A grave threat to world peace
What has prevented a third world war are two provisions in the 1945 United Nations Charter. The first provision outlaws the threat or use of force to settle disputes between or among states, while the second provision mandates the peaceful settlement of international disputes. These two provisions compulsorily prescribe, “All Members shall” (1) “refrain xxx from the threat or use of force against the territorial integrity or political independence of any state”; and (2) settle their disputes through “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” Before the adoption of the UN Charter, threat or use of force, if successful, was a legitimate means of acquiring territory.
The United Nations Convention on the Law of the Sea (Unclos), which governs maritime issues, mandates that “States Parties shall settle any dispute concerning the interpretation or application of this Convention by peaceful means” in accordance with the two foregoing provisions of the UN Charter. In short, international law prohibits the threat or use of force to settle territorial or maritime disputes between or among states, and mandates the peaceful settlement of such disputes through negotiation, mediation, or arbitration. Armed force can be used by a state only in self-defense, whether individual or collective, or when authorized by the UN Security Council to maintain world peace.
China’s new coast guard law, which took effect last Feb. 1, 2021, authorizes China’s coast guard to fire on ships of other states that fish or conduct “economic activities,” like surveying or drilling for oil and gas, in waters claimed by China, even if the waters are situated beyond the territorial sea, exclusive economic zone (EEZ), or extended continental shelf (ECS) of China. China claims all the natural resources found in waters constituting 85.7 percent of the South China Sea. China’s claim encroaches on the high seas, and on the EEZs and ECSs of the Philippines, Vietnam, Malaysia, Brunei, and Indonesia.
Under Unclos, the fish in the high seas belong to all mankind and any state in the world, coastal or landlocked, has the right to fish in the high seas of the South China Sea. About 25 percent of the waters of the South China Sea are high seas. China claims ownership to all the fish in the high seas of the South China Sea. With its new law, China’s coast guard can now fire on fishing vessels of other states that fish in the high seas of the South China Sea. China’s new law is per se an actual threat of force on fishing vessels of all states that fish in the high seas of the South China Sea. This is a clear violation of the UN Charter and of Unclos.
China’s nine-dash line claim encroaches on the EEZs of five Asean coastal states. With its new law, China’s coast guard can now fire on Vietnamese fishing vessels that fish within Vietnam’s EEZ that overlap with China’s nine-dash line. Even assuming that the overlapping maritime areas are still legally disputed in the absence of an arbitral ruling by an Unclos tribunal, still China has no right to resort to threat or use of force to settle a maritime dispute. The threat of force that China’s new law authorizes violates the UN Charter and Unclos.
An Unclos arbitral tribunal has ruled that the Philippines has an EEZ in the West Philippines Sea, invalidating China’s claim to 80 percent of this EEZ. This Philippine EEZ can no longer be disputed by China. However, under its new law China’s coast guard can now fire on Philippine ships that conduct surveys in Reed Bank, or on Philippine vessels that fish within this Philippine EEZ. This threat of force against Philippine vessels is even a more blatant violation of the UN Charter and of Unclos.
If China’s new coast guard law is allowed to stand, both the UN Charter and Unclos will no longer apply in the South China Sea and even in the East China Sea. These two seas will revert to the situation that existed before the two world wars, where states acquired territories through threat or use of force. China’s new law is definitely a grave threat to world peace.
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