Last week the US State Department released a useful report on China's maritime claims in the South China Sea. As M Taylor Fravel tweeted, it is a must-read for anyone interested in maritime security, the law of the sea, or China's foreign policy.
The report focuses on China's so-called 'nine-dashed line' and the different interpretations of what China may be seeking to claim through it. What makes this issue particularly difficult is that China hasn't specified its maritime claims. So the report examines three possible interpretations of the dashed-line claim (as a claim to islands; as a national boundary; as a historic claim) and whether they are consistent with the international law of the sea.
The details of each interpretation are quite technical, but the report is written clearly enough for non-lawyers like myself to get their head around it.
The most interesting part of the report, for me at least, was the third interpretation, the use of the dashed line to indicate a historic claim. If this is indeed the nature of China's claim, then under international law, China has not actually made a cognizable claim. As the report explains, if you are making a historic claim then you must give international notoriety to the claim. This is usually done through formal notification. China's various maps depicting the nine-dashed line are not precise or consistent enough to fulfill this. In addition, according to the report, even if the legal test for a historic claim were applicable 'it would not pass any element of the three-part legal test', as there is:
- No open, notorious, and effective exercise of authority over the South China Sea.
- No continuous exercise of authority in the South China Sea.
- No acquiescence by foreign states in China's exercise of authority in the South China Sea.
We hear China talk about its 'historic claims' in the South China Sea all the time. Indeed, over the weekend the Chinese Government released a 'position paper' on the 'Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines' in which it reiterates China's 'historic rights':
Chinese activities in the South China Sea date back to over 2,000 years ago. China was the first country to discover, name, explore and exploit the resources of the South China Sea Islands and the first to continuously exercise sovereign powers over them.
So is China making these claims outside of international law? The US State Department report concludes:
...unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the LOS Convention, its dashed-line claim does not accord with the international law of the sea.
There are also some great maps in the report. And at only 26 pages it is worth the read.