China: Dawn And Dusk Of 9 Dash Lines

Last Updated: 15 August 2016
Article by Mike Bajaj

On June 12, 2016 the Permanent Court of Arbitration ruled that China could no longer claim the "nine dash line" on historical or legal grounds to demarcate its portion in the South China Sea.1 Interestingly, China had previously made a declaration in 2006 to exclude maritime boundary delimitation from the purview of compulsory dispute settlement2. However, the Philippines made sure to navigate their contentions around this in such a manner that the Tribunal adjudicated mainly on the rights and obligations, entitlement, lawfulness (action) of the dispute between the parties3. While China continued to refrain from participating in the arbitration proceedings and issued several statements to this effect, the Tribunal assumed jurisdiction and went on to pass an order binding on both parties.4

The Tribunal made known that the claims made by China over the nine-dash line were ambiguous. This needed to be checked considering China was claiming over 85 percent of the South China Sea5 and in all the years it never clarified its understanding of the meaning of the nine-dash line. However certain comprehensive facts can be traced to the first appearance of the 'nine-dash line' on an official Chinese map in 1948. The map originally featured eleven dashes, two of which were removed in 1953. The current specifications of the nine-dash remain inconsistent with other official documents; hence there continues to exist varied depictions of the line.6 As such the "historic rights" claimed by China has been extinguished by provisions of the UNCLOS rendering its claim simply futile.

While China refuses to accept the ruling the Foreign Ministry reiterated its position by stating that China "solemnly declares that the award is null and void and has no binding force."7Other senior officials have made severe attempts to delegitimize the decision by condemning the judges for being oblivious about the issue, easily manipulated and heavily swayed by money8. These demonstrate only a succinct account of the hostile comments aimed at the Court. The real concern is that China has threatened to declare an air defense identification zone over the South China Sea9. While this would inevitably harm its relationship with the US, precedent indicates that there is a strong possibility. In 2013 China declared an ADIZ over islands in the East China Sea which was detrimental to its relationship with the US and Japan.10 Only this time, the repercussions would be borne all the way from the US to many Asian countries.

China's utilization of the Mischief Reef can be traced back to 1995 although at that time they strongly denied it. The construction remained low key till 2015 when the sight of dredger vessels, cargo ships and ocean tugs deployed at the reef, baffled the Philippines. Following which they instantly conveyed their protest about the ongoing reclamation activities.China continued to remain unperturbed and callously continued extensive activity over the region while claiming sovereignty over the Nansha Islands.11 .

The tribunal went on to find that the Mischief Reef lies within the EEZ and Continental Shelf of the Philippines. As per Convention China required authorization (from Philippines) for its construction of installations and artificial islands, failing to do so would compromise the Philippines sovereign rights12. Had the Reef been classified as a rock it would be subject to a sovereignty dispute, not within the purview of the Convention. To China's ill fate it was delineated as a low tide elevation leaving the question of sovereignty, untouched.

Satellite images of Fiery Cross in the Spratly Islands in 2015 revealed that China's construction of facilities were rampantly growing. Fiery Cross Reef, Subi Reef and Mischief Reef are China's largest military installations in the Spratly that had also become part of Chinas unfettered reclamation process.13 In fact Fiery Cross Reef strategically contains an airstrip that is long enough to allow the country to land any plane in the region. (Fighter jets to large transport aircraft).14

The rage against the verdict is inevitable as the region contains 18 billion tons of crude oil and the fisheries have been  traditionally exploited15. The US EIA's profile of the disputed area estimates that region has oil reserves worth 11 billion barrels including some of which remains unfound16. The report also determines that the estimated natural gas comprises an overwhelming 190 trillion cubic feet.17 Environmentalists have continued to fear the continuous dredging that has the potential to cause severe harm to the coral reef environment. More over China has blatantly violated its obligation under UNCLOS to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species.18

