Monday Morning Webinar on Key Takeaways from the U.S. State Department Report Limits in the Seas: China’s Maritime Claims in the South China Sea

Event Report

Cmde. Abhay K. Singh (Retd.) spoke on the topic Key Takeaways from the U.S. State Department Report “Limits in the Seas: China’s Maritime Claims in the South China Sea” at the Monday Morning Webinar held on 24 January 2022. The session was chaired by Capt. (IN) Anurag Bisen and was attended by Ambassador Sujan R. Chinoy, Director General, MP-IDSA, Maj. Gen. (Dr.) Bipin Bakshi, Deputy Director General, MP-IDSA, senior scholars & research analysts of MP-IDSA.

Executive Summary

The US State Department since 1970 has been carrying out a series of studies that aims to examine coastal states’ maritime claims and boundaries to assess their consistency with the International Maritime Law. The latest report in this series that has been released in January 2022 focuses on the legality of China’s Maritime Claims in the South China Sea (SCS). Although the UNCLOS has laid down the parameters for the coastal states to demarcate their respective maritime jurisdiction, there have been differing opinions between nations on the interpretation of Straight Baselines. The previous US assessments have dismissed the Chinese maritime claims in the SCS based on invalid basepoints. The latest in the series of these assessments has focused on the inconsistencies in Chinese maritime claims over Island territories like Pratas, Paracel, Scarborough Shoal and Spratly promulgated based on Straight Based lines.

Earlier reports have suggested that the geographical features along China’s coastlines do not meet the conditions for Straight Baselines as laid out by the UNCLOS and China has been inappropriately using its low-tide elevation as basepoints to stake their maritime claims in the SCS. The latest report by the US State Department interprets China’s claim over the SCS on the basis of historical rights lacking any legal basis. In the absence of an alternative customary international law for providing a legal basis for non-archipelagic states to establish straight baselines, the Chinese maritime claims stand in violation of the provisions of UNCLOS. Hence the Chinese claims gravely undermine the international rules based order as a result of which the US along with other nations have rejected the Chinese claims over the SCS as illegal. The report reflects that the American Position regarding the SCS Maritime Dispute is similar to the 2016 tribunal verdict given by the Permanent Court of Arbitration.  

Detailed Report

Capt. (IN) Anurag Bisen, Research Fellow, MP-IDSA commenced the session by a giving brief overview on the topic, where he stated that the limits in the sea series issued since 1970’s by the Bureau of Oceans and International Environment and Scientific Affairs (OES) of the US State Department aims to examine the maritime claims of coastal states and assess their compatibility with International Law. Capt. Bisen pointed out to the fact that although the US has accepted the UNCLOS as international customary law but it has not yet ratified it. Describing the South China Sea (SCS) as the geostrategic core of Southeast Asia and the basis of Sino-US confrontation,     Capt. Bisen stated that the territorial disputes of SCS and Taiwan have become high potential theatres of conflict between US and China. With these opening remarks Capt. Bisen welcomed Cmde. Abhay K Singh to make his presentation.

Cmde. Abhay K. Singh, began his presentation by stating that the UNCLOS provides the basis for coastal states to claim their territorial jurisdiction at seas by laying down the parameters for demarcation of their maritime jurisdiction. He stated that UNCLOS recognises certain states as archipelagic states which are governed by a distinct set of rules, where these states are allowed to draw straight baselines to demarcate their territorial seas. Focusing on China’s maritime claims at SCS, Cmde. Singh quoted Report no.43 titled “Straight Baselines: People’s Republic of China”. This report published on 4 September 1958 provided the US’s perspective on the PRC declaration of territorial seas where China claimed 12 nautical miles based on Straight Baselines without any geographical coordinates and prohibited foreign vessels from entering these areas. China also on this basis laid claim to islands in the region like Taiwan, Paracel, Spratly and Pratas which were not under Chinese control at that time.

Cmde. Singh stated that the US assessment of the Chinese claims declared them invalid as the basepoints of these claims are without any geographical coordinates and described the language of these claims as vague and subject to interpretations. Also, these assessments pointed out that the Islands that were claimed by the PRC were not under their jurisdiction as they were either controlled by the Republic of China (ROC) or other countries. Subsequent US assessments stated that China is imposing large areas of the high seas and claiming them as internal water which contradicted the UNCLOS. Further, it states that much of China’s coastline does not meet the conditions of the Straight Baselines and China has used low-tide elevation inappropriately to use them as a basepoint. Cmde. Singh recalled that many of the Freedom of Navigation (FON) exercises carried out by the US were focused around the Hainan Province, where US objected to China’s excessive maritime claims in the region.  Report no. 143 titled “China’s Maritime Claims in the SCS” released in December 2014 declares China’s Nine Dash Line as having no historic basis and hence cannot be considered as a valid national boundary.  

