The Philippines and the US have blasted China for ”its unlawful maritime claims, militarization of reclaimed features, and threatening and provocative activities in the South China Sea, including the repeated massing of maritime militia vessels in the Philippine Exclusive Economic Zone (EEZ).”
Such alleged depredations have been amply repeated in the media without qualification. Although viewed as provocative by its rival claimants, some of its actions are reasonable and legal. Others are not. Policymakers, analysts and the media should distinguish between the two.
Some examples. On March 10, a China Coast Guard vessel warned a Philippine Coast Guard plane carrying journalists overflying a disputed area. “You have entered [water] around a Chinese reef and constituted a security threat. To avoid misunderstanding, leave immediately.”
The Filipino pilot responded that his plane was flying within Philippine territory. But if the aircraft was overflying a high-tide feature or its territorial sea, then both China and the Philippines had a legal basis for their actions according to the UN Convention on the Law of the Sea (UNCLOS).
Sovereignty over above-high-tide features is disputed. China claims sovereignty to all the features in the South China Sea and views the occupiers of its claimed features as violating its sovereignty.
To support a claim to sovereignty over features above water at high tide, a country must demonstrate continuous, effective occupation or control and acquiescence by other claimants. None of the claimants including China and the Philippines can demonstrate this. Thus China’s claims are just as valid as the others.
Even the US, which is constantly meddling in the South China Sea, does not take a position on the sovereignty of such features.
The Philippines frequently complains of China’s vessels “swarming” around features it claims or occupies, such as Thitu Island (Pag-asa). But if China’s vessels are within the 12-nautical-mile territorial sea of its claimed high-tide features, they are there legitimately regardless of who occupies them.
Moreover, those vessels outside the territorial sea may claim freedom of navigation, especially if they are on their way to or from China’s claimed territorial waters. This may include anchoring in others’ EEZs pursuant to the UNCLOS freedom-of-navigation phrase including “other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships.”
The US often cites this phrase to justify the peregrinations and controversial activities like intelligence collection by its warships and warplanes in others’ EEZs.
Where China crosses legal boundaries is when it tries to enforce its claim to features that are under water at high tide and lie on others’ continental shelves, like Mischief Reef and Second Thomas Shoal. Moreover, it has no accepted legal basis for its historic “nine dash line” and attempts to enforce it.
Indeed, all claimants’ threat to use force by deploying their military to back up their claims violate UNCLOS and the UN Charter on which that prohibition is based.
Another incident sensationalized in the press was a China Coast Guard vessel pointing a laser at a Philippine Coast Guard vessel near Philippines-occupied Second Thomas Shoal. The submerged feature lies on the Philippines’ continental shelf and within its EEZ.
In this case, China’s actions were certainly unfriendly and a violation of the non-binding Code for Unplanned Encounters at Sea to which both China and the Philippines are parties. However, China claims that the vessel used the laser as a range finder and did not intend to “temporarily blind” the crew.
China is wrong to allow its fishermen to operate in the Philippines’ EEZ without its permission, to harass or block Filipino fishermen from working there and to try to intimidate other claimants from exploring and exploiting hydrocarbons in their legal EEZs.
Doing so not only violates the international arbitration panel ruling but also the agreed but non-binding Declaration on the Conduct of the Parties in the South China Sea that urges the “exercise [of] self-restraint in the conduct of activities that would complicate or escalate disputes.”
Of course China might argue that the other claimants are doing the same, but two wrongs don’t make a right.
As for militarization of the high-tide features it occupies, since it claims to be the sovereign, it like the other claimants has a right to defend its territory.
Right now there is a large group of Chinese vessels anchored or operating within the 12nm territorial sea around Thitu and Sandy Cay. According to the Philippines, their presence violates its “sovereignty, sovereign rights, and jurisdiction.”
The issue of Chinese vessels “swarming” around China-claimed but Philippine-occupied features is complicated. Thitu is an above-high-tide feature, meaning that it is a legal rock and entitled to a 12nm territorial sea. China claims and occupies Subi Reef, about 16nm to the west. It is a low-tide feature not entitled to a territorial sea. Indeed, it cannot be claimed as “territory” by any nation.
Many think that China’s sovereignty claim to it is invalid and that Subi lies within the Philippines’ EEZ and on its continental shelf. Thus they say the Chinese vessels gathering near it is illegal. But Subi also lies within the territorial sea of Sandy Cay, three high-tide sandbars between Thitu and Subi.
In effect, Sandy Cay extends the territorial sea of Thitu by another 12nm. Both China and the Philippines claim these sandbars outright as their sovereign territory, and because they are situated within Thitu’s 12nm territorial sea. So the Chinese vessels are within China’s claimed territorial sea.
In 2017, the Philippines began to build fishermen’s shelters on these sandbars. China objected and then-Philippine president Rodrigo Duterte ordered the construction to stop and the shelters to be dismantled. The reason was that the non-binding DOC – which is still operative as the parties try to negotiate a more formal binding Code – forbids “inhabiting on the presently uninhabited islands, reef, shoals, cays.”
China claimed that the Philippines had violated this agreement. China may fear that this may happen again and wants to prevent the access of Philippine fishermen to Sandy Cay, and from fishing in what it considers its territorial waters emanating from it.
This example demonstrates that the situation is legally complicated. China (and others) are undertaking both legitimate and illegitimate activities in the area. Analysts and the media should be careful to separate the wheat from the chaff.
An edited version of this piece appeared in the South China Morning Post.