Published: 01 April 2021 Author: Stefan Talmon
Germany had commented on the South China Sea disputes since 2015 and in 2019 had started to take a more active and outspoken position on the disputes. This approach was continued in 2020. In addition, the South China Sea issue for Germany became a test case for China’s attitude towards international law and the rule of law. On 30 January 2020, during the UN Security Council debate on Cooperation between the United Nations and the Association of Southeast Asian Nations, the German representative deviated from the topic and stated with regard to the situation in the South China Sea:
“As a party to the United Nations Convention on the Law of the Sea (UNCLOS), Germany underlines its interest in the universal application of UNCLOS, which sets out the comprehensive legal framework for the conduct of all activities in the oceans and seas, including the implementation of arbitration rulings.”
Although not directly mentioning China, Germany intimated that all claims to maritime zones in the South China Sea must be based on UNCLOS and that, consequently, there was no room for any Chinese claims based on historic rights or titles. In addition, Germany made it clear that it expected China to comply with the ruling of the Tribunal in the South China Sea arbitration between the Philippines and China. In its final award of 12 July 2016, the Tribunal had declared most of China’s claims in the South China Sea to be invalid and found that the country had violated its obligations under UNCLOS. China, however, had always made it clear that it neither accepted nor recognized the Tribunal’s awards on jurisdiction and the merits and that its territorial sovereignty and maritime rights and interests in the South China Sea should under no circumstances be affected by those awards.
In his speech to the 56th Munich Security Conference on 14 February 2020, Germany’s Federal President, Frank-Walter Steinmeier, focused on the rule of law aspect of China’s actions in the South China Sea, saying:
“China […] is selective in accepting international law only where it does not run counter to its own interests. Its actions in the South China Sea are unsettling the neighbours in the region.”
The South China Sea was also used as an example of China undermining the international legal order during a European Union (EU) retreat discussing a strategic approach for dealing with China. In a keynote speech at the retreat on 2 March 2018, the Secretary of State at the Federal Foreign Office, Andreas Michaelis, stated:
“And finally, we cannot deny the fact, that today’s China is challenging key elements of the rules-based international order, be it human rights in Xinjiang or international maritime law in the South China Sea. It is thus also a systemic rival.”
The rule of law aspect was once again highlighted by the German ambassador to Singapore in a tweet on 29 April 2020 which read: “Chinese activities in the region are worrying, particularly with regard to the South and East China Sea. China must abide by the rule of law and cease provocative actions.” Federal Foreign Minister Heiko Maas also took a swipe at China in an address to the annual meeting of EU and ASEAN Foreign Ministers on 1 December 2020, saying that the strategic partnership between the two blocs stood for “our shared commitment to a rules-based order and our shared interest in safe and open shipping routes.”
The South China Sea issue also featured prominently in the Federal Government’s first ever “Policy guidelines for the Indo-Pacific region”. The document read in the relevant part as follows:
“In the Indo-Pacific region, too, it is not the law of the strong that must prevail, but the strength of the law. This also applies to the shipping routes through the Indian Ocean and the Pacific. The UN Convention on the Law of the Sea as a comprehensive maritime regulatory and cooperation framework and the freedoms of navigation enshrined therein are universal. Germany is prepared to promote the enforcement of rules and norms in the region. […].
In view of the competing claims to island and land formations, and with regard to the use of the affected sea areas, the Federal Government advocates a peaceful, rules-based and cooperative solution based in particular on the United Nations Convention on the Law of the Sea of 1982. The arbitral decision of 12 July 2016, issued under the dispute settlement procedures contained in that Convention, is of essential importance with respect to the maritime claims in the South China Sea.
The Federal Government supports the process of creating a substantive and legally binding Code of Conduct between China and the ASEAN Member States for the South China Sea. It is envisaged that the Code will include a mechanism for the peaceful settlement of disputes and rules on the common use of resources, with the involvement of third-party countries, in accordance with the UN Convention on the Law of the Sea. [….].
The Federal Government intends to become even more actively involved in measures to protect and safeguard the rules-based order in the Indo-Pacific, such as bolstering the principles of the UN Convention on the Law of the Sea […]. This includes liaison officers, military attaché’s staffs, port visits and participation in exercises as well as other forms of maritime presence in the Indo-Pacific region.”
