China’s Claims in the South China Sea

Sourabh Gupta and Matt Geraci

Source Link

Introduction

China’s claims in the South China Sea is comprised of two parts. They are: (a) territorial sovereignty claims to the land features in the South China Sea, and (b) maritime rights and interests claims in the South China Sea.

Insofar as territorial sovereignty claims to the land features is concerned, China claims sovereignty over the South China Sea Islands (Nanhai Zhudao), which comprise of the Pratas Islands (Dongsha Qundao), the Paracel Islands (Xisha Qundao), Macclesfield Bank and Scarborough Shoal (Zhongsha Qundao) and the Spratlys Islands (Nansha Qundao). Macclesfield Bank is an entirely submerged feature, hence it cannot be considered to be an appropriate-able land territory as such in a legal sense. 

China’s maritime rights and interests claims in the South China Sea come in three parts:

A claim to internal waters, territorial sea and contiguous zone, based on sovereignty over the South China Sea islands;

A claim to an exclusive economic zone (EEZ) and a continental shelf (CS), based on sovereignty over the South China Sea islands;

A claim based on the concept of ‘historic rights’ in the South China Sea.

The People’s Republic of China’s Claims in the South China Sea

China's Claims to Internal Waters, Territorial Sea, and Contiguous Zone

As a matter of policy, China has only declared baselines for the territorial sea surrounding Hainan and the Paracel Islands. Baselines have not been declared for the Pratas Islands (which are administered by Taipei), the Spratly Islands, and for Macclesfield Bank and the Scarborough Shoal. Based on China’s proclamations (since 1956) and conduct in the South China Sea, China does not consider the waters beyond 12 nautical miles of the various South China Sea Islands (Nanhai Zhudao) to form part of its territorial sea or internal waters.

China's Claims to an Exclusive Economic Zone (EEZ) and a continental shelf (CS)

As a matter of policy, China does not distinguish between an ‘island’, a ‘rock’, or a low-tide elevation in the South China Sea nor does it specify the geographic extent of its EEZ/CS entitlement. Rather, China claims sovereign rights and jurisdiction over the “relevant” waters, as well as the seabed and sub-soil thereof, within the ‘nine-dash line’ in general terms that are in line with the maritime zones anticipated by the Law of the Sea Convention. It is worth noting that much – though not all - of the area encompassed by China’s ‘nine-dash line’ falls within the claim to an EEZ/CS drawn from the various high-tide features of the South China Sea.

China's Claim to ‘Historic Rights’ in the South China Sea.

In China’s view, these are private rights that vest in the Chinese state and fall squarely within the “other rules of international law” that are preserved by the Law of the Sea Convention. As a vested right, ‘historic rights’ do not hinge on the ‘land dominates the sea’ principle for their formation in maritime areas. It is worth noting that China's 'historic rights' claim and the 'nine-dash line' are by no means synonymous. To the contrary, every important Chinese diplomatic communication in the wake of the Philippines v. China arbitration award reiterates China's claim to 'historic rights' in the South China Sea. By contrast, none mention the 'nine-dash line' in any context whatsoever.

A final element of China’s position with regard to its South China Sea claims is its readiness to enter into provisional arrangements of a practical nature, including joint or cooperative development in “relevant” maritime areas, in order to achieve “win-win” results. 

Secretary of State Mike Pompeo in his own words – Excerpts

Beijing has offered no coherent legal basis for its “Nine-Dashed Line” claim in the South China Sea since formally announcing it in 2009. In a unanimous decision on July 12, 2016, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention – to which the PRC is a state party – rejected the PRC’s maritime claims as having no basis in international law. The Tribunal sided squarely with the Philippines, which brought the arbitration case, on almost all claims.

The PRC cannot lawfully assert a maritime claim – including any Exclusive Economic Zone (EEZ) claims derived from Scarborough Reef and the Spratly Islands – vis-a-vis the Philippines in areas that the Tribunal found to be in the Philippines’ EEZ or on its continental shelf. Beijing’s harassment of Philippine fisheries and offshore energy development within those areas is unlawful, as are any unilateral PRC actions to exploit those resources. In line with the Tribunal’s legally binding decision, the PRC has no lawful territorial or maritime claim to Mischief Reef or Second Thomas Shoal, both of which fall fully under the Philippines’ sovereign rights and jurisdiction, nor does Beijing have any territorial or maritime claims generated from these features.

