Is China Backing Off Its Maximalist South China Sea Claims?

by Julian Ku

Maybe, says M. Taylor Fravel at the Diplomat.

In a recent press conference, the Ministry of Foreign Affairs appeared to take an important step towards clarifying China’s claims in the South China Sea – and suggesting what the line might not mean.

First, the spokesperson, Hong Lei, distinguished between disputes over “territorial sovereignty of the islands and reefs of the Spratly Islands” and disputes over maritime demarcation. This affirms past statements, including a note to the United Nations in May 2011, that China will advance maritime claims that are consistent and compliant with UNCLOS. Under UNCLOS, states may only claim maritime rights such as an EEZ from land features like a nation’s coastline or its islands.

Second, and more importantly, the spokesperson further stated that “No country including China has claimed sovereignty over the entire South China Sea.”  By making such a statement, this phrase suggests that the “nine-dashed line” doesn’t represent a claim to maritime rights (such as historic rights), much less a claim to sovereignty over the water space enclose by the line.  More likely, the line indicates a claim to the islands, reefs and other features that lie inside.

To be sure, China could advance a large claim to maritime rights in the South China Sea from the islands and other features in the Spratly Islands. Although UNCLOS only permits states to claim a 200 nautical mile EEZ from islands that can sustain permanent human habitation, sovereignty over a single island can generate an EEZ of approximately 125,000 nautical miles.

Nevertheless, even articulation of a large but UNCLOS-compliant claim would offer several advantages in terms of dispute resolution.  It would clarify where China’s EEZ claims from islands in the South China Sea overlap with the claims of littoral states from their coastlines.  As a result, disputed and undisputed areas would be clearly identified.  It would also allow states to invoke the dispute settlement mechanisms of UNCLOS, Part XV, which would a negotiated settlement to overlapping claims.

http://opiniojuris.org/2012/03/05/is-china-backing-off-its-maximalist-south-china-sea-claims/

3 Responses

  1. Nobody has ever said that China claims sovereignty over the “entire” South China Sea (apart possibly from a few ignorant members of the public). Thus the Chinese spokesmen’s statement that “No country including China has claimed sovereignty over the entire South China Sea” says nothing new whatsoever.

  2. There is another subtle aspect of the PRC’s reference to UNCLOS.  The Chinese are very well aware of the fact that the U.S. is not a party to that treaty, and will almost certainly use that to strategic advantage in the future to argue that regimes like international straits passage, which were created from whole cloth during the treaty negotiations, are not available to non-parties (e.g., the U.S. Navy).  The refusal of the Senate to vote on the treaty, despite the solid endorsement by the national security leadership of every recent administration of both parties, forces the U.S. to rely on the less than wholly credible assertion that essentially the entire treaty became declaratory of customary international law as soon as it was negotiated.

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