The South China Sea dispute persists as China’s expansive claims, represented in the Nine-Dash Line, clash with the legal framework of the United Nations Convention on the Law of the Sea (UNCLOS). This article investigates the compliance of China’s claims with UNCLOS provisions on territorial seas, exclusive economic zones (EEZs), and continental shelves. It delves deeper into the concept of “historic rights” in UNCLOS and how it applies to China’s grounds for justification. The article reveals an important discrepancy between China’s claims and UNCLOS, highlighting the limitations of claiming “historic rights”. The article also examines the UNCLOS’ limitations in definitively resolving the dispute due to ambiguities and law enforcement challenges. As UNCLOS provides an important framework, the conclusion emphasizes the need for a multifaceted approach that combines legal mechanisms with regional dialogue and cooperation to achieve long-term resolution.
Introduction
The South China Sea, a vital route for global trade and rich in natural resources, has evolved as a significant hotspot in the international sphere, with competing territorial claims over regional security and economic stability. China’s extensive maritime claims are frequently represented by the disputed “Nine-Dash Line.” This line surrounds a large portion of the South China Sea which includes several islands, and reefs, and overlaps the exclusive economic zone (EEZs) of several Southeast Asian countries including Vietnam, the Philippines, Malaysia, Brunei, and Indonesia.
China’s claims in the South China Sea are extensive and have evolved, but they are primarily centred around the “nine-dash line” and assertions of historic rights and sovereignty over various islands and maritime features in the region.
The United Nations Convention on the Law of the Sea (UNCLOS) serves as the foundation of international maritime law. UNCLOS, which was adopted in 1982, establishes a comprehensive legal framework for all maritime activities, including navigation, resource extraction, marine scientific research, and environmental preservation.
Research Questions
- To what extent do China’s claims in the South China Sea, particularly the Nine-Dash Line, align with the specific provisions of UNCLOS regarding territorial seas, exclusive economic zones (EEZs), and continental shelves?
- How does the concept of “historic rights” as defined by UNCLOS apply to China’s claims in the South China Sea?
- What are the limitations of UNCLOS in dealing with issues like “historic rights” claims and the specific features of the South China Sea?
This research will give an overview of UNCLOS which will include the definition and purpose along with the historical context, and key provisions related to maritime zones, territorial waters, and exclusive economic zones. This article will further talk about China’s Claims in the South China Sea which will provide a historical context and legal basis of its claims. Furthermore, the article will then talk about China’s Claims and UNCLOS Provisions which will include the inconsistencies between China’s claims in the context of territorial seas, economic exclusive zones, and continental shelves. In addition, this article will then talk about the Historic Rights under UNCLOS and China’s claims about the historic rights as outlined by the UNCLOS as well as the applicability of the rights to China’s claims and it will include the PCA’s ruling on China’s claims. Finally, this article will talk about the Limitations of UNCLOS with the specificities of the South China Sea as well as the alternative framework for resolving the disputes.
Overview of UNCLOS
UNCLOS serves as the fundamental basis of international maritime law. The history of the UNCLOS can be traced back to the mid-twentieth century as fishing and commercial activities increased, concerns about pollution and ocean resource exhaustion also emerged. The concept of freedom was further weakened as nations claimed sovereignty over larger areas. To address this, a treaty-based system of ocean governance was developed. Arvid Pardo, then-Ambassador to the United Nations, made the first call for a ‘constitution of the seas’ on November 1, 1967. In his speech at the General Assembly, he addressed the issues of emerging rivalry between states that was spreading to the oceans; sea pollution; conflicting legal claims and their collateral effects on stability and order; and the potential richness of the seabed (United Nations Convention on the Law of the Sea, 1967). After three UN conferences on the Law of the Sea, UNCLOS III was created. UNCLOS came into effect on 14 November 1994 precisely 21 years after the first meeting and one year after ratification by the sixtieth state. One of the main purposes of UNCLOS is to strengthen peace, security, cooperation, and friendly relations among all nations in conformity with the principles of justice and equal rights (United Nations Convention on the Law of the Sea, 1982). To date, there are 168 state parties to the agreement (United Nations Convention on the Law of the Sea, 2020).
