The South China Issues from the Perspective of the International Law Order

Shigeki Sakamoto
Emeritus Professor, Kobe University

1. China on the Way to a Maritime Superpower

It is China's national strategy to become a strong maritime power in the 21st century. Looking back at world history, the 19th century was the age of "Pax Britannica," in which the United Kingdom ruled the world with its naval power. Likewise, the 20th century was the age of "Pax Americana," in which the American naval power swayed the world. There has been no superpower that was not a naval power. China aspires to become a superpower in the 21st century. Another aim of hers is to become a naval power as well.

According to a May 2019 report by the International Institute for Strategic Studies (IISS), China built naval vessels with a total displacement tonnage of about 400,000 tons between 2015 and 2017, twice US naval ship construction volume during the same period. Recent research by the US Naval War College estimates that the Chinese Navy will possess more than 530 surface vessels and submarines by 2030, up from 400 today. As of January 2019, the US Navy had 287 surface vessels and submarines. According to a Jane's report, China's military spending will increase by 55%, from $167.9 billion in 2015 to $206.8 billion in 2030; its naval expenditure, in particular, will rise by 82%, from $31.4 billion to $57.1 billion.

China's definition of a strong maritime power signifies not only such a conventional naval power but a state with a system that can secure its maritime interests. In this context, both the military and the economy are strategic targets. China, the world's second-largest economy today, needs marine resources to sustain its rapid economic growth. China's dependency on oil imports increased from 55.6% in 2010 to 70.8% in 2019. Likewise, its dependence on natural gas imports from 15.2% in 2010 to 43.0% in 2019.

China needs marine resources, especially fishery and energy resources, for its economic development. Its target areas for this purpose are the South and East China Seas. In the South China Sea, China claims the historic rights based on the "nine-dash line," attempting to seize islands and reefs and to monopolize marine resources. In the East China Sea, it has a territorial dispute with Japan over the Senkaku Islands.

2. What is the South China Sea to China?

China is involved in territorial disputes over the Spratly Islands and the Paracel Islands in the South China Sea with ASEAN countries, especially Vietnam and the Philippines. The background to this is the existence of the "nine-dash line," which, China asserts, represents its historic rights in the South China Sea. China is facing the challenge to justify the "nine-dash line" under international law through talks with ASEAN.

According to recent research, the Spratly Islands area appears to hold a treasure trove of oil and natural gas resources; its rich reserves are estimated at over 11.2 billion barrels of oil and 190 trillion cubic feet of natural gas. The nucleus of territorial disputes over the Spratly Islands can be considered a struggle over marine resources that allegedly rival the reserves of oil fields in Kuwait. China's energy demand is predicted to increase by 75% in the next 20 years. Securing energy resources is of vital importance to China's economic development.

The importance of the South China Sea to China is not confined to the above. The area of China's fishing grounds in the South China Sea exceeds that of China's fishing grounds in other nearby seas (Bohai Sea, Yellow Sea, and the East China Sea). Because of its valuable fishery resources, this area has been the scene of many disputes between Chinese, Philippine, and Vietnamese fishing populations.

On April 3, 2020, the Vietnamese government announced that a Vietnamese fishing boat QNg90671, which was operating in the waters of Forum Island in the Paracel Islands, was run into by the China Coast Guard patrol vessel 4301 and sunk. Two other Vietnamese fishing boats were captured, and their crews were temporarily detained. Machinery and fishing gear aboard the ships were confiscated and destroyed. Previously, on June 13, 2019, a Philippine fishing boat was struck by a Chinese fishing boat and sunk.

On March 21, 2021, the Philippine government announced that about 220 Chinese fishing vessels, suspected to be mobilized by Chinese maritime militias, were spotted in formation within the Philippines' exclusive economic zone (EEZ), about 175 nautical miles west of Bataraza on Palawan Island in the western Philippines. Philippine Foreign Secretary Teodoro Locsin lodged a diplomatic protest with China.

