Published: 30 March 2021 Author: Stefan Talmon
The South China Sea covers a sea area of some 3.6 million km2, which is more than 10 times the size of Germany. It is a semi-enclosed sea in the Pacific Ocean which is bordered by six countries: Brunei, China (both the mainland and Taiwan), Indonesia, Malaysia, the Philippines, and Vietnam. Due to its geographical location an estimated one-third of global shipping passes through the South China Sea, making it a vital route for maritime trade and transport. As a major exporting nation, in 2016 Germany exported some 111 billion euros in goods through the South China Sea. It is thus not surprising that the “Federal Government attaches great importance to the shipping and trade routes in the South China Sea for the German economy.” The area is also a rich fishing ground and holds huge oil and natural gas reserves in the seabed and subsoil. The sea is dotted by hundreds of islands, islets, shoals, cays, reefs, and rocks. There are two main island groups in the South China Sea: the Paracel Islands in the northwest and the Spratly Islands in the southeast. Five countries (Brunei; China, both the mainland and Taiwan; Malaysia; the Philippines; and Vietnam) claim territorial sovereignty over land features in the South China Sea and all six coastal States make overlapping claims to various maritime zones in the area. China, Malaysia, and the Philippines maintain a human presence on some of the land features, a number of which have been built up or extended by the claimant States by way of land reclamation. All claimant States are parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
The various territorial and maritime boundary disputes between the coastal States which had been lingering since the 1970s came to a head in May 2009 when, in a Note Verbale addressed to the United Nations Secretary-General, China protested a joint submission by Malaysia and Vietnam to the Commission on the Limits of the Continental Shelf concerning the outer limits of their continental shelf beyond 200 nm in the South China Sea. In the Note, China stated that the submission “seriously infringed China’s sovereignty, sovereign rights and jurisdiction in the South China Sea” and that it “has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof”. Attached to that Note was a map illustrating the Chinese claim showing the islands and waters in the South China Sea enclosed by a nine-dash line.
These claims as well as several fishery and other incidents prompted the Philippines on 22 January 2013 to institute arbitral proceedings against China under the dispute settlement provisions of the UNCLOS. The Philippines asked an Arbitral Tribunal established under UNCLOS Annex VII to rule on three inter-related issues. First, the Philippines sought declarations that the parties’ respective rights and obligations in regard to the waters, seabed, and maritime features of the South China Sea were governed by UNCLOS only and that any Chinese claims reflected by the so-called “nine-dash line” were inconsistent with UNCLOS and therefore invalid. Second, the Philippines sought determinations that under UNCLOS certain maritime features in the Spratly Islands, which are claimed by both parties, were either “rocks” or “low-tide elevations” and, as such, were incapable of generating an entitlement to an exclusive economic zone or continental shelf. Third, the Philippines requested the Tribunal to rule that China had violated UNCLOS by interfering with the exercise of the Philippines’ sovereign rights and jurisdiction, by interfering with the Philippines’ freedom of navigation and by conducting construction and fishing activities that harm the marine environment. China made it clear from the outset that it would neither accept nor participate in the arbitral proceedings because the disputes presented by the Philippines were outside the jurisdiction of the Tribunal.
Despite China’s objections, on 29 October 2015 the Arbitral Tribunal issued its Award on Jurisdiction and Admissibility, ruling that it had jurisdiction either outright or under certain conditions, or that the question of jurisdiction had to be joined to the merits of the case. Upon publication of the Award on Jurisdiction and Admissibility, China reiterated its position that “the Arbitral Tribunal manifestly has no jurisdiction over the arbitration initiated by the Philippines” because “the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters.”