UNCLOS abolished all prior international maritime law and established a uniform set of rules and obligations for all states. It restricted “historic” or “internal waters” claims to minor bays (United Nations Convention on the Law of the Sea). It granted “archipelagic waters” rights only to fully archipelagic states such as the Bahamas, Maldives, or the Philippines (United Nations Convention on the Law of the Sea). It limited territorial seas in most cases to 12 nautical miles from the coast (United Nations Convention on the Law of the Sea) and defined an additional 12 nautical miles as a “contiguous zone” in which states could exercise police powers for certain law enforcement purposes (United Nations Convention on the Law of the Sea). It also established a 200 nautical mile exclusive economic zone (United Nations Convention on the Law of the Sea). It provided for certain additional continental shelf rights (United Nations Convention on the Law of the Sea) and specified the rights of other countries’ vessels within each zone, including the right of innocent passage through the territorial sea (United Nations Convention on the Law of the Sea).
The UNCLOS establishes a comprehensive system for resolving disputes over the interpretation and application of the Convention. Part XV of the UNCLOS requires state parties to resolve any disputes through peaceful means, as outlined in the UN Charter. If the parties to a dispute are unable to settle through their peaceful means, they are obligated to use UNCLOS’ compulsory dispute settlement procedures, which can result in binding decisions. These procedures may include submission to the International Tribunal for the Law of the Sea, the International Court of Justice, or arbitration.
China’s Claims in the South China Sea
China’s claims in the South China Sea are focused around the nine-dash line which is a U-shaped line which demarcates its territorial claims in the South China Sea. It has been a contentious issue in regional and international politics. This line encompasses approximately 90% of the South China Sea and has been used by the Chinese Communist Party to illustrate its sovereignty over the area. China’s claims can be traced back to the 20th century when the Kuomintang government of the Republic of China defined its territorial claims with an eleven-dash line on a map, which included the Pratas Islands, the Macclesfield Bank, and the Paracel and Spratly Islands. This line was later simplified to nine dashes in 1953 by the Chinese Communist Party after it came to power. The nine-dash line includes many islands, reefs and shoals which are also claimed by other Southeast Asian nations.
Furthermore, China claims its “historic rights” over the resources in the South China Sea based on the argument that Chinese fishermen and navigators have used these waters for centuries. China also claims that these historic rights existed before the modern international law of the sea, and they are not subject to the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). China’s claims of historic rights cover a wide range of activities including fishing, navigation, and the exploitation of natural resources; however, the geographic extent of these historic rights has not been clearly defined by China.
China has been constructing artificial islands on its reefs and atolls in the Spratly Islands since 2014 which creates approximately 12.9 square kilometers of new land. These islands have been used to construct large military facilities, including runways, ports, radars, and missile batteries which allow China to project its military power and assert its territorial claims in the South China Sea. For example, Fiery Cross Reef has now been built into an island with a deepwater harbour and a 3,000-meter runway. Subi Reef and Mischief Reef have also been built into major military outposts. China claims these activities are for civilian and environmental purposes, but the military infrastructure suggests otherwise.
China’s Claims and UNCLOS Provisions
China’s nine-dash line claims in the South China Sea is an important ongoing dispute which has significant implications for regional maritime boundaries and resource rights in the region. The legal basis of this nine-dash line is still ambiguous and disputed. According to the UNCLOS’ Article 3, Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined under this Convention. The nine-dash line violates the territorial sea as it exceeds the territorial waters of other South China Sea claimants, including Vietnam, the Philippines, Malaysia, and Brunei. These states have established baselines from their coastlines, which results in recognized territorial seas within the nine-dash line. China’s claims violate this established principle which results in a significant inconsistency with UNCLOS.