What should Japan learn from this incident? China lost the 2016 South China Sea arbitration case. But it still refuses to comply with the ruling, claiming that it was illegal and invalid. Meanwhile, the Philippines, which won the case, has adopted an appeasement policy rather than vocally condemning China. The fact, however, is that the Philippines' conciliatory China policy does not work on Beijing.

One of the lessons we should learn is that China will act on its own strategy over issues that it calls its core interests. For instance, whatever policy Japan adopts on the Senkaku Islands issue could not change China's claim on the sovereignty of those islands that China calls its core interests. Another lesson is that what is happening in the South China Sea will, in due course, take place in the East China Sea as well. Since the solid Japan-US Security Arrangements prevail in the East China Sea and Japan's maritime constabulary and defense capabilities are superior to those of the coastal states in the South China Sea, the same thing will unlikely take place. Still, we should not be complacent. In the not-so-distant future, a fleet of Chinese fishing boats mobilized by Chinese maritime militias may appear in the waters surrounding the Senkaku Islands.

3. China's Policy on the South China Sea Arbitration Ruling

In January 2013, the Aquino administration of the Philippines initiated mandatory arbitration proceedings based on the UN Convention on the Law of the Sea (UNCLOS) against China, which had effectively controlled the reefs and low-tide elevations over which territorial disputes existed between the two countries. On July 12, 2016, the South China Sea Arbitral Tribunal issued a landmark ruling upholding the Philippines' claims. The Tribunal concluded: "that China's claim to historic rights to the living and non-living resources within the ‘nine-dash line' is incompatible with the Convention to the extent that it exceeds the limits of China's maritime zones as provided for by the Convention." "Accordingly, upon China's accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line' were superseded by the limits of the maritime zones provided for by the Convention." The tribunal explicitly dismissed China's claim of historic rights based on the "nine-dash line."

Furthermore, the Tribunal judged that China infringed the Philippines' sovereign rights in the Philippine EEZ by: (1) interfering with fishing and oil exploration by the Philippines; (2) the construction of artificial islands, and (3) neglecting to prohibit its fishermen from operating in those waters.

On July 12, 2016, the day the ruling was handed down, China's Ministry of Foreign Affairs released a statement declaring that "the award is null and void and has no binding force. China neither accepts nor recognizes it... China's territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards." China has since acted as it declared.

Yielding to China's presumptuous demand to make the high seas and other countries' EEZs its territory is nothing less than submitting the international community to the "rule of force." The above arbitration ruling is not "a piece of waste paper," as Dai Bingguo, former State Councilor, said in Washington, DC, on July 5, 2016. Even if the award appears, as China claims, "null and void," it has the force of a res judicata. Article 296 of the UNCLOS provides that "any decision rendered by a court or tribunal having jurisdiction under the Convention shall be final and shall be complied with by all the parties to the dispute."

On July 12, 2016, the Chinese government announced that: (1) the People's Republic of China has sovereignty over four reefs in the South China Sea; (2) based on this claim of sovereignty, it possesses internal waters, territorial sea, contiguous zone, exclusive economic zone, and continental shelf; and (3) China has historic rights in the South China Sea. China enunciated that it would not abandon the nine-dash line as defining the waters under its jurisdiction.

China called on Philippine President Duterte to resolve the issue through negotiations, and he agreed to bilateral talks with China. In October 2016, Duterte visited Beijing and signed 13 agreements with China in multiple fields such as tourism and agriculture. Thus, he succeeded in extracting economic cooperation worth a total of $24 billion and loan commitments totaling $9 billion, including $3 billion from Chinese private financial institutions. On March 17, 2017, China and the Philippines agreed on a six-year development program for economic and trade cooperation.

China's subsequent construction of artificial islands in the South China Sea made steady progress. In April 2020, China established two new urban districts: Xisha District (the municipal district of Sansha, Hainan) to administer the Paracel Islands and sea areas, and Nansha District to govern the Spratly Islands and sea areas, as part of its administrative efforts to enhance effective control of the South China Sea. The United States reacted vehemently. On April 28, the US destroyer USS Barry conducted a "freedom of navigation operation" in the Paracel Islands; on April 29, the US cruiser USS Bunker Hill conducted another in the Spratly Islands.

