US analysis of China’s nine-dash line is correct

In his critique of the US Department of State analysis of China’s nine-dash line in the South China Sea on CSIS’s PacNet  #88,[1] Sourabh Gupta of Samuels International agrees that if this line were a claim to an Exclusive Economic Zone (EEZ) then it would contravene international law. On the other hand, he does not accept that if China were to claim historic fishing rights over the area within that line that would also contravene international law. Gupta’s arguments to support this disagreement contain serious weaknesses.

UNCLOS’s EEZ regime is exclusive

According to Article 56 of UNCLOS,[2] a country has within its EEZ “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone...” Although the right of exploitation is not absolute, in the sense that the exploitation has to conform to UNCLOS, e.g., it has to be with due regards to the marine environment, it is exclusive, in the sense that other countries can carry out this exploitation in this country’s EEZ only if it agrees for them to do so. The term “EEZ” contains the word “exclusive” for that reason.

Therefore, a country does not have the unilateral right to fish in another’s EEZ, regardless of historical fishing activities. If it were not so, Western countries and Japan would be able to unilaterally fish and hunt whales in other countries’ EEZs. Fortunately, most UNCLOS signatories and scholars on the law of the sea[3] take the view of the US Department of State: that is, when a country becomes an UNCLOS signatory, it gives up any claims to any rights to unilaterally fish within another country’s EEZ in return for the exclusive right to fish in its own EEZ. UNCLOS signatories cannot unilaterally throw away the first part of this bargain and keep the second, and China is not an exception.

Lessons from the Eritrea-Yemen ruling

Gupta misinterprets the Permanent Court of Arbitration’s ruling in the Eritrea-Yemen territorial-maritime dispute as support for the view that even if a country is an UNCLOS signatory, it has the right to continue its traditional fishing activities in other countries’ EEZs. When the PCA awarded sovereignty over the Zuqar-Hanish, Jabal al-Tayr and Zubayr islands to Yemen and required further that this sovereignty entails the perpetuation of the traditional fishing regime for the fishermen of Eritrea and Yemen, the issues and context are as follows.[4]

That ruling was regarding sovereignty, not the EEZ. In international law, the acquisition of sovereignty and the rights over resources within a country’s EEZ are governed by two different regimes of international law.

Regarding sovereignty, the PCA took into account what it called “Islamic tradition”, “regional legal traditions”, “the communal aspects of the Islamic system of international law”, the fact the islands had had characteristic of res communis for centuries, and Yemen not acquiring sovereignty over them until towards the end of the twentieth century, and when it awarded sovereignty to Yemen with an unconventional clause that also gives free access to Eritrea’s artisanal fishermen, that was a ruling that was appropriate to the evolution of rights and sovereignty that are very particular to that case. The PCA was not required to apply strictly the concept of sovereignty that is primarily a creation of the West. Furthermore, as Eritrea and Yemen, had not signed any treaty to say what Yemen’s acquisition of sovereignty over the islands entails, that ruling did not violate any relevant treaty.

The creation of the EEZ regime, which is what we are concerned about here, bears no resemblance to Yemen’s acquisition of sovereignty over the islands. This regime was not a creation of the West but negotiated by the international community. Furthermore, there is is no risk of it being imposed on China contrary to the latter’s values because China has voluntarily subscribed to it when that country became an UNCLOS signatory. And the negotiations in the creation UNCLOS as well as its subsequent implementation show that that regime is exclusive in nature. Therefore, there is little chance of any international court upholding the view that China has the unilateral right to fish in other countries’ EEZs. In reality, the courts overwhelmingly do not give any country the right to fish in another’s EEZ unless there is an agreement between them that provides for that.

Drawing lessons from the Eritrea-Yemen case for the South China Sea, if an international court is asked by the claimants to resolve the disputes, it might possibly award sovereignty over the different islands to different countries together with clauses to award access to these islands and their 12-nautical-mile territorial seas to artisanal fishermen from other countries, but it is extremely unlikely to award the right to fish in the entire nine-dash line area to China. Furthermore, it is difficult to characterise modern fishing in the South China Sea as “artisanal fishing”.

In any case, the biggest lesson to be learnt from the Eritrea-Yemen case is that these countries chose the correct path of resolving their differences in court. Those who believe that the PCA’s ruling in this case is a precedent that supports China’s claim to “historic fishing rights” in the nine-dash line area would do well to encourage China to go to court as Eritrea and Yemen did, instead of taking the provocative unilateral approach of drawing a line in the sea into other countries’ EEZs and steadfastly refusing legal arbitration.

China’s view?

In fact, it is doubtful if China itself takes Gupta’s view. While China claims to have a right derived from historic fishing practices to unilaterally fish within, say, 50 nautical miles of the uncontested coasts of Vietnam, Indonesia, Malaysia, Brunei and the Philippines, does it accept that other countries have the equivalent right to unilaterally fish within 50 nautical miles of its uncontested coast? It is worth mentioning here that since 2009 China has been using force to drive Vietnamese fishermen out of their traditional fishing grounds around the Paracel islands, which are furthermore still contested.

UNCLOS’s Articles 123 and 62

Gupta’s use of UNCLOS Article 123 and Article 62 to support the view that China has the right to fish in other countries’ EEZs is a misreading of these Articles.

