China’s Revision of its SCS Claims: Does it Matter?

Ocean News, Nov. 27, 2017

While China did not recognize the jurisdiction
of the Annex VII arbitral panel under the
authority of the LOS Convention,
it is apparently recasting its claims based on land
territory rather than on an area enclosed by the
“9-Dash Line” that was rejected by the Arbitral Panel.

Why this is important: China’s new approach
to its jurisdiction in the South China Sea may
be presented as a concession by people who
do not understand that substantive claims
appear to have changed little from those
made under the infamous
 “9-Dash Line,”
so it is important that we all understand

the details of the new “Four Shas” policy.

Before we turn to China, considering the
continuation and revitalization
of Ocean Law News. While funds
are important, so are the numbers of
contributors – every reader counts

In August of this year, China presented a new take on its claims to the South China Sea. It isn’t clear whether the infamous “9-Dash Line” has been relegated to history or the new scheme is some form of supplement. The red line in the map below is based on the dashes of China’s 9-Dash Line.

The new proposal recognized the legal principle that”the land dominates the sea,” which means that jurisdiction at sea is based on the geography of the land, something that the 9-Dash line did not address.

The new legal approach is referred to as the “Four Shas” approach. “Sha” is Chinese for “sand” an in this case applies to four groups of low-lying sand islands or elevations: the Pratas Islands, Paracel Islands, Spratly Islands, and the Macclesfield Bank area.​ Here is a chart that accompanied the Washington Free Beacon article that has been a base for most commentary on Chinese presentation of the Four Shas policy. While parabolas are an odd choice to delineate claims, the chart does identify each of the four “shas”. It appears clear that after accounting for the EEZs and extended continental shelfs that China seems to claim, that the result of the “Four Shas” is virtually the same in extent as the 9-Dash Line in all but the southern-most part of the original claim.

Click to open Wash. Free Beacon Article in a New Window

Issue of Nationality:

The Four Shas approach makes more direct China’s claim to all islands and rocks in the South China Sea, rejecting claims by other nations bordering on the sea and having longstanding claims to specific islands.

Issue of Seaward Extent of Claims:

China claims is that the “four shas” generate internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf. However, taken individually, few if any, of the islands would generate EEZs or continental shelf claims, though they may justify a 12NM territorial sea. Even if China’s claim to all of the islands, shoals and rocks were accepted, most features would generate no more than a 12 NM territorial sea and low water elevations do not generate a territorial sea, EEZ or shelf at all. In fact, the Macclesfield Bank is a completely submerged atoll that would generate no jurisdictional claims under the LOS Convention.

An Extreme Claim:

An admiral serving as deputy chief of China’s joint staff claims that innocent passage does not apply for military vessels (a hard claim to justify given the text of the passages of the LOS Convention that explicitly address freedom of navigation of warships and even address specific obligations of warships while exercising innocent passage in the territorial sea.

Conclusion

Julian Ku and Chris Mirasola counsel caution in viewing the shift from the 9-Dash Line to the Four Shas policy (underlining added for emphasis):

So while we might be encouraged to see the Nine-Dash Line pass into the (legal) dustbins of history, we should be skeptical about whether the Four Shas herald a new more modest Chinese role in the South China Sea. China’s legal justification for the Four Shas is just as weak, if not weaker, than its Nine-Dash Line claim. But explaining why the Four Shas is weak and lawless will require sophisticated legal analysis married with effective public messaging.
Julian Ku and Chris Mirasola, “The South China Sea and China’s ‘Four Sha’ Claim: New legal Theory, Same Bad Argument,” Lawfare, September 25, 2017.

All in all, this sounds like a new verse of the same old song.

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