Should China be permitted to “rewrite” the international law?

Should China be permittedThat is the question that experts, academics and the international public raised before the event of April 18, 2020 when China blatantly announced the establishment of the new two administrative divisions under the so-called “Sansha City” to govern Paracel and Spratly Islands. With this action, China continues to disregard international law and the fact that Vietnam has repeatedly affirmed that Vietnam has sufficient historical evidence and legal basis to assert sovereignty over the Paracel Islands and Spratly Islands. China’s perverse attitude in the South China Sea did not stop there, but a day later (April 19, 2020), China's Natural Resources Ministry and Civil Affairs Ministry released “standard names” for 80 geographical features in the South China Sea. Most of these features locate in the western part of the South China Sea, some of which are along the "nine-dash line" that Beijing unilaterally declared and is very close to the mainland of Vietnam.

Immediately after those Chinese actions many international experts and scholars have in recent days expressed their frustration at Beijing’s “unethical” and “unreasonable” actions.

Tweeting on his personal account, Greg Poling, Director of Asia Maritime Transparency Initiative (AMTI) of the Center for Strategic and International Studies (CSIS), a senior expert on the South China Sea, pointing out that most of the features that China renamed as “standard names” are submerged, so China “cannot claim sovereignty over the seabed”. Carlyle A. Thayer of the University of New South Wales, said that the moves were “provocative, contrary to international law, in violation of the Declaration on the Conduct of Parties in the South China Sea (DOC) and seriously jeopardized the negotiation process between China and ASEAN on a legally binding Code of Conduct in the South China Sea (COC).” Meanwhile, Jonathan G. Odom, a former marine policy advisor to the Office of the US Secretary of Defense, noted that every unilateral action of a party to the dispute is legally “meaningless” at the International Court of Justice if these actions are taken after the “critical date”, i.e. when the dispute already exists.

Bill Hayton, a Southeast Asia expert, said that the decision to establish Xisha District to manage Xisha and Zhongsha islands showed the absurdity in China’s claims because “actually the Zhongsha Islands did not exist.” Rather, it is a reef internationally named Macclesfield. In Hayton's interpretation, China's insistence on calling Zhongsha “islands” stemmed from the attempt to shape the modern Chinese map of Bai Meichu, a Chinese geographer, in the 1930s. Because of the misunderstanding of foreign materials, Bai drew underwater features as islands. The government in China then called the Spratly Islands on the map “Nansha”, and after World War II, when the Chinese government made a claim over these islands, China changed their names and merged Macclesfield Bank into “Zhongsha”. It is apparently “unethical”. Therefore, Bill Hayton emphasized, Zhongsha is a concept invented by China and China is “locked into the idiot position of claiming a group of islands that don't actually exist.” China ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982) which clearly defines areas over which states can or cannot claim sovereignty. Yet Beijing went against the UNCLOS 1982 by asserting sovereignty in a location very far from its mainland and “submerged”. The expert warned that China might try to ‘reverse the design’ of international law and centuries-old-agreements instead of admitting its mistakes. He therefore warned: “So the correct response is either to laugh at China for maintaining this ridiculous territorial claim or be concerned that China is attempting to rewrite international law and claim bits of underwater seabed hundreds of miles from its shores.”

Discussing the legal aspect and considering the strategy and upcoming steps of China from the above statement, many experts said that, this is a unilateral action from China, and it has no legal value. Under international law, in order to have legal value, a declaration must be based on international law and get the recognition of related countries. However, what China has been doing is in complete contrary to international law, for the following reasons:

First, China absolutely has no sovereignty over the Paracel and Spratly Islands. Beijing is occupying all of the features in the Paracels Islands and 7 features in the Spratly Islands, but their use of force to occupy them is a serious violation of international law and cannot give China legal sovereignty over those features.

Second, Vietnam has repeatedly asserted its long-standing and indisputable sovereignty over the two groups of islands, as confirmed by historical and legal evidence. Most recently, in its Note Verbal to the United Nations on March 30, 2020, the Vietnamese Government reaffirmed this position.

Third, China’s declaration that “the new people’s administration not only regulates the Paracel and Spratly Islands, but also controls the surrounding waters” is completely contrary to international law. According to UNCLOS 1982, submerged features are incapable of being subjected to territory acquisition and do not have their own seas. The features in Spratly islands, as well as Macclesfield, which China calls the “Zhongsha Islands” belong to this type. So, what does China base itself on to give itself the right to control over those areas? China has no sovereignty and UNCLOS does not allow it, hence, Beijing’s irrationality.