The enactment of the China Coast Guard Law is likely to bring about a significant change in the current situation in the South China Sea.

4. Enactment of the China Coast Guard Law: A New Aspect

On January 22, 2021, the Standing Committee of the National People's Congress passed and enacted the China Coast Guard Law, which came into effect on February 1. Wang Wenbin, deputy press secretary of China's Ministry of Foreign Affairs, stated that the law is "in line with international conventions and practices of many countries. China's policy and position on maritime issues remain unchanged." However, some of its provisions include regulations that do not conform to the UNCLOS.

On March 8, 2021, Li Zhanshu, chairman of the NPC Standing Committee, clarified in the committee's work report that the Coast Guard Law was formulated "to implement Xi Jinping's thinking on strengthening the military, and respond to the needs of national defense and military development in the new era." Thus he revealed that the China Coast Guard would assume the character of a "second navy."

There are some five points that may be problematic (see the article: Shigeki Sakamoto, "Expanding Functions of the China Coast Guard: Exploring the Aims of the China Coast Guard Law," The Doshisha Law Review, No. 419, to be published May 31, 2021). This paper discusses two points of concern here.

(1) Ambiguity about "the waters under the Chinese jurisdiction" and added defense missions

Article 3 of the China Coast Guard Law provides: "the China Coast guard shall carry out maritime rights enforcement activities in and above the waters under the jurisdiction of the People's Republic of China and apply this law." Thus, the China Coast Guard Law adopts a vague expression, "the waters under the jurisdiction of the People's Republic of China," which the law fails to define. The ambiguous phrase seems to leave room for arbitrary interpretations convenient to China. It can be construed to represent strong repulsion to the 2016 South China Sea ruling.

What is worrisome in this context is the stipulation --- the China Coast Guard can "carry out maritime rights enforcement activities in and above the waters..." Since the airspace above territorial waters is territorial airspace, freedom of flight is not applicable in the airspace. Flight over the territorial waters is an infringement of airspace. On the other hand, freedom of overflight is applicable in the airspace above EEZs and high seas. If China exerts jurisdiction in this airspace, it will be a violation of international law. On April 1, 2001, a US Navy EP-3 reconnaissance aircraft clashed with an intercepting Chinese fighter jet over China's EEZ off Hainan Island. The disabled US aircraft landed in an emergency at a Chinese air base on Hainan Island. The incident made us understand China's intention to make its EEZ a territorial sea. What the UNCLOS grants to coastal states regarding their EEZs is sovereign rights over natural resources and jurisdiction over marine scientific research --- not rights associated with security.

Another point of concern is:

(2) Enforcement measures against foreign warships

Article 22 of the China Coast Guard Law stipulates: "When state sovereignty, sovereign rights, and jurisdiction are illegally infringed at sea by foreign organizations and individuals at sea, or face an imminent danger of illegal infringement, the China Coast Guard has the right to take all necessary measures including the use of weapons in accordance with this law and other relevant laws and regulations to stop the infringement and eliminate danger."

Foreign warships and public ships are granted, by international law, immunity from enforcement jurisdiction. If the China Coast Guard takes enforcement measures based on the above stipulation, it will violate the UNCLOS. Furthermore, Article 22 of the China Coast Guard Law expands the scope of the use of weapons to foreign organizations; Articles 46 and 49 can be read as allowing more aggressive use of weapons. China regards the waters around the Senkaku Islands as territorial waters under its sovereignty. If a Japan Coast Guard patrol boat interrupts a Chinese public vessel chasing a Japanese fishing boat, the possibility of the use of weapons by the Chinese public vessel will not be excluded. Because such interception could be interpreted as "nuisances" under the provision of Article 46-(3) of the China Coast Guard Law: "Obstacles or nuisances encountered in the execution of duties according to law." Besides, the China Coast Guard Law has endowed the China Coast Guard with additional defense missions. The use of weapons by the China Coast Guard, which has dual missions of defense and law enforcement, is accompanied by an ambiguity between the use of force in military activities and that in law enforcement activities.

