China Stays Committed to Peace, Stability and Order in The South China Sea
23 March, 2022
On 12 January 2022, the US Department of State released a Limits in the Seas No. 150 study (hereinafter referred to as the “Study”). The Study trumpets as an exemplar of judicial excellence the South China Sea Arbitration Award which is null and void, and employs it to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea by misinterpreting international law, including the relevant provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and State practice. The Study gravely undermines the international rule of law at sea. It deliberately misrepresents the historical context and the status quo of the South China Sea issue. It is nothing but political manipulation and provocation. China expresses its strong objection to the Study.
I.The Study is full of false legal arguments.
UNCLOS is a package deal reached among the States Parties through negotiation and compromise. The Study, however, suggests that UNCLOS sets forth all the rules of the international law of the sea. Such suggestion is in conflict with the history and facts of UNCLOS negotiations and is not supported by State practice applied after the entry into force of the Convention. While refusing to ratify UNCLOS, the US always styles itself as an UNCLOS arbitrator and willfully takes the Convention out of context. It also seeks to impose its flawed interpretation of UNCLOS on the States Parties to the Convention. What it has done undermines the authority and integrity of UNCLOS and seriously disrupts the international rule of law at sea.
As the South China Sea arbitral award is null and void, it is preposterous that the Study sees the award as international law applicable to the South China Sea. The subject-matter of the South China Sea arbitration is in essence about territorial sovereignty and maritime delimitation, but territorial matters are not subject to UNCLOS. Moreover,as provided under UNCLOS, the Chinese government has expressly excluded disputes concerning maritime delimitation from the compulsory dispute settlement procedures. The Arbitral Tribunal in the South China Sea Arbitration breached the principle of State consent, which is the very basis for the establishment of jurisdiction of international tribunals, and acted ultra vires. Its award was rendered in violation of law. It is clearly flawed in terms of determination of facts at issue and interpretation and application of law, and contravenes international law including UNCLOS. It is for the purpose of upholding the international rule of law at sea that China does not accept or recognize the award. While ignoring international law and trying to force China to accept the illegal award, the United States, in disregard of the criteria set forth in its favored award, claims a 200-nautical-mile exclusive economic zone based on Johnston Atoll, which covers only 0.18 square kilometers and cannot sustain human habitation or economic life of its own. This is double standard at its worst.
China’s Dongsha Qundao, Xisha Qundao, Zhongsha Qundao and Nansha Qundao each constitutes an entity in geographic, economic and political terms,and has been regarded as an entity respectively throughout history as provided under customary international law and UNCLOS. There is no legal ground for the Study to ignore the fact that these island groups are whole entities and thus deny China’s territorial sovereignty and maritime rights and interests in the South China Sea. There are over 20 continental States in the world that have outlying archipelagos, and most of them regard an archipelago as a unit. This establishes a general State practice.
China has yet to draw its territorial sea baselines for Dongsha Qundao, Zhongsha Qundao and Nansha Qundao. The Study makes false accusations against China based on the baselines of archipelagos of its own fabrication, violating the legal principle of taking facts as the basis. It points fingers at the territorial sea baselines of some countries on account of misguided US opinions. The criteria used are inconsistent and the statements made are self-contradictory, showing a lack of professionalism and meticulousness.
A coastal State’s requirement that foreign warships send notification or obtain approval prior to entering its territorial sea does not contravene the provisions of UNCLOS related to innocent passage and has been a State practice widely applied. At the end of the 1970s, the US rushed through the Freedom of Navigation Program in anticipation of the adoption of UNCLOS. It was a move to counter the provisions on innocent passage stipulated in the Convention and preserve American hegemony at sea. For a long time, the US has frequently sent warships and military aircraft to intrude on other countries’ territorial sea and airspace in violation of the provisions of the UN Charter on respecting State sovereignty and rejecting the use or threat of force, and the UNCLOS provision that the peace, good order and security of the coastal State should not be prejudiced.
