China’s legal claim to sovereign rights and jurisdiction in the South China Sea, which asserts an entitlement to exclusive economic zone (EEZ) and continental shelf rights over the relevant waters, is not inconsistent with international law. ‘Islands’ as low-lying as Japan’s Okinotorishima, as small as the US Howland and Baker Islands, and as remote from a continental coastline as Australia’s Heard and McDonald Islands have valid or pending EEZ claims. None are inhabited or can sustain economic activity. What Beijing has to clarify nevertheless is both the scope of its ‘relevant waters’ claim line as well as this line’s association with the ‘historic rights’ that it appears to enforce at times to the limits of the infamous ‘nine-dash’ line.
China has opted out of the compulsory binding dispute settlement provisions of UNCLOS for certain categories of disputes, but this is not exceptional. Numerous states have done so and when or if the US accedes to UNCLOS, it too intends to opt out of these categories of disputes.
The proximate cause of Abe’s declaration was the unilateral placement of a drilling rig owned by a Chinese state-owned oil company in the contiguous zone of a Beijing-administered island in the Paracels chain. The Chinese action is not illegal, nor is there anything new in the disregard for Article 123 of UNCLOS, which encourages relevant states to cooperate. International oil companies are active in disputed stretches of the South China Sea where claimant states have unilaterally granted prospecting rights in areas deemed to reside on their side of the median line. China’s drilling is exceptional only to the extent that the oil rig was positioned in a disputed stretch of water that is generated from a land feature, the Paracels, which is itself in dispute.
No precedent exists in authorising stays on such drilling. The Law of the Sea, furthermore, is an unsatisfactory guide to referee quarrels that reside at the crossroads of disputed sovereignty claims and competing sovereign rights and jurisdiction claims.
Jurisdiction rights over maritime areas emanate from sovereignty over the land territory of a coastal state. So long as they are naturally formed and rise above sea level at high tide, islands are considered land territory and, in the case of the Paracel Islands, can generate a maritime zone halfway to the opposite Vietnamese coast. Japan deems the disputed Senkaku/Diaoyu Islands, the largest of which is smaller than its Paracels counterpart, to generate an entitlement up to the median line from the opposite Chinese coast.
It is much less well known that customary law makes no differentiation in the criteria required for continental landmasses and islands — however small — to generate a zone. The (undisputed) Vietnamese continental landmass and the (disputed) Paracel Islands have equal standing in the eyes of the law to generate such an entitlement. Tribunals have been disinclined to weigh in, limiting their disapproval to instances where small, far-removed islands reach deep into an adjacent or opposite state’s coastal projection and impose an inequitable ‘cut-off’ effect of that state’s maritime entitlement. The Paracels do not significantly impair Vietnam’s (or Hainan’s) coastal projection.
Without a legal challenge to determine either the Paracels’ final sovereignty or a delimited boundary in these waters, there cannot be a resolution of the competing sovereign rights and jurisdiction question. Hanoi won’t consent to the former for fear of having to permanently surrender its claim to the Paracels, while Beijing won’t consent to the latter for fear that a delimitation will permanently limit its sovereign rights in the relevant waters to (much) less than the median line.
That said, it is frankly inconceivable that a court would establish a boundary that cuts through the contiguous zone of the Paracels and thereby strip China of jurisdiction in waters that UNCLOS properly deems as also falling within the law enforcement remit of the sovereign or administering power.
Until such time as China and Vietnam are able to consensually devise mechanisms to jointly develop the contested seabed resources — pending or without prejudice to delimitation — both parties must respect the median line and limit enforcement operations to their respective sides. Hanoi’s challenges across the median line are imprudent, risk violent reprisals (as has been the case previously) and invite similar interference on its side of the median line.
The multitude of legalities aside, searching political questions are in order for all claimants — and non-claimants — concerned.
There is no pressing reason why China must develop resources in this doubly-disputed area of the South China Sea unilaterally. Either Beijing’s political calculus of deterrence, which extracts too steep a premium in good neighbourliness, must change or it should lay out its outer continental shelf claims with precision. In the interim, it should provisionally refrain from drilling, much like Japan in the Senkaku/Diaoyu area.
For the other claimants, can shrewd diplomacy match the technological, budgetary and law enforcement might that Beijing can summon to lock up the resources in the ‘doughnut hole’ of the South China Sea to which it also has a rightful claim? Non-claimants may evince concern but they are unlikely to have much appetite to extend their security obligations to slivers of insignificant territory.
For Japan or its friends to censure Chinese unilateralism while turning a blind eye to similar, or worse, behaviour by other claimants is disingenuous. It cannot be that China is guilty of, both harassment across the median line and resisting harassment on its side of the median line. To claim further that it takes no position on the competing sovereignty claims is doubly disingenuous. As per the territorial provisions of the San Francisco Treaty (Articles 2 and 26), then-prime minister Yoshida ‘renounced all right, title and claim to … the Spratley Islands and the Paracel Islands’ to the Republic of China in Taipei in 1952.
The rule of law in the contested semi-enclosed seas of Asia needs to be constructed on a foundation that is objective, fair and equitable.
