The South China Sea saga is entering a new episode. Previously, we have seen that several States, including Indonesia, lodged its response to the United Nations Secretary General containing disputation to the claim made by Beijing concerning their sovereignty and historic rights in the South China Sea. PRC’s permanent mission to the UN responded by saying that it has sovereignty over Nanhai Zhundao (including Nansha Qundao) and their adjacent waters as well as historic rights in the South China Sea which has been established in the long course of international practice. Moreover, they stated that China and Indonesia have overlapping claims on maritime rights and interests in some parts of the South China Sea and neither accepts nor participates in the South China Sea arbitration and neither accepts nor recognizes the awards.
In this new episode we can clearly see China’s aggression and aggressive diplomacy towards many States. Interestingly, this attitude is founded upon a groundless legal argument.
The relationship between politics and the law is very close. Politics may have its way to shape the law. However, in the sphere of global order, the primary rule is to find common understanding before taking action to alter the crystallized norms. Any attempt to disrupt the longstanding norms and principle will find its fall before the supremacy of the law.
The 12th of July 2020 is the day where we celebrate the 4th year of 2016 PCA award upon South China Sea case. The word “we” is important as the interpretation made by the PCA bounds not only to the party in dispute but also the member States of UNCLOS.
Everything has been cleared off by the PCA. It is too clear until there is nothing new can be found in the recent arguments made by China and the opposing States. Three main points are noteworthy in this commemoration of the PCA award.
First, China is a party to the UNCLOS. Therefore, China is bound to the award of the Permanent Court of Arbitration (PCA). The non-acceptance declaration made by China to the dispute settlement mechanisms provided by the UNCLOS is overruled by the article 287 paragraph 3 of UNCLOS that says, “A state party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.” Furthermore, China’s non-participation to the proceedings has no effect to the continuance of the proceedings as stipulated under article 9 of Annex VII of UNCLOS that says,” … Absence of a party…shall not constitute a bar to the proceedings.”
Second, specifically for the context of Indonesia, there are no overlapping maritime claims and fishing rights between Indonesia and China. According to article 56 and 57 of UNCLOS, the waters surrounding Natuna islands up until the 200 nautical miles line measured from Indonesia’s archipelagic baseline is an ocean space where Indonesia’s sovereign rights prevail. Traditional fishing rights are preserved under the UNCLOS. The governing norms upon this matter are article 51 paragraph 1 and article 47 paragraph 6 of UNCLOS. In these articles, only the traditional rights of the immediately adjacent neighboring States that should be respected by the archipelagic State. China is evidently not an immediately adjacent neighboring State to Indonesia. Therefore, attributing China, the North Natuna Sea and traditional fishing right is irrelevant.
Additionally, the expression made by the PCA with respect to historic rights is clear that, “China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention. The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.”
Third, although the title of ownership over Nansha Qundao (Spratly Islands) is not determined by the PCA, it should be noted that the PCA has concluded that several features within Spratly Islands are not in accordance with the regime of islands stipulated under Part VIII of UNCLOS. Consequently, these features are not entitled for maritime zones. To be specific, the PCA stated that the Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan Reef North Gaven Reefs, respectively, is a rock; and the Hughes Reef, South Gaven Reef, Subi Reef, Mischief Reef, Second Thomas Shoal, respectively, is a low tide elevation. Pursuant to UNCLOS, neither rock nor low tide elevation is entitled to generate maritime zones.
These days, the confrontation between Beijing and Washington is frontal. Beijing even accused the US for its engagement with the States in the ASEAN region that results in harmonious and firm stances against China. Whatever statement and prejudice arise from this controversy will never change the fact that every State has its own objective view and legal position upon an internationally wrongful act.
The international community must have missed the old China diplomacy who stood up against irresponsible action made by maritime power countries long time ago. Statement made by Mr. Ling, China’s delegation to the 24th meeting of Second Committee of the Third UN Conference on the Law of the Sea in 1974 is relevant in this regard, “…the super-powers had for years wantonly plundered the offshore resources of developing coastal States, thereby seriously damaging their interests. Declaration of permanent sovereignty over such resources was a legitimate right, which should be respected by other countries… the establishment of EEZ … simply meant that the developing countries were regaining their long-lost rights…(China) delegation was firmly opposed to any attempts to bargain over a solution to the question of the EEZ.”
Mr. Ling even straightforwardly protested the Soviet Union at the 26th meeting of the Second Committee of the Third UN Conference on the Law of the Sea, “…the soviet union had large numbers of fishing fleets engaged in plundering the fishery resources of other countries … the Chinese delegation affirmed that, within the EEZ, the coastal State should exercise full sovereignty…”
There will be time where international law faces its challenges. Nonetheless, the history shows us that justice, however hard it is, wins.
