Chinese President Xi Jinping's signature One Belt, One Road initative is gaining steam, and world leaders are taking notice. Photo: Reuters, Samrang Pring
Chinese President Xi Jinping's signature One Belt, One Road initative is gaining steam, and world leaders are taking notice. Photo: Reuters, Samrang Pring

Three months after the ruling by the Permanent Court of Arbitration on the South China Sea, the defiant words and actions of Beijing continue to perpetuate the widespread belief that the decision was a complete defeat for China.

It may be true that the tribunal severely undercut China’s claim to sovereignty over nearly all of that water body, but China has failed to appreciate the broader implications of the tribunal’s decision. Buried within the 501-page ruling is a decision that could open up millions of square miles of Pacific waters to China’s fishing fleet, the largest in the world. More than 4 million square miles of those previously protected waters surround US Pacific territories. This new legal benchmark could actually serve China’s global interests, at the expense of the United States and some of its allies.

The tribunal felt compelled to offer a concrete definition of an “island” under the UN Convention on the Law of the Sea (UNCLOS). According to UNCLOS, the government in sovereign control of an island can enforce a 200-nautical-mile exclusive economic zone (EEZ) around its shoreline. In contrast to islands, rocks only merit a territorial sea of 12 nautical miles.

Referring specifically to the currently occupied Spratly Islands of Itu Aba (Taiwan), Spratly (Vietnam) and Thitu (Philippines), the tribunal declared that they are mere rocks, making their 200-mile EEZ claims null and void.

The five-judge panel fleshed out the somewhat vague wording in the UN Convention on the Law of the Sea, that non-island rocks, “cannot sustain human habitation or economic life of their own.” In downgrading the three Spratly Islands to rocks, the jurists set a precedent by establishing a checklist of the requirements for a landmass to qualify as an island: fresh water, arable land and nearly continuous civilian habitation. If a feature does not meet those conditions but remains above water at high tide, it is a rock.

An unintended consequence of the decision is that it exposed the soft legal underbelly of some of the huge EEZ claims of a number of countries—including the United States and France. Both countries rely on a number of very small features in the South Pacific to greatly augment their continental EEZ claims.

The US territories are little-known to most Americans, but they form the bulk of the Pacific Remote Islands Marine National Monument, one of the largest marine conservation areas in the world. The entire monument is closed to commercial fishing, mining and drilling for oil. Unfortunately for the protection of these waters, they mostly surround coral atolls that would not meet the tribunal’s definition of an island if another country decided to contest American claims. The contaminated nuclear testing site of Johnson Atoll, for example, has only abandoned runways and military buildings. It has neither fresh water nor arable land. Other, similarly uninhabitable atolls in the reserve include Howland, Baker and Jarvis Islands, Palmyra Atoll and Kingman Reef.

The consequences for other nations could be even more significant. France claims a greater expanse of the Pacific under exclusion zones surrounding features that the tribunal would define as rocks. Japan and China have had protracted disputes over “islands” known to the Japanese as the Senkakus and to the Chinese as the Diaoyu, as well as the Okinotorishima Atoll. In both cases, Japan asserts sovereignty over comparatively insignificant features to gain access to vast ocean areas for fisheries, oil and gas. Neither has fresh water or arable land.

Given the criteria established in the Philippines vs. China arbitration, there is absolutely no question, for example, that Okinotorishima would not merit full entitlements as an island. At the very best, it could protect a 12-nautical-mile territorial sea. Rather than resist the ruling, China could take it as an invitation to further contest Japan’s claim in a legal action, which it would undoubtedly win.

In 2012, leaders of the Chinese Communist Party declared that becoming a “maritime power” was essential to the nation’s goals of spreading its influence, securing access to natural resources, protecting its citizens overseas and feeding its population. Rear Admiral Michael McDevitt of CNA has written that expanded maritime power is now a part of President Xi Jinping’s strategic intent: his “China Dream.”

China now has the world’s largest marine law-enforcement force—the equivalent of the US Coast Guard—and a merchant marine that has tripled in size in the past 10 years. At a time when most developed countries are implementing buy-back programs to limit the number of fishing vessels, China has built by far the largest fishing fleet in the world, with 2,500 distant-water fishing vessels and 200,000 coastal craft.

Given these maritime ambitions, Beijing’s continuing rejection of the South China Sea ruling suggests that careful analysis and reflection are not the order of the day. China may have reason to harbor bruised feelings over the tribunal’s blunt description of the ecocide that China’s island-building activities have inflicted on formerly pristine areas of the South China Sea. And China also took harsh criticism for its official acquiescence to outrageously illegal fishing practices and reef destruction by Chinese fisherman. But the Chinese leadership would do well to embrace at least parts of the tribunal’s decision and use it to China’s own legal advantage.

No responsible, Western-trained jurist can fathom a legal basis for China’s expansive claims in the South China Sea, the “nine-dash line.” As much as the tribunal decision stings the leaders in Beijing, it provides an opportunity for China to display constructive leadership and begin the process of negotiating with the Philippines and other Spratly Island claimants.

Such negotiations would pave the way for a cooperative approach to the management of the South China Sea’s fisheries and hydrocarbons, while defusing escalating tensions in the region. And respecting the authority of the tribunal would lend China credibility if it seeks to challenge EEZs in the Pacific.

Finding a way to embrace at least parts of the tribunal’s decision will help put Beijing’s maritime power aspirations on a far-seas trajectory. The Law of the Sea is China’s ticket to do just that.

Mark Rosen

Mark E. Rosen is the senior vice president and general counsel of CNA, a non-profit research and analysis organization in Arlington, Virginia. The views expressed here are those of the author alone, and do not represent the views of CNA or any of its sponsors.

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