[Updated] Defining the post-arbitration nine-dash line: more clarity and more complication

The Central Party School's article, headlined, "China does not accept the jurisprudential legitimacy of the SCS arbitral tribunal's decision," PLA Daily, p.6, July 18

The Central Party School’s article, headlined, “China does not accept the jurisprudential legitimacy of the SCS arbitral tribunal’s decision,” PLA Daily, July 18, p.6

One week on from the UNCLOS arbitration ruling on the South China Sea, the PRC’s response continues to somehow both clarify and complicate the issue at the same time. The latest episode in the unfolding mystery of the nine-dash line seems to diminish the line’s linkage with oil and gas claims designated unlawful by the Tribunal, while ramping up its associations with “historic title” over large sweeps of archipelagic waters [but seemingly not the entire Spratly archipelago – see update at the bottom]. 

On Monday an article published on p.6 of the PLA’s official newspaper offered a clear and detailed post-ruling definition of the nine-dash line from authors at the Central Party School. One of its main purposes was to refute the Tribunal’s inferred reading of the nine-dash line as a blanket claim to historic rights within the area it encloses. (Grateful HTs to Bill Bishop for digging it up and Bonnie Glaser for drawing attention to its significance.)

The article offers a more complex clarification of the line’s meaning than my optimistic reading of last week’s PRC Government Statement: whereas i read the Statement as implicitly separating the nine-dash line from China’s maritime rights claims, this article spells out at least some explicit links between the two.

On the other hand, it offers little or no support to the expansionist reading of the line that has underpinned many provocative PRC actions in recent years. In particular, the CPS scholars’ definition does not appear to support a claim to oil and gas resources out to the edge of the nine-dash line. This was a key element of the implied reading of the nine-dash line that the Tribunal struck down as unlawful. It’s a position that the PRC has backed up with coercion against other claimants’ energy survey ships in the past, and it’s also the basis for the notion, widespread in PRC domestic discourse, that rival claimants, especially Vietnam and Malaysia, are “plundering” China’s resources.

The writing of this article is attributed to CPS Postgraduate Studies Institute Deputy Dean Wang Junmin 王军敏, but the newspaper byline attributes it collectively to the CPS Center for Research on the Theoretical System of Socialism With Chinese Characteristics. It is, as such, not a government statement, but it’s very detailed, takes into account the Tribunal ruling, and could end up being close to the interpretation the PRC goes forward with in the wake of the ruling.

This interpretation can be summarized as follows. The nine-dash line is not a blanket claim to historic rights over all waters within, but rather to three distinct sets of rights across different geographical areas:

  1. Sovereignty over the islands within the line (the original meaning of the line when the KMT government published it in 1948)
  2. “Historic title” (历史性所有权) to waters enclosed by straight baselines drawn around island groups within the line (definitely including the Paracels, for which the baselines have already been announced, but not necessarily for the whole Spratly group)
  3. Non-exclusive fishing rights in others’ EEZs where (a) they overlap with the line and (b) Chinese fishers traditionally fished under high-seas freedoms

The article begins by arguing the UNCLOS does not constitute the entirety of international maritime law, and that customary international law continues to apply on matters where rules are not provided for in UNCLOS. In particular, the authors argue,

“The UNCLOS did not provide rules for the issue of territorial sea baselines for continental countries’ archipelagos; nor did it provide rules for historic rights, although it affirmed their status in international law.”

The author(s) state that the Philippines “distorted” the nine-dash line by (a) presenting it to the arbitral tribunal as representing a Chinese claim to sovereign rights and administration over all of the waters and seabed within; and (b) by arguing that the PRC claims “historic rights” (历史性权利) within the line, when in fact the PRC claims “historic title” (历史性所有权) over areas within the line, putting the case outside the Tribunal’s jurisdiction.

