Tag Archives: UNCLOS

Members’ Roundup: July 2016 Part One

By Sam Cohen

Welcome to Part One of the July 2016 members’ roundup. Through the first half of July, CIMSEC members examined several international maritime security issues, including the Permanent Court of Arbitration ruling in the South China Sea, Russia’s continued air campaign against ISIS, the U.S. Navy’s procurement objectives for the Virginia-class submarine successor, and the United States’ position on the United Nations Convention on the Law of the Sea (UNCLOS). Here is a roundup of their writings. 

Mira Rapp-Hooper and Patrick Cronin, at War on the Rocks, provide an analysis on the long-anticipated Permanent Court of Arbitration ruling in the Philippines vs. China case over the South China Sea. Using a ‘Choose Your Own Adventure’ format, the authors breaks down the different geopolitical and legal implications of the ruling, including potential Chinese responses, political fallout for China–Philippines relations, and the future of maritime and sovereignty claims in the South China Sea. The authors explain that for China to comply with the Court’s ruling it must not claim any water or airspace from the reefs it occupies or make a 12 nautical mile assertion from any claimed land features. With the ruling being highly unfavorable to China’s maritime objectives, the authors highlight that if Beijing begins to prioritize territorial claims while easing off claims to water and air, it would likely reflect a China looking to move beyond its defeat while saving face.

Armando J. Heredia at U.S. Naval Institute News, examines the tribunal’s decision from the perspective of Manila and how the recent election of Rodrigo Duterte as President of the Philippines will impact regional relations. He explains how the previous administration chose to accelerate the modernization process of the country’s military in response to increased hostility from China while opening the way for American forces to return to the Philippines through the Enhanced Defense Cooperation Agreement (EDCA). He notes that even under the modernization program the Philippines remain weak in terms of kinetic responses to a Chinese incursion. He also notes that any engagement by the Philippines would have to leverage the country’s poorly equipped Coast Guard, which lacks sufficient hulls to establish presence operations near disputed maritime regions and land features.

Jake Bebber, at the U.S. Naval Institute Blog, discusses the centrality of cyberspace operations in the People’s Liberation Army’s (PLA) strategy for long-term competition with the United States. He discusses aspects of informationized warfare and how the PLA is seeking to position its sources of information power to enable it to win a short, overwhelming victory for Chinese forces in a notional conflict. He notes that in response to China investing large amounts of time, energy, people and resources towards achieving the country’s cyberspace and information warfare objectives, the DoD must ensure that U.S. Cyber Strategy supports the force planning, training, and equipping of cyber forces while integrating advanced technology into information planning and acquisition.

Kyle Mizokami, at Popular Mechanics, provides an overview of Moscow’s decision to deploy the country’s only aircraft carrier to the Mediterranean to carry out airstrikes against the Islamic State until next year. Discussing some of the ship’s features, he explains that the ship’s propulsion system is unreliable and is so prone to breaking down that an oceangoing tugboat always accompanies it on long distance voyages. He also discusses the capabilities the carrier will deploy, including Su-33 air superiority fighters, Su-25UTG ground attack aircraft, and MiG-29KUB two-seater multi-role fighters.

Dave Majumdar, at The National Interest, discusses the U.S. Navy’s procurement objectives for the next-generation SSN(X) successor to the Virginia-class attack submarines. His article argues that one priority, permitting the Navy will have the technological know-how to do so, is to effectively turn the future attack submarine into an underwater platform for unmanned underwater vehicles (UUV). Another objective would be to eliminate noise-generating moving parts such as a propulsor or driveshaft in the propulsion system to decrease the possibility of detection in an increasingly competitive undersea environment.

Members at CIMSEC were also active elsewhere during the first part of July:

At CIMSEC we encourage members to continue writing, either here on CIMSEC or through other means. You can assist us by emailing your works to dmp@cimsec.org.

Sam Cohen is currently studying Honors Specialization Political Science at Western University in Canada. His interests are in the fields of strategic studies, international law and defense policy.