As for the 80 features recently named by China, many of them are found along the illegal “nine-dash line” and some are very close to the mainland of Vietnam. Multiple experts and scholars thought that China is seeking ways to “take over” not only Spratly and Paracel Islands, but also Vietnam’s Exclusive Economic Zone (EEZ) and continental shelf (CS), which were recognized under the 1982 UNCLOS. If they named those features, then they would later claim that those features belong to China long time ago and China already named them. Consequently, when Vietnam has any exploitation activities, China will consider those activities as infringes. That is, China always finds the ways to turn “nothing” in to “something.” Here, it is necessary to know that China is using an insidious measure to turn everything into a fait accompli and in the future, Beijing will have an excuse to say that those features with Chinese names are under China’s sovereignty. This is similar to the way China leans on the international name of the “South China Sea” to claim the sovereignty over nearly the entire of this sea. It cannot only be regarded as “unreasonable” but “silly” and “absurd”.

Strategically speaking, the Chinese contradictory declaration of the establishment of Xisha and Nansha districts, as well as the announcement of the “standard name” for 80 features in the South China Sea in the current context shows that Beijing with their wicked intention, is still seeking the ways to “monopolize” the South China Sea. Only by “monopolizing” the South China Sea can they fulfill the “Chinese dream” and become the No. 1 power in the world. Despite much opposition, Beijing still chooses those points of time when the world is drawn into other things and not paying much attention to the South China Sea to undertake the actions. It is in order to strive to become the “most powerful country” among the big powers, China did not forget to take “petty acts.”

The upgrade of what China calls “the city of Sansha” in the South China Sea in administrative hierarchy from “township-level city” in 2007, to “county-level” in 2012, and now “municipal district”, indicates that this is Beijing's long-term plan and it has been “planned” for a long time. Since 1982, when China outlined the so-called “sea plan,” General Liu Huaqing, the third Commander of the Chinese Navy, declared that China needed to master the ocean. This plan is expressed through the 3-stage Naval Development Strategy, which revolves around the doctrine of “two island chains” in the Western Pacific. The goal of this strategy is that China would possess a blue-water navy of global level by 2040. The recent developments completely coincide with what China is pursuing and reveal some message: 1/ China never gives up its “devil intention”. 2/ China also wants to test the world's reaction. If the world does not react strong enough and China knows that it could continue to act, it is likely that Beijing will take further steps.

Professor Jay Batongbacal, Director of the University of the Philippines’ Institute for Maritime Affairs and Law of the Sea said that China's establishment of these new districts was an attempt to prove that China had “absolute” control over the disputed areas. In recent years, China has turned artificial islands into strategic military “outposts” with modern weapons, ports, runways, communication facilities, etc., to proactively respond to the situation and boost the ability to monitor other countries’ activities in the South China Sea. China’s illegal and provocative acts taking place with dense frequency put countries in the region into “the verge of war”. China is trying to stir up security in the South China Sea, threatening the legitimate interests of other nations, undermining international law and testing the solidarity of ASEAN members. Despite the Covid-19 pandemic, Beijing has still acted to shape its general perception of the so-called “sovereignty” in the South China Sea with the “nine-dash line”. Beijing is trying to show that it is fully capable of administrative management, economic activities and military deployments in these areas. If countries in the region do not protest, then this silence will be cited by China as recognition of China's legitimacy sovereignty in the South China Sea, even though it is illegal.

The Economic Times of India on April 21, 2020, said that China's actions ignored claims of other parties concerned in the region, violated the norms of UNCLOS 1982 as well as standards of international law. Further, the newspaper stressed that every country must respect international law, freedom of navigation and overflight in the South China Sea, instead of doing things at will.

Grigory Lokshin, an expert from the Centre for Vietnam and ASEAN Studies under the Russian Academy of Sciences’ Institute of Far Eastern Studies, said that China’s actions are in violation of the UN Charter and UNCLOS, making the region more complex and tense. With regard to Vietnam’s reaction, Loksin said that Vietnam has been exercising a responsible and reasonable policy amid the current situation. Vietnam is doing everything it could to protect its sovereignty and legal interests in the South China Sea, whilst simultaneously, making every effort to maintain peace and stability throughout the region. In its capacity as the ASEAN Chair, Vietnam is taking measures to unite ASEAN and offer common views on China's illegal actions. In addition, as a non-permanent member of the UN Security Council, Vietnam is making efforts to clarify its position and win the support of nations across the international community. Grigory Loksin highlights that “Vietnam is keen to pursue an open and multilateral foreign policy, which has contributed to raising its reputation in the international arena”.

It could be seen that China's recent acts of “benefitting while harming others” in the South China Sea are reminding countries in the region that they must always be vigilant in defending their sovereignty. ASEAN countries, countries with interests in the South China Sea including the US, Russia, Japan... are threatened by China’s smokeless war in the South China Sea. An effort to coordinate and unify to prevent China's regional “hegemonic” actions is now urgent. A coordinated and clear engagement from the major countries who respect the right together with the greater determination of ASEAN and many other countries may, within the narrow scope, help to curb China's military adventure in the South China Sea; and on a larger scale, is a way not to allow Beijing to “rewrite” international law. That is the proposal of many experts and scholars before such actions from China.