Cmde. Singh stated that the most recent report in this series which is Report no. 150 builds upon the previous Report no. 143 of 2014. This report states that since the tribunal ruling of the Permanent Court of Arbitration (PCA) in 2016, China has revised its articulation of maritime claims. China’s revised claims states that its island group includes Pratas, Paracel, Scarborough Shoal and Spratly all of which have been promulgated by the Straight Baselines. Essentially the report argues that China’s maritime claim over these maritime features is inconsistent with the International Law, as more than a hundred features are low-tide elevation and beyond the lawful territorial sea.  Cmde. Singh bought out the fact that China justifies these claims on the basis that much before the existence of UNCLOS, states have been using Straight Baselines for demarcating their maritime territory. He stated one of the key issues in state practice or customary law is Opinio Juris which refers to the acceptance of the law when the state practices are universally recognised by features. Cmde. Singh stated that Article 7 of UNLCOS does provide the use of Straight Baselines wherever it is applicable. Nations like Australia, Brazil, Denmark, Netherlands, Russia, France, Spain and UK among others have clarified that their Straight Baselines are based on the rules reflected in UNCLOS and they do not recognise the baselines of other states not confirmed by the Convention. The report has shown that only baseline practices of PRC and Ecuador predate the convention. It says wherever a state claims a large maritime area consisting of Island groups this practice is extremely limited with the exception of PRC with the Paracel Islands, Ecuador with the Galápagosand and India with respect to the Lakshadweep.

Summarising the key highlights of the Report, Cmde. Singh stated that PRC’s territorial claim based on historic rights claims has no legal basis. Also, he bought out that there is no customary international law that provides an alternative legal basis for non-archipelagic states to establish straight baselines around outlying island groups. Labelling PRC’s claim of territorial jurisdiction over SCS as unlawful, Cmde. Singh empahsied the fact that such claims gravely undermine the international law on maritime jurisdiction.

During the panel discussion Ambassador Sujan R. Chinoy, Director General, MP-IDSA remarked that the debate on International Law has been continuing for a long time which is reflected through early works on International Law like Mare Liberum and Mare Clausum. He bought out that during the Seventeenth Century even Hugo Grotius was tasked by the Dutch with a mandate of finding a legal basis to contest Spanish Claims in the maritime region around the present day Malacca Strait. However, the conception of a globally accepted legal basis for maritime jurisdiction has remained elusive even in the Twentieth Century. Ambassador Chinoy pointed out that even the globally accepted UNCLOS has certain contentious parts as a result of which certain nations including the US have not yet ratified. This has resulted in creating complexities in the UNCLOS including the interpretation of Straight Baselines. He stated the series of reports published by the US State Department since the 1970’s reveal how US’s interpretation of the maritime cartography and the blatant nature of Chinese claims have evolved over time. Also Ambassador Chinoy mentioned the differing interpretations of Rights of Passage in Laksahdweep between India and the US and encouraged scholars of MP-IDSA to undertake a study on how India’s perspective on archipelagic claims converge and differ from that of China and US.

Maj. Gen. (Dr.) Bipin Bakshi, Deputy Director General, MP-IDSA bought out that SCS is a region that offers China an access to break out of the Island Chains as a result of which China is making such aggressive claims due to which the region has the potential to become a flashpoint for maritime conflict. He stated that the presentation made by Cmde. Singh has made it clear that the maritime claim line is not an exact mirror of the geometry of the coastline of a nation.

During the Q&A Session, responding to the Director General’s question on US position on China’s sovereign claim in SCS, Cmde. Singh stated that the American position is closer to the 2016 tribunal verdict of the Permanent Court of Arbitration (PCA). Responding to another question posed by the Director General regarding the reason for India not considering Straight Baselines in Andaman & Nicobar Islands excepting the Western side, Cmde. Singh stated given the features on the Western coast of islands the provisions of UNCLOS allows for the application of Straight Baselines, but on the Eastern Side it would not be permissible. In response to the Deputy Director General’s question on ascertaining the low-tide line as its measurement will differ due to spring tides and neap tides, Cmde. Singh explained that it is measured on the basis of Chart Datum which is the line from the coast beyond which a large amount of low tide will not go below and there are technical formulas to calculate these Chart Datum based on hydrographical observations.  Responding to a question on the discussion between China and the ASEAN nations on the code of conduct on SCS and its legality, Cmde. Singh stated that if the code of conduct is framed in a manner where the members ascribe themselves to legal compliance and mutually agree that any deviation would be subjected to prosecution, then it can be legally binding.

Key Takeaways:

• Interpretation of the US State Department’s recent Report makes it clear that PRC’s maritime claim on the SCS on the basis of historic claims has no legal basis.
• There is no customary international law that provides an alternative to non-archipelagic states to establish straight baselines around outlying island groups.
• China’s claim on territorial sovereignty over the SCS is unlawful.
• Chinese maritime claims in the SCS undermine the UNCLOS and International Rules Based order.

Report prepared by Dr. R.Vignesh, Research Analyst, Military Affairs Centre, MP-IDSA