By Antonio T. Carpio
The July 12, 2016 landmark Arbitral Award in the South China Sea Arbitration between the Philippines and China that invalidated China’s nine-dashed line as a claim to maritime zones is now four years old. The Award recognized that the Philippines has an Exclusive Economic Zone (EEZ) in the West Philippine Sea free from any overlapping maritime zones of China other than the territorial seas of the high-tide rocks in the Spratlys and Scarborough Shoal claimed by China. The Award did not rule on the territorial disputes as the UN Convention on the Law of the Sea or UNCLOS governs only maritime disputes.
The arbitral tribunal found China’s claim to historic rights to the South China Sea stretching back 2,000 years ago to be utterly devoid of factual or legal basis. I call this historical narrative of China the fake history of the millennium. Unfortunately, China has taught this fake historical narrative to its 1.4 billion citizens from grade school to college. As the Chinese government will not correct this fake historical narrative, it becomes the burden of the rest of the world to educate the Chinese people on the true history of the SCS.
The invalidation of China’s nine-dashed line effectively means that in the South China Sea there are high seas, comprising about 25 percent of the SCS, and around these high seas are the EEZs of the coastal states like the Philippines, Vietnam, Malaysia, Brunei and Indonesia. The high seas belong to mankind and cannot be subject to the sovereignty of any state. All the economic resources in the EEZs, of course, belong exclusively to the adjacent coastal state.
In the high seas and EEZs there is freedom of navigation and overflight for all merchant and military vessels and aircraft. These freedoms include the conduct of naval and aerial exercises by military vessels and aircraft in the EEZs without need for consent of the coastal states.
Since 2002 when the Declaration of Conduct was signed between ASEAN and China, ASEAN states have consistently called for the resolution of the SCS dispute in accordance with international law, in particular UNCLOS. During the proceedings at The Hague, Vietnam submitted a letter to the arbitral tribunal supporting the position of the Philippines that China’s nine-dashed line has no legal or factual basis. Vietnam also filed its extended continental shelf claim, ignoring China’s historic claim under the nine-dashed line, which encroaches on Vietnam’s continental shelf.
Indonesia, Others Respond
Before the Award came out, the European Union and the G7 countries stated that the parties to the arbitration, the Philippines and China, should comply with the ruling of the arbitral tribunal, which was created under UNCLOS. After the Award came out, Indonesia renamed its EEZ in the Natuna Islands facing the SCS as the North Natuna Sea, citing as basis the invalidation of China’s nine-dashed line. Malaysia filed two extended continental shelf claims facing the SCS, before and after the Award, rejecting China’s historic claim under the nine-dashed line that encroaches on Malaysia’s continental shelf. India called for the settlement of the SCS dispute in accordance with international law and UNCLOS.
Recently, the US stepped up its support for the Award by declaring as “completely unlawful” China’s expansive maritime claims beyond what UNCLOS allows. The US promised to support coastal states that will stand up to China’s bullying in enforcing its notorious nine-dashed line. Australia also declared its categorical support for the Award, demanding compliance from China.
There are those who claim that the Award remains unenforceable since UNCLOS has no mechanism for enforcing the Award. On the contrary, the Award is being strongly enforced regularly. Every time that American, British, French, Australian, Japanese and Canadian military vessels and aircraft conduct naval and aerial exercises in the West Philippine Sea, they rebut China’s claim that there is no EEZ of a coastal state in the WPS. These naval powers conduct freedom of navigation and overflight exercises in the WPS precisely because there is an EEZ in the WPS.
Under international law and UNCLOS naval powers have the legal right to conduct naval and aerial exercises in EEZs anywhere in the world. By definition the exercise of a legal right is always lawful and peaceful. In the West Philippine Sea, there is only one adjacent coastal state – the Philippines. Thus, the freedom of navigation and overflight operations of the naval powers in the West Philippine Sea is a powerful and robust enforcement of the arbitral ruling, refuting China’s claim that the Philippines has no EEZ in the waters enclosed by China’s nine-dashed line in the West Philippine Sea.