Provisional measures order (2019) issued by the International Tribunal for the Law of the Sea (ITLOS) regarding "Case Concerning the Detention of Three Ukrainian Naval Vessels" (Ukraine v. Russia) stated: "Nor can the distinction between military and law enforcement activities be based solely on the characterization of the activities in question by the parties to a dispute." (Paragraph 65) It is noteworthy that the Tribunal held: "the distinction between military and law enforcement activities must be based primarily on an objective evaluation of the nature of the activities in question..." (Paragraph 66)

Thus, the China Coast Guard Law has highlighted the problem that China enacted a domestic law incompatible with the UNCLOS regarding legislation and enforcement. In other words, China ignored the UN Convention that calls for coordinated treatment based on the Convention when the countries concerned exercise legislative, executive, and judicial authority over the use of the sea.

The enforcement of the China Coast Guard Law signifies that, backed by the power of the China Coast Guard, the alleged world's largest maritime enforcement agency, China's international law violations will shift focus from legislation to law enforcement. If we overlook such moves from China, the maritime order in the South and East China Seas will be surrendered to the "rule of force" in place of the "rule of law."

5. South China Sea Incidents Involving Chinese Maritime Militia Following the Enactment of the China Coast Guard Law

On April 1, 2021, the Philippine government announced that it had discovered illegally constructed structures on Union Banks, an atoll in the South China Sea. Located about 320 kilometers west of Palawan Island, Union Banks consist of Whitsun Reef (Chinese name: Niue Reef, Philippine name: Julian Felipe Reef) and other reefs, whose territorial rights are now in dispute.

On March 7, 2021, about 220 Chinese fishing boats, suspected to be crewed by Chinese maritime militias, gathered in formation around Whitsun reef in the Philippine EEZ. Although the Philippines protested, it has to date been unable to remove the Chinese fishing boats on its own. In the South China Sea territorial disputes, China's demonstrative behavior mobilizing fishing boats is becoming a regular occurrence. If this is a move for China to build an eighth artificial island, it will be a blatant challenge to the 2016 South China Sea ruling and the international community.

On April 8, 2021, according to an AFP news report, a ship carrying Philippine news reporters on board was chased by a China Coast Guard vessel and two Chinese navy fast attack boats as the former approached Second Thomas Shoal (Chinese name: Renai Shoal, Philippine name: Ayungin Shoal) in the Spratly Islands. This seems to suggest an ongoing cooperation between Chinese maritime militias, the China Coast Guard, and the People's Liberation Army Navy.

Once China used a fleet of fishing boats, allegedly crewed by maritime militia, during the 1974 armed conflict with South Vietnam over the Paracel Islands. Two Chinese fishing boats blocked the path and collided against a South Vietnamese warship. Eventually, the Chinese and South Vietnamese navies engaged, and a South Vietnamese warship was sunk. China occupied the islands, which has since been under the effective control of the country to this day.

In times of armed conflict, there is the possibility that Chinese fishing boats equipped with advanced electronic equipment, such as communication systems and radar devices, may engage in reconnaissance activity and information gathering for the People's Liberation Army. They will contribute to military deception, communication jamming, surface transportation, ship repair, and emergency rescue. If in times of armed conflicts, these fishing boats provide support or information to the People's Liberation Army or engage in hostile acts, they will lose civilian protection and become military targets.

In times of armed conflict, the use of fishing vessels for military purposes is forbidden. Article 3 of the Hague Convention (XI) of 1907 Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War stipulates: "Vessels used exclusively for fishing along the coast or small boats employed in local trade are exempt from capture, as well as their appliances, rigging, tackle, and cargo," thus confirming the protection of peaceful fishing vessels. However, the same article also states that "They cease to be exempt as soon as they take any part whatever in hostilities. The Contracting Powers agree not to take advantage of the harmless character of the said vessels in order to use them for military purposes while preserving their peaceful appearance." Thus, the article mentions that fishing vessels converted for military use will lose the Convention's protection, and prohibits the Contracting Powers from using fishing vessels for military purposes.