Nevertheless, on 12 July 2016, the Arbitral Tribunal rendered its final award. It decided that it had jurisdiction with regard to all but two matters and that all claims were admissible. On the merits, the Tribunal held that between the Philippines and China UNCLOS defined the scope of maritime entitlements in the South China Sea and that there was no basis for any historic rights, or other sovereign rights or jurisdiction by China, in excess of the limits imposed in the Convention. In particular, any claims with respect to the maritime areas encompassed by the so-called “nine-dash line” were contrary to UNCLOS and without lawful effect to the extent that they exceeded the geographic and substantive limits of China’s maritime entitlements under the Convention. The Tribunal also found that the features claimed by China were either not capable of appropriation or were not island but mere “rocks” which did not generate maritime entitlements to an exclusive economic zone or continental shelf, and that certain of these features were within the exclusive economic zone and continental shelf of the Philippines. The Tribunal also held that the Spratly Islands could not generate maritime zones collectively as a unit. Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by interfering with Philippine fishing and petroleum exploration, constructing artificial islands, and failing to prevent Chinese fishermen from fishing in the zone. In addition, the Tribunal ruled that China’s recent large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands violated its obligations to protect and preserve the marine environment.
According to Article 296 (1) UNCLOS and Article 11 of UNCLOS Annex VII the award of the Arbitral Tribunal shall be “final and […] shall be complied with by the parties to the dispute.” However, immediately upon the publication of the final award, the Chinese Ministry of Foreign Affairs issued a statement in which it declared that “the award is null and void and has no binding force. China neither accepts nor recognizes it. […] China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards.”
Germany’s position on the South China Sea disputes, 2015-2018
The German position on the South China Sea disputes has developed over the years. Initially, Germany only expressed concern over the growing tensions in the East and South China Seas and called for a peaceful resolution of the territorial conflicts in accordance with international law, including UNCLOS. Germany’s main interest was in the safety of shipping routes. On 29 October 2015 during a visit to Beijing, Chancellor Angela Merkel said:
“Another difficult conflict is the territorial conflict in the South and East China Seas, which is being followed very closely everywhere. It is therefore a bit surprising […] why in this case multinational courts should not be an option for a solution, why in this case it is being said, ‘No, we want to do that in bilateral talks’, while in other cases China usually calls for a high level of acceptance of international institutions. In any case, we wish, above all, that the sea trade routes stay free and safe which is, of course, important for the entire region and beyond.”
This was not a reaction to the Arbitral Tribunal’s Award on Jurisdiction and Admissibility of the same date which, at the time of the statement, was not yet known to the Chancellor. In fact, Angela Merkel commented only indirectly on the South China Sea arbitration. She said that Germany advocated a peaceful resolution of the conflicts in the South China Sea “in a variety of different formats, including multilateral formats”. Generally, the Chancellor’s remarks on the South China Sea were at a rather abstract level. During a speech at Nanjing University on 12 June 2016, she said:
“Showing commitment to the norms of international law by adhering to the rules is thus the cornerstone of the international system. Trust can only develop between larger and smaller countries and between richer and poorer countries when sovereign countries make and uphold voluntary commitments. […]
These examples of China’s commitment have generated trust, which now should be reinforced – including in the case of tensions we are currently seeing, for example in the East and South China Seas. I am pleased that we can also say as part of our dialogue that China and Germany are committed to upholding the maritime order on the basis of international law, including the UN Convention on the Law of the Sea and the freedom of navigation and overflight firmly laid down in it. It is in the interests of all countries to uphold this order and to maintain stability in the region. Both China and Germany support peaceful solutions to territorial disputes and issues involving maritime rights – peaceful solutions in line with international law, regional arrangements and bilateral agreements. Let me say frankly that Germany would be pleased if, for example, a binding code of conduct were to be agreed with the ASEAN countries and China.”
In contrast, Germany’s then Federal Foreign Minister, Frank-Walter Steinmeier, was at least implicitly criticising China for its conduct in the South China Sea. During a speech in Hamburg on 27 June 2016, he named the dispute surrounding the South China Sea as an example of “the upheaval and the calling into question of orders in this world”. He continued:
“For it is they [the emerging economies], first and foremost China, who are increasingly calling into question regional balances of power and established rules – in the tensions surrounding the South China Sea this issue is becoming ominously clear, an issue in which the validity of international law and its institutions are painfully put to the test.”
Germany did not issue a statement on the Arbitral Tribunal’s final award of 12 July 2016, but Federal Foreign Minister Steinmeier affirmed, in connection with the South China Sea disputes, “the importance of all States upholding the rules-based international order.”