This line of argument appeared, fleetingly, in China’s 2014 Position Paper, which noted that disputes concerning “historic bays or titles” were exempt from compulsory dispute resolution under Article 298. According to the author(s), China has “historic title” to internal waters within archipelagic straight baselines.

So the authors say the Philippines “slandered” China’s nine-dash line by providing a distorted reading of its meaning to the Tribunal. Here’s how they explain its true meaning:

First, looking at China’s practical exercise of state power, China has never claimed all the waters within the line as its territorial sea or internal waters, exercising state sovereignty there. In fact, the 1958 Territorial Sea Declaration, at the same time as proclaiming the applicability of the straight baseline system and setting the breadth of China’s territorial seas at 12nm, implicitly noted that international waters [exist] between the Chinese mainland and coastal islands, and Taiwan and surrounding islands, Penghu, Pratas, Paracels, Zhongsha, Spratlys and other islands belonging to China [ZH]. In 1996 the Declaration of Territorial Sea Baselines announced the territorial sea basepoints and baselines for the Paracel Islands, thereby implying that within the ‘nine-dash line’ China would, in accordance with the UNCLOS, take the Paracels as an integrated whole entitled to territorial seas, contiguous zone, EEZ and continental shelf. Likewise, China’s 2011 note to the UN Secretary General claimed that the Spratlys also enjoy territorial seas, EEZ and continental shelf. This implies: China has never claimed all the waters within the ‘nine-dash line’ as China’s historic waters or that it enjoys historic rights .

Second, the Philippines used the Chinese expression ‘historic rights’ (历史性权利) to argue China had not claimed ‘historic title’ (历史性所有权). As everyone knows, historic rights in international law refers to the rights enjoyed continuously by a state in certain waters since ancient times. Historic rights include historic title and non-exclusive historic rights. Waters subject to historic title are called ‘historic waters’ (历史性水域), these are part of a coastal state’s internal waters or territorial seas, and mainly include historic bays. other coastal waters adjacent to the coast, and the waters within archipelagos. Non-exclusive historic rights are divided into historic rights of passage and historic fishing rights. The former refers to innocent passage through internal waters, specifically all countries’ rights of innocent passage through areas not originally regarded as internal waters, but which became enclosed as such through the coastal state’s application of straight baselines.[ZH] The latter refers to non-exclusive rights to fish in areas that were previously fished in accordance with high seas freedoms but which have now become a coastal state’s EEZ [or] archipelagic waters.[ZH] The mere use of ‘historic rights’ in the PRC EEZ and Continental Shelf Law, by MFA spokespersons, and by Chinese scholars, does not imply China does not claim ‘historic title’. In fact, our country has historic title and historic fishing rights in different areas within the nine-dash line.

Third, China’s ‘nine-dash line’ rights claims mainly comprise: 1. China has territorial sovereignty over islands, reefs, cays and shoals within the line; 2. China has historic title to waters within archipelagos or island groups that are at relatively close distance and that can be viewed as an integrated whole, these areas are China’s historic waters, they are our country’s internal waters,[ZH] and China has the right to draw straight baselines around the outermost points of these waters and claim state administrative zones such as territorial seas, EEZs and continental shelves etc. in accordance with the UNCLOS. 3. When waters within the ‘nine-dash line’ become [part of] another country’s EEZ or an archipelagic state’s waters, China has the right to claim historic fishing rights or traditional fishing rights in the overlapping areas.

The many references to non-exclusive fishing rights contrast sharply with the complete absence of any mention of claims to oil and gas rights. As noted, it was precisely that (implied) claim that led to the line being designated unlawful. The 2012 CNOOC oil blocks, especially, convinced the Tribunal that China was acting in accordance with this reading of the line (see especially the Award paragraphs 208-214). But under the above definition, the nine-dash line seems to have no significance at all to the geographic scope of China’s energy rights claims.

