Anna Mouw, Associate Editor, Michigan Journal of International Law
The Spratly Islands are scattered over approximately 160,000 square miles in the South China Sea and are claimed in whole or in part by six different countries including the Philippines, Malaysia, Vietnam, Taiwan, Brunei, and China.[i] In 2002, these countries, along with other related parties, signed a regional declaration to cease any provocative activity and maintain the status quo until these sovereignty issues could be resolved through peaceful negotiation. [ii] But on May 15, 2014, the Philippines released photos confirming an unprecedented move by the People’s Republic of China. [iii] In order to solidify its presence and legal claims, China dredged millions of tons of earth from the bottom of the South China Sea and transformed the South Johnson Reef into a brand new island.[iv]
When asked to justify this action, Foreign Ministry Spokesperson Hua Chunying declared “China has indisputable sovereignty over [the Spratly] Islands including [Johnson] Reef and the contiguous waters.”[v] As aggressive as this statement seems, it actually downplays China’s current claim. In 1953, the new government published a map featuring the now infamous “nine-dashed-line,” which encompasses approximately 90% of the entire South China Sea.[vi] This line, which leaves only a small buffer between the claimed waters and adjacent coastlines, is meant to represent China’s national boundary. Moreover, since adding the South China Sea to its list of “core interests” in 2010, China has become increasingly aggressive in defending this nine-dash territory. Today, China claims sovereign rights over not just the land features within this boundary, but also over the “relevant waters as well as the seabed and subsoil thereof.”[vii] To drive the point home, the state even went so far as to plant a flag on the ocean floor.[viii]
Chinese officials insist that this territorial claim is consistent with international law. To evaluate this claim, we must look to the United Nations Convention on the Law of the Sea (UNCLOS)—a widely accepted multilateral treaty that defines the rights and responsibilities of coastal nations. [ix] Prominent Chinese legal scholar Gao Zhiguo insists that China’s sweeping claim is consistent with UNCLOS, which China ratified in 1996.[x] Zhiguo argues that the nine-dash line represents a historic claim with roots in the voyages of 15th century Chinese vessels.[xi] But this theory falls apart upon inspection. It is true that UNCLOS’ territorial defaults give way to historical claims, but two considerations must be met: (1) historic water claims must attach to a specific land feature, and (2) water claims and their boundaries must be open and transparent to put the international community on notice.[xii] The nine-dash claim fails both tests: (1) the nine-dash is not linked to a specific land feature—such as the Chinese coast or a particular island, and (2) the Chinese government refuses to publish outer limits via charts or geographic coordinates.[xiii] For these reasons, China’s historic nine-dash claim cannot establish “indisputable sovereignty” over Johnson Reef under UNCLOS.
In the absence of a verifiable historic claim, the default provisions of UNCLOS establish zones of economic and territorial rights based on a coastal state’s low water line. For example, article 57 delineates an exclusive economic zone up to 200 miles offshore—meaning that a coastal state may control and extract natural resources within that zone.[xiv] In this case, Johnson reef lies well within the Philippine’s economic zone.[xv] China purports to act under UNCLOS, but the treaty’s text fails to support the Chinese position, while it clearly supports the Philippine claim. China’s claim cannot be considered “indisputable.”
UNCLOS mandates that states resolve disputes via peaceful means. If parties are unable to come to a mutual agreement, they are to submit the dispute to the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, or an arbitral tribunal.[xvi] This is where it becomes clear that China’s legal claims constitute little more than nationalistic propaganda.[xvii] When the Philippines filed a complaint challenging China’s nine-dash claim before ITLOS, China refused to participate in the arbitration.[xviii] China has tried once again to clothe this refusal with a legal justification, arguing that under UNCLOS states can—and China did—exempt disputes concerning national sovereignty from arbitration.[xix] But this is a circular argument. A country cannot claim a specific UNCLOS exception while ignoring the UNCLOS definition of that exception. China characterizes the Johnson Reef incident as a dispute concerning national borders, but as described above, unless China at least charts its nine-dash claim and links it to land features, its map does not even meet UNCLOS’ framework to assert a historic claim.[xx] Moreover, if China were to resolve this deficiency by charting boundaries and linking them to land features, the claim would be re-categorized into an un-exemptible category because development of a subsurface reef would be characterized as economic activity within a semi-enclosed sea.[xxi] In either case, if China were truly following UNCLOS’ principles, then it would participate in the arbitration.
China clearly views international law as a one-way street. Officials cite UNCLOS when its principles are convenient, but refuse to participate in legal proceedings when defeat is likely.[xxii] Nevertheless, China’s obstinance makes the pending ITOLS decision even more important. Striking down China’s nine-dash claim in an international court exposes China’s actions for what they are: incremental empire building.[xxiii] Unless this behavior is condemned, the integrity of the 2002 peace declaration will be compromised, and other states will feel the need to stake their own claims by way of force.[xxiv] The future of the South China Sea is uncertain, but affirming the rule of law by taking a stand against China’s claim must be the first step towards sustainable peace.
