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

Author: Sourabh Gupta, Samuels International

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.

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).

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.