The US State Department concluded in a new legal analysis that “the PRC is asserting illegal maritime claims in most of the South China Sea, including an illegal historical claim.”
“With the publication of this latest study, the United States again calls on the PRC to conform its maritime claims to international law as reflected in the Law of the Sea Convention, in order to comply with the decision of the arbitral tribunal in its ruling of July 12, 2016, inside The South China Sea Arbitration, and to cease its unlawful and coercive activities in the South China Sea,” the department said in a press release.
The study draws heavily on the 2016 arbitral tribunal ruling, which favored the Philippines on nearly every objection Manila filed against China’s claims and actions in the South China Sea. China refused to participate in the arbitration and has rejected the ruling in its entirety, a point that was reiterated in its response to the foreign ministry’s study. “The [arbitral tribunal] attribution is illegal, null and void. China does not accept or recognize it,” said Chinese Foreign Ministry spokesman Wang Wenbin.
However, in the wake of the ruling, Beijing has revised its claims about the South China Sea to use UNCLOS jargon rather than relying solely on vague claims of “historic rights,” which the tribunal had rejected. China still claims “historic rights” to the waters, but has also fleshed out its maritime claims with more conventional terminology. While China hasn’t defined what it means by “historic rights,” analysts think it’s a way for Beijing to claim the rest of the waters covered by the infamous “nine-dash line,” after pushing the concepts in UNCLOS to extremes. are stretched. It’s worth noting that the nine-dash claim originated in the mid-1940s — 50 years before UNCLOS came into effect — so natural that the nine-dash line doesn’t reflect the legal requirements laid out in the treaty. However, Beijing continues to use the line on official maps of its territory.
Briefly, the US study challenges four aspects of China’s claims in the South China Sea: its sovereignty claims over essentially unclaimable features; using straight baselines to claim waters around and between archipelagos; claiming maritime zones (and associated rights and claims) granted only to archipelago states (not island groups ruled by continental states, such as China); and the claims to ‘historical rights’, a concept not recognized in international law.
On territorial claims – the validity of China’s claim to rightfully own islands in the South China Sea – the United States has historically taken a neutral stance. The new document doesn’t change that, but does question China’s claim to “more than a hundred elements in the South China Sea that lie below the sea’s surface at high tide”. UNCLOS is crystal clear that submerged marine features and ebb elevations — rocks or shoals “above water at low tide but submerged at high tide” — do not generate their own territorial sea.
For example, this was a concern in the filing of the arbitration tribunal in the Philippines. Some of the features in question fall within the EEZ of the Philippines – if the maritime features cannot be claimed on their own, the issue of territorial sovereignty is out of the question and the EEZ of the Philippines would prevail.
“[W]While the United States does not take a position on the PRC’s sovereignty claims over certain islands in the South China Sea, the United States has rejected claims of sovereignty on the basis of features that do not meet the definition of an island,” the ministry said. Foreign Affairs.
The question of the “straight baselines” delves deeper into maritime law, but essentially China claims the right to draw a circle of sovereignty around self-defined island groups (where, as noted above, many of the features in question are not islands at all, but partially or completely submerged). The images in the document visually explain the discrepancy.
On the left, China’s claim to vast expanses of water is based on straight baselines drawn around what it calls the “Zhongsha” archipelago. To the right is the extent of claims allowed under UNCLOS – Macclesfield Bank, as a submerged feature, does not generate any rights, neither do the two small shallows to the north west. And even if those were accepted as “claimable” features, drawing lines to connect them and claim the waters within, as seen in the image on the left, would not be allowed under UNCLOS.
China’s claim to various maritime zones – inland waterways, territorial seas, adjacent zones and EEZs – depends on an amalgamation of these straight baselines and its sovereignty claims over submerged or partially submerged elements. If the straight baselines are invalid under international law, so is China’s claim to “inland waterways” between features on the Paracel and Spratly Islands. And if no one – not China or any of the other South China Sea claimants – has the right to claim submerged features or low tides, then they cannot be used to generate territorial seas, contiguous zones or EEZs.
Unsurprisingly, China rejected the US State Department’s analysis. “[T]The US media’s notes and study misrepresent international law to mislead the public, confuse good with evil and disrupt the regional situation,” State Department spokesman Wang said during a statement. regular press conference on January 13.
Pointing out that the United States itself has never signed UNCLOS, Wang accused the US of “deliberately misrepresenting[ing] the treaty and take[ing] double standards for selfish gain’, while China claims to ‘seriously comply with the Convention in a’ [sic] rigid and responsible manner.”
Ironically, Wang then immediately focused on outlining Chinese maritime claims that are not supported by UNCLOS. He stated that China’s territories in the South China Sea have “inland waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf”. He did not provide a detailed explanation of how these claims are supported by UNCLOS, nor did he address the specific arguments made in the State Department’s study.
Wang also reiterated the claim that “China has historic rights in the South China Sea.” By stating that “our sovereignty and relevant rights and interests in the South China Sea are established over the long course of history,” he added. While Wang said these historic claims are “in accordance with the UN Charter, UNCLOS and other international law,” China’s consistent formulation of claims rooted in historical usage suggests Beijing sees itself as entitled to non-specific additional claims over and above that. the claims provided for in UNCLOS.
Perhaps in an effort to downplay the geopolitics of the study, the State Department press release emphasized that the Limits in the Seas studies are “a lengthy legal and technical series examining national maritime claims and boundaries and verifying their consistency with the international law.” The survey of China’s South China Sea claims is “the 150th in the” Borders in the seas series”; the five previous studies looked at maritime claims from Spain, Norway, Ecuador, Kiribati and the Marshall Islands.