China’s nine-dash line still infringes international law

By Huy Duong, Tuan Pham

Eastasiaforum | Feb 27, 2015

Suggestions that China could claim historic fishing rights within the nine-dash line misinterpret international law. While Sourabh Gupta’s arguments, outlined in a recent Forum article, relating to the UN Convention on the Law of the Sea (UNCLOS) Articles 62 and 123 have been disputed elsewhere, we argue that his argument regarding Article 56 is also incorrect.

The exclusive economic zone (EEZ) regime is outlined in UNCLOS Article 56, which states that a country has within its EEZ ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing […] natural resources’. UNCLOS and its subsequent interpretations imply that the right of exploitation is exclusive, as the name implies: other countries can participate in the exploitation of this country’s EEZ only with its agreement. When a country becomes an UNCLOS signatory it gives up any claims to any rights to fish within other countries’ EEZs, regardless of historical fishing activities. In return the country gains the exclusive right to fish in its own EEZ.

Gupta misinterprets the Permanent Court of Arbitration’s (PCA) ruling in the Eritrea–Yemen maritime territorial dispute as support for the view that an UNCLOS signatory has the right to continue its traditional fishing activities in other countries’ EEZs. When the PCA awarded sovereignty over some islands to Yemen but also let the fishermen of Eritrea continue the traditional fishing regime in the vicinity, the ruling was in regard to sovereignty over the islands 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 legal regimes.

The PCA took into account ‘Islamic tradition’, ‘regional legal traditions’, ‘the Islamic system of international law’, the fact the islands had had characteristics of res communis — a common area not subject to the legal title of any state — for centuries, and Yemen not acquiring sovereignty over them until towards the end of the 20th century. When it awarded sovereignty of the islands to Yemen but also gave free access of the surrounding waters to Eritrea’s artisanal fishermen, that was a ruling tailored to the particular history of sovereignty over those territories. It was not a general rule of international law. The PCA was not required to strictly apply the concept of sovereignty, primarily a creation of the West.

The creation of the EEZ regime 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. China voluntarily subscribed to it when ratifying UNCLOS. Therefore, the international courts are unlikely to uphold the view that China has the unilateral right to fish in other countries’ EEZs. Overwhelmingly, they do not give any country the right to fish in another’s EEZ unless there is an agreement between them to that effect.

Drawing lessons for the South China Sea, if an international court was called on to resolve the disputes, it might 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 give China the right to fish in the entire nine-dash-line area, and it is very difficult to characterise modern fishing in the South China Sea as artisanal fishing.

It is doubtful if China itself shares Gupta’s view. While China claims to have a historically-established right to unilaterally fish within approximately 50 nautical miles of the uncontested coasts of other countries, does it accept that they have the same right within 50 nautical miles of its uncontested coast? It is worth mentioning that since 2009 China has been using force to drive Vietnamese fishermen out of their traditional fishing grounds around the still-contested Paracel Islands.

The ‘historic fishing rights’ argument is in fact a late tack-on and has nothing to do with the original purpose of the nine-dash line. According to Taiwanese President Ma Ying-jeou, when China’s Kuomintang Government published the eleven-dash line map, which later became the nine-dash line, it was only a claim to the enclosed islands, not to rights over maritime space.

But as China’s power grew after Deng Xiaoping’s reforms, its ambitions in the South China Sea also grew. This gave rise to the view that this line was not just a claim to the islands but also a claim to rights over the maritime space enclosed by it. The problem is that, according to international law regarding maritime delimitation, this line cannot possibly be a valid claim to an EEZ.

Faced with this, Chinese scholars have argued that ‘historic rights’ are the basis for China to make maritime claims well beyond what would be consistent with jurisprudence on EEZ delimitation. However, leading international scholars have convincingly shown that that argument is 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.

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 Taiwan’s President Ma. It should recognise that of the islands enclosed are the subjects of territorial disputes and negotiate with the relevant countries the EEZ belonging to these islands on the basis of international law.

Huy Duong is a UK-based IT consultant.

Tuan Pham is Associate Professor at the University of New South Wales.