Some of China’s actions in the South China Sea contravene international law, study argues

Some of China’s aggressive actions in the South China Sea contravene international law, a new study suggests.

The People’s Republic of China claims expansive maritime rights and sovereign entitlements over most of the South China Sea. These claims have been rejected by an international arbitral tribunal in 2016. However, China ignores that ruling and aggressively seeks to enforce its claims, using a mix of paramilitary, coast guard and military vessels to bully and harass other coastal states.

The PRC justifies these actions as protecting its sovereign rights. However, at least some of China’s operations qualify as a ‘use of force’ within the meaning of Article 2(4) of the United Nations Charter, an expert has said.

The study says calling out aggressive Chinese manoeuvres as breaches of the Charter would help clarify the legal situation by challenging China’s ‘false legal narrative’ that it is merely engaged in law enforcement actions.

It may also have implications for the mutual defence agreement between the United States of America and the Philippines. The agreement commits the United States to act and meet common dangers should the Philippines be the victim of an armed attack. This includes armed attacks on its vessels, which are regularly subjected to harassment and violence by Chinese ships.

The study, published in International Law Studies, was prepared by Professor Aurel Sari, from the University of Exeter Law School.

Professor Sari said: “Legal arguments will not, on their own, roll back China’s gains in the South China Sea. However, Article 2(4) may usefully contribute to a more limited strategy aimed at containing China by imposing costs upon it and preserving the status quo in disputed waters.”

Over the last two years, the number and intensity of clashes between the PRC and the Philippines has increased steadily.

Professor Sari particularly examined confrontations at the Second Thomas Shoal, some of which have involved heavy damage to Philippine vessels and caused serious injury to their personnel. He believes some of these incidents are of sufficient intensity to qualify as a use of force, rather than measures of maritime law enforcement.

Professor Sari said: “China carries out low-level coercive actions in the hope of circumventing the thresholds imposed by the United Nations Charter.

“Beijing has repeatedly underlined the strategic significance it attaches to the South China Sea and signalled its willingness to assert its interests in the region. It cannot be taken for granted that calling out China’s actions as violations of the Charter would deter Beijing from further aggressive actions.

“However, even though invoking Article 2(4) is not going to compel China to give up its exorbitant maritime and territorial claims in the South China Sea, it may impose reputational costs and preserve the status quo in disputed waters by deterring Beijing and compelling it to accept setbacks.”

The study says confirming that China has resorted to the use of force and may do so again in future incidents presents the Philippines and third States with an opportunity to condemn China’s assertiveness in stronger terms than they have done so far.