Arbitral Tribunal upholds UNCLOS, Rejects China's “9-Dash-Line” and Claims to “Historic Rights” over the South China Sea
On November 4, 2002, the ASEAN-China Declaration on the Conduct of Parties in the South China Sea, was signed in Phnom Penh, the capital of the Kingdom of Cambodia. The Declaration recognized “the need to promote a peaceful, friendly and harmonious environment in the South China Sea between ASEAN and China for the enhancement of peace, stability, economic growth and prosperity in the region”, and the desire “to enhance favourable conditions for a peaceful and durable solution of differences and disputes among countries concerned”.
In particular, the Declaration provided as follows :
“3. The Parties reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea ;
“5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”
The Declaration further provided that concerned parties will undertake cooperative activities including “maritime environmental protection”, and will work, on the basis of consensus, towards “the adoption of a code of conduct in the South China Sea” which “would further promote peace and stability in the region.”
The 2002 Declaration is an important undertaking to keep the status quo in the South China Sea (SCS), and was supposed to reassure concerned ASEAN countries which felt threatened by China's claim of “indisputable sovereignty” over almost 90% of the whole of the 3.5-million-square-kilometer SCS. This absurd claim is based on a “9-dash-line” map which was presented by China to the United Nations in May 2009 –- or 27 years after the forging of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to which China is also a signatory.
CHINA's NEBULOUS “9-DASH-LINE” MAP
China's “9-dash-line” map encroaches not only upon the high seas which UNCLOS designates as the common heritage of mankind (completely belonging to all states, whether coastal or landlocked), but also upon theExtended Continental Shelfs (ECSs) and even the more critical Exclusive Economic Zones (EEZs) of the Philippines, Vietnam, Malaysia andBrunei. The “9-dash-line” appears as a tongue-shaped protrusion from mainland China covering almost the whole of the South China Sea, and has thus earned the local monickers of “Glutton’s Tongue” or even “Devil’s Tongue”. If it were not only for China’s bullying might, the absurdity of this “Glutton’s Tongue” or “Devil’s Tongue” claim would have been the butt of regional and international ridicule and derision.
Incidentally, the “9-dash-line” map emanated from an “11-dash-line” map produced by the Guomindang (Kuomintang) regime in 1947, where the “dashes” have no exact coordinatesbut supposedly traced the extent of fabledsea explorations by the long-extinctSong (Sung)Dynasty (960-1279 AD). At that ancient time, maritime explorations were marked with many errors and miscalculations, report exaggerations and even the weaving of myths about mystical sea creatures and powers. Visual sightings unaided by scientific instruments resulted in the drawing up of unreliable maps which differ in so many ways from the precise maps of the past century. Locating sea points described in accounts of ancient maritime expeditions is more open to conjecture, compared with locating places described in ancient land-based travel accounts such as those of Marco Polo.
For unknown reasons, China reduced the “dashes” to 9, and then later added a 10TH“dash” east of Formosa Island (Taiwan). The “dashes” in China’s “9-dash-line” map remain devoid of exact coordinates, and do not indicate any system of emanating from any baseline on Chinese shores. The “9-dash-line” map is a gigantic historical fraud conjured by the Guomindang, and swallowed by the government of the People's Republic of China which presented it to the UN in May 2009.
For one thing, China claims that its southernmost “territory” is James Shoal, around 50 nautical miles from the shores of Bintulu in Sarawak, which is within Malaysia’s EEZ. James Shoal is more than 950 nautical miles from Hainan Island, and was apparently designated as China’s southernmost “dash” without any Chinese official having previously visited the place. This is because James Shoal is not a rock partly submerged in shallow waters, but a reef permanently submerged in 22 meters of water. Without land where one can go ashore, how could ancient Chinese seafarers have explored James Shoal and claimed it as part of China’s “territory” ?
Another anomaly in the “9-dash-line” map is China’s claim of sovereign rights over Macclesfield Bank, a group of fully submerged atolls, which China claims are “islands” that it calls as “Zhongsa Islands”. The highest point of these atolls is around 9.2 meters below sea level. With an area of around 6,448 square kilometers, Macclesfield Bank is actually part of the high seas beyond any country’s EEZ or ECS, and cannot be appropriated by China or any other country. By insisting that Macclesfield Bank consists of “islands”, China is trying to remove this area from its actual high seas maritime zone category. UNCLOS clearly prohibits states from subjecting the high seas to their sovereignty.
CHINA's “9-DASH-LINE” CLAIM VIOLATES UNCLOS
UNCLOS is a product of extensive deliberations among all states within the UN system since 1958, and is now the international law governing the seas. UNCLOS laid to rest all “historic claims” to seas and oceans based on ancient discovery, conquest and occupation during the past centuries. UNCLOS adopted a compulsory mechanism for the settlement of maritime claims and disputes, and designated a final authoritative body to interpret and apply its provisions.
