Australia has recently made a declaration to the United Nations that “there is no legal basis” that justifies China’s claims to 90% of the South China Sea. This follows an unplanned naval encounter between Australian and Chinese warships near the Spratly Islands in the South China Sea. Australia’s declaration is in line with The Hague’s 2016 ruling on China’s claims and adds to US criticism that China’s actions in the disputed waters were “unlawful” and “bullying”.
THE NINE-DASH LINE
The South China Sea is a vast body of water (3.6 million square kilometres) surrounded by several countries[1], each with claims to own part of the sea. The maritime territory is lucrative because it is thought to contain a wealth of oil, natural gas, and fish. In addition, the waters are strategically important in a military and commercial context: 30% of the world’s shipping trade passing through the area which marks a meeting point between six Asian nations.
The United Nations Convention on the Law of the Sea (UNCLOS) should solve this ownership dispute with a simple rule: all the relevant states can extend their exclusive economic zone (EEZ) to 200 nautical miles from their shores. However, since 2009 Malaysia, Vietnam and China have been looking to extend their territory by claiming a smattering of tiny islands in the middle of the sea: the Spratly Islands and the Paracel Islands. As tensions rise in the battle for these islands, Chinese tactics have included building artificial islandsas military bases and flexing its naval power.
Furthermore, China has an unusual territorial claim the South China Sea based on its history. This territorial border is called the nine-dash line – an imprecise line which encompasses the vast majority of the sea. China’s basis for its claim was rejected by an international tribunal in The Hague in 2016 and are not in line with UNCLOS. The ruling clarified two other important points. First, the South China Sea is categorised as a “semi-enclosed sea” under the Law of the Sea Convention, which means that nations should co-operate over all issues in the area. Second, it decided that the Spratly Islands did not meet the requirements to be categorised as land that extends the owner’s EEZ. In other words, the islands are legally worthless in this dispute.
INTERNATIONAL LAW OR INTERNATIONAL WAR?
As tensions have risen, certain nations, including the UK, the US, and Australia, have been carrying out freedom of navigation operations. These nations routinely sail military ships through the South China Sea to ensure that freedom of navigation (a rule in UNCLOS allowing ships to have “innocent passage” twelve nautical miles from another state on a direct route) is not being violated. However, Australia and the US have both recently encountered Chinese warships in the sea. This has sparked both nations to openly condemn Chinese action in the South China Sea, a claim that China has vehemently rejected.
The US’s condemnation of Chinese actions in the sea continue a trend of escalating tensions between the two superpowers. The White House has criticised China’s response to the riots in Hong Kong, human rights violations in Xinjiang, and has blamed the country for starting the global COVID-19 pandemic. Since 2007, the US has been Australia’s largest trading partner and the pair have strong diplomatic ties. As relations with the US have warmed, the Chinese have demonstrated their disapproval by issuing warnings to citizens about studying in Australia in order to damage its valuable international student market.
Whilst Australia is not keen to see an escalation in tensions, any further action by China could make the country decide between defending international law and its own commercial interests. Ultimately, the more aggressive stances from the US and Australia could boil down to a troubling dilemma: respect international law or fight an international war?
[1] China, Malaysia, the Philippines, Brunei, Vietnam and Taiwan
William is a modern languages student at the University of Bristol and has a training contract offer at a Magic Circle firm. He is especially interested in technology and the law developing around it.