2012 CNOOC oil and gas blocks, noted by the Philippines vs China arbitral tribunal

2012 CNOOC oil and gas blocks, noted by the Philippines vs China arbitral tribunal

The other striking thing about this definition is the heavy focus on the issue of historic title over internal waters enclosed within straight baselines around island groups — an issue addressed in an excellent article by Yanmei Xie over the weekend. There is plenty of reason to think that straight baselines might be about to enclose the Spratlys, a move that would significantly harden the PRC’s position.

But there might be yet another strange twist here. Looking again at the third paragraph above, the Party School authors define China’s claim of historic title to internal waters as existing in “archipelagos or island groups that are at a relatively close distance and that can be viewed as an integrated whole (my emphasis).” Which kinda seems to suggest the historic title aspect might be referring to the Paracels but not the Spratlys.

I’ve heard the “can be viewed as an integrated whole” argument for archipelagic straight baselines in the South China Sea numerous times from PRC sources, but i’ve never come across the “at a relatively close distance” criterion before. Why else might they have included this?

Here’s the answer (update 21/7):

Dylan Jones points out that the relatively close distance criteria refers to the distances between the islands, and a careful re-reading of the article confirms this. Here’s the Central Party School authors’ detailed explanation in translation:

“Most international legal experts consider state practice is forming, or has already established, international legal norms regarding continental states’ offshore archipelagos: the straight baseline system’s applicability to continental states’ offshore archipelagos is restricted to those archipelagos that can be seen as an integrated whole, with relatively small distances between the islands, and intimate connections between the waters and the mainland [. . . ]

The most likely and most appropriate method for China’s territorial sea baselines in the Spratly Islands is to imitate the method used in the Diaoyu Islands, for example, taking the main islands and reefs such as Itu Aba, Pagasa, West York, Spratly and Mischief as the centre, and linking together the surrounding reefs to establish baselines [. . .]”

“Looking at historic rights, China has historic title to waters between the relatively close, intimately connected islands that qualitatively comprise a unified whole, these waters are historic waters, China’s internal waters . . . China has the right to take those groups of islands within the Spratlys that are relatively close to each other as a single entity to establish territorial sea baselines,[ZH] and China’s Spratly Islands in the SCS have maritime administrative zones such as territorial seas, EEZ and continental shelf.”

So the author(s) do in fact believe a “historic title” claim over “internal waters” enclosed by straight baselines exists in the Spratlys — but rather than covering the entire archipelago, as per the Paracels baselines in 1996, it would only cover those parts within the archipelago that are close together. Here’s the Diaoyu example they refer to:

Diaoyu Islands straight baselines submitted to the UN in 2012

Diaoyu Islands straight baselines submitted to the UN in 2012

The authors repeat this “within the Spratlys” + “close together” + “intimately connected” recipe for Spratly straight baselines (and thus the scope of internal waters subject to historic title) no less than 6 times, so it’s fair to conclude this was a point they were keen to get across. That would be a tough sell domestically given that it would probably exclude James Shoal, that shallow patch of ocean considered by many (probably most) Chinese people to be the southernmost point of the nation’s sacred territory. This would be one reason to think the party might not make a Spratly baseline declaration in the near future after all.

Another rambling post…i really ought to shut up and let things run their course. But the riddle of the nine-dash line continues to string me along rather compulsively. If any readers have made it this far then at least i mustn’t be the only one.


South China Sea arbitration: don’t count on a decisive Philippines win

Thomas_Aboagye_Mensah_-_Flickr_image_8671842802

Thomas A. Mensah, Presiding Arbitrator of the Philippines vs China arbitral tribunal. Among Judge Mensah’s many qualifications, he was the inaugural President of the ITLOS, on which he served from 1996 to 2005. Contrary to PRC propaganda claiming the arbitral tribunal is “presided over by a former Japanese diplomat” Judge Mensah is from Ghana.

Here’s a bit of speculation ahead of the UNCLOS arbitration decision on Tuesday, written for the Australian Institute of International Affairs’s website.

