruling on seven of the 15 points raised by the Philippines.
Basing its legal reasoning on UNCLOS and related international law, essentially, the Court of Arbitration found that China had violated the sovereign maritime rights of the Philippines. On an environmental note, it was determined additionally that China had caused “severe harm to the coral reef environment” by creating the artificial islands.
Ruling as it did on seven of the 15 legal points brought by the Philippines, amongst the key findings of the Court was that use of features (such as islets or large rocks) above water in a transient manner did not constitute inhabitation. Inhabitation is one of the key conditions for claiming maritime rights of 200Nm. That alone was clearly directed against the philosophy of China’s ‘island building.’
Ultimately, the Hague tribunal found that there was no compelling evidence that China had historically exercised exclusive control over the South China Sea waters or its resources.
Inevitably, many nations expressed their relief at this verdict – noteably the US. Equally inevitably, China has refused to accept the verdict, and still maintains its claims over the seas in question. Although conclusively defeated by the Philippines in the Hague, and now having a serious loss of face in the region, the language and message from Beijing following the verdict has been more conciliatory. Whilst asserting its dominance, Beijing has also used language that indicates a serious desire to negotiate and discuss the matter with the Philippines and other nations. Seemingly, diplomacy is now being preferred over force – which is an unusual choice for an increasingly militant and tough Chinese government.
Although the UN mandated court has ruled firmly against China and its territorial ambitions – quite clearly, this is not the end of the matter, for the Chinese, or for other nations in the region.