Featured Image: A view from the deck of the Russian carrier  Admiral Kuznetsov (Wikimedia commons)

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line: Finale

By Alex Calvo

This is the fifth installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two, part three, part four

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Whereas the assertion that China has not actually made a claim may not be shared by everybody, in particular given the language flowing from Beijing which the DOS report itself cites, the reference to the “high seas” between mainland China and some islands seems stronger proof that Beijing was not making a historic claim. However, we must again stress that this would be the case if we followed the prevailing interpretation of the law of the sea, but there is no reason why China should adhere strictly to it, and even less that Beijing should not have changed her mind since 1958, when she had little more than a coastal navy and her economy was closed and in tatters. It may be true, as the report notes, that the 1958 Declaration only made a historic claim to the Bohai (Pohai) gulf in northeastern China, but again this should perhaps be judged from a wider historical perspective. After 1949 the PRC took a much more uncompromising stance concerning its North-East than its South-East (and wider maritime) borders. With a pragmatic arrangement in place with the United Kingdom concerning Hong Kong, and a strong economic and political relation with the Soviet Union, it was at the other end of the country where, in 1950, Beijing (not without an intense internal debate given the state of the country), decided to resort to force to prevent the presence of hostile forces close to her border, intervening in the Korean War, pushing back the advancing Allied forces and reversing the impact of the Inchon landing, ultimately forcing a stalemate on the ground. In 1958, just five years after the Korean armistice, nearby waters may have thus been much more present in Chinese leaders’ minds. In addition, these were also the waters directly leading to Tianjin and Beijing, the venue for foreign interventions in both the Opium Wars and the Taiping Rebellion. It would not be until the late 1970s that China’s South-Eastern flank would begin to receive more attention, in part thanks to the rapprochement with the United States and in particular once economic growth and the country’s move to become a net energy and commodity importer turned the waters of the South China Sea into a vital venue and potential choke point. It is true that in December 1941 the loss of HMS Prince of Wales and HMS Repulse in the South China Sea had enabled the Japanese to land in Malaya and ultimately conquer Burma, closing the last land route to besieged Nationalist China, but this did not result in a comparable imprint on China’s historical consciousness, among other reasons because the episode did not involve Chinese naval forces and was subsumed into a much larger, dramatic, and quickly-developing picture.

Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.
Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.

Rejecting the validity of a possible historic claim by China. Concerning whether, if China “Made a Historic Claim”, it would “have Validity”, the DOS paper insists that “such a claim would be contrary to international law”, stressing the limited degree to which UNCLOS recognizes this category of claims, as evidenced by its “text and drafting history”. The text argues that “apart from a narrow category of near-shore ‘historic’ bays” in Article 10, and “historic title” concerning “territorial sea boundary delimitation (Article 15)”, “modern international law of the sea does not recognize history as the basis for maritime jurisdiction”, citing the Gulf of Maine ICJ case. It also underlines the fact that UNCLOS provisions concerning the EEZ, continental shelf, and the high seas “do not contain any exceptions for historic claims” to the detriment of coastal states and all estates enjoying certain freedoms. Concerning fisheries, the report acknowledges that UNCLOS refers to “the need to minimize economic dislocation in States whose nationals have habitually fished” in the EEZ (Article 62(3)) and to “traditional fishing rights and other legitimate activities” (Article 51), but restricts the impact to the possible granting by one state to another of fisheries resources “based on prior usage”. The text stresses that no such traditional fishing practices can “provide a basis for sovereignty, sovereignty rights, or jurisdiction,” adding that UNCLOS rules on oil and gas development contain no “exception for historic rights in any context.” Again we note how a purely legal report like this may be missing part of the picture, given the great importance that fishing vessels have in the ongoing conflict over the South China Sea, where they are one of the pillars of asymmetric naval warfare.

Chinese scholars Gao and Jia have argued that UNCLOS does not regulate “historic title” and “historic rights,” which fall instead under the purview of general international law. In their view, UNCLOS “was never intended, even at the time of its adoption, to exhaust international law. On the contrary, it has provided ample room for customary law to develop and to fill in the gaps that the Convention itself was unable to fill in 1982” as clear from its preamble, which reads “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The DOS report explicitly rejects this position, saying that “it is not supported by international law” and goes against the “comprehensive scope of the LOS Convention.” Experts like Mark Valencia, on the other hand, hold that China’s posture may be compatible with the international law of the sea.