My argument is that, however shrill and legally unconvincing the PRC’s propaganda campaign may seem, it will force the tribunal to take politics into account to an even greater extent than it would have otherwise — so expect some significant concessions to China. As Bill Bishop points out, the CCP has a long tradition of overcoming deficiencies of reason via sheer force of rhetoric (强词夺理). Of course, i could be proved wrong in short order; if so, things may get very interesting for the PRC’s relationship with the UNCLOS.

I’ve also added in the page numbers of the article’s references to the tribunal’s Award on Jurisdiction. Obviously i’m not a lawyer and it’s a case where the fine-grain details are crucial, so i’d especially appreciate any corrections.

~

South China Sea arbitration: don’t count on a decisive Philippines win

AIIA Australian Outlook
July 7, 2016

By Andrew Chubb

On 12 July, an international arbitral tribunal will hand down its findings in a landmark case brought by the Philippines against China over the South China Sea issue. The decision will have far-reaching implications, not only for this contentious maritime dispute but also for international law and politics in East Asia.

United States officials have expressed concern that the decision may exacerbate tensions in the region if China responds to an adverse finding with new assertive moves in the disputed area. However, contrary to the expectations of many observers, a total victory for the Philippines is unlikely. At least some key findings will probably favour China due in part to the political interest of the tribunal in protecting the status and relevance of the law of the sea in international politics.

The case has been particularly contentious due to China’s allegation that the Philippines is “abusing” the UN Convention on the Law of the Sea (UNCLOS) processes. China’s subsequent refusal to take part in the proceedings, relentless propaganda campaign aimed at delegitimising the tribunal among domestic and international audiences, and its frenetic efforts to enlist statements of support from foreign governments, have created a backdrop that means the tribunal is unlikely to decide the case on legal merits alone.

Even if the merits of the Philippines’ claims are strong, the arbitrators will be keen to avoid appearing to make a one-sided ruling. Instead, they will seek to make at least some concessions to China in order to neutralise Beijing’s political attacks on the tribunal’s authority, minimise the political fallout, and forestall the possibility of a Chinese withdrawal from UNCLOS. The latter scenario, while highly unlikely, would be a major disaster for the cause of international law, so it is likely to be among their considerations as legal professionals.

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The current state of play

The Philippines has asked the arbitral panel to rule on 15 specific questions concerning the South China Sea with the aim of clarifying the limits of the sea areas that China can legally claim under UNCLOS. The Philippines’ contentions can be summarised as:

  • China’s claims to “historic rights” within the nine-dash line are invalid under the Convention (submissions 1 & 2)
  • Scarborough Shoal is not an island, and therefore generates no entitlement to maritime rights beyond 12 nautical miles (nm), such as an Exclusive Economic Zone (EEZ) or Continental Shelf (submission 3)
  • China’s outposts in the disputed Spratly archipelago are also not islands, and therefore also generate no EEZ or Continental Shelf entitlement (submissions 4, 5, 6 & 7)
  • China has conducted maritime law enforcement and economic exploitation activities in areas where it does not have any lawful claim, thereby violating the Philippines’ lawful rights under the Convention, while also violating the Convention’s safety requirements (submissions 8, 9, 10, 13 & 14)
  • China’s massive island-building projects breach the Convention’s rules on artificial islands, constitute unlawful appropriation of maritime spaces, and violate the Convention’s obligations not to damage the marine environment – as do its fishing, coral and clam harvesting activities at Scarborough Shoal and in the Spratly Islands (submissions 11 & 12)

The Philippines is also asking the tribunal to order China to drop any unlawful claims and desist from any unlawful activities (submission 15).

In response, China argues that these matters are “in essence” issues of territorial sovereignty, which UNCLOS was not intended to govern, and maritime boundary demarcation on which China has invoked its right to reject compulsory dispute resolution. Beijing also argues the Philippines is legally bound by its previous “commitments” to settle its disputes with China through bilateral negotiations.

