HOW CHINA’S ACTIONS IN THE SOUTH CHINA SEA UNDERMINE THE RULE OF LAW LYNN KUOK NOVEMBER 2019 EXECUTIVE SUMMARY and partners; strengthening ties with its regional allies and partners, the Philippines in particular; This paper argues that China’s actions in the South communicating to China that building on Scarborough China Sea have contributed to a weakening of the Shoal would have serious repercussions; supporting international law of the sea. This hurts all countries, coastal states’ efforts to stand up to incursions into including China, which have an interest in ensuring their exclusive economic zones; and cooperating with that competition stays within the parameters of its allies and partners to promote development in the international law, which helps promote stability and region — the South China Sea cannot be viewed in minimizes the risk of conflict. It provides an overview isolation and how Southeast Asian countries position of the South China Sea dispute and the 2016 arbitral themselves there will depend on the broader strategic tribunal ruling in a case the Philippines brought and economic landscape. These measures are against China under the United Nations Convention on imperative to giving the countries of Southeast Asia the Law of the Sea. The paper identifies actions China greater agency, not least in supporting the rule of law. has taken to pursue its territorial and maritime claims and control around features, including encroaching on coastal states’ exclusive economic zones, increasing INTRODUCTION its military presence around features, seeking to deny China’s growing clout in East Asia has corresponded the United States and other countries navigational with a weakening of the international law of the sea. Its and other freedoms of the seas, and escalating its actions in the South China Sea where it has aggressively militarization of features it occupies. These actions pursued its territorial and maritime claims, undermine have allowed China to gain military advantages in the rules-based order. International pressure on the event of conflict and, significantly, non-military China has been inconsistent; periods of neglect have advantages in situations short of outright conflict, by corresponded with further Chinese incursions. The deterring other claimants from putting up a strong erosion of the rule of law hurts all countries, including resistance to Chinese incursions and undermining the United States and China, which have an interest U.S. credibility in the region. The paper examines the in ensuring stability and keeping competition, however responses of Vietnam, the Philippines, and Malaysia. fierce, within the parameters of the law to minimize the risk of conflict. It also damages China’s reputation, The paper concludes with recommendations for the though Beijing appears willing to suffer reputational United States, positing that China has not yet won damage to achieve military and strategic gains. in the South China Sea. Recommendations include Beijing, moreover, calculates that it can influence regularly asserting maritime rights and freedoms outcomes through coercion and, in the economic and encouraging others to do so; continuing to hold realm, inducements. While China maintains that the bilateral and multilateral drills in the region with allies situation in the South China Sea is “calm” and the EAST ASIA 1 GLOBAL CHINA HOW CHINA’S ACTIONS IN THE SOUTH CHINA SEA UNDERMINE THE RULE OF LAW region is “in harmony,” any “stability” has largely been The tribunal ruled on China’s controversial nine-dash the result of smaller countries in the region resigning line and determined that insofar as China was claiming themselves to a “new normal” in the South China Sea. historic rights to resources within line, any such rights were extinguished when China ratified UNCLOS in THE DISPUTE 1996 given incompatibility with the exclusive economic zones (EEZs) of other coastal states. The South China Sea dispute concerns competing territorial and maritime claims. Four groups of The tribunal also ruled on the status and maritime geographic features in the South China Sea are entitlement of features in the Spratlys. The tribunal contested: the Pratas Islands, the Paracel Islands, found that, based on the geographic conditions laid Macclesfield Bank and Scarborough Shoal, and the out in UNCLOS, all features in the Spratlys are at most Spratly Islands. The greatest source of tensions is “rocks” entitled to a 12-nautical-mile territorial sea; the Spratly Islands, claimed in their entirety by China, none of the features are entitled to a 200-nautical- Taiwan, and Vietnam, and in part by the Philippines, mile EEZ. This included the largest naturally formed Malaysia, and Brunei. The Paracel Islands, claimed by feature, Itu Aba, which is occupied by Taiwan. China, Taiwan, and Vietnam, are also hotly contested. The upshot of these findings is that the 200-nautical- The maritime dispute has at its roots China’s mile EEZ entitlements of