On 15 July 2016, the European Union (EU) High Representative for Foreign Affairs and Security Policy issued a statement on the Tribunal’s final award on behalf of the EU and its Member States, including Germany. In that statement the EU and its Member States simply “acknowledge[d] the Award” and expressed, in rather general terms, their commitment to “maintaining a legal order of the seas and oceans based upon the principles of international law, UNCLOS, and to the peaceful settlement of disputes”. The statement neither welcomed or endorsed the Award nor did it call on China to comply with the award or uphold international law. The EU also emphasised that it took no “position on sovereignty aspects relating to claims.” The broad wording of this neutrality statement – in comparison to taking “no position on territorial sovereignty claims – could be interpreted as encompassing China’s potential claims of sovereignty over areas of the sea and seabed. Opposition from EU Member States Croatia, Greece, and Hungary prevented the EU from issuing a stronger statement calling upon China to comply with international law. As a consequence of this, Germany was more concerned about European unity than the actual disputes in the South China Sea. During an interview on 23 August 2017, Chancellor Merkel said:
“It cannot be the case that, when an international court renders a judgment concerning events in the South China Sea, one or two EU Member States have already promised China not to do this or that together with other Europeans. That is not all right.”
A week later, in a speech in Paris Federal Foreign Minister Sigmar Gabriel implicitly criticised China for dividing Europe and – in imitation of Beijing’s one-China policy – demanded that China follow a “one-Europe” policy.
Germany considered the situation in the South China Sea mainly as a rule of law matter and a freedom of navigation issue. During a visit to Singapore in November 2017, Federal President Frank-Walter Steinmeier said:
“[A]n open world can only survive on the basis of international law and rules that apply to everyone. Our nations believe that peace depends on the strength of the law – not the law of the strong. So let us join forces in defending the rules – for example, in the interest of all concerned, we must work together for freedom of navigation in the South China Sea.”
This was echoed by Federal Minister of Defence Ursula von der Leyen in a speech at the National Defence University in Beijing on 22 October 2018. Although she did not specifically mention the South China Sea, everyone in the room understood that she was referring to the sea area, when she stated:
“It is therefore in all our interest that these, as well as other shipping lanes, remain open – and do not become the object of new power projections and territorial claims. And if conflicts do arise, we need to seek common solutions – with a willingness to compromise and according to the strength of the law, not the law of the strongest.”
Germany, however, also criticised China for not complying with the final award in the South China Sea arbitration. On 2 March 2018, Germany’s Permanent Representative to the United Nations, Christoph Heusgen, who had served as Chancellor Angela Merkel’s security advisor from 2005 to 2017, wrote in an opinion piece:
“China, always a strong defender of sovereignty, does not consider itself bound to this principle when neighbouring States assert territorial claims in the South China Sea which have been confirmed under international law.”
Federal Foreign Minister Heiko Maas also joined in the criticism. During a speech in Tokyo on 25 July 2018, he said:
“Territorial conflicts such as the one in the South China Sea […] threaten the entire international order. […] And it is perhaps also Germany and Japan’s appreciation of clear rules that explains why we advocate resolving conflicts with recourse to international law time and again. Not everyone sees things this way these days. This applies to both the conflict in Ukraine and to the recognition of international arbitration rulings, for example in the South China Sea.”
At the same time, Germany tried not to let the South China Sea issue sour its bilateral relations with China. At least publicly, the Federal Government did not raise the topic with its Chinese counterpart. In their joint statement “Responsible partners for a better world”, issued on the occasion of the fifth round of China-Germany intergovernmental consultations in Berlin on 9 July 2018, the two sides declared:
“Germany and China are States parties to the UN Convention on the Law of the Sea and committed to respecting the maritime order based on international law. The German side welcomes the ongoing negotiations by China and ASEAN Member States to agree an effective code of conduct for the South China Sea. All sides are called on to conduct dialogue, resolve disputes peacefully and avoid actions that could heighten tensions.”
Despite these political considerations, the Federal Government had a clear legal position on the South China Sea issue which it set out in response to parliamentary questions in November 2018 as follows:
“The Federal Government advocates a rules-based international order, dispute settlement on the basis of international law and the universal application of the UN Convention on the Law of the Sea. It regards the arbitral award of 12 July 2016, rendered under the UN Convention on the Law of the Sea, as legally binding between the Republic of the Philippines and the People’ Republic of China.
