The air is thick with legal maneuverings related to the China-Philippines South China Sea arbitral case that is winding its way forward in The Hague. On December 7th, 2014, China issued a Position Paper laying out its procedural and substantive objections to the arbitration, in lieu of a counter-memorial, which had been sought by the court by mid-December. Two days earlier, the U.S. State Department’s Bureau of Oceans and International Environmental and Scientific Affairs had waded into the fray by volunteering its own analysis of “China’s nine-dash line.” This highly controversial dashed line is a subject of intense interest in this case, with the Philippines having petitioned the court to declare it as invalid.
The State Department study of the nine-dash line is a valuable tying together of multiple legal strands of analyses in the area of customary and treaty-based maritime law. It tests three possible interpretations of the dashed-line claim: that the dashes represent a title to the islands and island groups that it encloses; that the dashes represent a national maritime boundary; and that the dashes represent a historic rights-based claim line to waters that are exclusive to China. The study found the nine-dashed line to be an ambiguously tenable but insufficient basis for Beijing to exercise sovereign rights and jurisdiction in the South China Sea, at best, and a wholly inconsistent basis for the exercise of such rights, at worst. For the most part the study’s findings are irreproachable; on the final historic rights-related count however the analysis is flawed.
The State Department study accurately notes that the nine-dash line’s attribute as a practical means to cartographically enclose and illustrate the group of islands over which China claims sovereignty is a defensible one. That said, China’s specific maritime claims to sovereign rights and jurisdiction in these waters must derive strictly from land features – claims which China has yet to specify.
The study’s finding that the nine-dash line as an expression of the outer limit of China’s maritime boundary is inconsistent with international law is also unimpeachable. A United Nations Convention on the Law of the Sea (UNCLOS)-compliant boundary drawn by Beijing should under no circumstance exceed the hypothetical median line from island or land formations that it administers in the South China Sea. Tribunals, further, have struck down the entitlements attached to far-removed features that reach deep into an adjacent or opposite state’s coastal projection and impose an inequitable ‘cut-off’ effect of that state’s entitlement. That said, Beijing specifically denotes the nine-dash line to be an ‘undefined’ boundary in its domestic maps and a provisional one in its international filings. It has never published a law or decree giving the line a legal personality. So long as China resolves its outstanding delimitation and sovereign rights and jurisdiction claims in the South China Sea as per best practices in international law – as with its maritime boundary settlement with Vietnam in the Tonkin Gulf or the fisheries agreement with Japan, the inadmissibility of the line as a national maritime boundary is not a relevant consideration.
It is in the study’s third interpretation, particularly its blunt denunciation of the dashed line’s most compelling basis – as a geographic limit of China’s historically-formed and accepted traditional fishing rights in the semi-enclosed waters of the South China Sea which are exercised today on a non-exclusive basis – where the State Department’s analysis is at its most questionable. The study argues that China, in acceding to UNCLOS’ exclusive economic zone (EEZ) regime and its exclusivity-based prerogatives effectively conceded all prior usage-based claims that it may have held in foreign EEZs, even in semi-enclosed seas. Limited rights pertaining to historic uses are now confined only to the territorial sea of the coastal state. It quotes the International Court of Justice’s Gulf of Maine judgment of 1984 to press its point.
The study’s argument is conceptually and legally flawed. It fails to fully admit that such long-usage (traditional fishing) rights in semi-enclosed seas that pre-date the Law of the Sea (LOS) can be exercised non-exclusively and, further, that such rights have in fact been accepted (grudgingly) by regional peers by way of practice. Additionally, such usage rights do not raise sovereignty or title-based claims but only give rise to the right to continue using the waters for these traditional purposes.
In a landmark verdict in the Eritrea/Yemen maritime delimitation case of the late 1990s — a case that dealt in part with the historic rights of the parties in the Red Sea, a semi-enclosed sea which hosts vital shipping lanes (and hence not dissimilar to the South China Sea), the international arbitrators had unanimously found that even in circumstances where parties held undisputed sovereignty over various islands/land features, “such sovereignty [was] not inimical to, but rather entails, the perpetuation of the traditional fishing regime” in these waters. Further, this traditional fishing regime “by its very nature [was] not qualified by the maritime zones specified under UNCLOS, but operates throughout those waters beyond the territorial waters of each of the Parties …” Indeed, the common use of these waters since time immemorial was an “important element capable of creating certain ‘historic rights’ which accrue in favor of both parties through a process of historical consolidation.” Long-standing historical fishing rights and associated local traditions in semi-enclosed seas are not extinguished by the exclusivity considerations of UNCLOS’ EEZ regime. Rather, considerations of equitability prevail and such practices are broadly entitled to the respect and protection of international law.
UNCLOS too is not entirely silent in this regard either. Article 123 of the Convention (which pertains to semi-enclosed seas) enjoins all bordering coastal states to cooperate with each other in the exercise of their rights with regard to the conservation, exploration, and exploitation of the living resources of the sea. Article 62 (which relates to EEZs), meanwhile, enjoins the coastal state to give others access to the surplus of the allowable catch in its own EEZ. Read together – and in conjunction with the jurisprudential leanings cited above – these provisions provide a further bias, and basis, toward admitting the non-exclusive and non-exclusionary exercise of traditional fisheries rights in the semi-enclosed waters of the South China Sea. So long as China limits these activities to traditional fishing and associated local traditions – not resource development or marine scientific research – and exercises them on a non-exclusive basis, the nine-dash line as a perimeter of China’s exercise and (flag state) enforcement of such rights is not inconsistent with international law. It can remain a permanent feature of the South China Sea’s political and maritime landscape.
At the end of the day, the onus is ultimately on China to furnish an international law-compliant basis for the alignment of its nine-dash line. Oblique references to history in its 1998 EEZ Act and 2011 Note Verbale to the United Nations, without clarification of basis or scope, do not suffice. Rather they stoke justified apprehensions that the line is instead an expedient tool that is wielded opportunistically, and at times illegally, to punish other claimants’ presumed non-neighborly activities in these contested waters.