[i] Joel Guinto, China Builds Artificial Islands in South China Sea, Bus. Wk., June 19, 2014, available at http://www.businessweek.com/articles/2014-06-19/china-builds-artificial-islands-in-south-china-sea.
[ii] Ministry of Foreign Affairs of China, Declaration on the Conduct of Parties in the South China Sea, art. 5, Nov. 4, 2002, available at http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-the-south-china-sea.
[iii] Keith Bradsher, Philippines Challenges China Over Disputed Atoll, N.Y. Times, May 14, 2014, available at http://www.nytimes.com/2014/05/15/world/asia/philippines-challenges-china-over-disputed-atoll.html.
[v] Transcript of May 15, 2014 Press Conference by Spokesperson of China Hua Chunying, available at http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1156451.shtml.
[vi] Dustin E. Wallace, An Analysis of Chinese Maritime Claims in the South China Sea, 63 Naval L. Rev. 128, 148—49 (2014).
[vii] Note Verbale CML/18/2009 from the Permanent Mission of China to the U.N. Secretary-General, (May 7, 2009) available at http://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf.
[viii] China: A Stealth Move to Make an Underwater Claim, N.Y. Times, Aug. 27, 2010, available at http://www.nytimes.com/2010/08/27/world/asia/27briefs-BEIJING.html?module=Search&mabReward=relbias%3Ar.
[ix] See United Nations, Division for Ocean Affairs and Law of the Sea, Declarations and Statements, China’s declaration of August 25, 2006, made after its ratification of UNCLOS,
available at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China Upon ratification.
[x] Zhiguo Gao & Bing Bing Jia, The Nine-Dash Line in the South China Sea: History, Status, and Implications, 107 Am. J. Int’l L. 98, 98—99 (2013).
[xi] Wallace, supra, note 6, at 149.
[xiii] Id. at 150; U.N. Convention on the Law of the Sea, art. 5, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397, (entered into force Nov. 16, 1994) [hereinafter UNCLOS]. See Robert Beckman, The UN Convention on the Law of the Sea and the Disputes in the South China Sea 107 AM. J. INT’L L 142, 142 (2013).
[xiv] UNCLOS, supra, note 13, art. 47.
[xv] Richard Heydarian, Philippines Takes China to Court: End of Diplomacy in the South China Sea?, Huffington Post, Mar. 31, 2014, available at http://www.huffingtonpost.com/richard-javad-heydarian/philippines-takes-china-t_b_5059745.html.
[xvi] UNCLOS, supra, note 13, art. 287.
[xvii]Although it is well known that the Spratly Islands are potentially rich in oil and natural gas resources, China’s more important goal is likely a strategic one. About “half of the world’s gas, oil, and shipping tonnage navigate this area.” Control of the region would, therefore, bring significant economic power. Marjorie E. Gallagher, The Time Is Now: The United States Needs to Accede to the United Nations Convention on the Law of the Sea to Exert Influence over the Competing Claims in the South China Sea, 28 Temp. Int’l & Comp. L.J. 1, 16 (2014).
[xviii]Heydarian, supra, note 15.
[xix]UNCLOS, supra, note 13, art. 298; Some Chinese media outlets actually claim that such refusal “shows China’s respect for international law” because China opted out of the UNCLOS dispute resolution procedures in 2006. See Zhang Dan, China Voice: The Hague has no jurisdiction over sea dispute, China Central Television, June 7, 2014, available at http://english.cntv.cn/2014/06/07/ARTI1402120706576608.shtml.
[xx]Wallace, supra, note 6, at 149.
[xxi]This would lead China to rely on an exclusive economic zone justification, and even when these claims are valid they are subject to arbitration and cannot be exempted like national boundary disputes. See Christopher Linebaugh, Joint Development in A Semi-Enclosed Sea: China’s Duty to Cooperate in Developing the Natural Resources of the South China Sea, 52 Colum. J. Transnat’l L. 542, 566 (2014).
[xxii]China relied on UNCLOS’ continental shelf provisions to assert claims against Japan over the Senkaku Islands. See Carlos Ramos-Mrosovsky, International Law’s Unhelpful Role in the Senkaku Islands, 29 U. Pa. J. Int’l L. 903, 913 (2008).
[xxiii]Gallagher, supra, note 17, at 19.
[xxiv]See Raul Pedrozo, The Bull in the China Shop: Raising Tensions in the Asia-Pacific Region, 90 Int’l L. Stud. 66, 100 (2014) (discussing China’s strategy to “incrementally solidify” its South China Sea claims).