China’s nine-dash line claim also overlaps with the Exclusive Economic Zones (EEZs) of these states. According to the UNCLOS’ Article 57, the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The nine-dash line overlaps the exclusive economic zones (EEZs) of the Southeast Asian countries, and China’s claim of rights within other countries’ EEZs worsens the situation. For example, the Philippines has a clearly defined EEZ that covers a significant part of the South China Sea. This area is overlapped by the Nine-Dash Line, which may limit the Philippines’ access to its resources. Similar overlaps exist between Vietnam, Malaysia, and Brunei, which may result in competing claims. While UNCLOS allows for the possibility of shared resources in overlapping EEZs through negotiation (United Nations Convention on the Law of the Sea) China’s unilateral assertion of the Nine-Dash Line violates this framework for cooperation and has led to tensions and disputes over resource exploration and exploitation in the region.
The issue of continental shelf claims has also complicated China’s assertion in the South China Sea. The continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance (United Nations Convention on the Law of the Sea). The coastal state exercises sovereign rights over the continental shelf to explore it and exploit its natural resources (United Nations Convention on the Law of the Sea). China claims that some geological features in the South China Sea, such as the continental shelves that surround the Paracel Islands, are extensions of its continental margin. This claim, however, remains unreliable due to the uneven distribution of these features and their potential association on the continental shelves of the neighbouring countries. UNCLOS also provides a mechanism for resolving continental shelf disputes through the Commission on the Limits of Continental Shelf (CLCS) as mentioned in the UNCLOS Article 76 (8) (United Nations Convention on the Law of the Sea). China, on the other hand, has not presented any claims to the CLCS but has chosen a unilateral strategy that raises concerns about its commitment to the UNCLOS’s dispute resolution procedures.
“Historic Rights” Under UNCLOS and China’s Claims
Historic rights refer to those that states have, absent claims to sovereignty, to engage in certain functional activities (such as resource extraction or fishing) because of their long-standing, legitimate actions that other states have accepted. “Historic waters” has no primary definition under international law. Article 10(6) of UNCLOS highlights the existence of the “historic bays” under public international law but it does not define it (United Nations Convention on the Law of the Sea )
China’s broad claims over the South China Sea, represented by its “nine-dash line,” have been defended by the idea of “historic rights.” Scholars strongly argue China’s historical narratives, which trace its presence back to the 2nd century BCE in the South China Sea. There is little concrete evidence that China has continuously and effectively occupied and used the vast maritime areas covered by the nine-dash line for centuries. China’s claims have been met with persistent and forceful disagreement from neighbouring states that have their claims in the region, including the Philippines, Vietnam, Malaysia, and Indonesia. China’s claim of “historic rights” has been hampered by these states’ refusal to comply. Within the nine-dash line, China has never explicitly stated what its “historic rights” are or how much of them it has. It is still unclear if China is asserting its “historic rights” or sovereignty over the region. China’s position is rendered less legally sound by this ambiguity.
China’s claims of “historic rights” within the nine-dash line were declared to be illegal and incompatible with the UNCLOS framework by the Permanent Court of Arbitration (PCA) in 2016. According to the PCA, China’s extensive maritime claims were not recognized by the Convention, and UNCLOS took priority over any historical rights China may have had. China’s legal position in the South China Sea dispute suffered a serious setback because of the PCA’s decision. It was confirmed that the idea of “historic rights” has a restricted scope in international law and cannot be employed to support claims that go beyond the UNCLOS’s specified maritime entitlements.
Limitations of UNCLOS
UNCLOS has been a historic agreement in establishing an extensive legal framework for regulating the world’s oceans. However, when it comes to resolving complex maritime disputes involving historic claims, UNCLOS has significant limitations. The South China Sea dispute emphasizes these challenges. One of the most significant issues is that UNCLOS does not provide a clear definition or legal foundation for “historic rights” claims. While Article 10 acknowledges the concept of “historic bays,” the convention does not address the broader concept of “historic rights” to maritime spaces. This ambiguity has allowed countries such as China to make vague claims based on historical presence and usage, which are difficult to enforce under UNCLOS.