The Philippines and other concerned ASEAN countries cannot just be pressured by Chinese demands for bilateral negotiations conditioned upon acceptance of the “historic truth” of China's ancient discovery and control of the South China Sea. Even ancient Chinese chronicles mention that “pirate ships” from some sultanates in the Philippines and other nearby countries have been crossing the South China Sea to raid some coastal communities in southeastern China. Ancient exploration and control of the South China Sea is therefore open to different perspectives.
UNCLOS redefined the extent of maritime zones of coastal states based on the following : defined baselines ; internal waters (waters on the landward side of the baselines, such as indented bays) ; territorial sea (12 nautical miles of sovereign territory from the baselines) ; contiguous zone (a limited enforcement zone of another 12 nautical miles beyond the territorial sea) ; exclusive economic zone (EEZ beyond the territorial sea, extending up to 200 nautical miles from the baselines) ; extended continental shelf (ECS, extending up to 150 nautical miles beyond the EEZ) ; and the high seas area beyond the ECS which is reserved as the common heritage of mankind, completely belonging to all states whether coastal or landlocked.
UNCLOS provides that each coastal state should enjoy exclusive sovereign rights over the waters and continental shelf within its own EEZ, as well as sovereign rights over the continental shelf within its own extended continental shelf or ECS. Where the EEZ or ECS of 2 or more countries overlap, these countries should negotiate in good faith an equitable maritime boundary, or an agreement for common or shared rights over the waters and/or continental shelf in the overlap area. On May 23, 2014, a Philippine-Indonesian “Sea Border Agreement” was signed in Manila, delineating the common boundary of their overlapping EEZs (between the Mindanao Sea and the Celebes Sea). A boundary agreement between Vietnam and Malaysia was also signed in 2014, delineating the common boundary of their overlapping ECSs.
UNCLOS does not recognize any “historic right” by any state based on discovery or exploration. China’s claim over almost the whole of the South China Sea based on its “9-dash-line” map (a map allegedly based on explorations made during her dynastic past) is therefore a gross violation of UNCLOS. This map is a recent invention which no other country in the world recognizes, respects or tolerates. This map is only similar to other Chinese post-revolution maps claiming the extent of ancient China’s alleged suzerainty or tributary influence over Kamchatka and large swaths of Siberia, and the whole of the Korean peninsula, Indochina and up to Myanmar, at different times during her dynastic past.
In one school textbook map, the Philippines’ Sulu and Tawi-Tawi archipelagos are also included under China’s suzerainty, reflecting the historical fact that the muslim Sultanate of Sulu was a vassal of, and was paying tribute to, the Ming emperors sometime during the 15thcentury. Sultan Paduka Pahala of Sulu was even buried in China when he died there in 1417 after paying tribute to Emperor Zhu Di. Other maps show the alleged extent of the fabled exploratory expeditions to India and even Africa of the Ming dynasty’s “Treasure Fleets” led by Admiral Cheng Ho [or Zheng He] from 1405 to 1433.
However, those ancient Chinese maritime explorations did not result in any claim of sovereignty or of colonization then. And even if those explorations led to any conquest, such can never be the basis for any present-day territorial or maritime claim. For the same reason, Spain cannot “reclaim” the lands and waters of the Philippines, Guam, the Marianas, or countries in Latin America and the Caribbean, on the basis of “discovery” or even conquest.
Since the 16th century, warships of European powers have controlled the oceans of the colonial world, including the South China Sea where Chinese vessels have stopped plying. It is a historical truth that China herself was colonized by European powers and the USA since the 19th century, ushering a long period of national humiliation similar to what the Philippines and other colonial countries suffered.
Provisions of UNCLOS are directly opposed to “historic claims”. To accept any concept of “historic claim” under UNCLOS would be to allow havoc in international relations. Like China, Spain and Portugal could also pose ridiculous historic claims on the basis of several supposedly “infallible” Papal Bulls issued by Pope Alexander VI (Roderic de Borja) from the end of the 15th century to the beginning of the 16th century, dividing the world between these 2 countries. Indonesia could pose her own territorial claims on the basis of the ancient extent of the Majapahit and Sri Vijayan empires. Greece can lay claim to Alexander the Great’s empire, while Turkey can reclaim the Ottoman empire.
Other nations or ethnic groups could then call for the revival of their own extinct empires, kingdoms, emirates and caliphates, including in Tibet and Xinjiang. Then what could stop Mongolia from claiming China itself on the basis of conquest by Kublai Khan, the founder of the Yuan dynasty ? And what if, on the basis also of the “historical truth” of past conquest, subjugation and humiliation, western empires and the USA would also pose territorial and maritime claims upon China? Of course “historic claims” can only revive ancient conflicts and wars of mankind’s barbaric past. So, enough of “historic” absurdities.