The Policy guidelines used the highly political term “Indo-Pacific”, reminiscent of the U.S. Government’s “Free and Open Indo-Pacific” strategy which aims to contain China and is an expression of a growing rivalry between Western countries and China. In the Policy guidelines, the Federal Government, inter alia, emphasised the rule of law aspect of the South China Sea issue, expressed support for the 12 July 2016 final award in the South China Sea arbitration, highlighted the freedom of navigation aspect of the South China Sea issue, and indicated its willingness to become more actively involved in measures, including military measures, to protect and safeguard the rules-based order in the South China Sea. Whether this also included so-called “freedom of navigation operations” (FONOPs) was left open. Since 2015, the U.S. Navy had conducted 23 such FONOPs in the South China Sea whereby warships assert navigational rights and freedoms close to Chinese controlled land features in that area. In an interview with the Sydney Morning Herald on 2 November 2020, the Federal Minister of Defence, Annegret Kramp-Karrenbauer, declared that Germany intended to dispatch a frigate to the Indo-Pacific in 2021 in order to help safeguard the rules-based international order. The Minister, however, did not want to be drawn on whether the German frigate would participate in FONOPs in the South China Sea or even sail through the sea area. On 9 December 2020, on the occasion of the tenth anniversary of the foundation of the ASEAN Defence Ministers’ Meeting Plus, Federal Minister of Defence Kramp-Karrenbauer said in a speech on Germany’s commitment in the Indo-Pacific:
“Major trade routes that are essential for us, too, pass through the Indian Ocean, the South China Sea and the Pacific.
Meanwhile, we are also under the impression that the Indo-Pacific is increasingly becoming an arena of growing rivalries. We are witnessing unresolved territorial disputes and new armament efforts. We are seeing that freedom of navigation is being curtailed and that it is increasingly difficult to find common ground on issues of sovereignty and territorial integrity.
As a global trading power, Germany takes a key interest in security, stability, and prosperity in the world – and thus, in the Indo-Pacific region as well. Any disruption in the region also has direct consequences for us here in Europe.
In Germany, we consider the rules-based global order to be of fundamental importance. […]
Any ambitions in terms of foreign, security, and economic policy must not come at the expense of others! Germany supports a peaceful and fair resolution of conflicts. International law and the United Nations Convention on the Law of the Sea provide a solid foundation for that.”
In another development, Germany joined the battle of diplomatic notes on the South China Sea at the United Nations. On 12 December 2019, Malaysia had presented a Note Verbale to the UN Secretary-General informing him that it intended to deposit a partial submission to the Commission on the Limits of the Continental Shelf under Article 76(8) UNCLOS in order to establish the limits of the country’s continental shelf beyond 200 nm in the area of the South China Sea. Malaysia’s move prompted an immediate response from China which informed the UN Secretary-General that it had sovereignty over the island groups in the South China Sea and that Malaysia’s submission “seriously infringed China’s sovereignty, sovereign rights and jurisdiction in the South China Sea.” China’s Note, in turn, triggered a flurry of Note Verbales from the Philippines, Viet Nam and Indonesia which all rejected China’s claims. China, again, lodged a reply to each and every such note. On 1 June 2020, the United States was the first State not bordering on the South China Sea to write to the UN Secretary-General stating that it also rejected China’s maritime claims “as inconsistent with international law as reflected in the 1982 Law of the Sea Convention.” Australia followed on 23 July 2020. On 16 September 2020, two days after the EU-China summit, France, Germany, and the United Kingdom sent each an identical Note Verbale to the UN Secretary-General. Referring to the Notes Verbales in which China had set out its maritime claims in the South China Sea, the three States declared:
“1. France, Germany and the United Kingdom, as States Parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), wish to reaffirm their legal position as follows:
– France, Germany and the United Kingdom recall the universal and unified character of UNCLOS that sets out the legal framework within which all activities in the oceans and seas must be carried out, and underscore that the integrity of the Convention needs to be maintained, as reaffirmed by the United Nations General Assembly in its annual resolution on oceans and the law of the sea.
– France, Germany and the United Kingdom underline the importance of unhampered exercise of the freedom of the high seas, in particular the freedom of navigation and overflight, and of the right of innocent passage enshrined in UNCLOS, including in the South China Sea.
– France, Germany and the United Kingdom emphasise the specific and exhaustive conditions set forth in the Convention for the application of straight and archipelagic baselines which are defined in Part II and Part IV of UNCLOS. Therefore there is no legal ground for continental States to treat archipelagos or marine features as a whole entity without respecting the relevant provisions in Part II of UNCLOS or by using those in Part IV applicable only to archipelagic States.
– France, Germany and the United Kingdom also emphasise the specific and exhaustive conditions set forth in the Convention for the application of the regime of islands to naturally formed land features. Land building activities or other forms of artificial transformation cannot change the classification of a feature under UNCLOS.
– France, Germany and the United Kingdom also highlight that claims with regard to the exercise of ‘historic rights’ over the South China Sea waters do not comply with international law and UNCLOS provisions and recall that the arbitral award in the Philippines v. China case dating to 12 July 2016 clearly confirms this point.