However, in October 2015, the tribunal issued its preliminary award  and found that it is competent to rule on at least seven of the Philippines’ 15 claims against China. In an official statement, China expressed anger at the ruling, this time accusing both the Philippines and the arbitrators themselves of having “abused the relevant procedures”. Notably, however, it avoided any suggestion that it was rejecting the UNCLOS itself.

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Political considerations

Numerous analysts, including many in Manila both inside and outside government, expect that when the arbitral tribunal hands down its final award, the ruling will find in favour of the Philippines.

But as Phillipines legal academic Jay Batongbacal has noted, the tribunal had a strong incentive to accept jurisdiction over the case because doing otherwise would have been tantamount to an admission that UNCLOS is irrelevant in one of the world’s most important waterways, and one of its most dangerous maritime hotspots.

However, the same considerations make a total victory for the Philippines unlikely. Not only would this outcome draw even more furious political attacks on the tribunal’s authority from China, a decision seen as one-sided would increase the rhetorical bite of Beijing’s international propaganda.

The Award on Jurisdiction issued last October foreshadowed findings favourable to China on some key issues. For example, it noted that if China’s island-building and law enforcement actions are found to be “military in nature” then it may be unable to rule on their legality as these are excluded from the Convention’s dispute resolution procedures (p.140).

Perhaps even more importantly, the Award (pp.62-63) also flagged the possibility of the tribunal providing an implied reading of the nine-dash line’s meaning for China:  development that could effectively legalise the PRC’s infamously unclear and expansive claim.

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What to expect

The case’s greatest significance may lie in providing the first legal precedent defining specific criteria for what constitutes an “island” (entitled to an Exclusive Economic Zone and Continental Shelf under UNCLOS), as opposed to a “rock” (which is only entitled to 12 nautical miles of territorial sea).

Previous international legal rulings have deliberately avoided this question, but the Philippines’ submission has put the issue front and centre. The Award explicitly noted that “the Philippines has in fact presented a dispute concerning the status of every maritime feature claimed by China” in the disputed area (p.72). This suggests the tribunal may make the long-awaited definition. This would also accord with the arbitrators’ imperative to maximise UNCLOS’ relevance in international politics as it would help clarify the status of other disputed maritime rights claims in Asia and beyond, notably Japan’s claim to a 200nm EEZ around Okinotorishima.

It is no certainty that this will happen. It remains possible that the tribunal would simply rule that there may exist one or more islands within 200nm of the relevant areas: a conclusion that would be sufficient to prevent consideration of the Philippines’ claims against China in those areas.

Although the case is too complex to predict specific findings with certainty, the Philippines’ best hopes probably lie in obtaining an explicit rejection of China’s claims to “historic rights” and an affirmation that Scarborough Shoal—but not the much larger Spratly archipelago—is a rock and not an island, meaning the surrounding waters outside 12nm cannot be subject to any legitimate Chinese claim.

US officials worry that the ruling may exacerbate tensions in the region if China responds to an adverse finding with more assertive moves. Reclamation activities at Scarborough Shoal and the declaration of an Air Defense Identification Zone in the South China Sea have been touted as possible responses.

Despite China’s decision to ignore the tribunal’s verdict, it has major stakes in UNCLOS’ ongoing viability. These include deep seabed mining concessions in international waters and its outer continental shelf claim in the East China Sea. UNCLOS is also central to China’s argument that US naval surveillance activities off its coast are illegal.

This leaves Beijing in the awkward position of trying to cast itself as a defender of UNCLOS while ceaselessly attacking an arbitration process constituted directly under its auspices. The continuation or even intensification of China’s political campaign threatens the global authority of UNCLOS as it seeks to divide signatory states into opposing camps. I may be proved wrong on Tuesday but I suspect the SCS tribunal’s arbitrators will be only too aware of this as they prepare their ruling.