The South China Sea’s unique geographical features complicate the application of UNCLOS. The sea is semi-enclosed, with many islands, reefs, and shoals scattered around. Determining baselines from which to measure maritime zones and delimiting overlapping claims becomes especially difficult in such a complex environment. UNCLOS provisions, which were designed for more straightforward coastal geography, fail to provide clear guidance in this context.
Also, while UNCLOS dispute settlement mechanisms are innovative, they are limited in their ability to resolve disputes over historic rights and maritime boundaries. While the convention establishes mandatory procedures for dispute resolution, it also provides for exceptions and limitations. Countries may opt out of these procedures in cases involving historic bays or titles, as well as maritime boundary delimitation. This has allowed states to avoid binding dispute resolution in situations such as the South China Sea.
To address these limitations, different approaches and mechanisms may be required. One potential solution is to create regional agreements or codes of conduct that outline more specific guidelines for resolving disputes in semi-enclosed seas. Such agreements could incorporate elements of historic rights and traditional usage patterns while remaining consistent with UNCLOS’ general principles. Another option is to investigate innovative dispute resolution methods, such as joint development zones or functional cooperation on specific issues like fisheries management or environmental protection. Even in the absence of a comprehensive settlement, countries may be able to manage tensions and reach mutually acceptable agreements by focusing on shared interests and practical solutions.
Conclusion
This research has examined the multifaceted relationship between the United Nations Convention on the Law of the Sea (UNCLOS) and China’s claims in the South China Sea, particularly the Nine-Dash Line. The research revealed significant inconsistencies between China’s broad claims and the specific provisions of UNCLOS governing territorial seas, exclusive economic zones (EEZs), and continental shelves. The vast maritime area covered by the Nine-Dash Line extremely exceeds what China can legally claim under these provisions. This discrepancy undermines China’s legal claims and causes inconvenience to other South China Sea claimants. Also, the application of “historic rights” to the claims of China poses additional challenges. The limitations outlined in UNCLOS, such as the need for continuous and exclusive control, make it difficult for China to demonstrate such rights across the vast expanse of the South China Sea. The limitations of UNCLOS in resolving the South China Sea dispute should also be considered. The convention’s ambiguity regarding the precise definition of “historic rights” and the difficulties associated with enforcing rulings complicate matters. The South China Sea’s unique geography, with its many scattered features, complicates efforts to demarcate maritime boundaries using UNCLOS mechanisms. Despite its limitations, UNCLOS remains an important framework for resolving maritime disputes. The 2016 arbitral tribunal ruling favouring the Philippines on key aspects of China’s claims demonstrates UNCLOS’s ability to provide a legal pathway for resolving the conflict. However, a stronger enforcement mechanism and a clearer definition of “historic rights” in UNCLOS could significantly improve its effectiveness in dealing with such complex situations. Alternative approaches, such as regional dialogue and resource management cooperation, may provide additional avenues for resolving tensions in the South China Sea. Finally, a multifaceted approach that combines legal frameworks such as UNCLOS with diplomatic efforts and regional cooperation is most likely to achieve a peaceful and long-term resolution to the South China Sea dispute.
Disclaimer: The views and opinions expressed by the author do not necessarily reflect the views of the Government of India and Defence Research and Studies
Title image courtesy: USNI
References
Allayarov, S. (2023, June 19). International Law with Chinese Characteristics –. Retrieved from INSTITUTE OF INTERNATIONAL RELATIONS PRAGUE: https://www.iir.cz/international-law-with-chinese-characteristics-the-south-china-sea-territorial-dispute
Beckman, R. (2013). The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea. The American Journal of International Law 107, no. 1, 142-163.
