US State Department Study Dismisses China’s ‘Unlawful Maritime Claims’ in South China Sea

The U.S. State Department recently concluded in a new legal analysis that “the PRC asserts unlawful maritime claims in most of the South China Sea, including an unlawful historic rights claim.”

“With the release of this latest study, the United States calls again on the PRC to conform its maritime claims to international law as reflected in the Law of the Sea Convention, to comply with the decision of the arbitral tribunal in its award of July 12, 2016, in The South China Sea Arbitration, and to cease its unlawful and coercive activities in the South China Sea,” the department said in a press release.

The study draws heavily from the 2016 arbitral tribunal ruling, which found in the Philippines’ favor on nearly every objection Manila filed to China’s South China Sea claims and actions. China refused to participate in the arbitration and has rejected the ruling entirely, a point reiterated in its response to the State Department study. “The [arbitral tribunal] award is illegal, null and void. China does not accept or recognize it,” Chinese Foreign Ministry spokesperson Wang Wenbin said.

Notably, however, in the aftermath of the ruling Beijing reframed its South China Sea claims to use the jargon of UNCLOS rather than relying solely on vague claims to “historic rights,” which the tribunal had dismissed. China still continues to claim “historic rights” to the waters, but has fleshed out its maritime claims using more conventional terminology as well. While China has not defined what it means by “historic rights,” analysts believe it’s a way for Beijing to claim the remainder of the waters covered by the infamous “nine-dash line” after stretching the concepts laid out in UNCLOS to their limits. It’s worth noting that the nine-dash line claim traces its origins to the mid-1940s – 50 years before UNCLOS came into force – so naturally the nine-dash line does not reflect the legal precepts laid out in the Convention. Beijing, however, continues to use the line in official maps of its territory.

In brief, the U.S. study takes issue with four aspects of China’s claims in the South China Sea: its sovereignty claims over essentially unclaimable features; its use of straight baselines to claim waters around and between island groups; claiming maritime zones (and associated rights and entitlements) that are only accorded to archipelagic states (not island groups governed by continental states, like China); and the claims to “historic rights,” a concept not recognized in international law.

On the subject of territorial claims – the validity of China’s claim to be the rightful owner of islets in the South China Sea – the United States has historically taken a neutral position. The new document does not change that, but it does question China’s claim to “more than one hundred features in the South China Sea that are submerged below the sea surface at high tide.” UNCLOS is crystal-clear that submerged maritime features and low-tide elevations – rocks or shoals “above water at low tide but submerged at high tide” – do not generate their own territorial sea.

This was one issue of concern, for example, in the Philippines’ arbitral tribunal filing. Some of the features in question fall within the Philippines’ EEZ – if the maritime features cannot be claimed in and of themselves, the territorial sovereignty question is moot and the Philippines’ EEZ would prevail.

“[W]hile taking no position on the PRC’s sovereignty claims to particular islands in the South China Sea, the United States has rejected assertions of sovereignty based on features that do not meet the definition of an island,” the State Department concluded.

The “straight baselines” question dives deeper into maritime law, but essentially China is claiming the right to draw a circle of sovereignty around self-defined island groups (where, as noted above, many of the features in question are not islands at all, but partially or fully submerged). The graphics in the document explain the discrepancy visually.