There are indications that New Zealand is increasingly concerned about China’s excessive maritime claims. The Royal New Zealand Navy frigate HMNZS Te Kaha recently joined a British carrier strike group to cross the disputed South China Sea en route to joint military exercise Bersama Gold 21 to ensure freedom of navigation in the region.
For a small state heavily commercially dependent on China, worth around $ 33 billion a year, New Zealand’s relevance in South China Sea disputes may seem symbolic and far-fetched. New Zealand, even Australia, would never have faced China if they had had other choices. Therefore, the fact that Wellington feels the need to oppose Beijing’s violation of international law sends a clear signal that China must respond to the world and stop self-interpreting international law.
The South China Sea is not only an arena of strategic competition between China and the United States. Given China’s direct core strategy, the South China Sea is a crucial test of whether the world can reject interpretations of international law with Chinese characteristics. Otherwise, the South China Sea will become an example of a magnificent failure to respect the principle of freedom of navigation, and China’s controversial interpretation of international law will become customary international law.
Small states, especially coastal and archipelagic states that benefit significantly from an international order based on the law and the law of the sea, will be most affected.
So what is a straight baseline and why should it deserve a closer look?
UNCLOS and straight baselines
Under the United Nations Convention on the Law of the Sea 1982 (UNCLOS), a baseline is the line along a coast from which the maritime limits of the territorial sea of a state and of certain other maritime areas of jurisdiction are measured. A baseline, whether normal or straight (Articles 5 and 7 of UNCLOS, respectively), determines the rights to jurisdiction over maritime and super-adjacent airspace of both the coastal State itself. even and foreign nations. While normal baselines apply to coastal states, straight baselines are exclusive to archipelagic states, which are made up entirely of one or more archipelagos and may include other islands.
Basically, straight baselines grant an archipelagic state special legal rights over the internal waters between its islands, which include the airspace over the territorial sea as well as its bed and subsoil. At the same time, in accordance with Articles 52 and 53 of UNCLOS, ships of all States enjoy the right of innocent passage in archipelagic waters and the rights of archipelagic maritime passage.
An archipelagic State may, without discrimination in form or in fact between foreign vessels, temporarily suspend the innocent passage of foreign vessels in specific areas of its archipelagic waters if such suspension is essential for the protection of its safety. In addition, an archipelagic State may designate sea lanes and air routes suitable for the continuous and rapid passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. UNCLOS does not allow coastal states to use straight baselines to connect islands in an offshore archipelago.
What will happen to international law and the rights of the international community if China, a continental state, successfully obtains archipelago status for its unfounded claims to islands, reefs and other elements in the disputed waters of the South China Sea?
International law with Chinese characteristics
In May 1996, China issued a declaration declaring straight baselines along its coast and promulgated its geographical positions, much of which, according to the United States, “does not meet either of the two geographical conditions of the Convention. on the law of the sea required to apply straight baselines ”. Also in July 2016, China said it would apply the straight baselines method to measure the breadth of its territorial seas, contiguous areas and other claimed sea areas.
China wants the waters between its claimed islands and the features of the South China Sea to be recognized as internal waters. Within the 200 nautical mile exclusive economic zone (EEZ) projected from these straight baselines, China wants to control military activity, not just economic activity in accordance with international law. In addition, China wants a territorial sea of 12 nautical miles from the baseline of the Paracels Islands and the constructed islands of the Spratly Islands. China wants exclusive access to the resources of its neighbors even if it encroaches on their EEZs. China wants jurisdictional rights over “historic waters” as part of its nine-dash claim, which covers virtually all of the South China Sea islands and their adjacent waters, a claim that was rejected by arbitration South China Sea in 2016. Either way, China is determined to apply straight baselines to the “four shas” it claims: the Dongsha or Pratas, the Xisha or Paracels, the Nansha or Spratlys, and Zhongsha or Macclesfield Bank. Now China wants foreign ships to apply for approval for commercial transit through its “territorial waters.”
China has a vast political toolbox, including militarization, ‘wolf warrior’ diplomacy, debt traps, Mekong dams and laws, with which to turn its basic ambition straight into reality – in other words, to appropriate the South China Sea. If successful, China will first gain, at the cost of significant losses for the international rights community, enormous and unprecedented weight against its neighbors. Second, China’s interpretation of international law will become customary international law, which could prove perilous for other shipping companies in the long run.
Since 2015, the United States has aggressively challenged China’s excessive claims by frequently conducting Freedom of Navigation Operations (FONOP) in the South China Sea. More recently, the United States has formed a coalition of allies and partners not only to patrol disputed waters, but also to raise legal issues at the United Nations. However, more such measures will be needed to change the way China interprets international law in its favor.
This is where the small non-requesting states come in, which benefit most from an international order based on law in general and UNCLOS in particular. If they fail to form a consensus that views the South China Sea disputes and China’s interpretation of the law as a national threat, the repercussions will not end at the water’s edge of current claimants. such as Vietnam, the Philippines, Indonesia, Malaysia or Brunei. Small coastal and archipelagic states will incur high long-term costs for inaction. Through inaction, small states can effectively pave the way for a future where China interprets the law for them.
The fact that China is breaking the rules in neighboring waters should send a serious warning to the nations of Oceania. In particular, there are important political and security implications for New Zealand.
New Zealand’s regional security and stability
New Zealand plays a leadership role in the neighborhood of the small coastal and archipelagic states of Oceania, and its national security is closely linked to the security and prosperity of the Pacific island nations. When addressing the challenge of balancing the vulnerability of his trade dependence on China and the growing tensions between Canberra and Beijing, the New Zealand Foreign Minister acknowledged that while trade matters, “regional peace and stability are equally important”.
For the small states of Oceania, fishing is life. In the South China Sea, China never allows other countries to enter its claimed EEZs, but reserves the right to enter and overfish others’ waters.
As China gets richer and more powerful, is it possible for China to draw a straight baseline around the claimed islands and features that could threaten New Zealand’s EEZ, one of the largest in the world ? May be. From a regional perspective, who can guarantee that China will never enter the EEZs of the Pacific states that control vast expanses of resource-rich ocean? According to the definition of national security offered by the New Zealand government, China’s direct core strategy and its interpretation of international law and UNCLOS can certainly be interpreted as a threat to the security of the nation.
The unity of the Pacific states is fragile, and China is increasingly using economic tools to achieve strategic goals. Beijing has established itself as an important partner for the Pacific states. From 2000 to 2017, according to a report recently released by AidData, China provided Oceania with $ 2.4 billion in aid for 628 projects and $ 8.7 billion in loans for 95 projects. The ratio of Chinese aid to loan commitments to Oceania was 1: 3.6, which means that Chinese debt dominates Chinese sources of finance in the region. In addition, China has demanded high levels of collateral and has no qualms about its state-owned enterprises seizing the assets of their overseas partners.
However, such debts cannot be compared to the prospects of losing vital fishing grounds due to the future application of “international law with Chinese characteristics”. And this is something the New Zealand and Pacific states cannot afford to wait to delay responding. Once China succeeds in forcing states to accept its interpretation of international law, the costs to small states will only increase.