The decision was more than welcomed by India, with the Ministry of External Affairs issuing a statement to the effect. Since 55 percent of India's trade passes through the South China Sea India has much to rejoice about. The statement issued by MEA emphasized India's support for freedom of navigation and over-flight  based on the principles of international law, that are reflected in UNCLOS. 19 The statement was made keeping in mind the border issues between the two nations. India's claims to the disputed eastern sector arise from historic content in the same manner that the South China was claimed. While the legal implications of the decision continue to unfold India should explore its prospects for exploration of the South China Sea20. The statement also claims India's adherence to UNCLOS inferring that it would be bound to comply with same during the Sir Creek boundary dispute. 21 India should also look to strengthening its tie with the other ASEAN countries and if necessary align itself with the US to stop the dragon.

China's way forward will determine its future including relationship status with several nations. The longer that China flouts the ruling, more countries in the region will believe that there is no stopping it. If China remains unperturbed by the ruling of the Tribunal and outrightly refuses to accept its decision, like it did with the arbitration process there would be dire consequences. This would intentionally provoke the US, which has ironically refrained from signing UNCLOS. The US intention to distance itself from UNCLOS while continuing to intervene in China's affairs only reaffirms the notion that the Western liberal democracies, exploit international law subjectively, as per their whims and fancies. As such both powers must essentially recognize their dominance in world politics and remain cautious while they continue to spew venom at each other.22 Although China is trying everyone's patience all must be done to mitigate instability and any major conflict in the region. As of now China seems pushed to a corner, pressurized by a rule-based system it should ideally consider emulating.

Footnotes

[1]See http://time.com/4412191/nine-dash-line-9-south-china-sea/

[2] See http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification

[3] See The Republic of Philippines v. The People's Republic of China points 7,8,9 on page 2-3 of  PCA Case Nº 2013  Available at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification.

[4] See UNCLOS, Article 9 of Annex VII states that "absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings."

[5] See http://foreignpolicy.com/2016/04/20/a-big-ruling-on-the-south-china-sea-nine-dash-line-draws-near-beijing-philippines-japan-taiwan-aftermath/.

[6] See p 71-72 of

[7] See  https://www.washingtonpost.com/world/beijing-remains-angry-defiant-and-defensive-as-key-south-china-sea-tribunal-ruling-looms/2016/07/12/11100f48-4771-11e6-8dac-0c6e4accc5b1_story.html.

[8] See http://www.abc.net.au/news/2016-07-13/china-reasserts-claims-over-south-china-sea-after-hague-ruling/7625114.

[9] http://www.forbes.com/sites/ralphjennings/2016/07/27/what-you-do-if-beijing-declares-an-air-defense-zone-over-disputed-south-china-sea/#2a69c05324a0.

[10] http://www.telegraph.co.uk/news/2016/07/13/china-declares-right-to-set-up-air-defence-zone-in-south-china-s/.

[11] See p. 399,402-403 of The Republic of Philippines v. The People's Republic of China PCA Case Nº 2013
-
19 available at https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf.

[12] See p 413-415 Ibid.

[13] See http://thediplomat.com/2015/09/south-china-sea-satellite-imagery-shows-chinas-buildup-on-fiery-cross-reef/.

[14] http://www.nytimes.com/interactive/2015/07/30/world/asia/what-china-has-been-building-in-the-south-china-sea-2016.html?_r=1.

[15] See  The Republic of Philippines v. The People's Republic of China PCA Case Nº 2013, p 71-73  Available at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification.

[16] http://www.wsj.com/articles/south-china-sea-tensions-leave-oil-potential-untapped-1468387010.

[17] Ibid. Located in the disputed Reed Bank.

[18] https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china.

[19] See http://www.the-american-interest.com/2016/07/22/indias-response-to-the-south-china-sea-verdict/.

[20] http://thewire.in/51763/south-china-sea-unclos-sir-creek/.

[21] See https://en.wikipedia.org/wiki/Sir_Creek for more information.

[22] http://nationalinterest.org/blog/the-skeptics/why-the-south-china-sea-verdict-likely-backfire-16957.

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