‘Barbie’: How a Film has Reignited the Debate About China’s Claims to Sovereignty in the South China Sea

[Dr. Camilla S. Haake is a Post-Doctoral Researcher at the Ludwig Boltzmann Institute of Fundamental and Human Rights affiliated with the University of Vienna.]

Before release on 21 July 2023, Greta Gerwig’s ‘Barbie’ film heated up the tempers of countries bordering the South China Sea (SCS). Vietnam and the Philippines had announced in early July that they would not release the film because of a geopolitically controversial scene depicting the so-called ‘Nine-Dash Line’ (NDL), which China invokes to claim extensive sovereign rights in the SCS. This fate has befallen several other international films before, such as the action adventure ‘Uncharted’ which was banned in the Philippines and Vietnam in 2022 as well as the animated film ‘Abominable’ whose screening in the Philippines and Malaysia, amongst others, was stopped in 2019.

This post takes the launch of the ‘Barbie’ film as an opportunity to recall the public international law background of the NDL controversy between the states bordering the SCS, and to ask whether and, if so, what developments there have been since the ruling of an arbitral tribunal in this matter in July 2016.

‘Lineal’ Rights Proclamation

The geopolitical controversy over the ‘Barbie’ film was apparently ignited by a single scene, known from the (German) ‘Barbie’ trailer, in which Barbie actress Margot Robbie stands in front of a world map’s drawing (true to neither reality nor scale), which shows a line of eight (!) dashes in Asia. While some seemed to suspect deliberate pro-China propaganda behind this, distributor Warner Bros. assured the press that the card was merely a ‘child-like crayon drawing’ not intended ‘to make any type of statement.’

However, this does not apply to the ‘original’ NDL, which contains a quite weighty statement, serving China as a representation of its supposed comprehensive sovereign powers in the SCS. This is why the NDL has been a political bone of contention between China and the other littoral states of the SCS, i.e. Brunei, Indonesia, Malaysia, the Philippines, Taiwan and Vietnam, for decades. According to findings by an arbitral tribunal in ‘The South China Sea Arbitration’ (Philippines v China) delivered on 12 July 2016, the line (then consisting of eleven dashes) first appeared on an official Chinese map from 1948 (two more dashes of the line then including the Gulf of Tonkin (SCS offshoot west of Hainan Dao) were removed in 1953).

Currently, the NDL includes the following areas: Spratly Islands (Nansha Qundao), Scarborough Reef/Shoal (part of Zhongsha Qundao) and Paracel Islands (Xisha Qundao) plus the Exclusive Economic Zone (EEZ) of Natuna Islands (island chain between Borneo and Vietnam), which extends into the area covered by the line, whereas Natuna Islands themselves are not within the area in question.

On 7 May 2009 in two Notes Verbales to the UN Secretary General, China stressed that it had ‘indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof […].’ A map attached to these Notes Verbales contained a representation of the NDL including the above-mentioned areas.

In a 2014 announcement, China also said that ‘[…] China’s sovereignty over the South China Sea and its claims to the relevant rights have been formed over a long course of history. They are solidly grounded in international law […].’

However, this is not the case: neither can China derive historic rights in the SCS nor can any of the disputed elevations in the SCS support China’s claims.

No ‘Historic’ Rights

First, China cannot derive any relevant historic rights in the SCS, since the claimed areas are partly located in other states’ EEZ or continental shelf. The above-mentioned tribunal pointed out that the UN Convention on the Law of the Sea (UNCLOS) ‘does not include any express provisions preserving or protecting historic rights that are at variance with the Convention. On the contrary, the Convention supersedes earlier rights and agreements to the extent of any incompatibility.’ China’s claims within the NDL, however, exceeded the limits of the Chinese maritime zones as provided for by UNCLOS.

Status Questions

Second, the extent of China’s claimed sovereign rights in the SCS depends on the dubious status of Spratly Islands, Scarborough Reef/Shoal, and other elevations in question as islands, rocks, or low-tide elevations within the meaning of UNCLOS which defines the three terms that are particularly crucial here as follows:

• Art. 121(I),(III) UNCLOS defines ‘islands’ as naturally formed areas of land, surrounded by water, being above water at high tide and sustaining human habitation or economic life of their own. Territorial sovereignty over an island establishes territorial sea and contiguous zone and entitles to EEZ and continental shelf.
• Rocks, to the contrary, cannot sustain human habitation or economic life of their own (Art. 121(III) UNCLOS). They can at best establish territorial sea and contiguous zone.
• Low-tide elevations are naturally formed areas of land surrounded by and above water at low tide but submerged at high tide (Art. 13(I)(1) UNCLOS). In principle, low-tide elevations cannot establish own marine zones.

In the view of the tribunal, none of the elevations of Spratly Islands exposed at high tide are suitable to allow human habitation or economic life of their own; they qualify as ‘rocks’ within the meaning of Art. 121(III) UNCLOS without EEZ or continental shelf. Also with regard to Scarborough Reef/Shoal, the tribunal concluded that they were ‘rocks’ in the above sense, not suitable to be inhabited by humans due to lack of fresh water, vegetation, and living space. The traditional use of the reef by fishermen from various states as fishing grounds did not provide evidence of an economic life of its own.

