China’s administrative activity in East Sea null and void

The Fiery Cross Reef in the Spratly archipelago (Photo: CSIS/AMTI)

In 2019 China violated Vietnam’s sovereignty after sending survey vessel Haiyang Dizhi 8 along with its coast guard and paramilitary escorts to Vietnam’s territorial waters, staying there for more than 100 days. It also sent vessels to the waters of Malaysia, the Philippines and Indonesia in 2019 and early 2020 without permission. Most recently, in early April 2019, a Chinese coast guard ship sank a Vietnamese vessel fishing in the Vietnamese waters.

While Haiyang Dizhi 8’s exploration plan near Malaysia’s waters has been strictly monitored by the public in recent days, China took another step in violating international marine law.

The Chinese Ministry of Civil Affairs announced on April 18 that the State Council of China has approved the establishment of the Xisha and Nansha districts under Sansha city, Hainan province.

According to the announcement, the Xisha administration will be based in Woody Island, of the Paracel while the Nansha administration will be placed in the Fiery Cross Reef of the Spratly. The new districts will govern the Paracel Islands and Macclesfield Bank, as well as the Spratly Islands and their adjacent waters.

The Chinese announcement is null and void for the following reasons.

1. China absolutely has no legal sovereignty over the Paracel and Spratly Islands. Vietnam has repeatedly asserted its sovereignty over these two archipelagos. In a note to the United Nations dated March 30, 2020, the Vietnamese Government reiterated that “Vietnam has ample historical evidence and legal basis to assert its sovereignty over the Paracel and Spratly Islands in accordance with international law. Vietnam affirms that as between Vietnam and China, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the sole legal basis for and defines in a comprehensive and exhaustive manner the scope of their respective maritime entitlements in the East Sea.”

2. It is worth noting that China has violated international law when using force to occupy the Paracel archipelago and 7 marine features of the Spratly archipelago. Article 2 of the United Nations Charter states: All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

In addition, in its Resolution 2625 issued in 1970, the UN General Assembly did not permit a state to use force to threaten the territorial integrity of another sovereign state. Therefore, China’s occupation of these entities is illegal.

3. The latest Chinese move also violates international law, including the UNCLOS 1982. In a note dated March 30, 2020 to the United Nations, Vietnam reiterated that “low-tide elevations or submerged features are not capable of appropriation and do not, in and of themselves, generate entitlements to any maritime zones.”

This view is based on an important principle of international marine law, that is "the land dominates the sea." This is a general principle of international law, developed by way of customary law and judicial decisions, which was affirmed by the International Court of Justice (ICJ) in its 1969 North Sea continental shelf judgment and was later legalized in Article 121 (2) of the UNCLOS 1982.

According to this principle, features, both below and above sea level at low and high tide, together with those below sea level cannot be the territory subject to any sovereign claims there. It is because the territory can be only claimed for the land and islands which are naturally formed areas of land surrounded by water and submerged at high tide.

Moreover, the Macclesfield Bank, part of what China calls the Zhongsha islands, is an elongated sunken atoll of underwater reefs and shoals in the East Sea.

Therefore, the Chinese government's sovereignty claim over features, both below and above sea level at low and high tide, together with those below sea level is a serious violation of international maritime law. China’s latest move to establish the two districts clearly shows its unilateral ambition to assert its control over the East Sea.

It is certain that parties concerned will not fold their arms to see China blatantly violate international law.