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China is still looking for new arguments to refute the Court’s findings … The legal war in the South China Sea is not over yet.
On September 18, China sent the CML / 63/2020 note in response to the France – England – Germany general note to the UN Secretary General 2 days earlier expressing their views on the 7 notes of the Chinese Mission. Proposal for circulation at the UN regarding the file on the expansion of the Malaysian continental shelf presented to the UN Commission on the Limits of the Continental Shelf (CLCS) on 12/12/2009.
Go against international law
In their joint note, the three countries emphasize the global and consistent nature of UNCLOS by establishing a legal framework that defines maritime zones and the implementation of maritime activities around the world. The Note emphasizes the unified integrity of the Convention on a global scale.
On the contrary, China maintains that UNCLOS is not everything. In addition to UNCLOS, there is also general international law. Paragraph 8 of the preamble to UNCLOS states that “matters not covered by the Convention will continue to be governed by the rules and principles of general international law.” This argument was developed by China after the 2016 East Sea Judgment and was formally addressed by Vice Foreign Minister La Chien Huy at the international seminar on “South China Sea from the perspective of cooperation” held on the island of Hai. Man on September 2.
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| The British Navy warship HMS Argyll participated in exercises with the US Navy in the South China Sea in January 2019. Photo: US Navy. |
The note dated September 18 from the Chinese delegation officially put this argument in the South China Sea dispute in the UN forum. This note describes the current negotiations on legal documents for the conservation and fair use of marine biodiversity in areas outside the national jurisdiction (BBNJ) in which China actively participates as an example of the development and perfection of UNCLOS.
In fact, UNCLOS is a maritime charter that covers general provisions for all maritime zones and areas of maritime activity. The preamble of the 1995 Convention on Migratory Fish Stocks and the 2018 BBNJ Negotiation Document state that these documents were prepared on the basis of UNCLOS, within the framework of UNCLOS regulations, in accordance with UNCLOS and without prejudice of the rights, powers and obligations of states under UNCLOS.
The waters outside the national jurisdiction are determined on the basis of clearly delimiting the exclusive economic zones and the continental shelf of the coastal state in accordance with the provisions of UNCLOS. The baseline issues and the regulation of islands and floating entities are the issues that have been regulated by UNCLOS after 9 years of negotiation. UNCLOS is a packaged solution, requires consistency in interpretation and application, and does not accept specific exceptions.
The note from the Chinese delegation affirms that China has territorial sovereignty and maritime rights established in a long history and has the consistency of successive governments, in accordance with international law including both the United Nations Charter and UNCLOS.
However, the 1980 China White Paper states that Chinese fishermen were the first discoverers, names, and administrators of islands in the South China Sea. This goes against international law, which stipulates that only peaceful, continuous, and actual acts of government property carry the title of sovereignty.
French – English – German perspective
Historically, Chinese governments have recognized the southernmost point of Chinese territory as Hainan Island. Until 1909, China had a new dispute over the Paracel Islands and in 1935 the submerged archipelago of Trung Sa was still given the name Nam Sa. The use of force at Hoang Sa in 1974 and Truong Sa in 1988 was not a measure to create a sovereign title confirmed by the UN Charter.
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| The British aircraft carrier HMS Queen Elizabeth is expected to visit the South China Sea next year. Photo: Reuters |
The September 18 note said that China appreciated the importance of the provisions of the Convention and the conditions applicable to the delineation of the territorial sea. At the same time, China also believes that the practice established in international law should be respected with respect to islands near the coast of the coastal state.
This means that China assumes that there is an international custom to use straight archipelagic baselines for these offshore islands and that the coastal state can adopt straight baselines in accordance with Article 7, Part II. apply the archipelagic baseline in accordance with Article 47, Part IV of the UNCLOS to obtain the maximum benefit.
Note that France, England and Germany have the opposite opinion. Part II of the Convention applies to archipelagos and marine entities of a coastal state. Part IV is applicable only to the archipelagic state. There is no legal basis for disregarding the relevant provisions of Part II or knowingly applying Part IV to the islands and marine entities of the coastal state.
China’s argument builds on the 2018 study by the China International Law Association to refute the South China Sea ruling. This study cited 19 offshore archipelagos that applied a straight baseline. Of these, France, Great Britain and Australia are mentioned (France with the Kerguelen Islands; Guadeloupe and New Caledonia; Australia with the Houtman Abrolhos and Furneaux Group Islands; Great Britain with the disputed Turks, Caicos and Falkland Islands).
But it is these countries that are opposed to China applying the archipelagic straight baseline to the Paracel Islands and plan to apply more to the Nan Hai archipelago. The notes from these countries are evidence that there is no international practice in applying archipelagic straight baselines to islands near the coast of the coastal state as declared by China.
The legal war is not over
China’s note does not respond to points 4 and 5 of the France – England – Germany note on the status of the islands and claims of historical rights. The note of the three countries establishes that land reclamation activities or any form of artificial transformation cannot change the characteristics of an entity according to UNCLOS. The Chinese delegation’s note only reiterates that China’s territorial sovereignty and maritime rights in the South China Sea will not be harmed under any circumstances due to an illegal ruling in the South China Sea.
Point 4 of the Chinese note states that China is trying to resolve the disputes in the South China Sea through friendly consultations with the countries directly concerned. China and ASEAN are committed to the full and effective implementation of the Declaration on the Conduct of the Parties to the East Sea DOC.
However, reality shows that the Department of Commerce has failed to promote the effect of refraining from the use of force and threatening to use it, nor has it prevented the expansion of land occupation and reclamation activities. The DOC’s failure forced countries to find a new COC, but the negotiation was still very difficult, while Vietnam and Philippine fishing boats were always in danger, oil and gas exploration and exploitation activities were on the scale 200. nautical miles off the coast of coastal countries are always at stake.
The War of Notes started in Malaysia in December 2019, so far it has 23 official notes and letters (China – 8, Philippines – 2, Malaysia – 3, Vietnam – 3; Indonesia – 2, US – 1, Australia – 1, France – United Kingdom – Germany – 3).
Brunei and several other countries also issued statements to demonstrate their position. Most countries support the conclusions of the South China Sea ruling which rejects the claim of historical rights, does not allow floating entities in Truong Sa to have a maritime area greater than 12 nautical miles and does not apply archipelagic baselines. for the Spratlys as a unified unit.
As more and more countries take a common position, these findings may have an effect to all (applicable to all). China is still looking for new arguments to refute the Court’s findings, as well as to have a new interpretation of the provisions of UNCLOS. The legal battle in the South China Sea is not over yet.
Nguyen hong thao
Joint note to France, Great Britain, Germany and the legal war in the South China Sea
France, Great Britain and Germany send general notes expressing their views with 7 notes from the Chinese delegation proposed to circulate at the United Nations.