The tribunal also rejected China’s claim that it had ‘based on the Nansha Islands as a whole, territorial sea, exclusive economic zone and continental shelf’ and that the Nansha Islands should be treated as an archipelago within the meaning of Art. 46(b) UNCLOS for the purpose of using archipelagic baselines, for lack of the necessary ratio of water to land area (see Art. 47(I) UNCLOS).

However, China is not expected to respect the arbitral award, as it questioned the jurisdiction of the tribunal early on, did not participate in the proceedings and does not recognise the award.

Land in Sight?

Therefore, there can be no question of a settlement of the disputes surrounding China’s NDL even after the tribunal’s award. This may be partly because the tribunal did not decide on the qualification of man-made constructional extensions of the ‘rocks’ forming Spratly Islands – despite China’s land reclamation and construction activities in the area already virulent at the time of the award. Over the past decade, China has been deliberately adding (civil and/or military) facilities (e.g. airstrips, port facilities, buildings) to reefs belonging to Spratly Islands to expand China’s territory, especially to create new EEZ-forming islands, as large oil deposits are believed to exist in the area.

Land reinforcement (e.g. filling sand/rock in the sea, fortifying islands) is not per se prohibited and is considered ‘accepted practice under international law’ according to a first issues paper on international law aspects of sea-level rise by the International Law Commission of 2020. Even land reclamation measures are recognised and can lead to the shifting of existing baselines. However, rocks cannot de jure become islands through human intervention. According to the above-mentioned definition of an ‘island,’ one of its essential characteristics is its natural formation. Although the underlying rock has in turn been naturally formed, it cannot be elevated to an island by human intervention, since such interventions are not taken into consideration in the interest of distributive justice of maritime spaces under national jurisdiction. This applies even if, by technical means, a rock rises above the water level even at high tide and would be suitable for human settlement (cf. Art. 121(III) UNCLOS). Even classifying the equipped Spratly Islands as ‘artificial islands’ would not achieve this goal: they would not receive the status of islands (cf. Art. 60(VIII), 80 UNCLOS) and could thus not generate own maritime zones.

Through extensive reclamation of maritime zones, China also threatens the freedom of navigation. China requires foreign warships to obtain permission before passing through its territorial sea. However, the relevant Art. 17 UNCLOS does not provide for this, but rather grants ‘ships of all States’ the right of innocent passage, whereas restriction of the freedom of navigation is possible at best for actual military or surveillance activities (Art. 19 UNCLOS). Comprehensive freedom of navigation applies in the EEZ (Art. 58(I) UNCLOS), which China claims for itself around the disputed areas. However, China also seeks to apply the rules of innocent passage there, engages in oil exploration and fishing, and obstructs other states, e.g. the Philippines, in carrying out corresponding economic activities. Yet none of the disputed elevations in the SCS is capable of generating an EEZ (see above); China thus operates in the maritime zones of other littoral states and violates foreign sovereign rights. The US therefore regularly challenges China’s expansionist policy through so-called ‘Freedom of Navigation Operations’ in the SCS. Since 2020, reports of clashes on the SCS between China and its neighbours have also increased. In 2022, China even passed a law giving its coast guard enhanced powers to prevent the violation of alleged Chinese sovereign rights. Since May 2023, the Philippines and China have been engaged in a veritable ‘buoy battle,’ installing navigational buoys likely to be capable of sensing and communicating as ‘sovereignty markers’ in the disputed Spratly Islands. Similar activities are said to have occurred repeatedly since 1988. Corresponding installations in the area by the Philippines were since followed by immediate responses from China and so forth – a development of which Vietnam, for example, as another state bordering the SCS, is not in favour, for one simple reason: Vietnam too claims sovereignty over Spratly Islands, and accuses both the Philippines and China of violating it by their actions.

Against this background, it seems contradictory that China and the member states of the Association of Southeast Asian Nations (ASEAN), which also include all littoral states (except Taiwan) of the SCS, issued a joint declaration on 11 November 2022 on the occasion of the 20th anniversary of the ‘Declaration on the Conduct of Parties in the South China Sea,’ stating that: ‘[We Hereby] Reaffirm our respect for and commitment to the safety and freedom of navigation in and overflight above the South China Sea, in accordance with international law, including the 1982 UNCLOS.’ Momentarily, however, China-ASEAN negotiations on a ‘Code of Conduct in the South China Sea’ have stalled; nevertheless, guidelines to accelerate them were agreed on 13 July 2023.

‘Blurred Lines’

Meanwhile, the Philippines has approved the release of ‘Barbie.’ The Philippine Movie and Television Review and Classification Board has concluded that the film does not show the controversial NDL, but has asked Warner Bros. to blur the line in the film. In Vietnam, however, the screening of the film remains banned. ‘Barbie’ could therefore continue to be accompanied by interstate tensions, while the controversy around China’s extensive sovereignty claims in the SCS persists, momentarily relegating discussions on the social polarising power and feminine radiance of the cult doll to the fringe.