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
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.
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.
About The Author
Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.