The recent Chinese exercises in the South China Sea and the US response show that the region will not be quiet overnight.
Not only moves on the ground, but also competition in legal issues over the South China Sea is heating up. Last year, both the US and Australia formally declared Beijing’s claims in the South China Sea illegal. This caused Beijing to react strongly.
In an article published on The Maritime Executive page, expert Oriana Skylar Mastro at the Freeman Spogli Institute for International Studies at Stanford University (USA) said that despite its blatant violation of international law, China still tries to create a legal cover for your actions.
This cover is subtle in that China’s unilateral claims are “extensive” and spread. In 2009, Doi Binh Quoc, then a high-ranking diplomat, for the first time called the South China Sea “core interest”, a term commonly used for territories that China claims. Although not specified, but China blatantly uses the “9-dash line” as a tool to delineate its unilateral claims.
|USS Theodore Roosevelt and USS Nimitz in the South China Sea on February 9. Photo: US Indo-Pacific Comman|
China’s unilateral declaration
On the surface, China appears to be relying on “historic” arguments to back up its illegal claims in the South China Sea. However, many scholars have meticulously listed the suspicions of the above arguments. China’s concept of “historic claim” has no clear basis, based on the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
However, according to Oriana Mastro’s analysis, China’s abuse and misapplication of international law in the South China Sea is even more complicated than that, and divided into several sequential levels.
First, China claims it has the same rights as countries formed by archipelagos. One of the benefits of the status for these states is that the water between the islands belongs to which country is considered the internal waters of that country. Vessels of another country will not have access to these waters without the permission of host country.
This archipelagic state regulation was just approved by the United Nations and applied to 22 countries, and does not have a Chinese name. However, China still arbitrarily drew the baseline around Vietnam’s Hoang Sa archipelago, and defiantly declared the waters between the archipelago as its internal waters. Similar moves have been implicitly applied by China in the Spratly Islands of Vietnam.
China arbitrarily claims sovereignty over 12 nautical miles from baseline in Paracel Islands, and arbitrarily assumes that it has full authority to enact, apply and enforce its laws in their regions. claiming sovereignty, without foreign interference. But according to UNCLOS, all ships, from civilian to military, enjoy the right to travel freely through the territorial waters of other countries. Furthermore, areas considered “contiguous zones” are still counted as part of the international waters, and states do not have the right to limit or exercise any control of freedom of navigation because of the security destination.
Finally, China arbitrarily declared 200 nautical miles from the end of its territorial sea to be the exclusive economic zone (EEZ), where it had the right to conduct military activities. The United States has affirmed that the freedom of navigation of ships at sea is an established and accepted practice in the world, recorded in international law. In other words, states do not have the right to restrict or exercise any free navigation control for security purposes in the EEZs. The US position is supported by Australia and a number of allies.
According to Oriana Mastro, taking into account only three positions in the internal waters, territorial sea and EEZ, China has illegally claimed sovereignty over about 80% of the area in the South China Sea. Not only that, they also reinforce their illegal sovereignty claims when using the “9-dash line” together with claims about “historic waters”, a view that has no basis in international law.
The role of America
Experts from Freeman Spogli International Research Institute said that the US has taken steps to challenge the false legal basis in China’s claims. This is the main purpose behind the Campaigns for Freedom of Navigation, or FONOPS for short, to demonstrate by action that the United States does not accept China’s view of the waters that Beijing unilaterally claims as the internal waters, territorial sea, or exclusive economic zone.
But breaking down China’s illegal claims will be more complicated than military moves or drastic statements. Washington’s hesitation in recognizing UNCLOS has undermined its joint effort to contain Beijing with legal means. In addition, the US also missed the opportunity to assist the Philippines in implementing the 2016 decision of the International Court of Justice in its favor. That reduces the incentive for claimant states in the South China Sea to appeal against Beijing on legal grounds.
Oriana Mastro said that the US should not make the same mistake twice. Washington needs to help other countries to pursue legal action against Beijing in the South China Sea. And in cases where an international court decides in favor of these countries, the United States should have the primary responsibility for enforcement.
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