The text does not stop at arguing that it is not open to a state to make historic claims based not on UNCLOS but on general international law, laying down a second line of defense. It explains that, “even assuming that a Chinese historic claim in the South China Sea were governed by ‘general international law’ rather than the Convention,” it would still be invalid since it would not meet the necessary requirements under general international law, namely “open, notorious, and effective exercise of authority over the South China Sea,” plus “continuous exercise of authority” in those waters and “acquiescence by foreign States” in such exercise of authority. Furthermore, it explains that the United States, which “is active in protesting historic claims around the world that it deems excessive,” has not protested “the dashed line on these grounds, because it does not believe that such a claim has been made by China,” with Washington choosing instead to request a clarification of the claim. Whether this view is also meant to avoid a frontal clash with Beijing, in line with the often state policy goal of “managing” rather than “containing” China’s rise, is something not discussed in the text.

The report concludes by criticizing another view put forward by Gao and Jia, namely the relevance of claims made before the advent of UNCLOS. While these two scholars argue that “In the case of the South China Sea as enclosed by the nine-dash line, China’s historic title and rights, which preceded the advent of UNCLOS by many years, have a continuing role to play,” the DOS paper says that “The fact that China’s claims predate the LOS Convention does not provide a basis under the Convention or international law for derogating from the LOS Convention,” adding that “permitting States to derogate from the provisions of the Convention because their claims pre-date its adoption is contrary to and would undermine” the convention’s “object and purpose” stated in its preamble to “settle … all issues relating to the law of the sea.”

Conclusions. Long-standing American policy towards China stresses the need to manage the latter’s rise, so that it does not threaten the post-Second World War system, based among others on freedom of navigation and a ban on territorial expansion as a legitimate causus belli. As a result, Washington has often called on Beijing to clarify her claims on the South China Sea, in an attempt to constrain them while avoiding a frontal clash. This position also seeks to reinforce the perception that the United States focuses on the rule of law at sea, rather than on supporting one claimant against the other over disputed waters. The DOS document, in line with this approach, carefully dissects Chinese claims, analyzing whether they may be compatible with standard American interpretations of international Law of the Sea. The conclusions are rather pessimistic, exposing how, despite having ratified UNCLOS, the Convention’s provisions are not seen in the same light by Beijing and Washington. This should not surprise us, since international law seeks to constrain power but at the same time it is shaped by it, thus as countries rise they seek to play a greater role in the fate of rules and principles. In the case of China this is even clearer due to historical perceptions that it was to a large extent seaborne power which subjected the country to a semi-colonial status for a whole century. If Beijing’s claims in the South Chinese Sea cannot be seen in the light of UNCLOS, the question arises what ultimate Chinese goals are. Could this be the subject of a future paper by the Department of State? Or does Washington prefer to wait until the international arbitration case launched by Manila concludes? While the second option seems more likely, as time goes by the idea that China’s rise may be shaped, rather than constrained, increasingly seems less and less realistic. However, if the time comes to draw a line in the sand, a whole of government effort will be needed, going beyond the naval circles that to date have been most vocal in articulating the need to resist Chinese expansion.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 4

By Alex Calvo

This is the fourth installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two, part three

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3.- “Dashed Line as a Historic Claim”

