[Submission] U.S. Slams Chinese 9 Dashed Line Claim
By Mark Rosen, JD, LLM, CNA Corp.
For decades, the Department of States has published its legal and geographic analysis of the claims of other countries. Those analyses are contained in State’s Limits of the Seas series. These publications are important to Law of the Sea scholars as well as officials in the U.S. government (especially DOD) that conform their behavior to what is or is not a lawful maritime claim. There have been past analyses of Chinese Straight Baselines and some of their other excessive practices but up to now there has not been a formal legal assessment of People’s Republic of China’s (PRCs) Nine Dashed Line and derivative PRC claims in the South China Sea (SCS). That changed on December 5th when the Department of State offered its legal assessment of Chinese Maritime Claims in the South China Sea.
It is no secret that most nations have great difficulty with Chinese behavior in the South China Sea. Secretary of State Clinton took a very hard line on Chinese actions and in February of 2014 Assistant Secretary of State Daniel Russel stated in Congressional Testimony that:
…..all maritime claims must be derived from land features and otherwise comport with the international law of the sea. So while we are not siding with one claimant against another, we certainly believe that claims in the South China Sea that are not derived from land features are fundamentally flawed.
DOS’ reluctance to issue a formal statement concerning the nine-dashed line “claim” was, in the words of the authors of LIS No. 143, driven by the fact that the nine-dashed line claim had not been formally promulgated as a claim in national legislation. It had not been accompanied with formal coordinates or otherwise included in a formal international notification. Put another way, DOS was probably reluctant to criticize something which did not have all of the trappings of a formal territorial claim. Because some of the features of that claim were extra-judicial that there was a hope that China would come to the realization that the claim was without legal foundation and quietly back away from this position. That did not happen.
In May of 2009 the Chinese Government communicated two Notes Verbales to the UN Secretary General which contained China’s objections to the submissions by Vietnam and Malaysia (jointly) and Vietnam (individually) to the Commission on the Limits of the Continental Shelf. In that submission, China attached their infamous nine-dashed line map to the submission to the UN and made this statement:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map). The above position is consistently held by the Chinese government, and is widely known by the international community.
Since China has access to western trained lawyers and linguists and knows well how to craft important documents, it immediately became apparent that the PRC was not confining its claims in the South China Sea to only waters that are associated with land features. At best, the PRC affirmatively used vague language to test the waters. Vietnam, Indonesia and the Philippines did not take the bait and immediately protested the language. LIS 143 chronicles additional official statements by Chinese officials which tend to exacerbate the ambiguity or, worse, confirm that China really intends to claim waters disassociated with land features. China’s statements that is enjoys sovereignty over the wholly submerged Second Thomas Shoal confirms that in practice China is claiming more than just waters associated with land since submerged features are not capable of either of any state’s sovereignty claims and legally incapable of generating its own maritime zone. Their claim of sovereignty to the submerged James Shoal near the Coast of Malaysia is similarly suspect - there is no Chinese claimed island nearby that could support a claim by the PRC that the underwater features are part of a PRC island’s continental shelf.
Proceeding under the assumption that China intended to actually claim the waters, LIS 143 systematically rebuts every possible legal basis for such waterspace claims. LIS 143 rejected the notion that China can claim waterspace under a theory of historical rights. First and foremost, a claim to waterspace independent of land is not supported by any provision in the UNCLOS. Second, China has not followed the correct procedures to establish such a claim based on historic rights by never articulating such a claim or publishing the coordinates of such claim. Third, China’s internal legislation that could be used to support of historic rights is internally inconsistent. Fourth, any claim by China that their rights to claim waterspace can based on general principles of international law (versus UNCLOS alone) is fatally flawed in that the 1982 Law of the Sea Convention does not permit states to resort to general international law to trump the provisions in the Convention which is the sole international legal instrument to establish maritime zones. Fifth, China is a late-comer to the claims process and cannot now claim historic rights based on some sort of theory of prescription. There has been no: open, and notorious exercise of effective authority over the SCS; no continuous exercise of authority; and no acquiescence by other states to the PRC’s exercise(s) of authority.
The bottom line of LIS 143 is that unless and until the PRC clarifies that its 9 dashed line only represents a claim to islands within the zone created by the nine-dashes, the claim will fail as a matter of the international law of the sea.
The complete report can be found at: http://www.state.gov/documents/organization/234936.pdf
Mr. Rosen is a retired navy captain (JAGC) and has spent nearly 25 years in the oceans and general maritime law field, with a specialty in maritime disputes/claims.
This article does not reflect the views of CNA or its sponsors.