According to Bill Gertz in the Washington Free Beacon, “the Chinese government recently unveiled a new legal tactic to promote Beijing’s aggressive claim to own most of the strategic South China Sea.” Gertz calls this “new” claim the “Four Sha” and says it was advanced by a Chinese Foreign Ministry official during “a closed-door meeting with US State Department officials” in late August 2017.
In response to this “scoop”, several experts began constructing a straw man suggesting that this “new” claim may be intended to somehow replace China’s 9-dash line claim which has been rejected by an international tribunal. They then speculated on how this could be done and the legal and political implications. Indeed, they hyped this revelation as a “new” lawfare tactic. Lawfare is “a form of asymmetric warfare, consisting of using the legal system against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory.” It often has a negative connotation.
Gertz quotes a person who should know — or know better — Jim Fannell, a former Pacific fleet intelligence chief, warning that the Four Sha program appears to be “Beijing’s next logical step in their ‘salami slicing’ asserting the PRC’s claims to the South China Sea.” Despite this hype, China’s claim to sovereignty over these features is neither new nor a logical substitute for its 9-dash line claim.
The Four Sha (sands) are the Paracels (Xisha), the Spratlys (Nansha), Pratas (Dongsha) —which is occupied by Taiwan — and the submerged Macclesfield Bank (Zhongsha).
According to Gertz, Ma Xinmin, Deputy Director General of the Foreign Ministry’s Department of Treaties and Law, stated that “the area is China’s historical territorial waters and also part of China’s Exclusive Economic Zone (EEZ) that defines adjacent zones as sovereign territory.” The article added that “Beijing also claims ownership by asserting the Four Sha are part of China’s extended continental shelf.”
The details of Ma’s alleged statement have not been verified. But on its face, it is gobbledygook. Either Ma’s words or their meaning were garbled in translation or he misspoke. In any case, these supposed details should not be taken seriously unless confirmed.
First of all, China does not claim the entire area inside the 9-dash line as its “territorial waters.” It might still claim historic waters or historic rights there, but such a claim has been rejected by an international tribunal. Territorial seas are considered sovereign territory. China might claim territorial waters around the individual features over which it claims sovereignty but these would extend only 12 nautical miles (nm) from baselines and then only from each feature that is or was originally above water at high tide. Moreover, China has not made such specific claims in the Spratlys because it has not yet specified the baselines from which the territorial sea would be measured, as required by the UN Convention on the Law of the Sea (UNCLOS). Further, according to the tribunal’s ruling, none of the Spratly features are entitled to a 200 nm EEZ or a continental shelf.
Finally, an extended continental shelf claim does not by itself convey sovereignty over high tide features encompassed by the claim — only sovereign rights to the resources on and under it and jurisdiction over activities related to them. China might one day claim much of the area it enclosed with its 9-dash line by using closing lines around each of the groups (as it has done with the Paracels) which would then be “internal waters,” and then make EEZ and continental shelf claims from the enclosing straight baselines. However, this would not be consonant with UNCLOS to which it is a party.
No country can claim sovereignty over the always submerged Macclesfield Bank or any features that are submerged at high tide.
China has long claimed sovereignty over all the “Four Sha” based on discovery and historical usage. It specified and formalized these claims in its 1992 law on the territorial sea and contiguous zone. But neither it nor its rival claimants can convincingly demonstrate the required continuous, effective administration, occupation, and control with acquiescence by others. Under these modern international law criteria that must be satisfied to prove sovereignty, all the claimants’ claims to sovereignty over the high tide features are weak.
The strongest sovereignty claim to such a feature in the South China Sea is probably that of Taiwan to Taiping Dao which it has occupied for more than 60 years. However, Taiwan is not recognized as an independent nation by the vast majority of UN members. Nevertheless, Taiwan’s claim could eventually pass to China which claims that Taiwan is an integral part of it.
No country can claim sovereignty over the always submerged Macclesfield Bank or any features that are submerged at high tide. Macclesfield Bank might be a feature on someone’s extended continental shelf but neither the Philippines nor China have yet made such a claim encompassing it and that of Vietnam — which may include part of it — has not been approved by the UN Commission on the Limits of the Continental Shelf. Even if such a claim by one of them were to be eventually accepted, the winner would have sovereign rights over its seabed resources but not sovereignty over the feature itself. Moreover, some or all of the Paracels — which China or Vietnam might use to make such a claim — may eventually be determined to not be able to generate EEZs and continental shelves.
These are some of the legal and political complexities surrounding the conflicting claims in the South China Sea. The point is that journalists and analysts should be more careful in their reactions to and assessments of “new” developments, particularly those regarding China ‘s policy and actions, and not make mountains out of molehills.
Gertz, B. (September 21, 2017). Beijing Adopts New Tactic for S. China Sea Claims: 'Four Sha' Island Groups Replace Illegal 9-Dash Line. Washington Free Beacon.