The third way to see the dashed-line, according to the Limits in the Seas series paper, would be as a historic claim. Under UNCLOS this can take two forms, “one of sovereignty over the maritime space (‘historic waters’ or ‘historic title’)” or “some lesser set of rights (‘historic rights’) to the maritime space.” The paper devotes much more room to discussing this possibility than to the two previous alternative interpretations. It begins by pointing out that “some Chinese government statements and acts could be read to support a version of this historic claim interpretation”, and by noting that given that “the dashed-line maps pre-date the People’s Republic of China, the views of Taiwan are also of interest.” Concerning the Island’s claims, the text underlines that while in 1993 its “Policy Guidelines for the South China Sea” said that the dashed lines enclosed a “’historic water limit’ within which Taiwan ‘possesses all rights and interests’” (see K-H. Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the South China Sea,” Ocean Development and International Law, Volume 41, 2010, pp. 237-252), Taipei has not stuck to this view. “Subsequent maritime legislation enacted by Taiwan and subsequent public statements, however, suggests that this view may no longer be officially held,” noted the State Department in another Limits on the Seas series issue, published in 2005, devoted to Taiwan. While the text refers to this 2005 paper, the latter’s contents do not discuss in depth ROC claims on the South China Sea, as clear from the fact that the term “South China Sea” only appears three times, whereas “dash” is not to be found. Thus, while the assertion that in studying PRC claims one should pay attention to ROC claims seems logical, this is not followed up, either in the 2005 Limits on the Issues paper devoted to Taiwan, or in the 2014 one dealing with China. In other words, the Department of State does not follow its own advice. How should we read this? On the one hand, the preeminent use of “Taiwan” may seem to amount to a limited recognition of political realities on the ground, in opposition to Beijing’s views, further contradicted by the scant regard for ROC practice as opposed to the PRC’s emphasis on administrative and international legal continuity with the Nationalist regime. An alternative, more Beijing-friendly, interpretation of the DOS approach may be that it is treating Taipei as the de facto authority on the Island, also for law of the sea purposes, while restricting its role in the South China Sea, where the PRC has consistently sought to exclude Taiwan from regional fora, in line with its traditional policy towards the Island. More generally, this may reflect the complex and ambiguous status of Taiwan, with neither the Island itself nor countries like the United States completely sure what it is. To add to the confusion concerning Taiwan in the DOS paper, it states on page 21 that “Many islands and other features in the South China Sea are occupied not just by China, but by … Taiwan,” yet again this is not followed by any detailed examination of Taipei’s claims.

Going back to evidence for the possible interpretation of Beijing’s claims as historic, the report cites as “most notable” China’s “1998 EEZ and continental shelf law, which states [in Article 14] without further elaboration that ‘[t]he provisions of this Act shall not affect the historical rights of the People’s Republic of China’” (emphasis added in the DOS report). China’s 2011 Note Verbale says that Beijing’s claims are supported by “historical and legal evidence,” but while the DOS report adds emphasis to “historical”, one should be careful not to confuse a historical claim with a claim supported by history. A country may put forward historical evidence in both negotiations and arbitration or adjudication in areas where UNCLOS refers to “equitable” solutions. The text also notes how many “Chinese institutions and commentators have considered that the dashed-line maps depict China’s historic title or historic rights.”

The DOS reports explains that “some” Chinese Government actions and statements which are “inconsistent with” UNCLOS, while not amounting to “express assertions of a historic claim, they may indicate that China considers that it has an alternative basis – such as historic title or historic rights – for its maritime claims in the South China Sea,” and provides some examples, such as the assertion by Foreign Ministry Spokesperson Qin Gang on 10 March 2014 that the Second Thomas Shoal (Ren’ai Reef) was under Chinese “sovereignty.” Qin Gang said “It is known to all that China has sovereignty over the Nansha Islands and their surrounding waters, including the Ren’ai Reef.” This mantra about sovereignty, together with repeated appeals to history, could indeed be considered as evidence that what Beijing has in mind is a historic claim. Furthermore, it may well be a claim going beyond the provisions for such term in UNCLOS. The report provides further evidence, beyond statements, to support the view that China may be making a historical claim. First of all, the “periodic oath-taking ceremonies at James Shoal” by Chinese naval vessels “to affirm ‘sovereignty’ over this bank” and the 2012 introduction by the China National Offshore Oil Corporation (CNNOC) of lease blocks in front of Vietnam’s central coast, in “waters under jurisdiction of the People’s Republic of China” according to the company yet with “portions of two of these blocks (BS16, DW04)” extending “without explanation to waters that are beyond 200 nm from any Chinese-claimed island.” The DOS report stresses that the resulting “assertion of maritime jurisdiction … exceeds what is provided for under” UNCLOS.

“Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.”
Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.

The idea that Chinese claims are “separate from, and additional to” UNCLOS is also suggested by domestic legislation, the DOS report notes. As an example it cites China’s 1999 Law on Marine Environmental Protection, which describes its geographical scope as extending to the country’s “internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf of the People’s Republic of China and other sea areas under the jurisdiction of the People’s Republic of China” (emphasis in the DOS report). According to the text, UNCLOS is restricted to maritime zones mentioned in the law, and not to any “other sea areas under the jurisdiction” of the PRC, and “perhaps” this is a reference to “areas where China considers that it has historic claims.” Again, we must remember that this could be understood in two different ways, either China making a claim based on historic facts (recognized to a limited degree by UNCLOS) or China laying down sovereignty over certain areas of the sea based on principles and rules outside UNCLOS, or outside the prevailing interpretation of UNCLOS.

Has China made a historic claim? Next the DOS report examines two issues: whether China has actually “Made a Historic Claim”, and whether it would “have Validity.” Concerning the former, the text states that “China has not actually made a cognizable claim to either ‘historic waters’ or ‘historic rights,’” the reasons being a lack of “international notoriety” and the statement in her 1958 Territorial Sea Declaration that “high seas” separate the Chinese mainland and coastal islands from “all other islands belonging to China”. The text admits that the expression “historic waters” appears in some Chinese legislation and statements, and actually cites some of them, but believes that this does not amount to “notoriety” to a degree sufficient to “at the very least” allow “other states” to “have the opportunity to deny any acquiescence with the claim by protest etc.” (Taken from C.R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal, (Leiden: Martinus Nijhoff Publishers, 2008), p. 145) since “no Chinese law, declaration, proclamation, or other official statement” exists “describing and putting the international community on notice of a historic claim.” The text dismisses references to “historic rights” in the 1998 EEZ and continental shelf law as “a savings clause” and “not a statement of a claim itself.” An additional reason put forward by the text is that these could be references to “China’s sovereignty claim to the islands, and not the waters.” The 1947 map does not constitute either, according to the DOS report, a claim, and furthermore even if one had been made, the fact it was published domestically “in the Chinese language” would not amount to “an act of sufficient international notoriety to have properly alerted the international community.” More generally, the text considers that no subsequent Chinese map can be treated as having made a claim either, since they all “lack the precision, clarity, and consistency that could convey the nature and scope of a maritime claim” and cites in support of this view the ICJ “statement of principle” in the Frontier Dispute case between Burkina Faso and Mali, which says that “Whether in frontier delimitations or international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.”

Read the next installment here

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 3

By Alex Calvo

This is the third installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two

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Let us move to the three interpretations put forward by the US Department of State.

1.- “Dashed Line as Claim to Islands”

This would mean that all Beijing was claiming were the islands within the dashed lines, and that any resulting maritime spaces would be restricted to those recognized under UNCLOS and arising from Chinese sovereignty over these islands. The text notes that “It is not unusual to draw lines at sea on a map as an efficient and practical means to identify a group of islands”. In support of this interpretation one could take the map attached to the 2009 Notes Verbales and the accompanying text, which reads “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 text notes that the references in the paragraph above to “sovereignty” over “adjacent” waters” may be interpreted as referring to a 12-nm belt of territorial sea, since international law recognizes territorial waters as being a sovereignty zone. In a similar vein, references to “sovereign rights and jurisdiction”, “relevant waters”, and “seabed and subsoil thereof”, would then be taken to concern the legal regime of the EEZ and the continental shelf, as defined by UNCLOS.