The Federal Government is working to ensure that in the South China Sea no unilateral acts are taken that could endanger security, stability and the freedom of navigation and cause regional tensions.”
In response to the question of which legal rules applied to the territorial conflict in the South China Sea, the Federal Government stated:
“The question of territorial sovereignty over the disputed land features is determined by general international law. The maritime rights of use of the coastal States and the freedoms of other States in the South China Sea are governed by UNCLOS. Furthermore, the rules on the peaceful settlement of disputes in general international law, as set out in the UN Charter, and the special rules on dispute settlement in UNCLOS apply.”
The Federal Government was also asked to what extent China’s territorial claims in the South China Sea violated international treaties. The Government replied:
“As a State Party to UNCLOS, the People’s Republic of China is bound by its comprehensive legal framework governing the order and usage of the oceans, including its provisions on the peaceful settlement of disputes. As confirmed by the award of 12 July 2016 in the arbitration under Part XV of UNCLOS between the People’s Republic of China and the Republic of the Philippines, there exist no exclusive claims to maritime territory or usage beyond this legal framework on the basis of historic or customary reasons. The arbitral award also made it clear that the land features located in the area of the Spratly Islands and Scarborough Shoal are not islands within the meaning of UNCLOS and therefore cannot generate any entitlement to surrounding exclusive economic zones. In addition, the rules on the use of straight baselines as a starting point for maritime delimitation on the basis of UNCLOS must also be observed in the South China Sea.”
To the question of whether the construction of artificial islands through land reclamation in the disputed areas was contrary to international law, the Federal Government replied:
“The UNCLOS arbitral award of 12 July 2016 determined that land reclamation in the South China Sea has caused considerable damage to the marine environment and is contrary to the relevant UNCLOS rules on the protection of the marine environment, including the rules on international cooperation, and the international law duty of restraint in disputed sea areas.”
Finally, the Federal Government was asked whether it considered the freedom of navigation operations (FONOPs) of the United States in the South China Sea to be contrary to international law. The answer was as follows:
“As publicly stated by the Government of the United States, the freedom of navigation operations carried out regularly by the US Navy in the South China Sea serve to assert and safeguard the navigation and transit rights to which all States are entitled under UNCLOS in this sea area as well. The Federal Government does not see them as a violation of international law, but as an affirmation of applicable international law.”
A more active and outspoken approach in 2019
The year 2019 saw a change in Germany’s approach to the South China Sea issue. On 12 April 2019, Germany lodged a diplomatic note with the Ministries of Foreign Affairs of all coastal States of the South China Sea and of ASEAN member States in order to reaffirm its legal position with regard to the increasing assertion of legal claims with respect to maritime areas in the South China Sea. It also notified partner States in the United Nations and the European Union of the diplomatic note by way of an Aide Memoire which was also published by the Federal Foreign Office. The Aide Memoire read as follows:
“In the verbal note, Germany as a state party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)
– recalled the universal and unified character of UNCLOS as continuously reaffirmed by the resolution on ‘Oceans and Law of the Sea’ of the General Assembly of the United Nations;
– emphasized its commitments to provisions laid down by UNCLOS on the freedom of the high seas, rights of innocent passage, obligations on bilateral, regional and international co-operation, including for the conservation and management of living resources and for the protection and preservation of the marine environment, and on the peaceful settlement of disputes;
– with respect to claims to maritime zones in the South China Sea, also recalled the specific conditions set forth in UNCLOS for the application of straight and archipelagic baselines as well as for the application of the regime of islands and rocks to naturally formed land features;
– considered that any claim to historic rights to living and non-living resources and/or to historic titles to waters of the South China Sea is incompatible with UNCLOS to the extent that it exceeds the limits of the maritime zones as exclusively and comprehensively provided for by UNCLOS, as confirmed in the award rendered by the Arbitral Tribunal under Annex VII to UNCLOS on 12 July 2016;
Furthermore, Germany reminded that in the past it had already expressed this legal position persistently, bilaterally and together with other parties of UNCLOS, without prejudice to and taking any position as regards competing territorial sovereignty claims to disputed features in the South China Sea.
