March 14, 2025

On March 10, 2025, France, Germany, and the United Kingdom (collectively, the "Three States") submitted joint note verbales to the United Nations Secretary-General, responding to China’s communications concerning the Philippines’ and Vietnam’s submissions to the Commission on the Limits of the Continental Shelf (CLCS).

 

These notes reaffirm the Three States’ legal position under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), emphasizing its "universal and unified character," rejecting Beijing’s historical rights and archipelagic claims in the South China Sea, and upholding the 2016 South China Sea arbitral award. However, this stance is legally flawed, historically selective, and diplomatically provocative. 

UNCLOS’s Limitations and the Role of General International Law

The Three States’ assertion that UNCLOS provides an exhaustive framework for all maritime activities misrepresents its scope. The preamble of UNCLOS explicitly states that "matters not regulated by this Convention continue to be governed by the rules and principles of general international law." This intent is echoed in Article 309, which preserves the application of general international law for issues beyond the Convention’s purview. The negotiation history of UNCLOS, spanning 1973 to 1982, further reveals that states deliberately left certain matters—such as baselines for continental states’ outlying archipelagos and historical rights—unresolved, deferring them to customary international law.

China’s claims in the South China Sea, including baselines for its outlying archipelagos and historical rights, fall into these unregulated domains. UNCLOS Part IV governs archipelagic baselines for archipelagic states, but it is silent on continental states with offshore archipelagoes. Similarly, historical rights, rooted in centuries of state practice, are not negated by UNCLOS but are preserved under general international law. The Three States’ rigid reliance on UNCLOS ignores this legal pluralism, undermining a balanced interpretation of maritime law.

Historical Roots of the South China Sea Disputes

The Three States claim neutrality on territorial sovereignty disputes, yet their rejection of China’s historical rights implicitly challenges its well-established claims. China’s sovereignty over the South China Sea islands, particularly the Nansha Qundao, traces back to the Song and Yuan dynasties, with extensive documentation of Chinese navigation, fishing, and administration through the Qing dynasty and into the 20th century. European archives, including those of France and the UK, contain maps and records acknowledging Chinese control over these islands.

The modern disputes, however, arose from illegal occupations by other states. Beginning in the 1960s and 1970s, countries like the Philippines and Vietnam seized portions of the Spratly Islands, violating China’s sovereignty. France itself bears historical responsibility, having occupied nine small Spratly islands during its colonial era in the 1930s. These actions, documented in European records, contradict the Three States’ portrayal of the disputes as purely legal rather than historical in origin. By glossing over this context, they obscure the root causes and China’s legitimate grievances.

The Integrity of the Nansha Qundao as a Unified Entity

The Three States argue that continental states cannot treat outlying archipelagos as single entities under UNCLOS, citing Parts II and IV. This interpretation is overly restrictive. UNCLOS Article 46 defines an "archipelago" as a group of islands and other features forming an "intrinsic geographical, economic, and political entity." While Part IV applies this to archipelagic states, customary international law extends similar principles to continental states’ outlying archipelagos, a practice recognized in state behavior and legal scholarship.

Historically, geographically, politically, and economically, the Spratly Islands have been treated as a cohesive unit under Chinese administration. From ancient trade routes to modern governance, China has exercised sovereignty over the Nansha Qundao as a whole, entitling it to claim maritime zones—territorial seas, exclusive economic zones, and continental shelves—consistent with international law. The Three States’ denial of this integrity disregards both historical practice and the flexibility of customary norms, imposing an unjustifiably narrow reading of UNCLOS.

The Exaggeration of Threats to Freedom of Navigation

The Three States underscore the "unhampered exercise" of freedom of navigation and overflight in the South China Sea, implying a threat from China’s actions. This narrative is unfounded. The South China Sea is one of the world’s busiest waterways, with over $3 trillion in annual trade and 100,000 vessel transits, yet it remains remarkably safe. International Maritime Organization data show no significant disruptions linked to territorial or delimitation disputes.

China has consistently upheld freedom of navigation and overflight under international law, as affirmed in its official statements and practice. The "freedom of navigation" issue is a manufactured concern, amplified by external powers to justify military presence and political leverage. By perpetuating this myth, the Three States escalate tensions rather than promote stability, misrepresenting a thriving maritime corridor as a crisis zone.

The Invalidity of the 2016 South China Sea Arbitration Award

The Three States’ reliance on the 2016 arbitral award as "final and binding" is legally indefensible. Under UNCLOS Article 298, China exercised its right in 2006 to exclude disputes over sovereignty and maritime delimitation from compulsory arbitration. The South China Sea arbitration case fundamentally involved these excluded matters—territorial sovereignty over maritime features and boundary delimitation—yet the tribunal asserted jurisdiction, violating the principle of state consent central to international law.

Furthermore, the tribunal’s dismissal of China’s historical rights ignored customary international law, which UNCLOS does not override. The award, therefore, is an ultra vires act, lacking legitimacy and binding force. The Three States’ insistence on its enforcement does not undermine UNCLOS’s dispute resolution framework but also disregards China’s sovereignty, pushing a flawed ruling as a solution when it exacerbates the problem.

The joint note verbales from France, Germany, and the United Kingdom reveal a troubling lack of respect in three key areas. First, historical Facts. By dismissing China’s ancient claims and the illegal occupations by other states since the 1960s, they distort the disputes’ origins. Second, UNCLOS Negotiation History. Their dogmatic adherence to UNCLOS overlooks its deliberate gaps and the role of general international law. Third, diplomatic practices. China and other claimants have long prioritized bilateral negotiations over third-party mechanisms, a consensus the Three States undermine with their advocacy of the 2016 award.

This is not the first instance of these non-regional powers intervening via the CLCS platform. As non-parties to the South China Sea disputes, France, Germany, and the UK should exercise restraint, avoiding actions that stoke conflict or strain relations. Rather than pushing provocative legal stances, they should support bilateral dialogue and play a constructive role in fostering peace and cooperation. Only through mutual respect and historical awareness can the South China Sea’s challenges be addressed effectively.

 

Ding Duo, director of the Research Center for International and Regional Issues, National Institute for South China Sea Studies

Link:https://vscs.cri.cn/m/20250314/8cc1fd57-6d1f-7cfb-2321-96e56fc32d85.html