As possible evidence for this interpretation, the study cites some Chinese legislation, cartography, and statements. The former includes Article 2 of the 1992 territorial sea law, which claims a 12-nm territorial sea belt around the “Dongsha [Pratas] Islands, Xisha [Paracel] Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China”. This article reads “The PRC’s territorial sea refers to the waters adjacent to its territorial land. The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China. The PRC’s internal waters refer to the waters along the baseline of the territorial sea facing the land”. The Department of State also stresses that China’s 2011 Note Verbale states that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ), and Continental Shelf”, without laying down any other maritime claim. Concerning cartography, the study cites as an example the title of “the original 1930s dashed-line map, on which subsequent dashed-line maps were based”, which reads, “Map of the Chinese Islands in the South China Sea” (emphasis in the DOS study). With regard to Chinese statements, the study cites the country’s 1958 declaration on her territorial sea, which reads “and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas” (emphasis in the DOS study). The text argues that this reference to “high seas” means that China could not be claiming the entirety of the South China Sea, since should that have been the case there would have been no international waters between the Chinese mainland and her different islands in the region. This is a conclusion with which it is difficult to disagree, although we should not forget that it was 1958, with China having barely more than a coastal force rather than the present growing navy. Therefore, while the study’s conclusion seems correct, and precedent is indeed important in international law, it is also common to see countries change their stance as their relative power and capabilities evolve. Thus, if China had declared the whole of the South China Sea to be her national territory in 1958 this would have amounted to little more than wishful thinking, given among others the soon to expand US naval presence in the region and extensive basing arrangements. Now, 50 years later, with China developing a blue water navy, and the regional balance of power having evolved despite the US retaining a significant presence, Beijing can harbor greater ambitions.

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Then US Secretary of State Hillary Clinton with her Filipino counterpart, Albert del Rosario, in June 2011. Washington supports Manila’s arbitration bid and rearmament, but takes no official position on her territorial claims, despite involving former American territory.

This section ends with the DOS study stating that should this interpretation be correct, then “the maritime claims provided for in China’s domestic laws could generally be interpreted to be consistent with the international law of the sea”. This is subject to two caveats, territorial claims by other coastal states over these islands, and Chinese ambiguity concerning the nature of certain geographical features, Beijing not having “clarified which features in the South China Sea it considers to be ‘islands’ (or, alternatively, submerged features) and also which, if any, ‘islands’ it considers to be ‘rocks’ that are not entitled to an EEZ or a continental shelf under paragraph 3 of Article 121 of the LOS Convention”. Some of these features, Scarborough Reef for example, are part of the arbitration proceedings initiated by the Philippines.

2.- “Dashed Line as a National Boundary”

This would mean that Beijing’s intention with the dashed line was to “indicate a national boundary between China and neighboring States”. As supporting evidence for this interpretation, the DOS report explains that “modern Chinese maps and atlases use a boundary symbol to depict the dashed line in the South China Sea”, adding that “the symbology on Chinese maps for land boundaries is the same as the symbology used for the dashes”. Map legends translate boundary symbols as “either ‘national boundary’ or ‘international boundary’ (国界, romanized as guojie)”. Chinese maps also employ “another boundary symbol, which is translated as ‘undefined’ national or international boundary (未定国界, weiding guojie)” but this is never employed for the dashed line.

The report stresses that, under international law, maritime boundaries must be laid down “by agreement (or judicial decision) between neighboring States”, unilateral determination not being acceptable. The text also notes that the “dashes also lack other important hallmarks of a maritime boundary, such as a published list of geographic coordinates and a continuous, unbroken line that separates the maritime space of two countries”. The latter is indeed a noteworthy point, since border lines would indeed seem to need to be continuous by their very nature, rather than just be made up of a number of dashes. This is one of the aspects making it difficult to fit Beijing’s claims with existing categories in the law of the sea. In addition, the report notes that they cannot be a limit to Chinese territorial waters, since they extend beyond 12 nautical miles, and neither can they be a claim to an EEZ, since “dashes 2, 3, and 8” are “beyond 200 nm from any Chinese-claimed land feature”. These last two aspects also make it difficult to see the dashed line as marking one of the categories recognized by UNCLOS. Moving beyond the law, however, and this is something that the DOS report does not address, a certain degree of ambiguity may be seen as beneficial by a state seeking to gradually secure a given maritime territory. Some voices have noted this may have been the US calculus in the San Francisco Treaty. Thus, the technical faults, from an international legal perspective, in China’s dotted line are not necessarily an obstacle to Beijing’s claims, from a practical perspective.

Read the next installment here

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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