Beckmen, R. C. (2010, August 16). South China Sea: Worsening Dispute or Growing Clarity in Claims? Retrieved from S. Rajaratnam School of International Studies (RSIS) : https://www.rsis.edu.sg/rsis-publication/idss/1380-south-china-sea-worsening-dis/
China’s Maritime Disputes. (n.d.). Retrieved from Council of Foreign Affairs: https://www.cfr.org/timeline/chinas-maritime-disputes
Dupuy, F. D.-M. (2013). A Legal Analysis of China’s Historic Rights Claim in the South China Sea. The American Journal of International Law 107, no. 1, 124-141.
Fravel, M. T. (2011). China’s Strategy in the South China Sea. Contemporary Southeast Asia 33, no. 3, 292-319.
GLEICE MIRANDA AND VALENTINA MALJAK. (2022). The Role of United Nations Convention on the Laws of the Sea In the South China Sea Disputes. E-International relations, 1-12.
Gupta, S. (2022, July 26). Limits in the Seas No. 150 and the U.S.’s Misinterpretation of ‘Historic Rights’. Retrieved from Lawfare media: https://www.lawfaremedia.org/article/limits-seas-no-150-and-uss-misinterpretation-historic-rights
Hayton, B. (2016, june 21). China’s ‘Historic Rights’ in the South China Sea: Made in America? Retrieved from The diplomat: https://thediplomat.com/2016/06/chinas-historic-rights-in-the-south-china-sea-made-in-america/
Hayton, B. (2019). The Modern Origins of China’s South China Sea Claims: Maps, Misunderstandings, and the Maritime Geobody. Modern China, 45(2).
Kausar, S. (2021). Sovereignty at Sea: The South China Sea Dispute and UNCLOS Implications. International Journal of Law Management & Humanities, 2624-2665.
Keyuan ZOU, X. L. (2015). The Legal Status of the U-shaped Line in the South China Sea and Its Legal Implications for Sovereignty, Sovereign Rights and Maritime Jurisdiction,. Chinese Journal of International Law, Volume 14, Issue 1, 57–77.
Marek, C. J. (2021, July 9). US-China International Law Disputes in the South China Sea. Retrieved from Air University (AU): https://www.airuniversity.af.edu/Wild-Blue-Yonder/Article-Display/Article/2685294/us-china-international-law-disputes-in-the-south-china-sea/
MASTRO, O. S. (2021, February 17). How China is bending the rules in the South China Sea. Retrieved from The Interpreter: https://www.lowyinstitute.org/the-interpreter/how-china-bending-rules-south-china-sea
Mensah, T. S. (1998). The Dispute Settlement Regime Of 1982 United Nation Convention On The Law Of The Sea . Max Planck Yearbook of United Nations Law Online, 308-310.
PCA. (July 12, 2016. ). The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China). PCA.
S., C. A. (2021, march). Historically Mine: The (Potentially) Legal Basis for China’s Sovereignty Claims to Land in the South China Sea. Retrieved from Air University (AU).
S., C. A. (2021, March 8). Historically Mine: The (Potentially) Legal Basis for China’s Sovereignty Claims to Land in the South China Sea. Retrieved from Air University (AU): https://www.airuniversity.af.edu/JIPA/Display/Article/2528218/historically-mine-the-potentially-legal-basis-for-chinas-sovereignty-claims-to/
SANG, H. T. (2022, October 4). Why UNCLOS Matters: UNCLOS’s Relevance to Taiwan Amid a Raging Storm . Retrieved from Fulcrum: https://fulcrum.sg/uncloss-relevance-to-taiwan-amid-a-raging-storm/
SHUGART, T. (2016, September 21). CHINA’S ARTIFICIAL ISLANDS ARE BIGGER (AND A BIGGER DEAL) THAN YOU THINK. Retrieved from War on the Rocks: https://warontherocks.com/2016/09/chinas-artificial-islands-are-bigger-and-a-bigger-deal-than-you-think/
Southerland, M. (2016). China’s Island Building in the South China Sea: Damage to the Marine Environment, Implications, and International Law. U.S.-China Economic and Security Review Commission.
