Over five years have passed since the Permanent Court of Arbitration issued a binding decision that China had breached its obligations under the United Nations Convention on the Law of the Sea (UNCLOS). China’s offenses included fishing within the Philippines’ Exclusive Economic Zone (EEZ), damaging ecosystems in the South China Sea through land reclamation projects, and threatening the ships of multiple countries with its law enforcement vessels outside of China’s EEZ.
While the Arbitration took place between the Philippines and the People’s Republic of China, several observer states from Southeast Asia attended the Hearing on the Merits, along with the United States of America. China chose not to participate in the Arbitration, and the United States has never ratified the UNCLOS. The Chinese government issued several documents and statements declaring that the tribunal’s ruling was null and void because it had violated Chinese sovereignty as well as principles of international law.
The dispute stems from a difference in opinion between China and the international community regarding the extent of China’s control over the South China Sea. China lays claim to over 90% of the South China Sea due to what it calls the “nine-dash line.” The nine-dash line is a “historical claim” based on a map from 1948 that depicted China’s control over the islands and reefs in the South China Sea, including the Spratly Islands, Paracel Islands, and Scarborough Shoal. China also claims sovereignty over the broad swathes of water surrounding these maritime features.
However, the Philippines, Taiwan, Malaysia, and Brunei all contest China’s claim to these islands and reefs. Additionally, the U.S. Navy and Air Force have engaged in Freedom of Navigation (FON) operations in the South China Sea to contest China’s operations in the region. United States FON operations include coordinated flyovers by aircraft and routes by ships to assert rights of navigation over the high seas, which China has claimed as its own territorial seas in this case.
The Permanent Court of Arbitration’s 2016 decision further strains China’s claims. The tribunal claimed that the reefs in the South China Sea are “low-tide elevations,” and that the islands claimed by China are rocks. The UNCLOS defines islands as high tide elevations capable of sustaining human habitation or economic life, from which a country may extend its territorial sea and EEZ. High tide elevations that cannot sustain human habitation or economic life are classified as rocks, and grant no sovereign territorial rights. This means that even if China held ownership of these fixtures, it would not control exclusive economic zones or continental shelves surrounding them, according to Article 121 of the UNCLOS.
Ongoing Conflict by Land Reclamation and Military Standoff
Since the 2016 decision, tensions in the South China Sea have continued to escalate. In the last decade, China has built artificial islands and military installations around its claimed islands and reefs in order to prove its authority over the region. China has used these military bases to deploy fighter aircraft and ships to intimidate and even sink foreign vessels that come too close. According to China, these actions are justified because the country is entitled to restrict military and economic activity within its EEZs.
The United States has resolved to oppose China’s intimidation tactics in order to protect its Southeast Asian allies and to rebuke what it sees as a blatant grab for power and natural resources. Both Presidents Trump and Biden have declared U.S. opposition to China’s maritime claims. In its FON operations, the United States has regularly conducted military flyovers and warship patrols within 12 miles of China’s claimed islands and reefs, in the area China has declared as its own territorial sea. The FON operations have increased in frequency over the past few years.
With neither side willing to back down, military confrontations and encounters have also increased in recent months. In 2020, a Chinese coast guard vessel rammed and sank a Vietnamese fishing vessel in the disputed region. That same year, a Malaysian drillship endured a six-month standoff with a Chinese survey ship in Malaysia’s EEZ. India has deployed warships of its own in 2021 to aid in the effort to oppose China. In October 2021, Taiwan’s Defense Minister Chiu Kuo-cheng reported nearly 150 Chinese aircraft performing flyovers of Taiwan’s air defense zone over a four day period. Additionally, China expressed its grave concern at U.S. intentions when a U.S. nuclear submarine collided with an “unknown object” in the South China Sea, injuring eleven sailors.
Implications for the Future
Armed conflicts in the South China Sea appear unlikely to de-escalate in coming months. Gregory Poling, director of the Asia Maritime Transparency Initiative at the Center for Strategic and International Studies warns that the United States and its allies don’t have another five years to wait until China exhibits absolute control over the South China Sea. Furthermore, the United States has sworn to uphold obligations to its allies through the North America Atlantic Treaty Organization, the Southeast Asia Collective Defense Treaty, a bilateral defense agreement with the Philippines, and a relations agreement with Taiwan. The United States has disobeyed international legal obligations in the past, but shows no signs of withdrawing at this time. All parties to the conflict have indicated thus far that they seek a peaceful solution, but the complex web of international maritime law, national hegemony, international treaties and agreements, and a power struggle between competing superpowers means a compromise is unlikely.
Finally, China’s disregard for the 2016 Arbitration and the countervailing interests of Southeast Asian countries proves troubling for the future of maritime law. It remains to be determined whether the combined will of the international community can overcome China’s defiant domestic lawfare and aggressive tactics. China has set a dangerous precedent for disobeying legally binding rulings, and the country has yet to be punished for its actions outside of generalized international pressure. In fact, one might argue that most parties involved have consistently disobeyed Article 301 of the UNCLOS, which states that “States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State.” If countries are allowed to substitute their domestic interpretation of maritime law for international disputes, incidents of armed conflict on the sea are certain to rise globally.
Author Biography: Mark Rook is a moderator for the International Law and Policy Brief (ILPB) and second year law student at The George Washington University Law School. He graduated in 2020 from the University of Pennsylvania with a degree in Philosophy, Politics, and Economics. He is also an Associate with GW’s International Law in Domestic Courts journal. His primary fields of interest are international human rights law and immigration law.