China is still looking for new arguments to refute the Permanent Court of Arbitration (PCA)’s ruling in 2016. The legal battle in the East Sea is not over yet.
On September 18, China sent a note verbale CML/63/2020 in response to the note verbales of France, the United Kingdom and Germany sent to the United Nations Secretary-General two days earlier expressing the three European countries’ views on the 7 notes that the Chinese mission had proposed for circulation at the UN relating to Malaysia's submission on continental shelf to the UN Commission on the Limits of the Continental Shelf (CLCS) on December 12, 2009.
Going against international law
In their notes, the three countries emphasized the global nature and consistency of the United Nations Convention on the Law of the Sea (UNCLOS) in establishing a legal framework defining maritime zones and implementing maritime activities worldwide. The notes emphasizes the unified integrity of the Convention on a global scale.
China argues that UNCLOS is not everything. In addition to UNCLOS there is general international law. Paragraph 8 of UNCLOS Preamble notes "matters not regulated by this Convention continue to be governed by the rules and principles of general international law". This argument was developed by China after the PCA’s ruling 2016 and was formally addressed by Deputy Foreign Minister Luo Zhaohui at the international seminar on "East Sea from the perspective of cooperation" held on Hainan Island on September 2.
The British Navy warship HMS Argyll took part in exercises with the US Navy in the East Sea in January 2019. Photo: US Navy
The September 18 note of the Chinese mission officially added this argument in the East Sea dispute on the UN forum. This note outlines the current negotiations on legal documents for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) to which China actively participates as an example of the development and perfection of UNCLOS.
In fact, UNCLOS is a maritime charter, covering general provisions for all maritime zones and areas of marine activity. The preamble of the Convention on migratory fish in 1995 and the BBNJ negotiation documents from 2018 state that these documents were prepared on the basis of UNCLOS, in the framework of UNCLOS regulations, in accordance with UNCLOS and without prejudice to the rights, powers and obligations of states under UNCLOS.
The waters not beyond the national jurisdiction are determined on the basis of clearly delineating the exclusive economic zones and the continental shelf of the coastal state in accordance with the provisions of UNCLOS. The issues of baseline and the regulations of the islands and land features are already covered by UNCLOS after 9 years of negotiation. UNCLOS is a package solution, requiring consistency in interpretation and application and does not accept exceptions.
China’s note affirms that China has territorial sovereignty and maritime rights established in a long history, with the consistency of successive governments, in accordance with international law including both the United Nations Charter and UNCLOS.
However, China’s White Paper 1980 states that Chinese fishermen were the earliest who discovered, named and managed islands in the East Sea. This goes against international law, which stipulates that only peaceful, continuous and real acts of ownership by the government bring the name of sovereignty.
The perspective of France – UK - Germany
Historically, Chinese governments recognized the southernmost point of Chinese territory as Hainan Island. Until 1909, China had a dispute over the Hoang Sa (Paracel) Islands and until 1935 the name Nansha was still given to the submerged archipelago of Zhongsha. The use of force in Hoang Sa (Paracel) in 1974 and Truong Sa (Spratly Islands) in 1988 was not a measure to create a title of sovereignty confirmed by the UN Charter.
British aircraft carrier HMS Queen Elizabeth is expected to visit the East Sea next year. Photo: Reuters
The September 18 note stated that China appreciates the importance of the provisions of the Convention and the conditions applicable to the drawing of the territorial sea. At the same time, China also believes that the practice established in international law regarding the offshore islands of the coastal state should be respected.
This means that China assumes that there is an international custom to use archipelagic straight baselines for these offshore islands and that the coastal state can both adopt straight baselines according to Article 7, Part II and the archipelagic baseline in accordance with Article 47, part IV of UNCLOS for maximum benefit.
The notes of France - UK - Germany had the opposite view. Part II of the Convention applies to archipelagos and land features of a coastal state. Part IV is applicable only to archipelagic country. There is no legal basis to disobey the relevant provisions of Part II or knowingly apply Part IV to the islands and land features of the coastal state.
China's argument is based on the 2018 study by the Chinese International Law Association to refute the East Sea ruling. This study cited 19 offshore archipelagos that applied a straight baseline. Of these, France, the UK and Australia are all mentioned (France with the Kerguelen Islands; Guadeloupe and New Caledonia; Australia with Houtman Abrolhos Islands and Furneaux Group; the UK with the Turks, Caicos Islands and the disputed Falkland Islands).
But these countries oppose China applying the archipelagic straight baseline to Hoang Sa Islands and the plan to apply it to the so-called Nanhai Zhudao. These countries' note is evidence that there is no international practice in applying archipelagic straight baselines to the offshore islands of the coastal state as proposed by China.
The legal war has not come to an end
China’s note does not answer points 4 and 5 of the notes of France – UK - Germany on the status of islands and claims of historic rights. The notes of the three European countries states that land reclamation activities or any form of man-made transformation cannot change the characteristics of a land feature under UNCLOS. The Chinese mission’s note only reiterates that China's territorial sovereignty and maritime rights in the East Sea will not be harmed under any circumstances due to the illegal ruling on the East Sea.
Point 4 of the Chinese note states that China is trying to resolve disputes in the East Sea through friendly consultations with countries concerned directly. China and ASEAN are committed to the full and effective implementation of the Declaration on the Conduct of the Parties in the East Sea (DOC).
However, the reality shows that the DOC has failed to promote the effect of refraining from the use of force and threatening to use force, not preventing expansion of occupation and land reclamation activities. The failure of the DOC forced countries to find a new code of conduct (COC), but the negotiation was still very difficult as fishing vessels of Vietnam and the Philippines were always in distress, oil and gas exploration and exploitation activities within 200 nautical miles from the coast of coastal countries were always at stake.
In the war of diplomatic notes, which started from Malaysia’s submission in December 2019, 23 notes and official letters have been submitted so far (China - 8, the Philippines - 2, Malaysia - 3, Vietnam - 3; Indonesia - 2, US - 1, Australia - 1, France - UK - Germany - 3).
Brunei and a number of other countries also issued statements demonstrating their stance. Most countries support the PCA’s East Sea ruling that rejects the claim of historic rights, does not allow land features in Truong Sa to have a territorial water larger than 12 nautical miles and not to apply archipelagic baselines for the Spratlys as a unified unit.
As more and more countries take a common stance, this may produce an erga omnes (towards all) effect. China is still looking for new arguments to refute the PCA ruling as well as to have a new interpretation of the provisions of UNCLOS. The legal battle in the East Sea is not over yet.
Nguyen Hong Thao
France, the United Kingdom and Germany has submitted a joint note verbale expressing their views against the seven notes the Chinese mission had proposed for circulation at the United Nations.
France, Germany, and the United Kingdom have come together to issue a joint note verbale to the United Nations in order to challenge China’s claims in the East Sea.