April 14, 2014
An Illegitimate Claim?
By Shen Dingli
Former adviser to United Nations Secretary General Kofi Annan

The Philippines has sued the Chinese government over maritime rights in the South China Sea. International relations analyst Shen Dengli argues that the Chinese secured territorial rights in the disputed areas decades ago.

China is now facing challenges to its maritime claims. The Philippines has just filed a lawsuit to the International Tribunal for the Law of the Sea against China over a dispute concerning its fishing rights in the South China Sea.

Manila considers itself to be solely entitled to all economic rights, including fishing rights, in its exclusive economic zone (EEZ), per the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Since China drew the so-called “nine-dotted line” in 1947, claiming part of the South China Sea as its own – including an area that is part of the Philippines’ EEZ – Manila has demanded that Beijing yield its economic claim in the overlapping area claimed by both countries.

But the Philippines is telling the world an incomplete story.

But the Philippines is telling the world an incomplete story. Sure, it has the right to sue another country in the International Tribunal for its own reasons. However, Manila should be mindful that a country has the right not to ratify a certain international treaty, or to make a reservation when joining a particular treaty. For instance, the United States has joined but not ratified the UNCLOS. China has joined and ratified the UNCLOS, but with certain reservations.

While the economic rights in the aforementioned overlapping area are significant, there is a more fundamental issue here: the sovereignty of the islands and islets in that area. China rightfully owned these rocks centuries before the UNCLOS. This cannot be undone just because the UN convention addresses the fishing rights in the waters surrounding these rocks. The UNCLOS is a treaty that addresses the division and sharing of economic rights at sea, but not the issue of sovereignty at sea.

A review of the basic history is telling. In terms of sovereignty over those sea-based territories, successive Chinese governments have claimed various islands, islets, shoals, etc. in the South China Sea. During the Han dynasty, the Chinese government brought Hainan Island under its jurisdiction. In the Tang dynasty, Chinese control extended to the Nansha Islands (the Spratly Islands). Eight centuries ago, during the Yuan dynasty, Beijing sent some officials to conduct a survey at Huangyan Island (Scarborough Shoal). When the Chinese government claimed all rock features in the South China Sea area in 1947, it was met with virtually no counterclaim.

Moreover, until 1997, successive Philippine governments made it clear – through their constitutions – that the nation’s westernmost territory ended at Luzon Island. In fact, Scarborough Shoal, 130 nautical miles west of Luzon, was completely out of the Philippines’ constitution-defined territory until 1997. It was therefore never an area covered by its defense treaties with either Spain or the United States.

There are two categories of dispute at stake – sovereign- ty and economic rights – and China has strong claims on both.

It was only in 1997, when Manila introduced its current constitution, that the Philippines began to claim all the islands within its EEZ. Yes, the 1982 UNCLOS gives the Philippines certain economic rights within this exclusive zone, but it doesn’t give it sovereignty over the Chinese islands and islets within that zone.

The Philippines has recently taken military action to occupy at least eight such islands – a serious infringement upon China’s sovereignty. In addition, in 1999, the Philippine Navy intentionally grounded its tank-landing ship at Ren’ai Jiao (Second Thomas Shoal), further encroaching on Chinese territory. Given such aggression, it should be China suing the Philippines and not the other way around. One is left wondering how a country that doesn’t respect the sovereignty of its neighbors can demand that other nations respect its own economic rights.

There are two categories of dispute at stake – sovereignty and economic rights – and China has strong claims on both. Until 1997, the Philippines accepted that it was not entitled to sovereignty over the Spratly Islands, but China has not accepted Manila’s EEZ without reservation. Manila cannot invade Chinese territory (and territorial waters) in the South China Sea while demanding that China yield its traditional economic rights to an international convention without reservation.

China has long proposed that both sides put aside their differences and co-develop in a fair manner. It has exercised significant self-restraint in dealing with the Philippines’ aggression and encroachment. Given this serious dispute, it is essential that both sides take meticulous care to communicate and ease the tension. But Manila has recently shown no interest in shelving differences. It has even employed gunships to arrest Chinese fishermen in the traditional Chinese fishing area. Facing such challenges, China has to respond resolutely to defend its legitimate rights.

Shen DingliShen Dingli is a former adviser to United Nations Secretary General Kofi Annan on strategic planning. He is currently the Vice Dean of the Institute of International Affairs, Fudan University.