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Why US analysis of China’s nine-dash line is flawed

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A China Coast Guard vessel attempts to block a Philippine government vessel as it tries to enter the Second Thomas Shoal/ Ayungin Shoal. (Photo: AAP).

In Brief

The US State Department’s analysis of China’s nine-dash line, which it released in advance of China’s Position Paper on the South China Sea arbitration case with the Philippines, is in part conceptually and legally flawed.

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The study tests three possible interpretations of the dashed-line claim: that the dashes represent a title to the islands that they enclose; that the dashes represent a national maritime boundary; and that the dashes represent a historical rights-based claim 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; but on the final historical rights-related count the analysis is flawed.

The State Department study correctly 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. China has yet to clarify though its specific maritime claims to sovereign rights and jurisdiction in these waters, which must be derived strictly from land features. The study should additionally have pointed out that as an illustration of claims to the islands within, the dash at the southern-most extremity of the line ought to appear above, not beneath, James Shoal. As a permanently submerged feature beyond the territorial sea of a coastal state, the shoal does not enjoy the attributes of sovereignty and can belong to nobody.

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 maritime boundary drawn by Beijing that is compliant with the UN Convention on the Law of the Sea (UNCLOS) should under no circumstance exceed the median line from each insular formation 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’ of that state’s entitlement. That said, Beijing specifically denotes the nine-dashed 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. China could resolve its outstanding delimitation, sovereign rights and jurisdiction claims in the South China Sea as per best practice in international law, as with its settlement with Vietnam in the Tonkin Gulf or the fisheries agreement with Japan. Provided that occurs, the inadmissibility of the line as a national boundary claim is not a relevant consideration.

The State Department study is at its most questionable in its blunt dismissal of the dashed line’s most compelling legal 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. 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 historical uses are confined 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 UNCLOS can be exercised non-exclusively, and has been accepted by regional peers by way of practice. Further, 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.

UNCLOS is not entirely silent in this regard either. Article 123 of the Convention enjoins all coastal states bordering a semi-enclosed sea 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, meantime, enjoins the coastal state to provide access to the surplus of the allowable catch to non-nationals who have habitually fished in its zone. Read together, they provide a bias — and basis — towards admitting the non-exclusive and non-exclusionary exercise of traditional fisheries rights in the semi-enclosed waters of the South China Sea.

Tribunal panels constituted subsequent to the Gulf of Maine decision have time and again hewed to the interpretive reading that such historically consolidated fishing rights and associated local traditions are ‘not qualified [or extinguished] by the maritime zones specified under UNCLOS.’ Rather these rights ‘operate throughout these waters’ and such practices are broadly entitled to the respect and protection of international law. Considerations of equitability, not exclusivity, dominate.

So long as China limits these rights to traditional fishing activities — 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 enforcement of such historic rights is not inconsistent with international law. It can remain a permanent feature of the South China Sea’s political and maritime landscape.

The onus is on China to furnish a basis for the alignment of its nine-dash line that complies with international law. Oblique references to history simply stoke apprehensions that the line is instead an expedient tool wielded opportunistically — and at times illegally — to punish other claimants’ presumed non-neighbourly activities in these contested waters.

Sourabh Gupta is a Senior Research Associate at Samuels International Associates, Inc. An earlier version of this article was published in the Pacific Forum CSIS PacNet newsletter.

7 responses to “Why US analysis of China’s nine-dash line is flawed”

  1. PacNet#3 at CSIS has already corrected Gupta’s understanding of the situation.

    http://csis.org/publication/pacnet-3-historic-fishing-rights-and-nine-dash-line-response-pacnet-88-1

    The idea that China has “traditional” and “historic” fishing rights in the SCS is a purely twentieth century invention. No government in Beijing ever saw the SCS islands as belonging to it until a few decades ago. Chinese fisherman did not use the islands with any regularity, and as Bill Hayton has pointed out, when the Chinese government in the 1930s finally issued official maps, they simply transliterated the British names into Chinese because there were no Chinese names for them.

    Hayton’s slide show on the recent invention of the South China Sea claim is online here.
    http://www.billhayton.com/?page_id=12

    His short piece on it should not be missed.
    http://www.prospectmagazine.co.uk/world/chinas-false-memory-syndrome

    Finally, I have a longer treatment of the issue in the context of post WWI Chinese expansionism here:
    http://michaelturton.blogspot.com/2014/10/the-century-of-humiliation-is.html

    As Emma Teng observed in _Taiwan’s Imagined Geography_

    “The deeply ingrained notion that the seas defined the natural limits of the Chinese realm underlay the reluctance to annex Taiwan. As the Kangxi emperor’s advisors argued, ‘Since antiquity, no oceanic islands have ever entered the imperial domain.'”

    The Chinese desire to annex the South China Sea is pure territorial expansion that has nothing to with Chinese history.