Tiezzi, S. (2022, January 14). US State Department Study Dismisses China’s ‘Unlawful Maritime Claims’ in South China Sea. Retrieved from The Diplomat: https://thediplomat.com/2022/01/us-state-department-study-dismisses-chinas-unlawful-maritime-claims-in-south-china-sea/
Tsirbas, M. (2016, June 2). What Does the Nine-Dash Line Actually Mean? Retrieved from THE DIPLOMAT: https://thediplomat.com/2016/06/what-does-the-nine-dash-line-actually-mean/
United Nations Convention on the Law of the Sea . (n.d.). Article 10 (6) The foregoing provisions do not apply to so-called “historic” bays, or in any case where the system of straight baselines provided for in article 7 is applied. UN.
United Nations Convention on the Law of the Sea. (1967). UN.
United Nations Convention on the Law of the Sea. (1982). Purpose . UN.
United Nations Convention on the Law of the Sea. (1982; reprinted in 1983). Tommy TB Koh, ‘A Constitution for the Oceans’ (Statement by President Koh at the final session of the Conference, 6 and 11 December 1982). at Montego Bay: reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea.
United Nations Convention on the law of the sea. (1994). Convention Annexes Resolution Agreement. UN.
United Nations Convention on the Law of the Sea. (1994). Settlement of disputes. UN.
United Nations Convention on the Law of the Sea. (1998). New emerging issues. UN.
United Nations Convention on the Law of the Sea. (2020). Ratification status. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 17-21: Right of innocent passage; Meaning of passage; Meaning of innocent passage; Submarines and other underwater vehicles; Laws and regulations of the coastal State relating to innocent passage. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 2-4: Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil; Breadth of the territorial sea; Outer limit of the territorial sea. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 33 (2) The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. . UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 46-54: Archipelagic States. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 55-57: Specific legal regime of the exclusive economic zone; Rights, jurisdiction and duties of the coastal State in the exclusive economic zone; Breadth of the exclusive economic zone. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 56-58. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 56-58: Rights, jurisdiction and duties of the coastal State in the exclusive economic zone; Breadth of the exclusive economic zone; Rights and duties of other States in the exclusive economic zone. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 57 The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 7, 8, 10: Straight baselines; Internal waters; Bays. UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 76 (8): Legal status of the superjacent waters and air space and the rights and freedoms of other States . UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 76(1): Definition of the continental shelf.
United Nations Convention on the Law of the Sea. (n.d.). Article 76-78: Definition of the continental shelf; Rights of the coastal State over the continental shelf; Legal status of the superjacent waters and air space and the rights and freedoms of other States . UN.
United Nations Convention on the Law of the Sea. (n.d.). Article 77(1) The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. UN.
United Nations Convention on the Law of the Sea. (n.d.). Articles 76-77: Definition of the continental shelf; Rights of the coastal State over the continental shelf. UN.
United Nations Convention on the Law of the Sea. (n.d.). Part II, Part V, and Part VI. UN.
United Nations Convention on the Law of the Sea. (n.d.). Part XV. UN.
Valencia, M. L. (2017). Historic Rights and the ‘Nine-Dash Line’ in Relation to UNCLOS in the Light of the Award in the Philippines v. China Arbitration. National University of Singapore Centre for International Law.
Welch, M. R. (2022). What’s Really Going On in the South China Sea? Journal of Current Southeast Asian Affairs, 1-18.
Why does China claim almost the entire South China Sea? (2023, October 24). Retrieved from AL jazeera: https://www.aljazeera.com/news/2023/10/24/why-does-china-claim-almost-the-entire-south-china-sea