THE PHILIPPINE RECOURSE TO ARBITRATION
Despite provisions in the aforesaid 2002 ASEAN-China Declaration requiring self-restraint in the conduct of activities which would complicate or escalate disputes, in June 2012, China seized Panatag (Scarborough) Shoal which is located within the Philippine EEZ, being only around 124 nautical miles from the coast of Zambales province in the Philippine northern island of Luzon. This shoal is around 480 nautical miles from the coast of China’s southernmost Hainan Island, and is therefore outside the 200-nautical-mile EEZ of China as defined under UNCLOS.
Previous to this, in 1995, China seized Mischief Reef which is also within the Philippine EEZ in the area of the Spratlys. In violation of the 2002 ASEAN-China Declaration, China in late 2012 started reclamation and military constructions on Mischief Reef, and also started to prevent Filipino fishing vessels from approaching their traditional fishing area at Panatag (Scarborough) Shoal. The Philippines can only protest China's aggression, faced with China's show of military might in these 2 areas.
Pushed to the wall, the Philippine government on January 22, 2013, filed a motion for arbitration with the UN Permanent Court of Arbitration (PCA) in The Hague, Netherlands, to challenge China's claim to most of the South China Sea, to compel China to respect the Philippine right to its EEZ, and to stop Chinese incursions. The Philippines also asked for the nullification of China's “9-dash-line” claim which covers a large part of the West Philippine Sea, and demanded that China desist from unlawful activities which violate the sovereign rights and jurisdiction of the Philippines under UNCLOS.
Immediately, China rejected the Philippine move seeking international arbitration, and officially informed the PCA of such rejection in August 2013. In accordance with UNCLOS provisions, the PCA continued its proceedings ; despite threats from China, the Philippine government filed on schedule a 4,000-page memorial or formal pleading on March 30, 2014. Acknowledging China's objections, hearings on the issue of jurisdiction were held starting in early 2015 and until this issue was finally resolved, after which hearings on the merits of the case were finally held until the end November 2015.
The Philippine presentation included 15 maps drawn by Chinese authorities or individuals from 1136 to around 1933 --- including the last (1896) official map of the Qing Empire --- all showing that Hainan Island is the southernmost territory of China. The “9-dash-line” map is therefore exposed as a recent invention which finds no basis in China’s own ancient maps. Also presented were 3 maps of China drawn by Dutch and French cartographers between 1700 and 1833, similarly showing Hainan Island as China’s southernmost territory.
As regards the West Philippine Sea, the presentation included 34 maps drawn by Philippine authorities and foreigners between 1636 and 1933, all showing Scarborough (Panatag) Shoal –- whether unnamed, or alternately named as Punto de Mandato, Panacot, or Bajo de Masinloc –- as part of the Philippines. Special attention was given to Scarborough (Panatag) Shoal because this area was seized by China in June 2012, and guarded by Chinese warships and fishing vessels since then.
The Philippines also demolished China’s claim that Scarborough (Panatag) Shoal is the fabled “Nanhai Island” where the Chinese astronomer Guo Shoujing allegedly installed an observatory in 1279. A few barren rocks barely protrude above water at high tide at this shoal, with not enough space to accommodate even an expedition party. Thus it was physically impossible for Guo Shoujing to have gone ashore to visit, and to have built an astronomical observatory at, Scarborough (Panatag) Shoal.
THE PCA DECISION : A VICTORY FOR UNCLOS
On July 12, 2016, the PCA in The Hague handed its decision thru a 501-page unanimous “Award” which made 3 major rulings. First of all, the PCA ruled that China’s “9-dash-line,” under which it claims “historic rights” over almost all of the vast SCS, is contrary to the UNCLOS and is thus invalid. While Chinese navigators and fishermen historically roamed its waters, those of other states did likewise. All “historic rights” which validly preexisted the UNCLOS were extinguished by the entry into force of this Convention, to which China is bound as a signatory.
Consequently, the Philippines is legally and solely entitled to exploit and develop the mineral deposits, marine life and other natural resources within its EEZ. Consequently also, the SCS is open to freedom of navigation for all countries, and the navy and air force of the USA, Japan, Australia and other great powers can continue to sail or fly freely thereabout. China has used the “9-dash-line” map, drawn up by its rival Guomindang regime in 1947, to push its territorial claim deep into the EEZs of Vietnam, Malaysia, Brunei and the Philippines ; its repudiation in the PCA decision is a victory not only for the Philippines but for the other claimant countries as well.
