May 20, 2023

The Cleverest Thing and the Nine-Dash Line


IT is a series of dashes, nine in all, that presents and outlines in a vague way, China's claim on the South China Sea (SCS). The nine-dash line encroached on the exclusive economic zone (EEZ) and continental shelf of the Philippines. Before China revealed its intentions in the SCS, the significance of the dashes was a cartographic puzzle.

According to the arbitral tribunal that resolved the case of the Philippines vs. China, what has become known as the "nine-dash line" first appeared on an official Chinese map in 1948. In that year, the Ministry of the Interior of what was then the Republican Government of China published a "Map Showing the Location of the Various Islands in the South Sea." A similar line had also appeared in privately produced cartography as early as 1933. In its original form, the map featured 11 dashes. The two dashes in the Gulf of Tonkin near Vietnam were removed in 1953, making it a "nine-dash line." The line has appeared consistently in that nine-dash line form in official Chinese cartography since that date. The length and precise placement of individual dashes, however, do not appear to be entirely consistent among different official depictions.

According to the arbitral tribunal, what is the nine-dash line in actuality?

The arbitral tribunal said that the area of the sea enclosed by the nine-dash line shows the surface area of the SCS which represents China's claim to the resources therein. It cannot represent China's claim to territorial ownership of the SCS since the sea is simply too big to justify China's claim, and the subject of China's claim is for the most part, the High Seas. China is holding on to its "historic claim" to the SCS. The arbitral tribunal could only rule on questions involving the application and interpretation of the convention, how then did it resolve the issues?

The tribunal concluded that there is no legal basis for China to claim historic rights to resources within the sea, areas falling within the "nine-dash line." According to the tribunal, evidence that a State had made use of any island in the SCS does not establish historic rights to the waters beyond the territorial sea of said island, and in like manner, historic usage of the waters of the SCS cannot lead to historic rights to the islands located there. Even if a State uses the High Seas, it can never claim it by virtue of historic rights.

Now comes the clever part: Since the arbitral tribunal cannot rule on matters involving maritime delimitation and sovereignty, how did the lawyers for the Philippines approach the issue of China's claim based on "historic rights"?

Very astutely and cleverly, the lawyers for the Philippines said that even if they hypothetically admit that China does have "historic rights" to the SCS, by signing the UN Convention of the Laws of the Sea (Unclos), China effectively waived such "historic rights," as far as the Philippines is concerned.

Thus, according to the lawyers for the Philippines, our country is entitled to its EEZ of 200 nautical miles, and that China is infringing on the entitlement of the Philippines under the Unclos.

To explain its ruling, the tribunal said that the issue is about the interpretation and application of the Unclos. In other words, the arbitral tribunal concluded that to the extent of China's hypothetical claim of "historic rights" to resources in the waters of the SCS, such rights were extinguished to the extent that they were incompatible to the EEZ provided for in the Unclos to which China is a party.

Simply stated, the tribunal ruled that since it signed the convention, China is considered to have waived any stake to the EEZ of the Philippines. Whatever rights China may claim, these are deemed extinguished if they infringe on the entitlements granted by the convention, specifically on the Philippines' EEZ.

Accession to the Unclos reflects a commitment to bring incompatible claims in alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the limits of the convention.

China's claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the "nine-dash line" are contrary to the Unclos and without lawful effect to the extent that they exceed the geographic and substantive limits of China's maritime entitlements. The tribunal concluded that the Unclos supersedes historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.

The arbitral tribunal clarified that it only ruled on matters which concerned the application and interpretation of the Unclos. As a signatory to that convention, it can be said that China has waived its rights to claim the EEZ and other maritime zones of the Philippines. Moreover, when China signed the convention, it wittingly agreed to the limits imposed by the convention on its own EEZ and continental shelf.

Thus, by their hypothetical admission, the lawyers for the Philippines did the cleverest thing.

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Source: Saul Hofileña Jr. and Daniel Soriano Hofileña. Turmoil at the South China Sea. The Philippines vs. China Arbitration and Other Relevant Matters. Baybayin Publishing. 2022.

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