6. How to Deal with Chinese Maritime Militias and the China Coast Guard in a Gray Zone Situation in the Senkaku Islands?

Perhaps the most critical problem for Japan is how to deal with Chinese maritime militias in the event of a gray zone situation. To tell the conclusion first, even in a gray zone situation where conditions for the exercise of the right of self-defense are not fulfilled, it will be possible, under international law, for a coastal state with sovereignty over its territorial waters to resort to the necessary use of force while considering the balance with legal interests to protect.

Imagine a situation that armed maritime militias or the China Coast Guard crews attempt an armed landing on the Senkaku Islands or that China engages in the use of force to infringe on Japan's territorial sovereignty. If, in that case, the exhaustion of all possible means, including diplomatic means, fail to eliminate their landing on the islands, the Japan Coast Guard will resort to water cannons, close approach, and warning shots in a step-wise manner within an extent strictly proportionate to a threat of armed landing. And still, if there is an imminent risk of armed landing due to resistance by the adversary, the Japan Coast Guard will be allowed under international law to conduct limited live firing on the scene. However, if no provision in the current Japanese law justifies such an action on the side of the Japan Coast Guard, which is permissible under international law, an amendment of domestic law or new legislation will be needed.

In this context, the following may be fresh in memory. In August 2012, a fleet of about 100 Chinese fishing vessels fled into Tamanoura Bay on Fukue Island in the Goto Islands. In August 2016, six Chinese public ships entered the contiguous zone around the Senkaku Islands, accompanied by about 230 Chinese fishing boats. Today, China's provocative behavior against Taiwan is becoming increasingly prominent. It is necessary to consider several scenarios on tactics that China could adopt to affect Japan's effective control of the Senkaku Islands. Japan should decide on a course of action, taking likewise into consideration the following elements that might further complicate the South China Sea situation: the effective control by Taiwan of the Taiping and Dongsha Islands; China's positioning of the Senkaku Islands as Taiwan's attached islands.

At a summit meeting on April 16, 2021, Prime Minister Suga and US President Biden reaffirmed that Article 5 of the Japan-US Security Treaty stipulating joint defense obligations would apply to the Senkaku Islands under the Japanese administration. It is what Defense Minister Kishi and Defense Secretary Austin had previously confirmed in their January 24 telephone conversation. Likely, China will hereafter attempt to create a gray-zone situation around the Senkaku Islands, which does not correspond to an "armed attack [a systematic and deliberate use of force]" as a condition for an application of the Japan-US Security Treaty. For ensuring a seamless response to such a gray zone situation that is neither peacetime nor an emergency, it is imperative to establish close cooperation between the Japan Coast Guard and the Japan Self Defense Forces.

Above all, the fact that the leaders of Japan and the United States underscored "the importance of peace and stability in the Taiwan Strait" in a joint statement from their meeting will have a significant impact on Japan-China relations in the future. The two leaders' consent in writing carries a different weight from a defense-ministerial talk over the phone.

In prior to the September 1972 Japan-China Joint Communiqué, Joint Statement of Japanese Prime Minister Eisaku Sato and US President Richard Nixon (November 1969) stated that "the maintenance of peace and security in the Taiwan area was also a most important factor for the security of Japan." However, Japan enunciated in the Japan-China Joint Communiqué: "The Government of the People's Republic of China reiterates that Taiwan is an inalienable part of the territory of the People's Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People's Republic of China". The Joint Communiqué brought about a fundamental shift in Japan-China relations. It is quite natural that China will perceive the recent Japan-US summit joint statement as infringing the nucleus of Japan-China relations. It may affect a great deal the basis of Japan-China relations to date and inevitably arouse a fierce reaction from China.

As a result, the security environment in East Asia will become increasingly tense, just as in the South China Sea.

(This paper was translated into English by Tsutomu Inuzuka, SSDP Associate.)

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