Sourabh Gupta is a Senior Research Associate at Samuels International.
Thanks for Sourabh Gupta’s thoughtful essay, which is helpful in a number of points. It should be noted, however, that China cannot make a unilateral determination that it is legally correct in claiming that the issues posed by the Philippine arbitration request fall within the exceptions China filed when adhering to the compulsory arbitration system of UNCLOS. That determination must be made by the impartial tribunal of some of the world’s leading experts that has been established to decide the Philippine case. China has thus far declined to submit its views to their consideration. Instead a book has been published by two distinguished experts stating the Chinese position (Stefan Talman and Bing Bing Jia, THE SOUTH CHINA SEA ARBITRATION: A CHINESE PERSPECTIVE (2014)). Whether or not China continues to reject participation in the arbitration process to which it is legally committed, it will be obligated to accept the tribunal’s decision.
It should also be noted that, as to sovereignty over the Paracels, China, like the occupiers of other disputed islands (Japan, Korea etc), claims that there is no dispute. Although Vietnamese experts worry that, as in any litigation, there will be a risk of defeat if Vietnam challenges the Chinese claim before the International Court of Justice or some other impartial tribunal, the Vietnamese Government is actively considering this option among others. International legal institutions are always more attractive to the weaker country.
Jerome A. Cohen, Co-Director, NYU US-Asia Law Institute, and Adjunct Senior Fellow for Asia, Council on Foreign Relations
I would like to ask several questions. First, are the straight baselines drawn around the Paracel islands legal in international law? Is the Triton an island or a rock? How can such tine features claims a median line that cuts deeply into Vietnam’s Exclusive Economic Zone? Vietnam does not face another coastal state, and China is not claiming an EEZ from Hainan Island. Why are China’s unilateral actions deemed legal? Is China permitted to alter the status quo in a disputed area by force and the use of force, including ramming Vietnamese law enforce vessels, using high-powered water cannons to dismast communications and navigational antennae, to unsheathe deck guns and aim them at Vietnamese vessels, and to ram and sink Vietnamese private fishing craft far removed from the oil rig? Did not the prime minister of the State of Vietnam claim sovereignty over the Paracels and Spratly islands at the San Francisco peace treaty conference? And were there any objections recorded to this claim?
Thanks for the comment. Regarding the China-Philippines case, there is no question that China is obligated to accept the tribunal’s decision. China is not obligated to participate in the process but if the tribunal does find jurisdiction to proceed on all or some of the issues raised by Manila, Beijing is obligated to accept the findings and – if found contrary to law – revise its practices. Following the precedent of the U.S. which lost an ICJ decision to Nicaragua in the mid-1980s and then proceeded to use its veto power in the Security Council to refuse compliance would be damaging to the cause of sea law as well as international law more broadly.
It bears noting too that should the court find jurisdiction, the views of the non-appearing party will be taken into account by the Court, even if those views are expressed in ways not provided for in the Rules of the Court.
“””””an Francisco Treaty (Articles 2 and 26), then-prime minister Yoshida ‘renounced all right, title and claim to … the Spratley Islands and the Paracel Islands’ to the Republic of China in Taipei in 1952.”””””
That is incorrect. The San Francisco Peace Treaty merely states that Japan gives up all claim to the islands. It does not say who they belong to. 2(f) says:
(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.
and that’s all. The San Francisco Peace Treaty does not mention the Republic of China (merely “China”).
The text is available here:
http://www.taiwandocuments.org/sanfrancisco01.htm
Michael
You have failed to read Article 26 of that same treaty. On April 28th, 1952, the day the San Francisco Treaty entered into force, Japan concluded in Taipei “a bilateral treaty of peace on the same or substantially the same terms as provided for in the present treaty” (San Francisco Treaty) with a “state which signed or adhered to the United Nations Declaration of 1 January 1942 and which [was] at war with Japan” (China). Japan, hence, did not just renounce the Spratlys and Paracels in the abstract. As per the San Francisco Treaty (and under the veritable dictation of U.S. Secretary of State, John Foster Dulles), it renounced these territories to Taipei in a bilateral treaty of peace.
“This obligation on the part of Japan [was to] expire three years after coming into force of the present [San Francisco] treaty.” Japan and the Republic of China in fact followed through on the day of the San Francisco Treaty’s initial date of entry into force.
Please read the San Francisco and Taipei Treaty together. You have both the links at your end.
1. I fail to see how Article 26 of the San Francisco Treaty could be construed to mean that Japan retains the right to transfer sovereignty of the Paracels and other territories it has renounced to any particular country.
2. Furthermore, the Taipei treaty between the ROC and Japan merely repeats almost verbatim what the SF Treaty has already said. It does not add anything that could be construed to mean that sovereignty is actually transferred to the ROC or China:
“Article 2
It is recognised that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands.”
The author’s statement “As per the territorial provisions of the San Francisco Treaty (Articles 2 and 26), then-prime minister Yoshida‘renounced all right, title and claim to … the Spratley Islands and the Paracel Islands’ to the Republic of China in Taipei in 1952.” is misleading. At the the 1951 San Francisco Treaty on the surrender of Japan, Japan had already renounced all claims and rights to the Paracels and Spratlys (Korea, the Kurils, Taiwan, Antarctic territories, ect) without specifying the beneficiaries, so how could it renounce them again in 1952 to the Republic of China?
