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On China’s 9-Dashed Line and Why the Arbitrational Tribunal in Hague Should Dismiss Philippine’s Case Against China

December 16th, 2014 Leave a comment Go to comments

December 15 was the deadline the Arbitration Tribunal for Philippine’s “arbitration” of its S. China Sea disputes with China had set for China to respond to Philippine’s claims under the UNCLOS.  According to this VOA report:

Monday is the deadline for China to submit a counter-argument in the Philippines arbitration case that questions China’s sweeping claims in the South China Sea. But China shuns arbitration and will not respond, while challenges to its position continue to mount.

Just days before the December 15 deadline, Vietnam Foreign Ministry spokesman Le Hai Bin said his government told the Permanent Court of Arbitration that Vietnam fully rejected “China’s claim over the Hoang Sa [Paracel] and Truong Sa [Spratly] archipelagoes and the adjacent waters.”

In a statement, the Philippines called Vietnam’s position “helpful in terms of promoting the rule of law and in finding peaceful and nonviolent solutions to the South China Sea claims.”

But China’s Foreign Ministry urged Vietnam “to earnestly respect China’s territorial sovereignty and maritime rights and interests.” The ministry reiterated China’s position that the tribunal does not have jurisdiction over the case.

In a paper Beijing released a week ago, China argued the Philippines was essentially taking a territorial dispute to the tribunal and that the question of territorial sovereignty was not something addressed by the United Nations Convention on the Law of the Sea.

Philippine Foreign Affairs Spokesman Charles Jose said his government has “taken note” of the position paper.

I had done some research and written an article on the subject earlier this year.  The plan was to publish it somewhere with Eric’s help, and through Guancha’s affiliates. However, by the time I finished, in mid-late August, the S. China Sea issue had drifted from the main media attention and Eric thought it was best to wait.

As it turned out, the “news” would not focus on S. China Sea again this year (fortunately), as the West attention seems to be focused now on ISIS, Ukraine, Russia, and Japan and Europe’s continuing economic problems…

If the news flare up again, I will see about writing something pertinent to that occasion.  But for now, I think it’s too much of a waste to just let my research this year lie dormant.  So below is my paper.   It might seem long and dense because it’s meant to address all the major legal arguments I hear Philippines officials and Western anti-China “legalists” publicly making.  I hope it’s educational for all here. If people have any feedback, I welcome them.  They will only make our position – and my future articles (if they are needed) – that much stronger.

  1. December 16th, 2014 at 13:10 | #1

    China’s 9-dashed line is probably the most well know due to propaganda effort on the part of mainstream western press. However, how valid is the other parties claim in this area? The US administration repeatedly questioned the validity of China’s 9-dashed line but failed to questioned the other parties full line!

    On the picture below, one can see that Vietnam’s claim overlapped not only China’s but also that of Malaysia, Brunei, Philippines. If the US and the western press is indeed neutral they should also highlight the other parties claim and question why their conflicting claim is above scrutiny.

    South China Sea

  2. December 16th, 2014 at 15:59 | #2

    @Ray

    Actually, most of the claimants would say, our map is based on the UNCLOS – and hence legal – while China’s is not.

    But even that simple sentence is full of propaganda.

    1. Philippines (as I described in the article) itself exert claims to huge swaths of its surrounding seas based on historical title; however, in its claims against China, those are not at issue (hence are not usually drawn in the S. China Sea disputes). Instead, Phillipines only asks what happens when China’s 9-dashed line overlaps that of its UNCLOS lines.

    2. The UNCLOS is put forth as if it’s a modern version of the laws of the seas that trumpets historical title or other political rights. That’s clearly not the case, as I argued in the paper. Philippines simply like to lift UNCLOS over historical title where convenient…

    3. Freedom of the seas is promoted above all else … but only when convenient, and not so, when not convenient. This is all about dressing up politics in the clothes of “law.” China’s history doesn’t matter. China is a menace to freedom of the seas. Say that enough times, it sounds as if those are pronouncements of law.

  3. December 16th, 2014 at 16:51 | #3

    @Allen
    If that is really the case it would invalid all of Japan’s claim, not to mention US’s owned island like Hawaii, Guam etc. US and China’s claim is based on historical ownership and actual control. If proximity is the case than Japan would have no case and what’s the basis for the following ownership?
    Christmas Island location

    Channel Islands location

    Canary Islands location

  4. December 16th, 2014 at 16:58 | #4

    @Ray

    Philippines is careful to say that disputes over islands are not covered under the UNCLOS, only disputes over maritime boundaries (more specifically, EEZ waters). EEZ can only be extended from “islands” and mainlands but not “rocks” … and China can only get an EEZ from its islands.

    Where islands are in dispute, there is a problem. But in the most recent iteration, Philippines and Vietnam and Malaysia seem to be saying that none of the islands in the S. China sea are really “islands” under the UNCLOS – and that EEZ can only be drawn from the major islands of Malaysia and Phillipines and the long coastlines of Vietnam…

  5. December 16th, 2014 at 18:17 | #5

    @Allen
    If the Philippines want to push the notion that rock which is submerged under high tide is not island, it would make Japanese EEZ claim untenable. They can’t have it both way by supporting Japanese’s claim while invalidating China’s.

    Xisha, Nansha etc are habitable islands so China has a very solid legal foundation on its EEZ claim. There are basically two major disputes among the claimants in South China Sea:

    1. Who own which islands?
    2. The boundary of the EEZ which pretty much overlapped.

    None of which can be decided by any third party. The only way out is by negotiation but Vietnam and Philippines flatly refused. Australia would not allow Indonesia to challenge its ownership of Christmas Island, neither would the UK allow France to dispute its ownership of the Channel Islands. Spain would not discuss its control of the Canary Islands either.

