Are China’s ‘provocative’ actions in the South China Sea lawful? It’s complicated

China should not allow its fishermen to enter the Philippine EEZ without permission, to harass or block Philippine fishermen from fishing there or to try to intimidate other claimants
But in territories claimed by Beijing and Manila, both have a right to be there

Mark J. Valencia

Published: 3:30am, 20 Apr 2023

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In last week’s joint statement, the Philippines and United States hit out at China for “its unlawful maritime claims, militarisation of reclaimed features, and threatening and provocative activities in the South China Sea”, including the “repeated massing” of its maritime militia vessels in the Philippine exclusive economic zone (EEZ).

Such alleged depredations have been amply repeated in the media without qualification. Although viewed as wholly provocative by rival claimants, some of China’s actions are reasonable and legal. Others are not. Policymakers, analysts and the media should distinguish between the two.

Here are some examples. On March 10, a Chinese coastguard vessel warned a Philippine coastguard plane with journalists flying over a disputed area: “You have entered [waters] around a Chinese reef and constituted a security threat. To avoid misunderstanding, leave immediately.”

The Philippine pilot maintained he was within Philippine territory. But if he was flying over a high-tide feature or its territorial sea, both China and the Philippines have a legal basis for their actions, according to the UN Convention on the Law of the Sea (Unclos).

China claims sovereignty to all features in the South China Sea and views occupiers as violating its sovereignty. To support a sovereignty claim to a high-tide feature, a country must show continuous, effective occupation or control, and acquiescence by other claimants.

None, including China and the Philippines, can show this. Thus China’s claims are as valid as others’. Even the US, for all its meddling in the South China Sea, does not take a position on the sovereignty of the features.

The Philippines frequently complains of China’s vessels “swarming” around features it claims or occupies, like Thitu island, known locally as Pag-as a, in the Spratlys. But if China’s vessels are within the territorial sea of its claimed high-tide features, they are there legitimately, regardless of who occupies the features.

Moreover, those vessels outside the territorial sea may claim freedom of navigation, especially if they are travelling to or from China’s claimed territorial waters. This may include anchoring in other’s EEZs, among what Unclos calls “other internationally lawful uses of the sea”. The US often cites this to justify the presence and activities of its warships in others’ EEZs.

China crosses legal boundaries when it tries to enforce its claim to features that are under water at high tide and which lie on others’ continental shelves, such as Mischief Reef and Second Thomas Shoal. Moreover, there is no accepted legal basis for its historic nine-dash line and attempts to enforce it. Indeed, claimants’ threats to use military force to back up their claims risk violating Unclos and the UN Charter.

Another sensationalised incident, two months ago, was when a Chinese coastguard vessel pointed a laser at its Philippine counterpart near the Philippine-occupied Second Thomas Shoal. The submerged coral atoll lies on the Philippine continental shelf and within its EEZ. In this case, China’s actions were unfriendly and a violation of the non-binding Code for Unplanned Encounters at Sea, to which both China and the Philippines are parties. But China claims its vessel used the laser as a rangefinder.

04:04

Fishermen in South China Sea are at the centre of territorial crossfires

China is wrong to let its fishermen sail into the Philippine EEZ without permission, to harass or block Philippine fishermen there or to try to intimidate other claimants from exploring and exploiting hydrocarbons in their EEZs.

Doing so violates both the 2016 international arbitration panel ruling and the Declaration on the Conduct of Parties in the South China Sea, which urges the “exercise [of] self-restraint in the conduct of activities that would complicate or escalate disputes”. Of course, China might argue that other claimants are doing the same – but two wrongs don’t make a right.

As for China’s militarisation of the high-tide features it occupies, like other claimants, it has a right to defend its territory.

Right now, there is a large group of Chinese vessels anchored or operating within the 12-nautical-mile territorial sea around Thitu and Sandy Cay. The issue of Chinese vessels “swarming” around disputed features, sometimes Philippine-occupied, is complicated.

Thitu is a high-tide feature, meaning it is a legal rock entitled to a 12-nautical-mile territorial sea. China claims and occupies Subi Reef, about 16 nautical miles to the west, a low-tide feature not entitled to a territorial sea and which cannot be claimed as territory.

Many think China’s sovereignty claim on Subi is invalid, that Subi lies within the Philippines EEZ and on its continental shelf – thus, the gathering of Chinese vessels near it is illegal. But Subi also lies within the territorial sea of Sandy Cay – three high-tide sandbars between Thitu and Subi.

In effect, Sandy Cay extends Thitu’s territorial sea. Both China and the Philippines claim these sandbars. For Chinese vessels, they are within China’s claimed territorial sea.

02:19

Philippine President Duterte admits being at a loss getting Beijing to honour South China Sea ruling

In 2017, the Philippines began to build fishermen’s shelters on these sandbars. China objected and president Rodrigo Duterte ordered the construction to stop and the shelters to be dismantled. The reason: the Declaration on the Conduct of Parties – still operative amid negotiations for a binding code – forbids “inhabiting on the presently uninhabited islands, reef, shoals, cays and other features”.

Beijing claimed Manila violated the agreement. China may fear this happening again and want to prevent Philippine fishermen’s access to Sandy Cay, and from fishing in what it considers its territorial waters.

The situation is legally complicated. China is taking both legitimate and illegitimate activities in the area. Analysts and the media need to separate the wheat from the chaff.

Mark J. Valencia is a non-resident senior research fellow at the Huayang Institute for Maritime Cooperation and Ocean Governance