The South China Sea Dispute – China Offends International Law

By | July 13, 2016

In the 1970s, as a young diplomat, I was a member of the Canadian delegation to the UN Law of the Sea Conference. Later in private law practice, I was on the Canadian legal team in the Gulf of Maine Case before the International Court of Justice. I have advised governments and international organizations on maritime claims and legal issues concerning offshore sovereignty. As a result, I have followed the current South China Sea dispute pitting several countries against China with interest.

There is little doubt – even without the benefit of the 500 page decision of the Permanent Court of Arbitration on 12 July 2016 – that China’s outrageous claims to vast areas of maritime space in the South China Sea lack legal validity.

It’s not a matter of parsing complex provisions in the Law of the Sea Convention, to which China is a party. The words in the Convention are convincingly clear. Article 121, paragraph 3 states,

 “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

Applying this to the facts in the case, the Court found that various shoals, reefs and other features surrounding the Spratly Islands – one of a group of islands claimed by China – are in fact and in law just “rocks” and not entitled to be recognized under the LOS Convention as islands themselves.

It reached this decision without deciding on the question of the sovereignly over the Spratly Islands, hotly contested by the Philippines. It didn’t have to.

Even if, for argument’s sake, China had sovereignty over the Islands, their surrounding reefs, shoals and and other features weren’t entitled to generate a vast surrounding economic zone and continental shelf under Article 121, paragraph 3 of the Convention.

This important paragraph was inserted during the LOS negotiations in the 1970s for good reason. The concept of seaward maritime jurisdiction – the exclusive economic zone and the resources of the shelf – is based on sovereignty over appurtenant land territory.

Negotiators agreed without much, if any, controversy at the LOS Conference that incidental geological or geographical features shouldn’t be allowed to generate massive, and indeed egregious, accretions of maritime jurisdiction.

As noted by the Court in several key passages,

The principal impetus for expanding such jurisdiction in the first instance  is unequivocally linked with the interest of coastal States in preserving         marine resources for the benefit of their people. . . .

As a counterpoint to the expanded jurisdiction of the exclusive economic zone, Article 121(3) serves to prevent such expansion from going too far. It serves to disable tiny features from unfairly and inequitably generating enormous entitlements to maritime space that would serve not to benefit the local population, but to award a windfall to the (potentially distant) State to have maintained a claim to such a feature.

After an exhaustive review of all the factors and their physical attributes, the Tribunal concluded that the shoals and reefs around the Spratlys that China claimed to be distinct islands were, in fact, no more than rocks.

The Court said that China’s aggressive activities involving land reclamation and construction of artificial islands, installations, and structures on these shoals and reefs has caused severe, irreparable harm to the coral reef ecosystem and offends various other provisions of the LOS Convention.

No-one is naïve enough to believe that the Chinese government will cave in to this decision and cease or retreat from its aggressive South China Sea activities. We’re involved in a serious game of raw power and geopolitics at its highest pitch.

The peaceful resolution of this issue, if there is one, will ultimately be based on the ability of the US to broker some kind of deal among China and the contending parties. In the final analysis, the Seventh Fleet is more critical than the Permanent Court.

That being said, the Court has done admirable service to the world community in its detailed analysis and firm conclusions about what governments can and cannot do in asserting sovereign claims and maritime jurisdiction. International law sets boundaries and serves a vital and overriding purpose in this regard.