Naval powers outside the region have a legitimate interest in maintaining freedom of navigation and overflight in the SCS. First, about 25 percent of the SCS are high seas, which form part of the global commons belonging to no state. All states have the right to fish in the high seas of the world. Second, the US and the EU have about US$1 trillion dollars each in inbound and outbound trade every year traversing the SCS.
China’s Double Standard
China does not recognize the right of other naval powers to conduct military exercises in the high seas and EEZs of the SCS without China’s consent. However, the Chinese navy has been conducting naval exercises in the EEZs of the Mediterranean Sea and Baltic Sea without the consent of the coastal states. The Chinese navy has also conducted military operations in the EEZs of Australia and the EEZs of Guam, Hawaii and Alaska without securing the consent of the coastal state. This is a clear double standard. Under international law and UCNLOS, foreign military vessels and aircraft have the right to conduct naval and aerial drills in the EEZ without securing the consent of the costal state.
Moreover, China is the only nuclear-armed state that has not complied with a ruling of an international tribunal adverse to it and in favor of a non-nuclear armed state. In 1992, the US, a nuclear-armed state, effectively complied with the ruling of the International Court of Justice when it agreed to give Nicaragua, a non-nuclear armed state, economic aid in lieu of the damages that Nicaragua asked for the violation by the US of the territorial integrity of Nicaragua. In 2014, India, a nuclear-armed state, complied with an adverse ruling of an UNCLOS tribunal that awarded to Bangladesh, a non-nuclear-armed state, 4/5 of the waters in dispute in the Bay Bengal.
In 2015, the UK, a nuclear-armed state, complied with the ruling of an UNCLOS tribunal requiring the UK to consult with Mauritius, a non-nuclear-armed state, in setting up a marine protected area in the Chagos Archipelago. In 2019, Russia, a nuclear-armed state, complied with the ruling of an UNCLOS tribunal when it negotiated and settled the damages awarded to the Netherlands, a non-nuclear armed state, in the Arctic Sunrise case. China today sticks out like a sore thumb as the only nuclear-armed state that still refuses to comply with a ruling by an UNCLOS tribunal in favor of a non-nuclear armed state – the Philippines.
The survival of UNCLOS, the constitution for the oceans and seas of our planet, depends on the enforcement of the arbitral Award in the SCS arbitration. UNCLOS, with its own compulsory dispute settlement mechanism, is the most advanced legal system developed by man to govern relations among sovereign states. UNCLOS has also the widest reach since it governs the world’s oceans and seas, which cover over 70 percent of the surface of planet earth.
But if China can claim as its own waters almost the entire SCS, swallowing up the high seas that are part of the global commons, as well as the EEZs of coastal states bordering the SCS, then UNCLOS will certainly collapse. Other nuclear-armed states will seize their near seas – Russia will seize the Arctic. Militarily stronger states will seize the EEZs of their militarily weaker neighbors. That will spell the end of UNCLOS.
The Stake of Tiny States
Tiny states, like the Pacific Island states, have vast EEZs. If UNCLOS collapses, the vast EEZs of these tiny states will be open to China’s fishing fleet, which is the largest in the world. It is the paramount national interest of the Pacific Island states that UNCLOS survives. Pacific Island states, as well as all coastal states of the world that have militarily stronger neighboring states, have a huge stake in the enforcement of the arbitral Award. They must not fall prey to China’s checkbook diplomacy and take the side of China in the SCS dispute.
If China does not comply with the arbitral Award, the over 500 million people of the Philippines, Vietnam, Malaysia, Indonesia and Brunei – will never view China’s rise as peaceful. The peoples of these ASEAN coastal states can clearly visualize a greedy China gobbling up huge areas of their countries’ EEZs that UNCLOS has conferred on their countries as inherent right of all coastal states.
The arbitral Award has cemented for all time this inherent right of coastal states. This is the enduring value of the arbitral Award. Because of this arbitral Award, all the peoples of these ASEAN coastal states know they have an inherent right to their own EEZs under international law and UNCLOS, and they will never allow their governments to cede their EEZs to China.
The views expressed in this article are the author’s own, and do not necessarily reflect the views of Pinter Politik.