Germany will continue to uphold and assert its freedoms and rights as a state party to UNCLOS including in the South China Sea, and to contribute to promoting co-operation in the region as set out in the Convention.”
The Aide Memoire, as well as other statements, did not single out China or address any specific demands to China but was phrased in general and abstract terms and was addressed to all coastal States of the South China Sea. On 24 April 2019, the Permanent Representative of Germany to the United Nations made clear, however, who was the actual addressee of the note when he declared in the UN General Assembly that “China is ignoring international law in the South China Sea.”
Germany also sided more openly with other claimant States in the South China Sea. From July to October 2019, a Chinese vessel, the Haiyang Dizhi 8, conducted seismic surveys for oil and gas deposits in an area which Vietnam claims as its continental shelf which led to increased tension between Hanoi and Beijing. This led the Minister of State at the Federal Foreign Office, Niels Annen, to state during his opening address at a reception in Berlin on the occasion of Vietnam’s 74th National Holiday:
“The multilateral and rules-based international order we have taken for granted over the past decades is coming under increasing pressure.
To preserve it and make it more resilient, like-minded countries have to work together to stabilise and uphold the rules-based order, including freedoms and rights under the Law of the Sea, UNCLOS.”
In other developments, tensions between the Philippines and China rose after a Chinese fishing vessel rammed and sank a Filipino fishing boat in an area which the Philippines claimed as its exclusive economic zone and left its 22 crew members floating at sea. Furthermore, the Philippines complained about the increasing presence of Chinese military and survey vessels in waters which it claimed to be its territorial sea or exclusive economic zone. This led the Philippines President Rodrigo Duterte to announce on 6 August 2019 that he would raise the arbitral ruling which invalidated most of China’s maritime claims in the South China Sea with Chinese President Xi Jinping during his upcoming visit to Beijing. Previously, President Duterte had played down the arbitral award achieved under his predecessor in order not to strain relations with China and to secure Chinse assistance with economic development and infrastructure projects. In what was widely seen as a sign of international support for the Philippines’ position, the European Union issued on 28 August 2019 – the date of President Duterte’s arrival in Beijing – a statement on recent developments in the South China Sea. The statement, however, was phrased in rather general terms and only spoke of it being crucial “for all parties in the region” to, inter alia, exercise self-restraint and resolve disputes though peaceful means in accordance with international law. This may have led France, Germany, and the United Kingdom to issue their own stronger statement on the following day, when President Duterte met President Xi. The joint statement read as follows:
“We are concerned about the situation in the South China Sea which could lead to insecurity and instability in the region.
We call on all coastal States of the South China Sea to take steps and measures that reduce tensions and contribute to maintaining and promoting peace, security, stability and safety in the region, including as regards the rights of coastal States in their waters and the freedom and rights of navigation in and overflight above the South China Sea.
As State parties of the United Nations Convention on the Law of the Sea (UNCLOS), France, Germany, and the United Kingdom underline their interest in the universal application of the Convention which sets out the comprehensive legal framework within which all activities in the oceans and seas including in the South China Sea must be carried out and which provides the basis for national, regional and global co-operation in the maritime domain. They recall in this regard the Arbitration Award rendered under UNCLOS on 12 July 2016.
Furthermore, France, Germany, and the United Kingdom welcome the on-going negotiations between the ASEAN member States and China in view of achieving a rules-based, co-operative and effective Code of Conduct consistent with UNCLOS in the South China Sea and encourage progress towards its early conclusion.”
This statement prompted a stern rebuke from China. During the regular press conference on 30 August 2019, the spokesperson for the Chinese Ministry of Foreign Affairs was asked for a reaction to “the statement yesterday from the UK, France and Germany calling on the South China Sea claimants to respect the arbitration ruling of 2016 as well as the rules-based framework laid out in the UNCLOS”. The spokesperson answered as follows:
“We, the regional countries, have the will, wisdom and capability to properly resolve the South China Sea issue and achieve long-term stability, development and prosperity in this region.
