China’s South China Sea jurisdictional claims: when politics and law collide

Author: Sourabh Gupta, Samuels International

A running thread through the tensions at various Southeast Asian regional forums over the past four summers has been the uncertainty and insecurity generated by China’s jurisdictional claims in the South China Sea.

Legally, China claims sovereignty over the disputed islands and adjacent waters in the Sea and sovereign rights over relevant waters as well as the seabed and subsoil thereof — a claim in accordance with Law of the Seas (LOS) norms.

But operationally, China’s oceanic law enforcement agencies have unilaterally, and at times forcefully, enforced their writ across the more expansive political perimeter bounded by the ‘nine-dashed line’.

Plainly, these legal and political claims overlap but do not coincide. However, endless dwelling on the supposedly impenetrable logic of the nine-dashed line’s extremity is side-tracking attention from what ought to be the central premise of this issue: that China’s claim to the primary land elements lying within the nine-dashed line — the Spratlys and the Paracels — is markedly superior to those of its rival claimants.

Alone among claimants, China is capable of coupling ‘continuous and effective occupation’ of the islands, islets and reefs with a robust modern international law-based claim backed by relevant multilateral and bilateral instruments.

In 1952, Japan renounced all right, title and claim to the Spratly and Paracel Islands to the Republic of China (Taiwan), by way of Article 2 of the bilateral Japan–Taiwan Treaty of Taipei. This treaty followed — and referenced — the territorial renunciations of the Islands by Japan under the 1951 San Francisco Peace Treaty, which had not identified the beneficiary at the time — a treaty that was ratified by both the Philippine and (South) Vietnamese governments. And although neither country is bound by provisions in the bilateral Japan–Taiwan treaty, neither can produce a Spratlys/Paracels cession or reversion clause in their own bilateral treaties with Japan. Rather, their claims are supplementarily based on historical cartography in the case of Vietnam or, for the Philippines, ‘historical discovery’ that is (incredibly) of a post-World War II vintage!

At the end of the day, ultimate title cannot be said to rest with any one party so long as a territorial claim is not resolved by way of a binding instrument between claimant states. At best, there are better claims and less-better claims to the territory in question. But given China’s law-based claim is superior to that of rival claimants, why does it persist with the infamous nine-dashed line?

As the successor government of Taiwan, the mundane reason is that Beijing is proceeding from the claim line that it inherited from the Chiang Kai-shek regime as the baseline for negotiation and compromise in an open territorial dispute. Beijing’s approach to negotiating its Himalayan boundary dispute with India is no different in this regard. But the technical reason is more complicated. Were China to submit an LOS-compliant claim to its outer continental shelf limits in the South China Sea, the UN Commission on the Limits of the Continental Shelf (CLCS), tasked with examining its validity, would almost certainly strike down parts of the submission.

The CLCS appears on track to de-recognising Japan’s claim that the two high-tide elevations — totally the size of five tatami mats — within the Okinotori atolls in the Pacific are in fact ‘islands’ capable of generating an EEZ (that is ironically larger in dimension than the land mass of Japan itself). By the same reasoning, many of the high-tide elevations under Beijing’s control in the South China Sea would be found to be mere ‘rocks’. Although CLCS findings are non-enforceable, it would dent China’s case to certain disputed resource-rich zones within the Sea — hence its preference for the nine-dashed line.

The foremost motive for the nine-dashed line’s persistence is its intertwined character with the highly politicised, deterrence-based model of territorial dispute management that Beijing favours.

Territorial jurisdiction issues have never been treated as mere cartographic detail: they are tied to a larger political calculus of stability and good neighbourliness. In its maritime dimension, joint development of commonly held resources has been the established mode to implement this principle. Here, Manila’s misjudgement in abrogating its joint seismic study agreement with Vietnam and China in 2008 (compounding the error by unilaterally issuing exploration licenses within a disputed section of the study area) has been the principal cause of the swift deterioration in bilateral ties with China.

Furthermore, territorial settlements have never been concluded under duress, and China’s rulers calibrate their approach between a hard-line and a flexible one to suit the strategic circumstances at hand. The nine-dashed line has conveniently served as a hard-line expedient that Beijing’s competing maritime bureaucracies are not shy to lever to signal displeasure to other claimants.

So what are the enabling circumstances that would motivate China to set the nine-dashed line aside and adhere to best international practice in issuing forth maritime jurisdictional claims? Beijing has previously been willing to soften its inflated ‘natural prolongation’ principle with Korea and Japan to pursue fisheries and (in-principle) joint resource development, and the 2000 Gulf of Tonkin maritime delimitation agreement with Vietnam too was firmly in keeping with the highest international practices.

Given the fast-paced development of international maritime law, which is accentuating the gap between political calculus-based and rules-based orders at sea, it is in China’s self-interest to submit an LOS-compliant claim to its outer continental-shelf limits in the South China Sea. Beijing’s gains in goodwill earned will far outweigh the territory, and resources, relinquished. It might also allow China leeway to subsequently initiate a region-wide conversation on introducing limits to objectionable, threat-based activities in EEZs by foreign navies, under the guise of navigational freedoms.

Sourabh Gupta is Senior Research Associate at Samuels International Associates, Washington DC, and a 2012 EAF Distinguished Fellow.