Legitimizing Territorial Take Over, A Chinese Playbook
The New Maritime Police Law (MPL) of China, made the news when it was passed on January 22, 2021. This along with the 2009 Note Verbale and the Nine Dash Line Map where China laid claim to “Adjacent Waters” and “Relevant Waters” on the basis of “historical facts” extending its right beyond its territorial boundaries thereby claiming the extensions as part of its Internal Territory. In the International Community, waters in general are considered governed by the Regime of the United Nations Law of the Sea (UNCLOS), which allows for freedoms of navigation, right of innocent passage, economic rights in demarcated areas. Countries with disputed claims should recourse to an international tribunal. While China claims that it is not a signatory to the UNCLOS, it has recognized the basic tenets of it in its domestic laws in 1992, originally under the Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone.* After China has lost its legal battle to the Philippines in 2014 at the Hague, it is trying on a different narrative, from trying to bolster its claim of historical title with maps that do not seem to reflect their own position, to writing their laws to declare that they are not in violation when they exercise their claims in the disputed waters.
The area, being declared as China’s internal territory under the MPL is now subject to several domestic Chinese Laws such as the Law of the People's Republic of China on the Administration of the Use of Sea Areas of 2002** which under Article 7 allows the disputed waters to be under municipal supervision of the Department in charge of marine administration of the Chinese Government, where all entities and individuals shall now be subject to comply with China’s laws. With MPL and the Administration of the Use of the Sea Areas law read in conjunction, China granted unto itself the right to determine who also gets to use and exploit the natural resources in the given area subject to the approval of China’s State Council and in case of dispute, jurisdiction will only be at China’s People’s Court.
China passed the MPL to further its claim on the territories and use it as legal basis to allow illegal military installations being constructed on the reefs and islands in the territories therein, even on the clear cut area designated as part of the Exclusive Economic Zone (EEZ) of the Philippines. An act to remove the military installations, instead of it being likened to the ejection of an illegal occupant, will now be considered as an intrusion on the national security interests of China, under the Law of the People's Republic of China on the Protection of Military Installations.
China, previously criticized for its awkward missteps in the world stage politics, is showing how adept it has become in soft power relations and legitimizing its actions. International law institutions, composed of different nation states with no central enforcement mechanism, are slow to act on claimed infractions, as countries in general do not wish to be tagged as infringing on another country’s sovereignty. The UN Security Council for example, is cautious in issuing statements, unless the acts committed are glaring and totally undeniable violation of legal rights.
Given that there is now a semblance of legality, what previously seemed to be an international incursion of China against smaller states’ territories, is now being presented as a perfectly legal act which neighboring countries would have to justify against. This also makes the matter seem like a domestic issue, rather than an international one, and restricts unaffected states from getting involved. Further, as nod to American style of soft power politics where aid is distributed towards countries it intended to befriend as a priority, the timely deployment of the Belt and Road initiative worth 750 BN USD have delivered softening stances on the contests of China’s actions in the South China Sea / West Philippine Sea territory like Philippines, Vietnam and Thailand. From denouncing and taking it to court, the Philippines, through Rodrigo Duterte, has totally changed its tune and even said that the installations are welcome and are a defense against US interference. If this continues, Philippines would be hard-pressed to lay claim that its rights are being infringed on and may encounter resistance should it later seek help from the US under the Mutual Defense Treaty of 1951. If the Philippines continues to release irresponsible statements and hasty economic policies like this, it may eventually lead to China winning the territories it has no original legal right to own.
* Section 6. Article 6 Foreign ships for non-military purposes shall enjoy the right of innocent passage through the territorial sea of the People's Republic of China in accordance with the law. Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone (February 25, 1992 ) Database of Laws and Regulations Retrieved from http://www.npc.gov.cn/zgrdw/englishnpc/Law/2007-12/12/content_1383846.htm on February 21, 2021
** Article 7. The department in charge of marine administration under the State Council shall be responsible for supervision over the use of the sea areas nationwide. The departments in charge of marine administration under the local people's governments at or above the county level shall, as authorized, be responsible for supervision over the use of the sea areas adjacent to their administrative regions respectively.
Law of the People's Republic of China on the Administration of the Use of Sea Areas (2001). Retrieved from http://www.npc.gov.cn/zgrdw/englishnpc/Law/2007-12/10/content_1383439.htm
Mara Villegas obtained her Bachelor of Arts degree in Political Science (2008) and Juris Doctor (2015) and currently taking her Masters of Law from the University of the Philippines. While in law school, she worked as a Research Associate for the UP Law Center in the Institute of International Legal Studies and Institute of Human Rights and contributed to the publication of Access to Justice: A Handbook for Persons With Disabilities, and the World Comparative Law Project of the law firm, Allen and Overy in 2014. She has since joined the financial services sector, working in the field of compliance, legal risk management and cybersecurity.