South China Sea: Freedom of Navigation

Nigel Adams Excerpts

Thursday 3rd September 2020 Commons Chamber

[The Minister for Asia (Nigel Adams)]

I am extremely grateful to my hon. Friend the Member for West Aberdeenshire and Kincardine (Andrew Bowie) for bringing this very important debate to the House. Having served his country in the Royal Navy, he understands the importance of upholding maritime law as enshrined in the 1982 United Nations convention on the law of the sea—UNCLOS.

The South China sea dispute is based on conflicting territorial claims, including those between China and, as my hon. Friend rightly says, Malaysia, Vietnam, Brunei and the Philippines. All these states are parties to UNCLOS. The UK takes great interest in this dispute, not only as a force for good and a defender of the international rule of law, including UNCLOS, but as a great trading nation whose seaborne exports and imports pass through the South China sea, and as a leader in global security with a range of enduring security interests and many bilateral defence relationships in the region.

In 2013, an arbitral tribunal was constituted under UNCLOS to consider the case brought by the Philippines against China. As my hon. Friend said, in 2016, it set out its findings in the South China sea arbitration, which are binding on both parties. As I said in this House on 30 June, we are

“disturbed by reports of militarisation, coercion and intimidation in the South China sea.”—[Official Report, 30 June 2020; Vol. 678, c. 144.]

In May, officials raised our concerns with the Chinese about recent incidents.

Our position, as a UK Government, on the South China sea is of long standing. We do not take a position on competing sovereignty claims. Our commitment is to international law, particularly to UNCLOS and to freedom of navigation and overflight. We call on all parties to refrain from activity likely to raise tensions, including land reclamation, construction and militarisation, and we urge all parties to exercise restraint and behave responsibly in accordance with their international obligations. Our commitment to upholding UNCLOS is a global matter, and we will continue to raise concerns with other nations where their interpretation of UNCLOS differs from ours. We are committed to working closely with allies and partners to uphold the primacy of UNCLOS in the South China sea.

While previous public statements have addressed aspects of our analysis, the UK has not set out our full legal position on the South China sea in public. Given the importance that we attach to UNCLOS, I will use this opportunity to commit to depositing a paper on the UK’s analysis of the legal issues in the South China sea in the Libraries of both Houses following this debate.

Today, I would like to highlight some aspects of that legal analysis and discuss the status of features, including low-tide elevations, rocks and islands. UNCLOS sets out the rules under which various features can generate maritime zones and the rights associated with them. Such zones include a territorial sea up to 12 nautical miles from the coast, a contiguous zone up to 24 nautical miles, an exclusive economic zone up to 200 nautical miles, and a continental shelf.

Some features in the South China sea are low-tide elevations—naturally formed areas of land surrounded by and above water at low tide but submerged at high tide. On this, UNCLOS is clear. A low-tide elevation sitting outside the territorial sea cannot be the subject of a sovereignty claim. UNCLOS defines rocks as being incapable of sustaining human habitation or an economic life of their own. They are only entitled to a territorial sea and a contiguous zone. Under UNCLOS, islands are entitled to a territorial sea, a contiguous zone, an exclusive economic zone, and a continental shelf. National airspace exists above the territorial sea.

The UK takes a case-by-case approach on the status of any feature, including whether it should be considered an island. Whether a feature is a low-tide elevation, a rock or an island is determined based on its natural capacity without external additions or modifications. Land reclamation cannot change the legal status of a natural feature for the purposes of UNCLOS. It cannot change a low-tide elevation into a rock or a rock into an island. The South China sea arbitration found that the features under consideration were either low-tide elevations or rocks, and therefore they are not entitled to an exclusive economic zone.

I would now like to move to maritime delimitation, or the drawing of baselines. UNCLOS also sets the definitive rules on the drawing of baselines, which are the points from which maritime zones are measured. The best-known Chinese assertion to a maritime zone is the so-called nine-dash line, which encompasses almost all of the South China sea. China has never clearly articulated the basis of the claim. If the claim is based on historic rights to resources within the nine-dash line, it is inconsistent with UNCLOS. The UK objects to any claim that is not founded in UNCLOS.

China has asserted its sovereignty over four groups of features: the Pratas, the Paracel and Spratly islands, and the Macclesfield bank. China has asserted a right to internal waters, a territorial sea, a contiguous zone, an exclusive economic zone and a continental shelf based on the so-called offshore archipelago groups. The terms “archipelago” and “archipelagic state” have a specific technical meaning within UNCLOS. There is a special regime for constructing archipelagic baselines around such states, but China is not an archipelagic state. The UK objects to any attempt to approximate the effects of archipelagic baselines around groups of features. This is also inconsistent with UNCLOS. Let me be clear: there is no customary international law basis outside UNCLOS for drawing such baselines. Chinese academics have referred to UK practice to support China’s attempt to draw straight baselines around groups of features in the South China sea. We reject that. The UK’s approach to straight baselines is based entirely on the provisions of UNCLOS and not a special regime for offshore archipelagos.

Next, I would like to turn to freedom of navigation, to which my hon. Friend referred. The UK is clear that the group of rights generally considered under freedom of navigation, including innocent passage and overflight, applies in the South China sea regardless of respective sovereignty claims. All Government ships, including naval ships, enjoy the right of innocent passage in the territorial sea and freedom of navigation in the contiguous zone and the exclusive economic zone under UNCLOS.

As part of the Royal Navy’s persistent presence in the region, five ships have transited the South China sea since April 2018, most recently HMS Enterprise in February. Those deployments involve defence engagement with regional partners, multilateral exercises and maritime surveillance, including support for enforcing UN Security Council resolution sanctions on the Democratic People’s Republic of Korea. They also serve to reinforce our commitment to UNCLOS. Wherever the Royal Navy operates, it does so in full compliance with international laws and norms, and exercises its rights to freedom of navigation, innocent passage and overflight as provided for by UNCLOS. Likewise, the UK calls on all states to ensure that their vessels comply with the rules on safety of navigation in the South China sea.

I would like to turn to the necessity of protecting the marine environment. The tribunal in the South China sea arbitration also considered the obligations of states under UNCLOS to protect and preserve the marine environment. The tribunal found that China had failed in its obligations to protect and preserve the marine environment. China had tolerated and actively supported Chinese fishermen harvesting endangered species and using harmful fishing methods. China’s land reclamation and construction projects have caused irreparable harm to the coral reef ecosystem. As a global leader in marine conservation and founder of the Global Ocean Alliance, the UK takes the tribunal’s findings in this respect very seriously. We call on all states in the region to comply with their obligations to protect and preserve the marine environment.

I am conscious of the technical nature of some aspects of this matter, but UNCLOS is a critical part of the rules-based international system, which my hon. Friend set out so clearly in his excellent speech. I am incredibly grateful to him for the opportunity to set out the UK Government’s position for the record. As states in the region continue to negotiate a code of conduct for activities in the South China sea, they should have a clear understanding of the legal basis for the UK’s South China sea policy—one that is based wholly on compliance and consistency with UNCLOS.

Question put and agreed to.