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South China Sea: Freedom of Navigation

Volume 679: debated on Thursday 3 September 2020

Motion made, and Question proposed, That this House do now adjourn.—(James Morris.)

I can see that the Minister is flushed with success at the passing of that Bill, and I am grateful to the House for allowing me so much time this afternoon to speak on an issue of such importance.

Over the past six months, the focus of this Government, and, indeed, of most Governments the world over, has rightly been on fighting and defeating coronavirus—defeating this killer disease and dealing with the pandemic and the economic fallout from our necessary actions to limit the spread and to save lives. It is possibly for this reason that colleagues have been approaching me with puzzled looks today, asking me why I have chosen this issue, with so much else going on, to raise in the House this afternoon. I am raising it because I believe that this country has a right and, indeed, a duty to uphold international law and an obligation to protect the rules-based international order—a system that we see under attack and under threat like never before, be it by the Russian state poisoning opponents on British soil, such as we saw in Salisbury in 2018, or now in the South China sea, for our values and the values of the free world are very much under threat on those waters. This House should be under no doubt that the Chinese Communist party has used the cover of the global pandemic to step up its struggle for hegemony in the South China sea.

The Chinese “Blue Sea 2020” campaign continues apace, as does the growth of the naval capability of the people’s liberation army. Between 2014 and 2018, China launched more submarines, warships, amphibious vessels and auxiliaries than the total number of ships currently serving in the individual navies of Germany, India, Spain and the United Kingdom. At 335 vessels, the PLA’s fleet outnumbers even that of the United States navy, which commands 296 vessels, a number of ships that is probably looked on with envy by our admirals.

The size of the Chinese fleet and its rate of growth should be a clear warning of China’s determination to become a maritime superpower. Only last week, the PLA launched a series of medium-range missiles capable of carrying nuclear missiles considerable distances into the South China sea. Those launches followed Chinese live-fire war games in the Taiwan straits, another performative demonstration of China’s strategic dominance and its claim to sovereignty over these waters.

Despite the implication in its name, the South China sea is not simply the nautical area below southern China, nor does the term simply describe China’s southern territorial waters. The waters in question stretch from Malaysia to the Philippines, and from Vietnam to the edge of Indonesia. The South China sea encompasses an entire region of more than 1,400,000 square miles, which is more than 14 times the size of the United Kingdom. The People’s Republic of China lays claim to almost all of it, including large chunks of what are internationally agreed as the exclusive economic zones of Vietnam, Brunei and the Philippines.

China’s claim in the region is encircled by a demarcation line, dubbed the “nine-dash line”, although the Chinese Communist party added an unprecedented 10th dash in 2013 to encircle the entirety of the nation of Taiwan. However, an arbitration case brought by the Philippines, under the United Nations convention on the law of the sea, at the international Permanent Court of Arbitration at The Hague ruled in 2016 that China had no legal right to the territory in the nine-dash line, having never historically exercised exclusive control over the waters or the resources contained within it. That is important. Freedom of navigation on the high seas is important. It is one of the pillars of the law of the sea and has been for centuries, since 1609, in fact, when Hugo Grotius published “Mare Liberum” or “The Freedom of the Seas”, and it is at the origins of modern international law. The argument he made in 1609 that the sea is a fundamental avenue for communication and co-operation among states is as relevant today as it was in the 17th century. Freedom of navigation is also vital for economic growth. Without freedom to navigate, fish and explore, there is no free trade. That is why we must stand firm, and it is why I am raising this issue on the Floor of the House this afternoon.

The 2016 ruling, made in a Court that the UK Government recognise, under a UN convention that the UK is party to and has ratified, was supported as legitimate by the overwhelming majority of the international community, including our European friends and allies, and the US, yet China has outright rejected the ruling and has escalated its activities in the region, in clear defiance of international law. Conveniently, for the Chinese Communist party, the nine-dash line—now the 10-dash line—coincides with huge proven oil and gas reserves, and about a third of the world’s marine diversity. China has not, as was ruled by the Permanent Court of Arbitration, historically exercised control over these waters, nor does it have the settled territory in the area necessary to make these sorts of territorial claims, yet the Chinese Communist party has sought to circumvent those inconvenient facts by dumping millions of tonnes of cubic metres of sand on fragile coral reefs, creating a great wall of sand, a chain of artificial islands that China intends to use to manufacture the basis of a territorial claim. The installation of military bases on these islands will then be used to enforce that claim. As we sit here discussing the issue, that is taking place.