On the other hand, however, some non-regional countries made unwelcome remarks and deliberately highlighted tensions in disregard of the efforts by regional countries to safeguard peace and stability in the South China Sea. China opposes that. We urge those countries to look at the South China Sea issue objectively, stop making negative comments, and create an enabling environment for regional countries to properly handle maritime disputes and advance cooperation.
Regarding the specifics in the statement, China’s position remains clear and unchanged.”
In 2019, there also emerged some disagreement in the Federal Government with regard to a more active German military role and the question of whether Germany – like the United States – should engage in so-called FONOPs or military exercises in the South China Sea. In a keynote speech at the University of the German Armed Forces in Munich on 7 November 2019, the Federal Minister of Defence, Annegret Kramp-Karrenbauer, said:
“Our partners in the Indo-Pacific region – above all Australia, Japan, and South Korea, but also India – feel increasingly squeezed by China’s claim to power. They want to see a clear sign of solidarity. A sign in support of applicable international law, the inviolability of territory, freedom of navigation. It is about time that Germany sets an example by showing presence in the region together with our allies. Because we have an interest in existing law being respected.”
There were reports in the German media that the Ministry of Defence was working on plans to deploy a frigate to the South China Sea and the Taiwan Strait. However, these plans seemed to meet with opposition from the Federal Chancellery. Asked about these plans in the regular government press conference, the spokesperson for the Federal Ministry of Defence stated:
“In her keynote address in Munich a week ago, the Minister said that we have a great interest in supporting a rules-based international order as part of our value-driven policy. This also includes free trade routes. Supporting this objective, however, does not automatically mean that we have to resort to a military option but that we are convinced that there are many different options. The military is one of them. Even the military allows for very different options, including a maritime presence. At the very end, one of these many options might be to send a frigate to the region. But at the moment there are no plans for doing so. Of course, as you know, the military is always engaged in contingency planning. So, I am not ruling out the possibility that people might think about it at the working level. But there is no official planning.”
The last time Germany took a stance on the South China Sea issue in 2019 was during the debate on the “Oceans and the law of the sea” in the UN General Assembly. On 10 December, the German representative stated:
“We welcome the fact that the text of this year’s omnibus draft resolution (A/74/L.22) continues to reaffirm the universal and unified character of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the need to preserve the integrity of the Convention. In that regard, as a State party to UNCLOS, we remain concerned about increasing assertions of legal claims with respect to maritime areas in the South China Sea […].”
The German representative then repeated the German position set out in the Aide Memoire of 12 April 2019. This prompted the following reaction by the Chinese representative:
“The 1982 United Nations Convention on the Law of the Sea (UNCLOS) should be interpreted and applied accurately and in good faith, and its integrity should be maintained. Matters not regulated by the Convention shall continue to be governed by the rules and principles of general international law.
The representative of Germany just mentioned the issue of the South China Sea in her statement, which China resolutely opposes. We would like once again to clarify our position. China’s claims of sovereignty in the South China Sea and related marine rights and interests are consistent with relevant international law and international practices. China has always respected and supported the rights of countries to the freedom of navigation and overflight based on international law. Such freedoms have never been an issue before. […].”
Germany’s position on the South China Sea issue in the framework of the G7
In addition to its national statements, Germany also joined the other members of the Group of Seven (G7) States in annual joint statements on the South China Sea. In the Brussels G7 Summit Declaration of 5 June 2014, the G7 commented for the first time on the disputes in the East and South China Seas. G7 leaders indirectly criticised China and supported the Philippines’s move of instituting arbitral proceedings under UNCLOS, saying:
“We are deeply concerned by tensions in the East and South China Sea. We oppose any unilateral attempt by any party to assert its territorial or maritime claims through the use of intimidation, coercion or force. We call on all parties to clarify and pursue their territorial and maritime claims in accordance with international law. We support the rights of claimants to seek peaceful resolution of disputes in accordance with international law, including through legal dispute settlement mechanisms.”