One cannot give to someone (the Republic of China in this case) the claims and rights that one has already renounced in the past.
Regarding the law of the sea, where the salient bodies of law here are UNCLOS and jurisprudence on maritime delimitation, two things should be noted.
First, the author wrote “The (undisputed) Vietnamese continental landmass and the (disputed) Paracel Islands have equal standing in the eyes of the law to generate such an entitlement. Tribunals have been disinclined to weigh in, limiting their disapproval to instances where small, far-removed islands reach deep into an adjacent or opposite state’s coastal projection and impose an inequitable ‘cut-off’ effect of that state’s maritime entitlement.” In fact Tribunals have often apply the proportionality principle, which says that the area of EEZ or continental shelf allocated to each side should be roughly proportional to that side’s length of coastline, even where there is no ‘cut-off’ effect.
Second, UNCLOS Articles 74 has been interpreted by the Permanent Court of Arbitration in the Guyana-Suriname dispute to mean that there should be no unilateral drilling in a legally disputed area. This means that China’s deployment of HY-981 in an area which is clearly legally disputed is a violation of UNCLOS.
On your first point, our difference in opinion is not large. The Vietnamese landmass and the Paracels IN THEORY, initially, have equal standing in the eyes of the law. In practice, courts weigh in to limit disproportion. Hence I wrote in the very next para that if a tribunal was to delimit a boundary in these waters, it would restrict China’s “sovereign rights in the relevant waters to (much) less than the median line.” A related side-point (but one that would only interest the experts here): courts measure – and partially rectify – disproportion based on length of the ‘relevant coastline’, not on the basis of the entire length of the coastline. The ‘cut-off’ effect, not the coastline length, is the relevant criteria in the Paracels case.
On your second point, the interpretation of Guyuna-Surinam has equal validity to the disputed waters on the Vietnamese side of the median line. Until such time that these waters are not officially delimited, by consensus or arbitration, Hanoi too is provisionally required to not engage in activities that could lead to permanent physical change which could prejudice a final delimitation settlement. Of course, Hanoi too has not adhered to this obligation.
Vietnam is on much stronger ground to claim that if/when these waters are delimited, the seabed on its side of the median line will almost certainly fall within the sovereign rights and jurisdiction of Vietnam. But note the parallels in China’s claim too that if/when the area where the drilling has taken place is delimited, it almost certainly will fall with the sovereign rights and jurisdiction of the China-administered Paracel islands.
Thank you, Sourabh, for your reply.
First, the relevant coastline of Vietnam’s mainland coast (and China’s Hainan coast, for that matter) are much longer than that of the Paracels.
Second, if we really believe that it would be consistent with international law of maritime delimitation law for the Paracels to have EEZ that extend as far as the equidistance line between this archipelago and Hainan and Vietnam’s mainland coast, we should propose to China to accept going to UNCLOS tribunal to have that proven.
Third if we really believe that Vietnam’s oil & gas activies is a violation of UNCLOS Article 74(3), which states, “…the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement…”, as much as China’s deployment of HY-981, we should call on both sides to accept jurisdiction by an UNCLOS Annex VII tribunal, so that that tribunal can rule on who is violating Article 74(3).
Vietnam has fully accepted UNCLOS Annex VII tribunal’s jurisdiction.
Where is China?
Perhaps you would like to join me in calling on China to fully fully accept UNCLOS Annex VII tribunal’s jurisdiction too?
This is so that both countries’ interpretations of UNCLOS can be tested by a tribunal, instead of being used as rhetorics.
I apologize for the typographical errors in my earlier posting. Gupta’s article has got a lot of mileage in being reposted on various sites. I would like to raise one further question: is there a statute of limitations of acts of war and aggression to seize territory? I refer here to China’s seizure of some islands and features in the western Paracels in January 1974. Can China really make a claim to a maritime zone based on its illegal seizure of the Paracels? I know the January 1974 battle for the Paracels is an inconvenient historical fact. Does it mean that the passage of time alters international law?
On your question of statute of limitations of acts of war and aggression, I would submit that what constitutes aggression, or illegal seizure, lies in the eye of the beholder. (Western) academics have come down on both sides of the argument with regard to who has – or deserves to have – final sovereignty over the Paracels. At minimum, a dispute exists over the final sovereignty of the Paracel Islands. The Government of Vietnam, in one of its most recent communications to the U.N. Secretary General, implicitly too admits that the question of final sovereignty over the islands remains to be settled by negotiations between China and Vietnam.
http://www.un.org/ga/search/view_doc.asp?symbol=A/68/897
Until such time that this question is settled, UNCLOS simply calls for arrangements of a provisional nature to be entered into. The Law of the Sea makes no call on sovereignty or administrative rights determinations.
One should also exercise caution when making claims based on illegal seizure. Many would argue that Manila’s claim to what it considers to be its Kalayaan Island Group (KIG) is flimsy at best and constitutes little more than a case of ‘illegal seizure’.