China: a rogue state?

China’s recent pronouncement that it will now board vessels purportedly illegally entering its waters in the disputed West Philippine Sea has at least defined the nature of its claim to these troubled waters. Since three years ago when it opposed the joint submission by Malaysia and Vietnam for an extended continental shelf on an area that would include part of the disputed waters, China has argued that it has “undisputed sovereignty and sovereign rights” over the West Philippine sea. But it has left the international community guessing on the actual nature of its claim to the area. The infamous map with the 9-dash lines was then appended to its objection, illustrating for the first time the scope and breadth of what China is claiming to be its own. But because China’s statement invoked both “sovereignty” (which, pursuant to the UN Convention on the Law of the Sea, or Unclos, can be exercised only in internal waters and the territorial sea) and “sovereign rights” (which, pursuant to the same, is exercised only in the exclusive economic zone, or EEZ, that is 200 nautical miles from the baseline of a state), it was uncertain if it claimed the West Philippine Sea as a lake where its sovereignty may be exercised, or as part of its EEZ, where it can only explore and exploit the natural resources found there.

But after it announced its intention to board foreign vessels in the disputed waters, it is now clear that China treats the disputed waters as its internal waters.

The distinction between internal waters and territorial sea is that in the latter, foreign vessels have what is known as the “right to innocent passage” or the right to sail through a coastal state’s territorial waters in connection with a single uninterrupted journey without procuring the consent of the coastal state. This was a compromise reached by state-parties to the Unclos owing to the traditional importance of the seas to navigation. In contrast, there is no right of innocent passage in internal waters. This means that all foreign ships will have to procure the consent of the coastal state if they want to sail through them. By definition, internal waters are all waters landward reckoned from a state’s baseline.

Normally, the base point for drawing these baselines would be their low-water mark, or that point reached by water during low tide.

That China treats the West Philippine Sea as its lake and, hence, part of its internal waters, is precisely why it treats Panatag Shoal as an island despite the fact that a shoal is literally defined as being under water. This is because were it to claim otherwise, it would lose its claim to the Macclesfield Bank, also perpetually under water—pursuant to the maxim that water follows land territory.

In other words, by claiming that Panatag is an island and that Macclesfield is part of Panatag, as in fact it refers to both as the “Huangyang” group of islands, it is able to lay a claim to two geographic features that are at least 250 nautical miles from each other.

Given China’s additional claim to the Kalayaan group of islands, its logic is that all the waters within these three areas, all of which fall within its 9-dash line which Inquirer publisher Raul Pangalangan jokingly refers to as the “Chinese condom,” it would make sense—at least to the Chinese—that all these waters are internal waters, thus justifying the exercise of sovereignty, such as but not limited to boarding vessels passing therein without its consent.

Rightfully, the Philippines, Singapore, India, and now even the European Union, have all condemned China’s recent pronouncement as being fraught with danger. At stake in this pronouncement is the delicate balance reached by the international community when it entered, on the basis of consensus, into the Unclos. Under this compromise, unless the water is so closely linked to a state’s land territory, which is the nature of internal waters, all vessels should be allowed unimpeded access to the sea for the purpose of navigation. This has been one of the normative contents of international law since Grotius wrote his leading treatise “Mare Liberum,” recognized as the foundation of modern public international law: The seas belong to all, and to none in particular.

Clearly, China’s claim is utterly bereft of legal merit. Even if it may prove its title to Macclesfield, Panatag and the entirety of the Kalayaan group of islands (which is a far shot), the Unclos does not provide for any provision that will enable it to claim the waters within these areas as its internal waters. As it stands—and this is already to stretch legal reasoning—it will be entitled to pockets of territorial seas with the waters in-between either pertaining to other claimant-countries to the Kalayaan group of islands, or to the Philippines as part of its EEZ. But even under this scenario, the boarding of foreign vessels—save for instances involving transportation of dangerous drugs, piracy, slavery and illegal broadcast—is bereft of  legal basis.

For China to insist on boarding nonetheless will not only be illegal; it may finally galvanize not only Asean, Cambodian Prime Minister Hun Sen included, but also the rest of the world into branding China as the ultimate rogue state.

Harry Roque teaches constitutional and international Law at the University of the Philippines College of Law.