In preparation for the G7 Summit in Germany in 2015, the G7 Foreign Ministers met in the city of Lübeck on 15 April 2015. Under the German presidency, the G7 Foreign Ministers adopted for the first time a “Declaration on Maritime Security” which read in the relevant part as follows:
“We are committed to maintaining a maritime order based upon the principles of international law, in particular as reflected in the United Nations Convention on the Law of the Sea (UNCLOS). We continue to observe the situation in the East and South China Seas and are concerned by any unilateral actions, such as large-scale land reclamation, which change the status quo and increase tensions. We strongly oppose any attempt to assert territorial or maritime claims through the use of intimidation, coercion or force. We call on all States to pursue the peaceful management or settlement of maritime disputes in accordance with international law, including through internationally recognised legal dispute settlement mechanisms, and to fully implement any decisions rendered by the relevant courts and tribunals which are binding on them. We underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment in areas pending final delimitation.”
The Philippines welcomed the Declaration as an expression of the “international community’s commitment to uphold the principles of international law, in particular the 1982 United Convention on the Law of the Sea (UNCLOS) which underpin the stable maritime code that serves our common interests.” China, on the other hand, responded by stating that it “hoped that relevant countries would fully respect the efforts by regional countries to safeguard regional peace and stability”. The Declaration on Maritime Security was expressly endorsed by G7 leaders at their Summit at Schloss Elmau on 8 June 2015. This prompted China to state that the G7 was “way out of step with the facts and the internationally recognized principles.” China strongly urged the G7 “to respect the facts, shed prejudices, stop making irresponsible remarks, and do more to help properly handle and settle the disputes and promote regional peace and stability.”
In 2016, under the Japanese presidency, G7 Foreign Ministers adopted another “Declaration on Maritime Security” which largely replicated the earlier statement on the East and South China Seas, saying:
“We are concerned about the situation in the East and South China Seas, and emphasize the fundamental importance of peaceful management and settlement of disputes. We express our strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions, and urge all states to refrain from such actions as land reclamations including large scale ones, building of outposts, as well as their use for military purposes and to act in accordance with international law including the principles of freedoms of navigation and overflight. In areas pending final delimitation, we underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment insofar as such actions jeopardize or hamper the reaching of the final agreement, as well as the importance of making every effort to enter into provisional arrangements of a practical nature, in those areas.”
China reacted to the Foreign Ministers’ Declaration, saying that the construction on some islands and reefs of the Spratly Islands fell entirely within its sovereignty and that there was no problem at all with the freedom of navigation and overflight in the East and South China Seas. It also reaffirmed its commitment to resolving relevant disputes and safeguarding peace and stability through negotiation and consultation with countries directly concerned on the basis of respecting historical facts and in accordance with international laws. At the same time, China reiterated its position that it “will not accept nor participate in any arbitration case that is imposed upon it against law.” Once again, the Foreign Ministers’ Declaration was endorsed by the G7 leaders at their Summit in Ise-Shima on 27 May 2016.
Under the Italian presidency in 2017, there was no separate Foreign Ministers’ Declaration on Maritime Security, but the statement on the situation in the East and South China Seas was included in the Joint Communiqué of the Foreign Minister’s meeting in Lucca on 10-12 April 2017. The communiqué repeated earlier commitments, concerns and opposition and then added:
“We consider the July 12, 2016 award rendered by the Arbitral Tribunal under the UNCLOS as a useful basis for further efforts to peacefully resolve disputes in the South China Sea.”
G7 leaders endorsed the Foreign Ministers’ Joint Communiqué and, in addition, urged “all parties to pursue demilitarisation of disputed features.” China, in turn, expressed its strong dissatisfaction with “the G7 post-summit communique’s irresponsible reference to the issues of the East and South China Seas under the guise of international law.”