– France, Germany and the United Kingdom hold that all maritime claims in the South China Sea should be made and peacefully resolved in accordance with the principles and rules of UNCLOS and the means and procedures for the settlement of disputes provided for in the Convention.
2. This position is reaffirmed without prejudice to competing claims of coastal states over disputed territorial sovereignty to naturally formed land features and to areas of the continental shelf in the South China Sea on which France, Germany and the United Kingdom take no position.
3. This joint Note Verbale reflects our long-standing legal positions and is complementary and without prejudice to any further positions that France, Germany and the United Kingdom have stated in the past, both bilaterally and together with other States Parties to UNCLOS.
4. As States Parties to UNCLOS, France, Germany and the United Kingdom will continue to uphold and assert their rights and freedoms as enshrined in UNCLOS and to contribute to promoting co-operation in the region as set out under the Convention.”
Both the Philippines and Viet Nam welcomed the joint Note Verbale. China, on the other hand, wrote on 18 September 2020 to the UN Secretary-General urging the three States “to earnestly respect China’s territorial sovereignty and maritime rights and interests in the South China Sea” and to “faithfully, comprehensively and correctly interpret and apply the rules of international law of the sea, including UNCLOS, in an objective and just manner.” Any partial interpretation and application of UNCLOS was considered “unjust, illegal, and has an ulterior motive.” China also added that it “opposes using UNCLOS as a political tool to attack other countries” and that its territorial sovereignty and maritime rights and interests in the South China Sea “shall not be prejudiced under any circumstances by the illegal awards of the South China Sea arbitration.” China explained its legal position as follows:
“1. […] UNCLOS does not cover everything about the maritime order. Paragraph 8 of the preamble of UNCLOS emphasizes that ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law’. […]
2. China’s territorial sovereignty and maritime rights and interests in the South China Sea are established in the long course of history […].
3. China attaches great importance to the provisions and applicable conditions set force in UNCLOS for the drawing of territorial sea baselines. At the same time, China believes that the long established practice in international law related to continental States’ outlying archipelagos shall be respected. The drawing of territorial sea baselines by China on relevant islands and reefs in the South China Sea conforms to UNCLOS and general international law. […].”
The Notes Verbales show a fundamental difference of legal opinion. While Germany considers UNCLOS to be the comprehensive and exclusive framework for all maritime questions concerning the South China Sea, China takes the view that not all questions are regulated by UNCLOS and that the Convention has not superseded all rights established in the long course of history. In particular, China argues that there is a long-established practice in international law which allows continental States to draw straight baselines connecting the outermost points of their outlying archipelagos. This view, however, was not accepted by the Arbitral Tribunal in the South China Sea arbitration.
At the end of the year, Germany once again raised the South China Sea issue at the United Nations. On 8 December 2020, the German representative in the General Assembly stressed the need to maintain the integrity of UNCLOS, uphold the rights of innocent passage, enable the peaceful settlement of disputes, and strengthen bilateral cooperation on the conservation of living resources and the preservation of the marine environment. Turning to maritime claims made in the South China Sea, he recalled the Convention’s exhaustive specific conditions for the application of straight archipelagic baselines and the application of the regime of islands and rocks, adding that according to the relevant provisions of the Convention there was no legal basis to treat marine features as a collective. There was also no legal basis for States to claim historic rights over sea area, as confirmed by the award issued on 12 July 2016 by the arbitral tribunal constituted under UNCLOS. Germany even used the last public meeting of its two-year term on the Security Council on 22 December 2020 to mention the South China Sea issue. In his final remarks, Germany’s Permanent Representative to the United Nations, Ambassador Christoph Heusgen, said:
“We will not be deterred by the disdain against those telling the truth. To the contrary: we will continue to fight for the respect for international law – be it in the Middle East, in Ukraine or in the South China Sea.”
He thereby implicitly accused the three non-European permanent members of the Security Council of violating international law: the United States in the Middle East by recognising the Israeli annexation of East Jerusalem and the Syrian Golan, Russia in Ukraine by annexing the Crimean peninsula and supporting the separatists in the Donbas region, and China in the South China Sea for contravening UNCLOS and not complying with the arbitral award of 12 July 2016. China had made it clear that it was sternly opposed to the South China Sea issue being raised in international fora, including the Security Council. The fact that Germany repeatedly addressed the South China Sea issue in the Security Council as well as in the General Assembly may have contributed to the Chinese representative’s acrimonious farewell message: “Good riddance, Ambassador Heusgen. I am hoping that the Council in your absence in the year 2021 will be in a better position to fulfil the responsibilities and mandate for maintaining international peace and security.”
Category: Law of the sea