[75] 4. The principles provided in paragraphs (2) and (3) likewise apply to Taiwan and its surrounding Islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands, and all other islands belonging to China“ (PRC Gvt., 1958).
Accordingly, Art. 4 set out China’s sovereignty claims (‘islands of the Chinese inland waters’) over the Paracel Archipelago (Chinese: Xisha) and the Spratly Archipelago (Chinese: Nansha). A 12 nm mile territorial sea as measured from these features was derived. According to the official Chinese position, all SCS features mentioned qualify as islands. Subsequently, in 1992, China passed its law on the ‘Territorial Sea and the Contiguous Zone’ (PRC Gvt., 1992). The crucial paragraphs read as follows:
“Article 2: The territorial sea of the People’s Republic of China is the sea belt adjacent to the land territory and the internal waters of the People’s Republic of China. The land territory of the People’s Republic of China includes the mainland of the People’s Republic of China and its coastal islands; Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands belonging to the People’s Republic of China. The waters on the landward side of the baselines of the territorial sea of the People’s Republic of China constitute the internal waters of the People’s Republic of China.
Article 5: The sovereignty of the People’s Republic of China over its territorial sea extends to the air space over the territorial sea as well as to the bed and subsoil of the territorial sea“ (PRC Gvt., 1992).
This law further specified the 1958 declaration as its territorial claims were slightly adapted in that they now directly referred to the Diaoyu Islands, and its sovereignty claims were extended to include the seabed and subsoil of its territorial sea and respective air spaces. Subsequently, on June 7, 1996, the same day the PRC ratified UNCLOS, it lodged a claim to an exclusive economic zone (EEZ):
“1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.
2. The People’s Republic of China will effect, through consultations, the delimitation of boundary of the maritime jurisdiction with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principle” (PRC Gvt., 1996).
Two years later, on June 26, 1998, the PRC government proclaimed its ‘Law on the Exclusive Economic Zone and the Continental Shelf’ sketching the precise scope of China’s EEZ and continental shelf:
[76] “Article 2: The exclusive economic zone of the People’s Republic of China covers the area beyond and adjacent to the territorial sea of the People’s Republic of China, extending to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The continental shelf of the People’s Republic of China comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea 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 baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. The People’s Republic of China shall determine the delimitation of its exclusive economic zone and continental shelf in respect of the overlapping claims by agreement with the states with opposite or adjacent coasts, in accordance with the equitable principle and on the basis of international law.
Article 14: [t]he provisions in this Law shall not affect the rights that the People’s Republic of China has been enjoying ever since the days of the past“ (PRC Gvt., 1998).
This law illustrates that the PRC regards its EEZ as a complementation to its 1958 declaration and every other legal document it ever published on territorial and maritime rights. Particularly, Art. 14 of this law has established a link between China’s legal SCS claims and its history.
The Nine-Dash-Line and Historic Rights
Until the mid-1980s, the PRC had not been physically present in the SCS in any permanent and official manner, especially not in and around the Spratly archipelago, while other SCS stakeholders had already been occupying various features by then. Moreover, as also reconfirmed by the Arbitral Tribunal in its Philippines v. China case (chapter 4.3), the PRC has never clearly communicated the specific nature or scope of its historic rights in the past but only based its claims on historical usage of the area, particularly in the form of naval expeditions back in 110 AD and throughout the Ming Dynasty (1368–1644 AD). Apart from these historical references, the matter of historic rights can only be approached in a more indirect way by means of official statements and historic maps. First and foremost, the Chinese ‘Map Showing the Location of the Various Islands in the South Sea’ dating back to 1948 is the first publicly known map picturing the so-called nine-dash-line (cf. Figure 3), even though a similar line was already depicted in a private map in 1933. The nine-dash-line, as the name already suggests, refers to a U-shaped line with nine undefined dots depicting China’s maritime and territorial SCS claims103. In [77] 1992, a Chinese law once again confirmed and codified the PRC’s territorial claims. Subsequently, on May 7, 2009, the PRC government submitted two notes verbales to the United Nations (U.N.) in response to both the Philippine ‘2009 law’ and a joint submission by Vietnam and Malaysia on May 6, 2009, to the Commission on the Limits of the Continental Shelf (CLCS)104. In its 2009 notes verbales the PRC asserted “indisputable sovereignty over the islands in the South China Sea and its adjacent waters” and attached a map depicting a ‘nine-dashed-line’ (also known as the U-shaped line) as a reference to its claims. This map, depicted below, has been referred to by experts on the subject and government officials ever since. However, while these notes verbales once again specified, yet in a slightly modified manner, the PRC’s territorial claims in the SCS, namely all features located within its U-shaped line, it did not define the exact scope of its maritime claims. Adopted terms such as ‘surrounding’ or ‘adjacent’ waters remained rather vague and only suggested that China does not claim all waters within its nine-dash-line but only an estimate of around 80 percent thereof:
“China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf. China has repeated variations on this formula in its diplomatic correspondence and in the public statements of its official spokespersons, and has expressly linked the ‘nine-dash line’ to China’s claim to rights ‘formed over a long course of history’. […]. China has indisputable sovereignty over the Nansha Islands and their adjacent waters. And it is an indisputable fact that the Xisha Islands are an integral part of China’s territory. As early as 1948, the Chinese government published an official map which displayed ‘the dotted line’ in the South China Sea. China’s sovereignty over the South China Sea and its claims to the relevant rights have been formed over a long course of history” (PRC Gvt., 2009a).
In doing so, the PRC invoked past international agreements that had been established prior to UNCLOS, instead of relying on UNCLOS, which has not at any point acknowledged historic rights. The PRC continues to do so irrespectively of the Arbitral Tribunal’s final verdict’s rejection of historic rights105. In the immediate aftermath of the verdict, the PRC government restated its previous position with regard to SCS entitlements in a White Paper designated ‘China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea’.
[78] Figure 3: Nine-Dash-Line