    The following map shows that US, UK, France, Australia, New Zealand etc have huge EEZ claim based on their tiny islands.

    Pacific Islands

  6. December 16th, 2014 at 22:01 | #6

    @Ray

    If the Philippines want to push the notion that rock which is submerged under high tide is not island, it would make Japanese EEZ claim untenable. They can’t have it both way by supporting Japanese’s claim while invalidating China’s.

    Well …. it may be the logic, but they don’t have to admit it. By the proclamations made, the Philippines is only focusing on China’s own inconsistencies between arguing that Japanese islands don’t support life … compared to islands in S. China Sea that are much smaller but that China argues support life.

    There are basically two major disputes among the claimants in South China Sea:
    1. Who own which islands?
    2. The boundary of the EEZ which pretty much overlapped.

    Regarding 1, Philippines has a two-pronged attack. One is to say China doesn’t have “title” to islands it controls. Two is to say China can’t have “title” to islands it doesn’t control. Yeh … it’s b.s. but all anti-China people do it.

    Regarding 2, one argument Philippines argues is that even ceding title of islands China control to China, China’s EEZ under UNCLOS doesn’t reach to the full extent of its 9-dashed line. Phillipines would want to set a precedence to invalidating China’s 9-dashed line based on UNCLOS, and from there open the door to using other UNCLOS provisions to nibble away other parts of China’s line until it dies from a thousand cuts…

  7. December 17th, 2014 at 10:19 | #7

    China and Japan’s dispute is basically on two fronts (which almost mirror that of SCS):

    1. Ownership of Diaoyutai
    2. Overlapped of EEZ

    I don’t think the UNCLOS uses vague definition like “support life” to classify island. I believe the definition of an island is that it is not submersible under any circumstances. For any island to support life, a fresh water source is need, the only Nansha Island that has it is Taiping Island which is held by Taiwan. However, using modern logistic support China and all others have garrison on several islands, none of them have natural fresh water source.

    The Philippines leadership is simply being delusional, just look at the EEZ claim on post no.5, pretty much all of them are as big or larger than China’s islands and EEZ claim in the SCS. The reason the claim is so big is they simply use an island at the furthest point and extend the EEZ by 200 NM! They also seems to be confused, they believe that the 200 NM means that they can included any islands within their shoreline to be theirs.

    This map show how the EEZ would look if it is only allowed from mainland. However, it also reduces Vietnam and Philippines own claim. The biggest winner being Malaysia and Brunei (so nobody is buying it). Philippines technically claim a large part of the state of Sabah though:

  8. December 17th, 2014 at 10:53 | #8

    Anyway, I just want to add that territorial claim can be a very heated issue. To be honest, I do not believe that China’s claim is absolute. However, this mean that neither is other parties claim. What needs to be achieved is a win-win situation for all, and China is willing to proceed. I do feel that Vietnam and Philippines are being very unreasonable in making blatant accusation against China. They seems to believe that by dismissing China’s claim they can then proceed to slug it out among themselves (Vietnam and Philippines are the two largest countries in SCS, either of them outnumbered the next place Malaysia by 3 times in term of population). I support China’s claim based mainly on the fact that China actually has the most complete and detailed historical ownership record. In other words, let’s the evidence decide.

    Below is what I believe is the most ridiculous territory delineation of all time. One becomes either US or Canadian citizens by virtue of someone drawing a line in a map!
    Point Roberts

  9. June 17th, 2015 at 15:52 | #9

    In my paper, I had made an assertion that it’s possible that Chinese 9-dashed claim can be equated with China’s EEZ claims under the UNCLOS. Well, perhaps I spoke too soon. At least from Taiwan’s perspective, the 9-dashed claim doesn’t extinguish any of Taiwan’s legitimate EEZ claims outside the 9-dashed line in the S. China Sea! See, e.g., http://www.guancha.cn/Neighbors/2015_06_17_323686.shtml

    按照台湾媒体公布的坐标,双方对峙海域约在北纬20度51分,东经122度17分,在我国南海“九段线”之外,但当时台湾当局舰艇坚称自己位于“己方海域”内。据了解,台菲双方在过去一个月来已发生5起以上的海上纠纷,包括2起公务船对峙,全都发生在菲律宾离岸24海里或12海里领海范围内,但这与台湾当局划定的经济海域重叠,被台湾当局“海巡署”认定为执法范围。

    菲律宾ABS-CBN电视台的报道称,台湾当局海巡舰先用探照灯照射菲律宾巡逻艇。按照菲方提供的录音文件,菲方人员当时曾询问台当局船只有何意图,称“该海域属菲律宾疆域,你船无权进入”,要求台当局舰艇确认海图及坐标位置。对此台当局船只回应称“这是我们的‘专属经济区’”。

    随后,台舰曾表示即将离开,菲方似乎松了一口气,不断道谢,但他们之后发现台湾当局舰艇并未离去,随即再次询问有何目的。对此台方重申,“这是我们的‘疆域’,有权待在这,不会离开”。对此菲律宾海防人员一度不知该如何应对。ABS-CBN的报道称,菲律宾海防人员设备简陋,与岸上联系断绝,只能围坐在一起唱国歌,几乎已做好牺牲准备。随后台舰则在2小时后驶离。

    image of recent incident between Taiwan patrol boat and Philippines coast guard

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