China argues that such small features can only be classified as rocks under the UNCLOS definition, and do not entitle a nation to extended maritime zones. China has been persistent in maintaining this position; it went on stating that “[R]ecognition of such a claim will set a precedent, which may lead to encroachment upon the high seas and the area on a larger scale.” This is the original view of China regarding countries claiming excessive entitlements from maritime features.

During the negotiations of UNCLOS, China played a leading role in protecting developing countries’ interests. For example in 1974 when discussing the concept of exclusive economic zones, China stated that “superpowers had for years wantonly plundered the offshore resources of developing coastal states, thereby seriously damaging their interests.” 

Throughout the negotiation process, China consistently objected to any accommodation of historic fishing rights that required coastal states to share the resources of their exclusive economic zones with other states that have historically fished in those waters. In short, China put the interests of the international community before its national interests.

Even on the dash line, whether it’s nine, 10, or 11, China also displayed its flexibility. It changed the dash line in the Gulf of Tonkin through a delimitation treaty with Vietnam. Again, this proved China could work in line with international law and not force its will against others.

But China shocked the world when it initially made the nine-dash line claim to protest Malaysia’s and Vietnam’s joint submission on an extended continental shelf back in 2009, the same year when it made a statement concerning Oki-no-Tori. China was sending mixed signals. 

This was then followed by a series of incidents with Indonesia, a non-claimant state, over the waters surrounding the Natuna Islands. 

Had China found a problem with Indonesia’s claims over the waters surrounding Natuna, it would have started to talk about and negotiate a solution since the negotiating process of UNCLOS began in 1972. At that time, Malaysia challenged Indonesia’s archipelagic state claim, but then resolved it through an agreement in 1982. Such compromise was also embedded in UNCLOS provisions, among others, concerning traditional fishing rights. 

Even before the UNCLOS negotiations kicked off, when Indonesia was entering a continental shelf agreement with Malaysia in 1969, which presumably also overlapped with China’s dash line claim, China was silent. Clearly China had no objection to this 47-year-old treaty. 

If China was right that history is a benchmark for rights over maritime zones, China had already stopped protesting Indonesia’s claim. Hence the statement by former Chinese ambassador to Indonesia Chen Shiqiu (The Jakarta Post, July 14), who said that back in 1995, the Indonesian foreign minister Ali Alatas and his Chinese counterpart Qian Qichen admitted there were different views over maritime delimitation separating the two nations but “did not go into details because by that time the issue was not as hot as it is now” was confusing. 

It is even more confusing when Chen said that although Indonesia had its own idea of its exclusive economic zone, China “may have its own rights over the area”, which completely opposed China’s position during the UNCLOS negotiations. 

China’s inconsistency was even more apparent during the course of the South China Sea arbitration against the Philippines. Since the initiation of the arbitration in 2013, China has refused to participate and bluntly alleged that the arbitration was illegal under international law. 

Indeed it is a very peculiar stance for China to take. While committing to solve disputes peacefully through negotiations in accordance with international law on the surface, China continues to enforce its power, including reclaiming disputed maritime features. This series of inconsistencies creates a notion that there is another branch of international law with a Chinese characteristic, an international law made in China. 

When the most anticipated award of the South China Sea arbitration between the Philippines and China was unveiled on July 12, unsurprisingly it was followed by the most anticipated rejection from China. 

Looking at China’s history as a champion of international law, it is expected that it will only be a temporary face-saving strategy. In the long run, it is expected that China will align itself with international law, particularly UNCLOS, as the constitution of the ocean. If in the past it has had difficulties defining its own claims, the award has now clarified matters for China, without interfering with its sovereignty claims over certain maritime features.

The Philippines as a party to the arbitration responded well, saying it will study the award and indicating its readiness to negotiate with China. Other claimants should also clarify their claims. Having the award as a reference, the time is ripe for all claimants, including China, to negotiate a final resolution in the same language of international law. 

Indonesia and other states should not stand idly by. As this award is an interpretation of UNCLOS as well as one of the sources of international law, other states should also regard it as guidance for their future conduct. 

In everyday life, particularly for business, predictability and stability is important. International law was made to foster stability. With regard to states’ conduct at sea, UNCLOS was negotiated and agreed upon as a package deal that balances the interests of states in the ocean. 

Since the beginning of UNCLOS negotiations, China has shown leadership and consistency in upholding the rule of law in the oceans. But when it gives too much weight to its so-called historical claim, it started to lose its balance. 

The persistence of China in its historical claims to the South China Sea is unexpected. It leaves us wondering about what it may do in the future. Will it take us back further to the past or exercise its power over all places where its troops have ever landed? Will it claim the Java Sea as it was sailed by Admiral Cheng Ho more than 600 years ago?

With its growing power, China is expected to continue to be a leader that leads by example, humility and respect for international law which was created by a community of civilized nations. As Lao Tzu says: “Avoid putting yourself before others and you can become a leader among men.”

***

The writer, who holds a PhD in juridical science on oceans law and policy from the University of Virginia School of Law, Center for Oceans Law and Policy, Charlottesville, the US, was a training fellow at the International Tribunal at the Law of the Sea in Hamburg.

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