Limits in the Seas #150: An Update on China’s Illegal Activity in the South China Sea
This blog post provides background on the United States' interest in the South China Sea, analyzes the significance of Limits in the Seas #150, and concludes with predictions for what comes next.
The USS John S. McCain conducts a routine patrol in the South China Sea on January 22, 2017. Photo: Wikimedia Commons.
By: Josh Tupler, Staff Member
On January 20th, 2022, a U.S. Navy Destroyer conducted a Freedom of Navigation Operation in the vicinity of the Paracel Islands. This came just a week after the State Department released Limits in the Seas #150, its latest study on the People’s Republic of China’s (PRC) South China Sea maritime claims. The study concludes that China’s claims are inconsistent with international law.
Recent History
The United States has an economic, strategic, and political interest in the South China Sea. As President Biden has stated, “we are so adamant that these areas of the world that are the arteries of trade and shipping remain peaceful . . . [including] the South China Sea . . . It’s a vital interest to America's foreign policy: secure, unimpeded flow of global commerce. It won’t happen without us taking an active role to set the norms of conduct to shape them around democratic values.” An estimated $3.4 trillion in trade transits the region annually. And the United States also has security treaties with Japan and the Philippines, a strategically ambiguous relationship with Taiwan, and considers Singapore, Vietnam, and Indonesia strategic partners.
Since 2009, China has claimed “indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdictions over the relevant waters as well as the seabed and subsoil thereof (see attached map),” containing nine dashes outlining China’s claim over the vast majority of the South China Sea. Since 2013, China has engaged in dredging and artificial island-building, creating over 3,200 acres of new land. China has also deployed long-range sensors, port facilities, runways, and military equipment.
The law of the sea is complex. A key treaty governing sea-related issues is the United Nations Convention on the Law of the Sea (UNCLOS), of which China is a member. The United States, though not a member, maintains that UNCLOS reflects key principles of customary international law. Challenging China’s claims under the UNCLOS, the Philippines brought suit in front of the Permanent Court of Arbitration (PCA). In 2016, the PCA rejected China's claim to “indisputable sovereignty” and the “nine-dash line” over most of the South China Sea, created a distinction between islands and rocks (the former capable of human habitation), and held that China violated UNCLOS by denying Filipino customary fishing rights. After the arbitral ruling and in the battle of the diplomatic notes in 2018-2020, China has nonetheless persisted and continued to claim rights over the region.
Limits in the Seas #150 Developments
In 2014, the State Department first published Limits in the Seas #143, which assessed China’s new dashed-line claim as neither a valid national boundary nor a valid claim to the region based on China’s so-called “historic rights” theory. Limits in the Seas #150 builds upon #143 by more holistically assessing China’s maritime claims. It rejects four key categories of claims:
First, it notes that over 100 features claimed by China that are submerged below the sea surface at high tide are beyond the limits of any state’s territorial seas, and, as such, cannot generate “sovereignty claims” that China has staked. Second, it rejects China’s attempted practice of drawing “straight baselines” that enclose the islands, waters, and submerged features among the four island groups that China claims as inconsistent with UNCLOS. Third, it rejects China’s claims to internal waters, a territorial sea, an exclusive economic zone, and a continental shelf for each of its four island group claims as inconsistent with international law. Fourth, it rejects the PRC’s historic rights claim as having no “legal basis” and states that the claim “is asserted by the PRC without specificity as to the nature or geographic extent of the ‘historic rights’ claimed.”
Additionally, of particular interest in advancing customary international law, as pointed out by Matt Waxman in Lawfare, is Limits in the Seas #150’s State Practice Supplement. The 98-page supplement is a thorough analysis of state practice and opinio juris related to the use of baselines pertaining to outlying archipelagos not governed by UNCLOS. Based on studies of the practice of 23 countries most similar to China, the supplement thoroughly debunks China’s claim that international practice supports their use of straight baselines over the vast majority of the South China Sea. The supplement concludes: “there is no general and consistent practice of continental States drawing straight baselines around their outlying archipelagos as a whole. Practice relating to outlying archipelagos is nuanced and varied, and the practice that could be considered supportive of the PRC position is limited to only a few examples worldwide.”
What Comes Next
Limits in the Seas #150 is a forceful piece of lawyering that builds upon Limits in the Seas #143 and the 2016 arbitral ruling. It advances greater clarity regarding why China’s claims in the South China Sea are inconsistent with international law. The State Practice Supplement further clarifies customary international law’s approach to appropriately drawing and applying straight baselines around maritime features. Going forward, even though Limits in the Seas #150 is unlikely to alter China’s strategic decision to continue building and militarizing in the South China Sea, it helps the United States and like-minded allies explain why China’s behavior in the region is inconsistent with international law and advances the United States’ active role in setting norms for freedom of commerce and navigation.
Josh Tupler is a second-year at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Peking University in 2019 with a master’s in China Studies and from Dartmouth College in 2016 with a bachelor’s in Government. Josh is a former Fulbright Scholar and researcher at Harvard’s Belfer Center for Science & International Affairs and the Carnegie-Tsinghua Center.