    Michael Turton

    • You may want to research and study the Selden Map of China (1610-1620)resting in Oxford’s Bodleian Library that shows the Chinese names of ports, Islands and trade routes stretching from Siberia in the North, Japan and the Philippines in the east, Burma and southen India in the west and down to Java and the Spice Islands as far south as Timor.
      For anyone to suggest that Chinese place names in the China Seas are a translation from English is simply ludicrous.

      • Tony, you might want to study recent history. When the ROC government decided to name those islands which no government of China had shown any interest in before, it was forced to use British names because no Chinese names were known to exist.

        Hayton has a list of the translations/transliterations in his presentation.

        http://4.bp.blogspot.com/-93ExoMJS66E/VEz-8cRytyI/AAAAAAAAD9g/aqEooCKTjtI/s1600/Hayton11.jpg

        If you can read Chinese, it’s very obvious what is going on. Hayton wrote in another piece:

        “””When a Chinese government committee first gave Chinese names to the islands in 1935 all it did was either translate or transliterate the existing British names. In the Paracels, for example, Antelope Reef became Líng yang (the Chinese word for antelope) and in the Spratlys, North Danger Reef became Bei xian (Chinese for “north danger”), Spratly Island became Si-ba-la-tuo (the Chinese transliteration of the English name). The Chinese committee simply copied the British maps, errors and all. The names were then revised, twice. Scarborough Shoal, named after a British ship in 1748, was originally transliterated as Si ge ba luo in 1935, renamed Min’zhu Jiao—Democracy Reef by the nationalist Republic of China in 1947 and then given the less politically-sensitive name of Huangyan (Yellow Rock) by the communist People’s Republic of China in 1983.””””

        Bonnet’s 2004 paper in World Bulletin, “The Spratlys: “A Past Revisited” but it’s not on the net, sadly. Fortunately I will be posting it on my blog shortly (he just sent me a copy yesterday), describes how inept and ignorant the Chinese government was when it attempted to assert a claim to the area after 1909.

        Michael Turton

      • Tony,

        The Selden map shows Hainan as the southern-most territory of China and does not show any 9-Dash line, which is a very recent embellishment.

        Bewlow is an excerpt from http://seldenmap.bodleian.ox.ac.uk/history

        “…the Selden map offers a kind of snapshot of the kind of particular knowledge that individual lineage groups involved in trade in coastal provinces like Fujian would have amassed through their networks and private libraries. Professor Li Xiaocong 李孝聪 (Peking University) has suggested that the map might have been produced by the community of sinicized Arabs that was present in Quanzhou during the late Ming.”

        You may also want to research how the ancient Chinese approach to map-making differed from greatly the western scientific approach to spatial cartography, resulted in the gross misunderstandings that the Chinese Communist Party is now taking advantage of.

        Below is an excerpt from http://news.stanford.edu/news/2014/may/declassified-chinese-maps-052914.html
        .

        • “The Chinese understood the function of maps differently from the British. Chinese mapmaking practices did not emphasize mathematical projections. For the Chinese, a map was a broad illustration of a region based on written sources. ”

          A typical 19th century Chinese map shows regional hierarchies and landmarks, such as the prefecture seats depicted as walled compounds, the trade routes marked by passes, and the areas controlled by various chieftains.
          The excerpt from http://news.stanford.edu/news/2014/may/declassified-chinese-maps-052914.html

          “And unlike western maps, the Chinese maps themselves rarely contained distance measurements. Textual descriptions indicated distances between various landmarks. “The Chinese believed that maps could not adequately convey the geographical knowledge found in written sources.”

  2. In his desperate attempt to once again earn some credits for China,Sourabh Gupta threw legal-sounding words out at readers but when facts-checked against realities, they don’r stack up:
    . China routinely, breaks signed treaties: “its settlement with Vietnam in the Tonkin Gulf” in 2007, immediately violated with deadly incidents and China now insists on new negotiation per PM Li Keqiang’s visit to Vietnam in 2014. What “traditional fishing rights on a non-exclusive basis” and since when “has been accepted by regional peers by way of practice.”? Facts on the water: during the past 10 years Chinese Coast Guard and paramilitary fishermen have caused over 2,500 incidents of ramming, sinking and occasionally, killing Vietnamese fishermen… several of which, recorded on videos and/or protested by Vietnamese officials. Also feel free to watch the French-made documentary “Hoang Sa – Painful Loss” concerning a single fishing Vietnamese village with 30 missing fathers, 22 confirmed deaths and over 300 boats/fishermen being held by China for ransom payments.Gupta reaches bottom with the observation that “It has never published a law or decree giving the line a legal personality” conveniently, forgot the Hainan’s implemented laws Jan.1, 2014 covering 3.5 millions square milometers of South China Sea where vessels must bear Chinese permits and be subject to Chinese Coast Guard boarding. Here are the words of Chinese Foreign Ministry spokeswoman Hua Chunying “there was nothing unusual about the new restrictions.”. That’s the “legal personality”.

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