The whole nine dashes and why the Philippines’ arbitration case against China is a bad idea

Author: Sourabh Gupta, Samuels International

On 22 January 2013, the Philippines filed a Notification and Statement of Claim at the International Tribunal for the Law of the Sea (ITLOS), seeking to invalidate China’s nine-dash line which encompasses virtually the entire South China Sea.

Filipino protesters carry a Philippine flag during a demonstration outside the Chinese embassy office in Makati

The Philippines argues that Chinese claims within the nine-dash line are contrary to the United Nations Convention on the Law Of the Sea (UNCLOS). The Philippines has been encouraged by a recent International Court of Justice (ICJ) judgment which refutes the idea that offshore land features can generate claims to vast maritime spaces. Even if China could establish title to the features, so the Philippines argues, China’s maritime law enforcement actions would constitute an unlawful interference with Manila’s rights to exploit resources in its sector of the South China Sea.

This unilateral move predictably angered the Chinese. Manila’s backers in the West applauded but they may come to regret their uncritical cheering of the Notification, which has little chance of success. Rather than clearing up the jumble of contending claims in the South China Sea, the filing will make their resolution more difficult and implicate the United States, and its ‘pivot’, in a conflict that should be for the claimants to settle — bilaterally or as a group. Luckily, Sino–Philippine tensions did not blight the recent ASEAN Foreign Ministers’ Meeting in Bandar Seri Begawan, with the parties managing to produce a joint communiqué unlike in 2012. Still, the ITLOS filing has laid bare divisions within ASEAN over how to manage maritime quarrels with China.

First, the Notification cannot bind China because China has optionally excluded itself from compulsory arbitration under UNCLOS. This includes ‘disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction …’ (UNCLOS Article 298) that relate to fisheries or marine scientific research in the exclusive economic zone (EEZ) or on the continental shelf of the littoral state.

China administers half-a-dozen land/geological features in the Spratlys. Given sovereignty over these features and their legal status as either rocks or islands is in dispute — and UNCLOS is not competent to advise on land sovereignty determinations — Beijing is within its rights to claim they generate full or partial maritime zones. In the interim, it can treat waters adjacent to the land features it administers in the Spratlys — regardless of its proximity to the Philippine archipelagic baseline — as its EEZ. China is also entitled to enforce domestic maritime law over marine scientific research activities, including drilling on the continental shelf (UNCLOS Article 246), in these adjacent waters. Given this context, the ITLOS arbitral panel will almost-certainly refuse to issue a decision and even probably an advisory opinion.

Second, despite what the Philippines argues, all good faith avenues to peaceful dispute resolution, including provisional arrangements of a practical nature (UNCLOS Articles 74 and 83), have not been exhausted.

In March 2005, the Arroyo administration in the Philippines and China and Vietnam agreed to jointly explore potential energy resources in the South China Sea. In 2008, the Philippines, not China, rescinded the agreement and has since proceeded to unilaterally issue exploration licenses to a disputed section of the joint study area. The Philippines rescinded the tripartite agreement because the exploration zone intruded into undisputed Philippine waters, but that should not be a reason to shy away from joint development. For example, one of the very first joint development zones was established by Saudi Arabia and Bahrain in the Persian Gulf in the 1950s and lies wholly within the territory of Saudi Arabia. Bahrain receives a net revenue share.

Finally, China’s nine-dash line has no international legal personality and hence cannot be consistent with or contrary to the letter of UNCLOS.

China has been deliberately vague about its claims in the South China Sea. It has not announced baselines as part of its territorial sea adjacent to any of the Spratly land features in any maritime territorial declarations or laws. In May 2009 it issued Notes objecting to a joint submission by Malaysia and Vietnam and appended a map of the nine-dash line, but China only claimed ‘relevant waters’ within the line. It did not specify coordinates or whether the waters claimed related to EEZs, the continental shelf or both. Until China makes clear what baselines it claims, or furnishes an outer continental shelf claim to the UN Commission on the Limits of the Continental Shelf (China has partially done this in the East China Sea), China’s claim to entitlements in the South China Sea will remain legally indeterminate.

China is not alone in being oblique. The Philippines is also yet to submit an outer continental shelf claim in the South China Sea to the UN Commission. And it too has not ruled out the right to exercise jurisdiction over full or partial maritime zones generated from the features it administers in the Spratlys.

Rather than lodge overly-enterprising legal claims, the Philippines should negotiate practical and cooperative arrangements for the joint exploitation of common resources in the South China Sea. China, meanwhile, must move away from its constructionist interpretation of selective UNCLOS provisions and accept the commercial and economic purposes of modern oceanic law. Submitting an outer continental shelf claim that implicitly separates the sharing of sovereign rights from sovereignty disputes over land/geological formations in the South China Sea — and limiting law enforcement activities to the hypothetical median line in the interim — would be an excellent place to start.

Sourabh Gupta is a Senior Research Associate at Samuels International Associates, Inc., Washington DC.