US revisits historical waters and rights over the West Philippine Sea
By Kira Jorgio
Manila—It has been more than five years since the United Nations Convention on the Law of the Sea (UNCLOS) tribunal ruled in favor of the Philippines in its historic case against China over the West Philippine Sea, also known as the South China Sea. Yet, China’s aggressive maneuvers persist more than ever, leaving the Philippines and its neighboring countries with louder and more pressing concerns.
On Jan. 25, the Washington Press Center held a press briefing to discuss China’s continued maritime claims and their repercussions to international law and the harmony within the international community.
Dr. Jung Park, deputy assistant secretary for the Bureau of East Asian and Pacific Affairs, said the rights and freedoms of countries in the international sea should be enjoyed by all without fear or coercion. The United States reassured the Philippines that it will defend sovereign and international rights over the disputed territory and continue to uphold peace among nations.
Constance Arvis, deputy assistant secretary of the State Department’s Bureau of Oceans, discussed the Limits in the Seas No. 150 Report, which indicated that China’s overdependence on customary international law as the bedrock of its claims is unmeritorious.
Also joining the panel was Robert Harris, assistant legal advisor for the State Department’s East Asia and Pacific Affairs, who analyzed the legal implications of China’s claims and their effects on the sovereignty of the neighboring countries that are also staking claims over disputed territories.
The Limits in the Seas No. 150 Report states that China asserts sovereignty over a group of islands in the South China Sea, which it calls “Nanhai Zhudao.” These islands include “Dongsha Qundao,” “Xisha Qundao,” “Zhongsha Qundao” and “Nansha Qundao.” China’s claims over these islands have expanded to include other features such “rocks, low-tide elevations and fully submerged seabed features.”
Contrary to that archipelagic claim, Article 121 of UNCLOS defines an island as “a naturally formed area of land surrounded by water, and above water at high tide.”
The tribunal noted that no land feature in the northern sector or the southern sector of the West Philippine Sea is even capable of sustaining human habitation or economic life of its own.
Further, the report said features that are not considered islands cannot be artificially altered nor be entitled to a territorial sea of their own. Therefore, China’s assertion lacked a legal basis as these features cannot be considered “islands” per se under International Laws.
With respect to baselines, the PRC has drawn its own straight baselines around one of its islands. These baselines aim to enclose all waters within, claiming them to be internal waters of China.
As reflected in UNCLOS, Article 5 defines the normal baseline as “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state.”
However, the Convention also permits the method of straight baselines, but only where the coastal geography meets certain conditions. First, in localities where the coastline is deeply indented and cut into or second, where there is a fringe of islands along the coast in its immediate vicinity. These conditions must be met, otherwise they would not hold water.
Article 7 also provides additional requirements for the drawing of straight baselines. It states that “straight baselines must not depart to any appreciable extent from the general direction of the coast”; “the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.” The system of straight baselines may not be applied in such a manner as to cut off the territorial sea of another state from the high seas or an exclusive economic zone,” Article 7 states.
When it comes to maritime zones, China primarily bases its territorial claims on “Nanhai Zhudao.” It treats each South China Sea islands group “as a whole.” However, the report struck down this assertion as inconsistent with and impermissible under international law.
To validly claim internal waters with respect to an island group “as a whole,” China must establish straight baselines consistent with Article 7 of the Convention. However, given the geographic locations of these islands, it is implausible for these islands to form straight baselines.
“PRC’s assertion of a territorial sea measured from unlawful straight baselines or otherwise based on treating entire South China Sea island groups as collective units is also not permitted by international law and is not recognized by the United States,” the report states.
Still, China insists that they have the authority to impose these claims and enforce “security” laws within the contiguous zone. Holding that they have jurisdiction over the Sea, they continue to restrict innocent passage within the territorial sea and its exclusive economic zones. These practices defy the navigational rights and freedoms of all states.
In the 501-page decision, the historic rights in the South China Sea were expressed by China for the first time, saying such claims are “based on the practice of the Chinese people and the Chinese government in the long course of history.”
They also contend the applicability of the infamous nine-dash line that was first shown to the public in 2009. According to the 2009 map, the nine-dash line runs along Vietnam’s coast, crosses the South China Sea to the coast of Malaysia, and then snakes its way up along the Malaysian, Bruneian, and Philippine coasts before finishing east of Taiwan.
As the report notes, the nine-dash line darts extremely close to the coasts of neighboring states—in fact, the dashes are generally closer to those coasts than they are to any islands within the South China Sea.
The Tribunal in the Arbitration has already concluded that this basis is “contrary to the Convention and without law[ful] effect” as this exceeds the limits of China’s entitlement to its maritime boundaries.
The international community has also rejected these historic rights claims. Arvis expounded that the customary international law includes general and consistent state practice, but China failed to meet these standards, hence lacking a meritorious basis.
In summary, the Limits in the Seas No. 150 Report finds that there are no coherent legal bases for China’s maritime claims. These claims are unlawfully trampling the sovereignty of other states, undermine the rule of law, and are consistently inconsistent with the universally recognized provision of international law.
The United States hopes to remind China that it ratified the Convention on June 7, 1996, and should practice the principle of pacta sunt servanda, which translates to “agreements must be kept.” The United States calls on China to cease its transgressions, abide by its international obligations, and reaffirm its commitment to the Pacific region.
Kira Jorgio is a senior at San Beda University-College of Law in Manila. She was the editor-in-chief of The Barrister San Beda University-College of Law's official student publication.