Global Courant 2023-04-21 10:35:04
The Philippines and the US have blasted China for “its unlawful naval claims, militarization of reclaimed features, and threatening and provocative activities in the South China Sea, including the repeated mass ship strikes of maritime militias in the Philippine Exclusive Economic Zone (EEZ).”
Such alleged looting has been widely repeated in the media without reservation. While viewed as provocative by rival plaintiffs, some of her actions are reasonable and legal. Others are not. Policy makers, analysts and the media must distinguish between the two.
A few examples. On March 10, a Chinese Coast Guard ship warned a Philippine Coast Guard aircraft carrying journalists flying over a disputed territory. “You entered (the water) around a Chinese reef and posed a threat to safety. To avoid misunderstandings, leave immediately.”
The Philippine pilot replied that his plane was flying within Philippine territory. But if the plane flew over a flood plain or its territorial sea, then both China and the Philippines had a legal basis for their actions under the United Nations Convention on the Law of the Sea (UNCLOS).
Sovereignty over high tide functions is disputed. China claims sovereignty over all features in the South China Sea and considers the occupiers of the claimed features a violation of its sovereignty.
To support a claim to sovereignty over overwater features at high tide, a country must demonstrate continued, effective occupation or control and acquiescence by other claimants. None of the claimants, including China and the Philippines, can demonstrate this. So China’s claims are just as valid as the others.
Not even the US, which constantly meddles in the South China Sea, does Take a position about the sovereignty of such characteristics.
The Philippines often complains about Chinese ships “swarming” around areas it claims or occupies, such as the island of Thitu (Pag-asa). But if China’s ships are within the 12-nautical-mile territorial sea of the claimed flood characteristics, they are legitimate there, regardless of who occupies them.
In addition, those vessels can claim freedom of navigation outside the territorial sea, especially if they are en route to or from China’s claimed territorial waters. This may include anchoring in others’ EEZs pursuant to the UNCLOS sentence on freedom of navigation, including “other international lawful uses of the sea in connection with these freedoms, such as those related to the operation of ships.”
The US often invokes this phrase to justify the wanderings and controversial activities such as intelligence-gathering by its warships and fighter jets in other people’s EEZs.
Where China crosses legal boundaries is when it tries to enforce its claim on areas that are flooded at high tide and lie on the continental shelves of others, such as Mischief Reef and Second Thomas Shoal. In addition, it has no accepted legal basis for its historic “nine dash line” and is trying to enforce it.
Indeed, the threat of all plaintiffs to use force by deploying their military to support their claims violates UNCLOS and the UN charter on which that prohibition is based.
Another incident that caused a stir in the press was a Chinese Coast Guard vessel that lost a laser on a Philippine Coast Guard ship near Philippine-occupied Second Thomas Shoal. The submerged feature lies on the continental shelf of the Philippines and within the EEZ.
In this case, China’s actions were certainly unkind and a violation of non-binding nature Code for unplanned encounters at sea to which both China and the Philippines are parties. However, China claims the ship used the laser as a range finder and had no intention of “temporarily blinding” the crew.
China is wrong to allow its fishermen to operate in the Philippine EEZ without its permission, to harass or block Philippine fishermen from working there, and to intimidate other plaintiffs into exploring and exploiting hydrocarbons in their legal EEZs.
This is in violation not only of the ruling of the International Arbitration Panel, but also of the agreed but non-binding one Declaration on the conduct of the parties in the South China Sea, urging “exercise () self-restraint in engaging in activities that would complicate or escalate disputes.”
Sure, China could argue that the other plaintiffs are doing the same, but two wrongs don’t make justice.
As for the militarization of the flood features it occupies, since it claims to be the sovereign, it has the right to defend its territory like the other claimants.
Currently, a large group of Chinese ships are anchored or operating in the 12 nautical mile territorial sea around Thitu and Sandy Cay. According to to the Philippines, their presence violates “sovereignty, sovereign rights and jurisdiction”.
The issue of Chinese ships “swarming” around Chinese-claimed but Philippine-held territories is a complicated one. Thitu is a feature above high tide, meaning it is a legal rock and entitled to a territorial sea of 12 nautical miles. China claims and occupies Subi Reef, about 16 nautical miles to the west. It is an ebb function that has no right to a territorial sea. Indeed, it cannot be claimed as “territory” by any nation.
Many believe China’s claim to sovereignty is invalid and that Subi is within the Philippines’ EEZ and on the continental shelf. That’s why they say it’s illegal for Chinese ships to assemble nearby. But Subi also lies in the territorial sea of Sandy Cay, three high tide sandbars between Thitu and Subi.
In fact, Sandy Cay extends Thitu’s territorial sea by an additional 12 nautical miles. Both China and the Philippines outright claim these sandbars as their sovereign territory, and because they are within the 12 nautical mile territorial sea of Thitu. So the Chinese ships are in China’s claimed territorial sea.
In 2017, the Philippines started building shelters for fishermen on these sandbanks. China objected and then-Philippine President Rodrigo Duterte ordered construction stopped and the shelters dismantled. The reason was that the non-binding DOC – which is still in effect as the parties try to negotiate a more formal binding code – prohibits “inhabiting the presently uninhabited islands, reefs, shoals, cays.”
China alleged that the Philippines had violated this agreement. China may fear that this could happen again and wants to prevent Philippine fishermen from accessing Sandy Cay and fishing in what it considers its territorial waters to be from there.
This example shows that the situation is legally complicated. China (and others) are engaged in both legitimate and illegal activities in the area. Analysts and the media must be careful to separate the wheat from the chaff.
An edited version of this piece appeared in the South China Morning Mail.
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