As Beijing has failed to put forth a lawful, coherent maritime claim in the South China Sea, the United States rejects any PRC claim to waters beyond a 12-nautical mile territorial sea derived from islands it claims in the Spratly Islands (without prejudice to other states’ sovereignty claims over such islands). As such, the United States rejects any PRC maritime claim in the waters surrounding Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), waters in Brunei’s EEZ, and Natuna Besar (off Indonesia). Any PRC action to harass other states’ fishing or hydrocarbon development in these waters – or to carry out such activities unilaterally – is unlawful.

The PRC has no lawful territorial or maritime claim to (or derived from) James Shoal, an entirely submerged feature only 50 nautical miles from Malaysia and some 1,000 nautical miles from China’s coast. James Shoal is often cited in PRC propaganda as the “southernmost territory of China.” International law is clear: An underwater feature like James Shoal cannot be claimed by any state and is incapable of generating maritime zones. James Shoal (roughly 20 meters below the surface) is not and never was PRC territory, nor can it assert any lawful maritime rights from it.

The world will not allow Beijing to treat the South China Sea as its maritime empire.

Reviewing the U.S. Legal Position on China’s Claims in the South China Sea

On July 13, 2020, the U.S. State Department released a detailed legal position on China’s maritime claims in the South China Sea. The release coincided with the fourth anniversary of the Philippines v. China ruling by an arbitral tribunal constituted by Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The State Department’s position is neither a new one nor the most comprehensive one, primarily because the July 13th release limits itself to topics that were the subject of the arbitration - which itself did not pertain to the entire universe of South China Sea-related sovereign rights and jurisdiction quarrels. And while western media have labelled the July 13th statement as the first instance of the U.S. government rejecting specific claims made by Beijing in the South China Sea (in contrast to the broad-brush language typically put out), this is actually not the case.

Equally, or more, detailed rejections of specific Chinese claims have been issued before. And as with the past, the State Department maintains its neutrality on the rival sovereignty claims – to be distinguished from the rival sovereign rights and jurisdiction, i.e. maritime rights claims – to the land features in the South China Sea. That said, the July 13th statement does for the first time identify the waters surrounding three specific features – Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), and Natuna Besar (off Indonesia) – as areas where China does not enjoy sovereign rights and jurisdiction to fisheries and hydrocarbon development. China's actions in these waters, consistent with the 2016 Tribunal Award, constitute an interference in the sovereign rights and jurisdiction of the respective South China Sea claimant state.

The totality of the U.S. State Department’s position on China’s maritime claims in the South China Sea is encompassed in four notable policy documents that span the Obama and Trump Administrations. These are: (a) the Limits in the Seas paper #143 of December 2014 on China’s “dashed-line” claim, (b) the Note Verbale circulated on December 28, 2016, (c) the Letter to the UN Secretary-General on June 1, 2020 regarding China’s December 2019 Note Verbale, and (d) Secretary of State Pompeo’s recent Legal Position Statement of July 13, 2020. The State Department’s Limits in the Seas paper #117 of July 1996 is also parenthetically relevant insofar as it disagrees with China’s straight baselines, especially around the Paracels. 

There are four areas of significant disagreement with China’s South China Sea legal claims laid out across these documents:

The Nine-Dashed Line

1. China’s ‘historic rights’ claim, most prominently highlighted in the U.S.' view by the “Nine-Dashed Line”, has no basis in international law, particularly insofar as it purports to be an exclusive claim to fisheries and oil and gas resources beyond the 200 nautical mile exclusive economic zone (EEZ) from China’s coastline in the South China Sea.

China's Claims to the Paracels (Note: not all features in the Paracels are displayed, but are also effectively controlled by China)

2. China’s straight baselines around the Paracel Islands are inconsistent with international law, insofar as these baselines group multiple islands together as a single unit for purposes of establishing a territorial sea around the island group. By grouping the multiple islands within a single straight baseline, China is usurping maritime space and exercising territorial sea rights beyond the limits of its maritime entitlement around the Paracels.

3. China’s EEZ claims to fisheries and oil and gas resources deriving from control over Scarborough Shoal and a number of Spratlys high-tide features (“rocks”) is contrary to international law, as adjudicated by the tribunal in Philippines v. China. This means that China’s activities in the waters surrounding Scarborough Shoal (off the Philippines), Vanguard Bank (off Vietnam), Luconia Shoal (off Malaysia) and Natuna islands (off Indonesia) constitute an interference to the maritime entitlements of Philippines, Vietnam, Malaysia and Indonesia. 

4. China has no lawful basis to claim territorial rights or maritime entitlements deriving from features that are submerged at high tide.These include James Shoal (off Malaysia) and Mischief Reef and Second Thomas Shoal (off the Philippines), which are submerged, either full-time or at high-tide, and hence cannot form part of the land territory of a State in any legal sense.