COLUMNISTS: CROSSCURRENTS- China unleashes another deadly virus
China has unleashed another deadly virus into the world—this time a legal virus that can only roil even more the seething dispute in the South China Sea. Last week China approved a new law, to take effect Feb. 1, 2021, authorizing its Coast Guard to use armed force to secure its notorious nine-dash line claim to almost the entire South China Sea. China’s Coast Guard is the largest in the world, dwarfing the combined coast guards of five Asean coastal states protecting their exclusive economic zones against China’s hegemonic expansion in the South China Sea. China’s Coast Guard is backed up by its Navy, the largest in the world in terms of number of ships.
Under the new law, China’s Coast Guard can “take all necessary measures, including the use of weapons, when national sovereignty, sovereign rights, and jurisdiction are being illegally infringed upon by foreign organizations or individuals at sea.” The new law allows China’s Coast Guard to destroy structures built by other states on Chinese-claimed geologic features in the South China Sea. It authorizes China’s Coast Guard to set up exclusion zones and to board and inspect foreign vessels within China’s nine-dash line claim. In short, the new law enforces by armed might and deadly force China’s claim of ownership to all the geologic features, fish, oil, gas and other mineral resources to 85.7 percent of the South China Sea.
China’s new law clearly violates international law. The United Nations Charter expressly prohibits and outlaws the use or threat of armed force by a state against another state to settle territorial or maritime disputes. All such disputes must be settled peacefully by negotiation, mediation, or arbitration. A state is authorized to use armed force only in self-defense against armed attack by another state. Outside of self-defense, the use of armed force is allowed only if authorized by the UN Security Council to maintain international peace and security.
China’s use of armed force can only be justified if China is in prior possession of a geologic feature or maritime area and its Coast Guard is preventing an armed attack or unlawful intrusion by another state. There can be no justification whatsoever for China to use armed force to physically evict another state that is in prior possession of a disputed territory, that is, a high-tide geologic feature in the South China Sea. By now the actual physical possession of these high-tide features by specific coastal states cannot be disputed.
However, China may argue that it is in prior possession of maritime areas within its nine-dash line that are fully submerged and beyond the territorial sea of any state. The actual possession of such huge maritime areas is, of course, highly dubious as no state can physically possess such huge maritime areas. Nevertheless, China, claiming alleged prior possession, will exclude all ships of other coastal states that are exploiting the natural resources within such maritime areas. This is apparently what the Chinese spokesperson meant when she stated that China’s new law is consistent with “international conventions and practices of various nations.”
This argument, however, cannot apply to the Philippines because the July 12, 2016 Arbitral Award has declared that China’s nine-dash line is invalid to claim any of the waters or resources within the Philippine exclusive economic zone in the West Philippine Sea. In short, China cannot legally claim possession of this maritime area because of the Arbitral Award which is final and binding on China. Any possession of China anywhere in this maritime area is clearly illegal, and no valid claim or act can arise from such illegal possession. The Philippines then is legally inoculated from this Chinese legal virus because of the Arbitral Award.
Unfortunately, the Arbitral Award is binding only between the Philippines and China. To legally inoculate themselves from this Chinese legal virus, Vietnam, Malaysia, Brunei, and Indonesia will have to file their own respective arbitration cases against China for a declaration that China’s nine-dash line cannot divest them of their own exclusive economic zones in the South China Sea. Otherwise, these Asean coastal states will soon bear the brunt of China’s new legal virus, made deadly and virulent by the largest Coast Guard in the world and backed up by the largest Navy in the world.
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