Article 123 is about the cooperation of countries bordering enclosed or semi-enclosed seas for the purposes of protecting the marine environment in these areas.[5] The rationale is that in an enclosed or semi-enclosed sea, activities in one country’s EEZ is likely to affect the marine environment in other countries’ EEZs to a much greater extent than in open waters. This rationale has nothing to do with the notion of “historic fishing rights”, still less does it involve the recognition of “historic fishing rights” by one country in another’s EEZ. In short, Article 123 cannot be used to justify the view China’s has “historic fishing rights” in other countries’ EEZ.

Gupta is similarly mistaken in his use of Article 62, which is about the utilization of the living resources in a country’s EEZ.[6] This can be seen using Indonesia’s EEZ as an example. Note that in practice China has claimed “historic fishing rights” within an area that should clearly be Indonesia’s EEZ and has used its Maritime Surveillance ships to assert its view, resulting in an armed stand-off with Indonesia’s Coast Guard.

Clause 2 of Article 62 means that it is up to Indonesia to determine its capacity to harvest the living resources of its EEZ, and only if it does not have the capacity to harvest the entire allowable catch will it be obliged to give other countries access to the surplus. It is certainly not up to China to decide that there is a surplus of fish in Indonesia’s EEZ and then to unilaterally assert its “right” to harvest that “surplus”. Furthermore, in practice there are huge population pressures around the South China Sea, and the issue facing the littoral countries is not surplus but a rapid decline of fish stocks.

Clause 3 means that if Indonesia grants other countries access to its EEZ under this Article, it will need to take into account all relevant factors, including its national interests. “[T]he need to minimize economic dislocation in States whose nationals have habitually fished in the zone” is only one of many diverse factors given as examples in this clause. This single factor among many does not imply an obligation to recognise historic fishing rights by China and other countries in Indonesia’s EEZ. Furthermore, if countries were to have historic fishing rights in each other’s EEZ a priori then there wouldn’t be the economic dislocation that this clause to refers to, and, in turn, it would be absurd that UNCLOS refers to the need to minimize something that does not exist.

Clause 4 means that in the event that Indonesia grants access to other countries to the surplus in its EEZ, the foreign nationals who fish there will have to comply with Indonesian law and regulations.

What we are seeing is certainly not China asking Indonesia for access to any surplus living resources in the latter’s EEZ and accepting that it would comply with Indonesian law and regulations. That would have been consistent with UNCLOS. Unfortunately, China is unilaterally asserting its claims to “historic fishing rights” in areas that by international law of maritime delimitation can only be Indonesia’s EEZ, because these maritime areas are nearer to Indonesian territories than to the disputed Spratlys. That cannot be in any way consistent with UNCLOS.

Historical origins of the nine-dash line

The historical fishing rights argument, which Gupta tries to use to justify the nine-dash line, is in fact a late tack-on and has nothing to do with the original purpose of the line. According to Taiwan President Ma Ying-jeou, when China’s Koumintang Government published the eleven-dash line map, which later became the nine-dash line one, it was only a claim to the islands enclosed, not to rights over maritime space.[7] Tellingly, this map was named “Nanhai zhudao weizhi tu”, which means “Map of the postions of the South Sea islands”, a name that has nothing to do with claiming rights over the maritime space within that line. However, as China’s power grew after Deng Xiaoping’s reforms, its ambitions in the South China Sea also grew, giving rise to new Chinese views that this line is not just a claim to the islands, but also a claim to rights over the maritime space enclosed. The fundamental problem for these views is that according to international law regarding maritime delimitation this line cannot by any stretch of the imagination be a valid claim to EEZ or continental shelf. Faced with this problem, some Chinese scholars have put forward the “non-exclusive historic rights” argument as a basis for China to make maritime claims well beyond what would be consistent with jurisprudence on EEZ delimitation. However, as leading international scholars on the subject and the US Department of State have convincingly shown, that argument is flawed.

One of the best possible avenues for fairness and stability in the South China Sea is for China to recognise the meaning of the nine-dash line map as clarified by President Ma, recognise that of the islands enclosed, the Paracels, Spratlys and Scarborough Reef are the subjects of territorial disputes, and negotiate with the relevant countries the EEZ belonging to these islands on the basis of international law on EEZ delimitation.

Conclusions

Gupta’s attempt to justify China’s nine-dash line in terms of “historic fishing rights” is seriously flawed. The view of the US Department of State on this question remains far more convincing. Historic fishing activities by the peoples around the South China Sea in what was at that time international waters cannot give China the right to fish in other countries’ EEZs today.

Finally, we note with alarm Mr Gupta’s apparently approbative statement that the nine-dash line “can remain a permanent feature of the South China Sea’s political and maritime landscape”. To achieve a peaceful outcome of the conflicts and a fair sharing of resources, whether based on UNCLOS or not, it is of utmost importance that all countries in the region refrain from making provocative unilateral claims. If Mr Gupta truly desires a peaceful co-operation in the region then he should join the rest of the academic community, indeed the rest of the world except China, in persuading this country to abandon its nine dash line as a claim to maritime space or maritime rights, and to be more open to international legal arbitration. China’s present provocative approach appears to be the worst possible way to push for “historical fishing rights” or any kind of peaceful and equitable outcome.

By Huy Duong and Tuan Pham