the Philippines and, by controversial nine-dash line, which made its first implication, the other coastal states in the region, official appearance in a map Beijing submitted to the are unencumbered by China’s nine-dash line or any United Nations in 2009.1 Beijing has never provided claimed EEZ from features or groups of features in the coordinates for the dash line, but it appears to Spratlys. encapsulate much of the South China Sea. The line can be read as laying claim to everything within it or Although Beijing decried the ruling as “null and void” merely land features (features that are visible at high and of “no binding force,” it broadly kept to its letter tide) and maritime zones compliant with the United if not its spirit in the first year after the award.2 This Nations Convention on the Law of the Sea (UNCLOS). could in part be explained by a desire to avoid direct confrontation before its critical 19th Party Congress in September 2017. But it was also likely a response THE SOUTH CHINA SEA to collective pressure. The United States and its allies ARBITRATION and partners called for China to respect the ruling (Australia, Japan, New Zealand) and/or comply with In January 2013, the Philippines brought a case UNCLOS (India). None of the statements issued by against China over its expansive claims and activities ASEAN member states specifically mentioned the in the South China Sea. The case was heard by an ruling; many, however, urged respect for UNCLOS and/ arbitral tribunal constituted under UNCLOS. The award, or international law. Given that they were issued in the which was issued in July 2016, was a major victory immediate aftermath of the award, such statements for the Philippines. Its main significance was to clarify indicated broad support for it, even if the award was resource rights. not directly mentioned. EAST ASIA 2 GLOBAL CHINA HOW CHINA’S ACTIONS IN THE SOUTH CHINA SEA UNDERMINE THE RULE OF LAW Overlapping claims in the South China Sea Six nations contest all or parts of the South China Sea, which has led to a series of confrontations between China and some of its neighbours over the potentially oil-and-gas rich area. Here is a look at how each claim compares with the official exclusive economic zones (EEZ), the waters extending 200 nautical miles from the coast. CHINA China’s Nine- dashed line TAIWAN EEZ Paracel Islands VIETNAM Spratly Islands PHILIPPINES MALAYSIA MALAYSIA INDONESIA Sources: U.S. State Department; UN Division for Ocean Affairs and the Law of the Sea; U.S. Energy Information Administration; Reuters Staff, 12/07/2016 EAST ASIA 3 GLOBAL CHINA HOW CHINA’S ACTIONS IN THE SOUTH CHINA SEA UNDERMINE THE RULE OF LAW WORRYING DEVELOPMENTS operations in Vietnam’s EEZ.7 The survey vessel and its escort vessels only withdrew at the end of October.8 Things, however, started coming undone shortly after Beijing’s active encroachments on Vietnam’s EEZ the ruling’s one-year anniversary when international harken back to 2014 when the presence of a Chinese attention waned. oil rig sparked anti-Chinese riots in Vietnam.9 1. Strengthening of maritime claims and China has also unlawfully interfered with the resupply control around features of the BRP Sierra Madre, a dilapidated Philippines naval vessel the Philippines deliberately grounded China has sought to strengthen its maritime claims and on Second Thomas Shoal in 1999 to prevent China control around features. This has taken several forms. from occupying it. The most recent reported incident First, encroaching on coastal states’ EEZs, which flies was in May when Chinese Coast Guard blocked three in the face of the tribunal ruling. Second, increasing its Philippine civilian vessels on a resupply mission.10 The presence around features with vessels from its navy, tribunal had found that Second Thomas Shoal is a coast guard, and maritime militia. Chinese presence low-tide elevation forming part of the Philippines’ EEZ around these features is not necessarily unlawful — and continental shelf and that, under UNCLOS, the user states have a right of innocent passage through Philippines therefore has jurisdiction and control over any territorial seas and high sea freedoms outside it. of it, but the numbers and persistence of Chinese vessels are aimed at consolidating Chinese control. Third, China has objected to U.S. and other warships exercising navigation and other freedoms of the seas. If such actions on China’s part Such behavior is inconsistent with the maritime rights “constitute a stick, Beijing has also and freedoms vested under UNCLOS, which China ratified in 1996 and the United States abides by as a held out an alternative model of matter of customary international law and domestic carrots. policy.3 (The United States should of course finally accede to UNCLOS to quell criticism that it is guilty of If such actions on China’s part constitute a stick, Beijing double standards when it insists on compliance with a has also held out an alternative model of carrots.