The situation in the East and South China Seas also featured in the Joint Communiqué adopted by G7 Foreign Ministers at their meeting in Toronto on 23 April 2018, which read in the relevant part as follows:
“We remain concerned about the situation in the East and South China seas. We reiterate our strong opposition to any unilateral actions that escalate tensions and undermine regional stability and the international rules-based order, such as the threat or use of force, large-scale land reclamation and building of outposts, as well as their use for military purposes. We urge all parties to comply with their obligations under international law, and call for the full and effective implementation of the commitments in the Declaration on the Conduct of Parties in the South China Sea (DOC) in their entirety. We emphasize the importance of ongoing negotiations for an effective code of conduct and welcome an agreement that does not derogate from the rights parties enjoy under international law or affect the rights of third parties. We also recognize that in order to secure stability in the region, such diplomatic efforts should lead to demilitarization of disputed features and a peaceful and open South China Sea in accordance with international law. We consider the July 12, 2016, award rendered by the Arbitral Tribunal under the UNCLOS as a useful basis for further efforts to peacefully resolve disputes in the South China Sea. We reiterate our concern regarding the destruction of marine ecosystems in the South China Sea, which threatens their sustainability and regional fish stocks, and reaffirm our commitment to increasing international cooperation to enhance protection of the marine environment. We reaffirm our commitment to further international cooperation on maritime security and safety, as well as the protection and sustainable management of the marine environment.”
China firmly opposed the joint communiqué. On 25 April 2018, the spokesperson for the Chinese Foreign Ministry stated that “under the cloak of international law”, the Foreign Ministers had “made irresponsible comments”, inter alia, on the East and South China Seas. G7 leaders did not expressly endorse the Foreign Ministers’ Joint Communiqué but expressed their continuing “concern about the situation in the East and South China Seas” and reiterated their “strong opposition to any unilateral actions that could escalate tensions and undermine regional stability and the international rules-based order.”
The 2019 Communiqué of G7 Foreign Ministers, adopted under French presidency on 6 April 2019, saw significant changes – both in terms of tone and content – to the 2018 statement on the situation in the East and South China Seas. Ministers were no longer just concerned but “seriously concerned” about the situation. They also emphasised the centrality of UNCLOS and demanded that all agreements must be consistent with UNCLOS. Rather than just urging “all parties to comply with their obligations under international law”, the new text read as follows:
“[…] Reiterating the universal and unified character of UNCLOS and reaffirming UNCLOS’ important role in setting out the legal framework that governs all activities in the oceans and seas, and [sic] we urge all parties to comply with their obligations under international law, including as reflected in UNCLOS, including the respect of freedom of navigation and overflight and other internationally lawful uses of the sea […]. We emphasize the importance of ongoing negotiations for an effective Code of Conduct that does not prejudice the interests of third parties or the rights and freedoms of all states under international law, is consistent with UNCLOS, and is open to cooperation with non-parties.”
Foreign Ministers also put more emphasis on the final award in the South China Sea arbitration. While previously, the award was considered “a useful basis for further efforts to peacefully resolve disputes in the South China Sea”, the new text said:
“We consider the July 12, 2016, award rendered by the Arbitral Tribunal under the UNCLOS as a significant milestone and a useful basis for peacefully resolving disputes in the South China Sea.”
Although, beginning in 2019, Germany adopted a more active and outspoken position on the South China Sea issue, none of its statements – both in its national capacity and within the framework of the G7 – directly criticised China or expressly rejected China’s maritime claims as inconsistent with international law. Germany shied away from an open, direct confrontation with its most important trading partner. While other States accused China of “conquest” in the South China Sea, Germany expressed concern about the situation in the South China Sea, confirmed its support for UNCLOS and the rules-based international order, and set out its legal position on the issues involved. Nevertheless, it left no doubt where it stood on the question of China’s maritime claims in the South China Sea.
Germany’s change of approach in 2019 may have been prompted by the United States calling upon its allies “to take a very public posture and to assert our sovereign rights and to emphasize the importance of law.” In 2019, the U.S. Navy also conducted more FONOPs in the South China Sea than in any year before. In these FONOPs, U.S. warships assert navigational rights and freedoms close to Chinese controlled land features in the South China Sea. The increase in U.S. FONOPs also seemed to have put more pressure on Germany to send a warship to the South China Sea, albeit only as a symbolic act. While this demand, for the time being, was resisted by the Federal Chancellery, the ground for such deployment in the future has already been prepared by portraying the South China Sea issue as one of freedom of navigation and overflight. However, there is no evidence of interference with commercial shipping by China or any other State, with some 100,000 commercial ships from a broad range of countries passing through the South China Sea every year.
Category: Law of the sea