UNCLOS does not negate historic rights established through practice in the long course of history. It is clearly erroneous for the Study to deny the existence of historic rights on the ground of silence of UNCLOS on the protection of historic rights. As historic rights are not expressly provided for under UNCLOS, they shall remain governed by general international law. The existence of historic rights has been confirmed multiple times by State practice and international jurisprudence before and after UNCLOS entered into force.
II. The Study is sheer political manipulation.
The Study only serves to escalate the disputes over the South China Sea, provoke confrontation among countries in the region and undermine their efforts to manage differences properly and settle the disputes peacefully through dialogue and consultation. The Study intervenes in the settlement of disputes over the South China Sea in the name of discussion of legal issues. Full of fabrications and falsehoods,it is an attempt to intimidate the littoral States in the South China Sea, deceive the international community and ultimately serve the American geopolitical agenda and its hegemony at sea.
The Study blatantly lists Taiwan alongside sovereign States to create the false impression of “two Chinas” or “one China, one Taiwan”. This is a serious breach of the one-China principle and stipulations in the three China-US joint communiqués, and a violation of international law and the basic norms governing international relations. It is the general consensus of the international community that there is but one China in the world; the government of the People’s Republic of China is the sole legal government representing the whole of China; and Taiwan is an inalienable part of China’s territory.
The Study is but one more example of the American modus operandi — pushing for hegemony under the pretense of “upholding international law”. Driven by its self-centered interests, the US distorts rules of international law at will. It has come up with the concept of “international waters”. Based on such concept, the US sends warships and military aircraft to flex its muscles in the oceans around the world. It also seeks to leverage its power to define and press ahead with what it calls a “rules-based international maritime order”. What it has done gravely undermines the maritime order established by international law including UNCLOS.
III. China’s territorial sovereignty and maritime rights and interests in the South China Sea are solidly grounded in history and law.
The activities of the Chinese people in the South China Sea date back to over 2,000 years ago. China is the first to have discovered, named, explored and exploited Nanhai Zhudao and relevant waters, and the first to have continuously, peacefully and effectively exercised sovereignty and jurisdiction over them. China’s sovereignty over Nanhai Zhudao and its relevant rights and interests in the South China Sea have been established in the long course of history, upheld by the successive Chinese governments for a long time and universally recognized by the international community.
China has sovereignty over Nanhai Zhudao which consists of Dongsha Qundao, Xisha Qundao, Zhongsha Qundao and Nansha Qundao. China has internal waters, territorial sea and contiguous zone, based on Nanhai Zhudao. China has exclusive economic zone and continental shelf, based on Nanhai Zhudao. China has historic rights in the South China Sea. China’s position, as stated above,is clear, consistent and solidly grounded in history and law.
IV. China firmly upholds peace and stability in the South China Sea and the international rule of law at sea.
China is a staunch guardian and committed builder of the international rule of law at sea. China firmly upholds the UN-centered international system, the international order underpinned by international law and the basic norms governing international relations based on the purposes and principles of the UN Charter. China participated in the entire process of the negotiation of UNCLOS and is one of the first countries to have signed and ratified the Convention. As a State Party, China attaches great importance to UNCLOS, implements it to the letter and spirit, and safeguards its authority and integrity with concrete actions.
China always adheres to peaceful settlement of disputes in the South China Sea through negotiation and consultation with States directly concerned on the basis of respecting historical facts and in accordance with international law. China will continue to work with ASEAN countries to proactively manage differences at sea, deepen maritime cooperation, fully and effectively implement the Declaration on the Conduct of Parties in the South China Sea, and vigorously promote consultations on a code of conduct in the South China Sea. China will continue to work with ASEAN countries to advance the implementation of the 21st Century Maritime Silk Road initiative and make regional maritime governance fair and equitable, with a view to maintaining peace and stability in the South China Sea and promoting prosperity and development in the region.
The South China Sea is a shared home for countries in the region, not a hunting ground for forces outside the region to seek geopolitical self-interest. The United States should have a correct understanding of and abide by international law including the UN Charter and UNCLOS, truly respect China’s territorial sovereignty and maritime rights and interests in the South China Sea, and respect the efforts of China and ASEAN countries to maintain peace and stability in the South China Sea. It should refrain from stoking trouble on the South China Sea issue or undermining the international rule of law at sea.