Secondly, the PCA ruled that none of the features claimed or occupied by China in the Spratlys may be considered as “islands,” which in their natural condition can sustain human habitation, generate an EEZ and a “continental shelf.” No amount of reclamation or human work can change the legal status of such features. Hence, the Philippines can fully and freely enjoy its EEZ in the Spratlys, without any overlap of any Chinese EEZ. Further, the PCA ruled that China violated the traditional fishing rights of Philippine fishermen by halting their access to Scarborough Shoal. The PCA however added that, like the Filipinos, the Chinese may also continue enjoying their equal traditional fishing rights there.
Thirdly, the PCA held that China violated the Philippines’ sovereign rights with respect to its EEZ and continental shelf when it : (a) interfered with Philippine petroleum exploration at Reed (Recto) Bank, (b) prohibited fishing by Philippine vessels within the Philippine EEZ, (c) protected and failed to prevent Chinese fishermen from fishing within the Philippine EEZ, and (d) constructed installations and artificial islands.
The PCA also found that China’s recent large scale land reclamation and construction of artificial islands and potential military bases on partially submerged outcrops has caused severe harm to the coral reef environment, and that Chinese fishermen have engaged in the harvesting of endangered sea turtles, corals, and giant clams. These are clear violations of the undertaking on maritime environmental protection as provided for in the aforementioned 2002 ASEAN-China Declaration.
The PCA decision also lamented the lawlessness of Chinese law enforcement vessels at Scarborough Shoal, well outside their territorial waters, that harrassed and physically obstructed Philippine fishing vessels from approaching or gaining entrance to the shoal. In addition, the PCA held that China’s large scale land reclamation and construction of artificial islands had aggravated the dispute.
CHINA's RESPONSE TO THE PCA DECISION
In the month prior to the PCA decision, China heaped abuse on the arbitration case, calling the Philippines as the “trouble-maker” and the PCA as a “puppet” of the USA and other anti-China powers. President Xi Jinping even warned that China would “never compromise on sovereignty”, adding that : “We are not afraid of trouble.”
In response to the PCA decision, the Duterte administration laudably counseled restraint and maintained that it will continue with diplomacy and peaceful negotiation to press for China's respect for the decision. On the other hand, sabre-rattling was the immediate response of China to the PCA decision, with Vice Foreign Minister Liu Zhenmin threatening the next day to step up military deployment and constructions in the SCS, to withdraw from UNCLOS, and to declare an air defense identification zone (ADIZ) in the SCS. Sea maneuvers and war games in the SCS were also immediately scheduled and announced.
Beside the rhetoric, China on July 13 conducted test flights, with civilian aircraft, from Hainan province to airfields in Mischief Reef and Subi Reef in the disputed Spratlys. A few days later, bombers and fighters were sent to patrol islands and reefs, including Scarborough Shoal. Liu Zhenmin continued to attack the PCA's credibility, accusing the 5 judges of taking money from the Philippines and of being manipulated by a Japanese judge. Chinese social media also encourage netizens' calls for a boycott of Philppine products, forgetting that reciprocal boycotts will hurt China more, considering that China's exports to the Philippines (mostly industrial products) are estimated to be worth over five times more than Philippine exports to China (mostly bananas and other agricultural crops).
China maintains that the PCA has no jurisdiction over the SCS maritime dispute, and that China will not follow the PCA decision. This is similar to the former stance of the USA which also claimed lack of jurisdiction in refusing to honor the June 27, 1986, decision of the International Court of Justice directing it to pay reparations for its support of the Contra rebels against Sandinist Nicaragua. The USA then even ignored a resolution of the UN General Assembly supporting Nicaragua, and vetoed a draft resolution on the same call at the UN Security Council. In the end, however, the dispute was settled peacefully through diplomacy and negotiation, with the USA finally recognizing the Sandinista government in Nicaragua.
China's present stance of attacking the PCA decision may be seen as a blot on China's credibility as a responsible member of the international community. It will take a more united stand on the part of the ASEAN, as well as more pressure on China on the part of the EU and the Non-Aligned Movement, before China finally realizes the fallacy of its “9-dash-line” claims over the South China Sea. It would do well if, similar to the Philippines, the other affected ASEAN countries would likewise formally file arbitration cases against China under UNCLOS rules.
Instead of accepting the fait accompli posed by China's building up of artificial islands and military facilities in the SCS, and instead of kowtowing to China’s imposition of an “air defense identification zone” over the area, the international community should be united in condemning China’s expansionism and bullying. The international community should call upon China to respect UNCLOS and the PCA decision, to cooperate in the forging of a comprehensive ASEAN-China Code of Conduct for the SCS, to respect freedom of navigation and of overflight over the area, and to agree to special international jurisdiction and control over China’s artificial island-fortresses in the SCS.