How China has been able to assert vast maritime claims amid international protests.
People’s Liberation Army Navy Ships in the South China Sea.[1]
On August 28, 2023, China’s Ministry of Natural Resources unveiled a new standard map of the country that included territorial claims on both land and sea.[2] Part of this map depicted the Chinese government’s maritime claims to the heavily contested and strategically important South China Sea. Although the Chinese government previously claimed vast swaths of the South China Sea with its nine-dash line map, the new map contains an additional tenth dash, appearing off the east coast of Taiwan.[3] Unsurprisingly, this move from the Chinese government received backlash from other states in the region; the Philippines, Vietnam, Malaysia, Brunei, Indonesia, and Taiwan have openly rejected China’s territorial claims.[4] These states argue that the Chinese government violated international law by making these maritime claims to the South China Sea. The accusations give rise to the legal questions of whether China has in fact violated international maritime law and, if so, whether the other states in the region have any legal recourse.
The key laws that these questions implicate arise from the United Nations Convention on the Law of the Sea (UNCLOS). Ratified during the Third United Nations Conference on the Law of the Sea from 1973 to 1982, UNCLOS establishes comprehensive rules governing all uses of the oceans and their resources.[5] With the exception of Taiwan, all other states involved in the conflict are party to UNCLOS.[6] China’s updated maritime map revolves around the establishment of an exclusive economic zone (EEZ) within the ten dashes.[7] Part V of UNCLOS contains articles specifically related to EEZs.[8] Article 57 prohibits an EEZ from extending more than 200 nautical miles “from the baselines from which the breadth of the territorial sea is measured.”[9] Within this zone, states can exercise sovereign rights of exploring and exploiting the territory’s natural resources; establish artificial islands, installations, and structures; and determine the allowable catch of living resources in the zone.[10] Given the breadth of China’s maritime claims to the area, these provisions of UNCLOS would grant the Chinese state significant authority over navigation and actions in the South China Sea.
China’s New Ten-Dash Map[11]
Pursuant to relevant laws, is there any legal recourse available to these South Asian states to contest the Chinese government’s actions? The answer is yes. Article 280 of UNCLOS provides a framework for states to peacefully settle disputes via means of their choosing.[12] Parties may facilitate dispute resolution through the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII, or a special arbitral tribunal.[13] In 2013, the Philippines brought an arbitration case against China, over issues similar to the present ones, in an arbitral tribunal constituted under Annex VII.[14] Despite the Chinese government’s refusal to participate in the case, the tribunal awarded judgement in favor of the Philippines, declaring China in violation of several UNCLOS articles.[15] Most notably, the tribunal found that China’s traditional nine-dash line lacked any legal foundation.[16] Although binding on the parties involved, there was no power to enforce the decision, a fact that remains apparent given China’s unwavering position on the territory.[17]
The situation in the South China Sea demonstrates an unfortunate reality of enforcing international law. Courts and tribunals may be able to deliver judgements on interstate disputes, but there is ultimately no mechanism for enforcing the resolutions. The Chinese government did not recognize the authority of the tribunal in 2013 and continues to assert its claims to the South China Sea, using its new ten-dash line map and provocative actions involving ships from the People’s Liberation Army Navy (PLAN).[18] It is now critical for these South Asian states, along with the United States, to determine their next move regarding China and the South China Sea, especially in light of widespread concerns over the fate of Taiwan.
[1] Photo: Kyle Mizokami, A Chinese Military Official Suggets Ramming U.S. Warships in the South China Sea, Popular Mechanics, Popular Mechanics (Dec. 10, 2018), https://www.popularmechanics.com/military/a25460239/chinese-military-suggests-ramming-ships/. [2] China’s New National Map Has Set Off a Wave of Protests. Why?, AP News (Sept. 1, 2023, 5:11 AM), https://apnews.com/article/china-map-territorial-dispute-south-sea-702c45165d7f9cade796700fffa5691e. [3] Id. [4] Id. [5] U.N. Div. for Ocean Affairs & L. of the Sea, United Nations Convention on the Law of the Sea of 10 December 1982 (last updated July 21, 2023), https://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm#:~:text=by%20%22*%22.,The%20United%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea,the%20oceans%20and%20their%20resources. [6] U.N. Div. for Ocean Affairs & L. of the Sea, Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements (last updated Oct. 24, 2023), https://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm. [7] Philippines, Taiwan, Malaysia Reject South China Sea Map, Reuters (Aug. 31, 2023, 10:40 AM), https://www.reuters.com/world/asia-pacific/philippines-taiwan-malaysia-reject-chinas-latest-south-china-sea-map-2023-08-31/. [8] U.N. Convention on the Law of the Sea, 43 (Dec. 10, 1982). [9] Id. at 44. [10] Id. at 43-45. [11] Photo: Hiroshi Mori, China’s New ‘Ten-Dash Line’ Map Infuriates Asian Neighbors, Japan Forward (Sept. 2023), https://japan-forward.com/wp-content/uploads/2023/09/The-2023-Version-of-Chinas-Map-of-Its-Territory-2.jpg. [12] U.N. Convention on the Law of the Sea, 129 (Dec. 10, 1982). [13] Id. at 131. [14] The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China), Permanent Ct. Arb., https://pca-cpa.org/en/cases/7/ (last visited Oct. 29, 2023). [15] Euan Graham, The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence?, Council on Foreign Rels.: Council of Councils, (Aug. 18, 2016), https://www.cfr.org/councilofcouncils/global-memos/hague-tribunals-south-china-sea-ruling-empty-provocation-or-slow-burning-influence. [16] Id. [17] Tom Philips, Oliver Holmes, & Owen Bowcott. Beijing Rejects Tribunal’s Ruling in South China Sea Case, Guardian (Jul. 12, 2016), https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china. [18] China’s New National Map Has Set Off a Wave of Protests, supra note 2.
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