It is easy to see why China wants to control these waters. In addition to the huge oil reserves that lie under the seabed, one third of global shipping passes through the South China sea, including a great share of Chinese exports. The value of trade passing through the sea is put at more than $3 trillion a year. The region is also home to huge fish stocks, which are crucial to ensuring food stability and to the livelihoods of millions of people in neighbouring countries. In April, the PLA navy rammed a Vietnamese fishing vessel operating in contested waters, sinking it. The PLA denies that and instead alleges that the Vietnamese vessel rammed the much larger Chinese ship, for reasons seemingly unclear to anyone. In May 2014, the Chinese coastguard made the same claim of a similar collision, alleging that it had been attacked by a Vietnamese fishing boat—uncharacteristic belligerence for a light non-military vessel. That was until video evidence emerged of the Chinese vessel deliberately ramming the Vietnamese boat. As a Member of Parliament representing a seat in the north-east of Scotland, where fishing is a major historic industry, it is only too easy to imagine the economic damage and hardship that would come from being prevented from fishing in waters believed to be free to navigate and fish on. We heard in a heated debate in this House only two days ago how passionately people in our fishing communities feel about having access to waters to fish and the economic importance for industry and the communities it supports. Off the coast of Vietnam, we are seeing the wholesale seizure of livelihoods of Vietnamese fishermen.

It is impossible to represent the community surrounding Aberdeen without understanding the critical importance of the oil and gas sector and what it can do for a nation’s economy. China’s attempts to frustrate the development of offshore oil and gas facilities developed by neighbouring nations is not only unfair to the nations in whose exclusive economic zones those resources lie but a threat to global energy security. Every single day, over 1.6 million barrels of oil are shipped through the Malacca straits. The continued ability and freedom to do so and the freedom of smaller nations around the South China sea to utilise their marine resources without threat or hindrance is vital.

With the renewed rejection in July by both America and Australia of China’s territorial and maritime claims in the South China sea, it is time that a truly global Britain steps up to the plate and meets this unwarranted and illegal encroachment with renewed assertiveness. It was very welcome in 2018 to see HMS Albion en route to Vietnam demonstrate our determination to uphold international law by sailing through the legally defined international waters around the Paracel Islands, but the reaction from China, though predictable, was depressing, claiming that we had infringed China’s sovereignty. China is a great country and the Chinese people are great people. We want to work with them, co-operate and learn as we jointly confront the biggest issues of our time—climate change, covid and developing emerging economies—but we must stand firm and defend international law and the rules-based order.

We must open our eyes to the glaringly obvious, as we, under the banner of the new Foreign, Commonwealth and Development office, seek to forge a new and positive role for Britain on the world stage, supporting our friends and allies in upholding the international rules-based order. We must recognise that it is our responsibility to ensure that global trade is able to continue unimpeded and support the rights of smaller nations. As the Government conduct their integrated review of security, defence, development and foreign affairs, I urge them to pay attention to what is happening on the South China sea and to make good on their promise to improve the capability of our world-class armed forces by making investment in the Royal Navy a priority. While the national shipbuilding strategy was a welcome first step in renewing the Royal Navy, progress has been slow. We desperately need more frigates, destroyers and, indeed, sailors if we are to support our allies and commit ourselves to defending freedom of navigation.

I also urge the Government to plan for a multinational fleet to sail with HMS Queen Elizabeth when it cruises into the Indo-Pacific and to pursue an extended role in the Pacific for this country. If I may make one further ask of the Government, it would be that work starts immediately on devising and operationalising an enhanced freedom of navigation policy to be systematically applied and tested whenever regional powers seek to undermine the law of the sea or other international agreements.

We have a proud history in the United Kingdom of standing up as a beacon of democracy, a bastion of freedom and a defender of rights, free trade and the rules-based order. It is essential that we step up to the plate once again, work with our allies in the region and show that it does not matter whether these values are under threat on our own shores, in Europe or on the other side of the world; there is nowhere this country will not go to show our resolve to defend and maintain international law and freedom. I believe this is global Britain’s moment. We must not let it pass by.

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.

House adjourned.