State Power And International Law: The Conflict between the Nine-Dash Lines as a Chinese Strategic Maritime Tool and the UNCLOS

For China, the nine-dash line is a strategic tool for reaffirming the controversial maritime claim in the South China Sea. This grey zone between international law and state power is not merely a regional territorial issue but an enhanced test of international order's stability.

Illustration by The Geostrata

In this era of national interest and frequent conflicts, the significance of international institutions is being critiqued for their effectiveness. UNCLOS is one such institution that was perceived as inefficient to serve the interests of the law of the sea community in this long-standing South China Sea dispute. 

Legal solutions become complex when there are differences in the interpretations from one state to another. China is effortlessly utilizing the loopholes in the UNCLOS and bending it accordingly to secure its strategic interests. Conflict arises when nations prioritize realpolitik over the shared commitment to international law and peace. Laws created in the name of public good often get twisted to validate one's own self-interest or to serve power, and the nine-dash line is a perfect statecraft capable of bending UNCLOS.

ORIGIN OF THE LINE AND DISPUTES

In 1947, the Republic of China’s navy took control of Japan-occupied islands in the South China Sea, leading to the first appearance of the dashed lines (11 dashed lines). The People's Republic of China (PRC), created in 1949, became powerful and began asserting its inherent maritime rights. Later, two “dashes” were removed to bypass the Gulf of Tonkin as a token to communist comrades in North Vietnam. Since then, China has maintained the status of the nine-dash line. 

Criticisms often arise from South China Sea states such as Brunei, Indonesia, Malaysia, the Philippines, and Vietnam. The Philippines, Malaysia, and Brunei root their claim in geographical proximity, while Vietnam, which occupies the largest number of islands and reefs in the Spratlys, asserts its ownership by actively administering the area and also by transferring Vietnamese civilians to these islands to prove its legal ownership. The Philippines challenged the legality of the line at the international tribunal under UNCLOS.

China’s grey zone tactics, such as deploying state-funded maritime militias, heavy coast guard vessels, and creating artificial islands, are also significantly affecting Indonesia as the nine-dash line overlaps with its rich EEZs.

In 2017, Indonesia named its EEZ in the southern end of the South China Sea as the Northern Natuna Sea. Despite the ongoing Chinese encroachment. Indonesia, being Southeast Asia's biggest nation, is avoiding conflicts because China is a key to the progress of Indonesia’s economic development as the biggest trade partner and second-largest source of investment for Indonesia.

Indonesian leaders are cautiously avoiding conflict in order to save their economy. In December 2021, Reuters reported that China demanded that Indonesia stop drilling for oil and natural gas. All these reflect the fact that China is ahead in the game.

POSITION OF CLAIMS AND PROVISIONS

The Nine-Dash Line encloses nearly 90 percent of the South China Sea and overlaps with several Southeast Asian states’ exclusive economic zones (EEZs). It is accepted by official Chinese maps as a standard line so as to create a national consciousness about their claims on the South China Sea. But it rarely appears in non-Chinese maps of the sea apart from comparative or educational contexts because foreign publishers don't want to create controversies. Even movies such as Uncharted and blockbuster Barbie were either banned or censored by Vietnam and the Philippines for displaying the nine-dash line. These clearly reflect the intensity of the issue.

There is vagueness and complexity over the legal basis of the nine-dash line. International bodies like the Arbitral Tribunal in the 2016 Philippines v. China case examined the basis of China’s claim to “historical rights” in the region and ruled that they have no legal basis under international law.

According to UNCLOS Article 3, every coastal state has the right to establish its sovereignty over the territorial sea to a limit not exceeding 12 nautical miles from its official baseline.

The nine-dash line violates the laws of the territorial sea as it overlaps the exclusive economic zones (EEZs) of the Southeast Asian countries, and China further exacerbates the situation by claiming rights within other countries’ EEZs. 

According to UNCLOS' Article 57, the exclusive economic zone cannot stretch more than 200 nautical miles from a coastal state's territorial baseline. But China unilaterally asserts its claim over other countries' EEZs by bending the principle of UNCLOS, which states the possibility of sharing overlapping EEZ resources. Specifically, such overlap happens in areas; for example, the Philippines has a clearly defined EEZ that covers a significant part of the South China Sea. This area is overlapped by the Nine-Dash Line, which may limit the Philippines’ access to its resources. Other affected countries include Vietnam, Malaysia, Brunei, etc.

China’s South China Sea assertion is further complicated by the issue of continental shelf claims. The continental shelf of a coastal state encompasses the seabed and subsoil of the submarine areas throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baseline where the outer edge does not extend up to that distance (UNCLOS). Also, the coastal state exercises inherent authority over the natural resources in the continental shelf. But China’s claims over the continental shelves surrounding the Paracel Islands are considered unreliable.

Though UNCLOS also provides a mechanism for resolving continental shelf disputes through the Commission on the Limits of the Continental Shelf (CLCS), as cited in UNCLOS Article 76(8), China unilaterally asserted its strategy, avoiding the CLCS. China is leveraging the ongoing ASEAN Code of Conduct negotiations to delay any legal agreement while it continues to build power in the region.

THE CONTRADICTIONS OF STATE POWER AND INTERNATIONAL LAW 

The nine-dash line, visually represented as a U-shaped line in some of China’s official maps, can be interpreted as a maximalist claim to sovereignty and control over all of the features of land, water, and seabed within the area. Moreover, through these dash lines, China, "despite being a signatory to UNCLOS," is directly violating its fundamental principles. 

The ambiguity is further visible in China's unfounded historic rights, where Article 10(6) of UNCLOS highlights the existence of the “historic bays” under public international law, but it does not define them. China had never explicitly mentioned its historic rights with clarity, and they are persistently rejected by the neighboring countries.

The Permanent Court of Arbitration (PCA) declared China’s historical rights claim illegal and incompatible with the UNCLOS framework in 2016. The South China Sea’s unique geographical features also complicate the application of UNCLOS. 

Around $3.4-5.3 trillion trade passes annually, and roughly 1/3 of global shipping goes through it. The sea is also an important factor in trading more than 30% of the world's crude oil. Beyond oil, there are abundant natural gas reserves, rich minerals, and high marine biodiversity. Moreover, the strategic position of the South China Sea, connecting the Indian and Pacific Oceans, attracts international powers like the United States, Japan, and Australia.

China in the South China Sea is similar to Iran in the Strait of Hormuz. Iran’s blockade affected the entire world economy. But in this case, the South China Sea cannot be easily blocked by a single actor, but there are possibilities of militarization and strategic control by China, which can significantly disrupt global supply chains, energy flows, and regional stability. 

China's disregard for international laws is not an isolated case. Around the world, several other waterways face similar challenges to their legal status. Examples where the state actions violate the UNCLOS framework include the Northern Sea Route (Russia), the Northwest Passage (Canada), the Aegean Sea (Turkey & Greece), the Gulf of Sidra (Libya), etc.

CONCLUSION 

UNCLOS remains one of the supreme laws of the sea, but it is perceived as ineffective when it comes to the enforcement of its principles to resolve complex maritime disputes. Laws are necessary to maintain order, but if there is no law enforcement mechanism, the laws cannot guarantee the justice they should provide, which in turn disrupts world peace, and destruction would prevail. 

Ending the power play of China's grey zone tactics through creating a more specific and updated code of conduct that foresees the future interpretations of complex geographical areas is necessary for maintaining the relevance of international maritime institutions like UNCLOS, instead of moving forward with a survival of the fittest game.

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BY DEVIKA PRADEEP

THE GEOSTRATA

info@thegeostrata.com