How Sentiment Matters in International Relations: China and the South China Sea Dispute. David Groten
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Law generally distinguishes between islands and other maritime features. Pursuant to Art. 121 (1) UNCLOS, an island “is a naturally formed area of land, surrounded by water, which is above the high tide”. In contrast, rocks that “cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf” (Art. 121 (3) UNCLOS). Therefore, islands, unlike rocks and other features, provide the coastal state with certain maritime rights (Art. 121 (2) UNCLOS), including a territorial sea of 12 nautical miles (nm), a contiguous zone of another 12 nm, an exclusive economic zone (EEZ) of 200 nm and a continental shelf. In each of these zones, coastal states enjoy specific rights. An EEZ confers upon coastal states the right of resource exploitation and exploration inside the respective waters, at the seabed and the subsoil thereof. However, an EEZ does not grant any territorial rights. Hence, coastal states cannot regulate maritime traffic inside their EEZ, contrary to maritime traffic inside their territorial sea. EEZs and territorial sea are not necessarily measured from the coastline but may be measured from a coastal state’s islands as well. Unlike islands, any other type of feature such as rocks does not provide [70] the coastal state with an EEZ or continental shelf, but only with a territorial sea of 12 nm. Furthermore, coastal states may seek an extension of their continental shelf (in the case of islands and mainland only) if they can prove that the seabed in that area is still part of their continental shelf. A continental shelf provides coastal states with the rights to explore and exploit resources at the seabed and the subsoil thereof, yet not in the water itself. Hence, the core legal challenge underlying the SCS dispute is that both the general status101 and sovereignty of most of its features remain unclear and disputed. In addition, all claimant states but Brunei actively occupy SCS features. Several claimant parties have submitted extended continental shelf claims and have engaged in island construction/land reclamation activities102, thereby seeking to turn rocks into islands by establishing outposts, runways and other military and civilian infrastructure. As a result, the political and legal situation remains extremely complex, despite the final verdict of the Arbitral Tribunal in the case Philippines v. China (chapter 4.3).
Source: Own representation
Table 3: Important Events in the South China Sea: 1950–2016
| Date | Event |
| 2016, July 12 | The PRC rejects the Arbitral Tribunal ruling and considers it void |
| 2016, July 12 | The final award of the South China Sea arbitration case (Republic of the Philippines vs. People’s Republic of China – PCA Case No 2013–19) is published. Therein, the Arbitral Tribunal concludes that China has no legal basis to claim historic rights to resources in SCS waters and rejects China’s claims to historically exercised exclusive control over SCS waters, maritime features and resources therein. |
| 2016, July 8 | Perfecto Yasay Jr., Philippine Foreign Secretary, announces that the Philippines is willing to share the natural resources of West Philippine Sea with China (even if it is going to ‘win’ the legal challenge against China) and to start ‘direct talks’ with China. |
| 2016, March 14 | Beijing announces that it will set up an International Maritime Judicial Center similar to the United Nations Convention on the [71] Law of the Sea (UNCLOS) in order to help protect every country’s sea rights. |
| 2016, May 9 | Rodrigo Duterte wins the 16th Philippine presidential elections. |
| 2015, November 14 | Indonesia declares its intention to file a case against China’s claims over Natuna Islands. |
| 2015, November | Three significant regional summits discussing SCS issues: Asia-Pacific Economic Cooperation (APEC) summit in Manila, Philippines; ASEAN summit in Kuala Lumpur, Malaysia; and East Asia summit, also in Kuala Lumpur. Further steps toward a binding code of conduct are taken. |
| 2015, October 27 | First U.S. freedom of navigation operation (FONOP) in SCS waters. |
| 2015, July 7 | Hearings of the pending Philippines v. China case. They are attended by observers from Japan, Malaysia, Thailand, Vietnam and Indonesia. In the hearings, Albert del Rosario, Philippine Secretary of Foreign Affairs, outlines the general case against China, highlights that the Philippines recognizes that the Tribunal cannot rule on issues of sovereignty, and argues that his country is instead demanding an outcome that rejects China’s nine-dash-line claim and the historic rights reasoning. Likewise, Rosario states that past attempts of bilateral negotiations between China and the Philippines have failed, forcing the Philippines to initiate arbitration procedures. (Philippine Gvt., 2015a). |
| Since 2015 | The Philippines launches a series of civilian and military infrastructure projects on SCS features. |
| 2014,December 7 | PRC Foreign Ministry publishes the ‘Position Paper of the Government of the PRC on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines’. This paper argues that the Tribunal lacks the jurisdiction to rule on this case. Hence, China adheres to a position of neither accepting nor participating in these proceedings. |
| 2014,May | Oil rig HD-981 incident. Following China’s set-up of an oil rig in disputed waters, Vietnamese naval ships and Chinese vessels collide in the South China Sea (at least one Vietnamese ship sinks). The ASEAN express ‘serious concern’ and call for ‘self-restraint’. In mid-July, China evacuates the rig. |
| 2014, March 30 | The Philippines submits its memorial (legal analysis and evidence) against China over competing SCS claims to the Arbitral Tribunal in The Hague. |
| 2014,March 9–29 | Ren’ai Reef (Second Thomas Shoal/Spratlys) standoff between PRC military and paramilitary vessels and the Philippine navy. |
| 2014 | Vietnam starts to conduct (moderate) island construction activities in the SCS. |
| 2014 | China launches a series of island construction and land reclamation activities in the SCS. It begins with the transformation of Mischief Reef (Spratlys) into an artificial island. In 2016, island building measures extend to the North Island and [72] Tree Island (Paracels) as well as Fiery Cross Reef (Spratlys) and Duncan Island (Paracels). |
| 2013, August 1 | The PRC files a note verbale clarifying that rejects the arbitration initiated by the Philippines and, thus, will not participate in the proceedings. |
| 2013, February 19 | The PRC files a note verbale rejecting the Philippine claims set out in the Notification and Statement of Claim. In addition, it requests the Philippines to resolve the dispute through bilateral negotiations instead. The Arbitral Tribunal, the PRC clarifies, lacks jurisdiction in the given case. |
| 2013, January 22 |
The Philippines institutes arbitral proceedings against China under Annex VII to UNCLOS and, in its ‘Notification and Statement of Claim’ summarizes its |