Foreign Relations & International Law

The South China Sea and China's "Four Sha" Claim: New Legal Theory, Same Bad Argument

Julian Ku, Chris Mirasola
Monday, September 25, 2017, 11:00 AM

The Washington Free Beacon reports that China may be backing away from its most controversial legal justification in the South China Sea: the “Nine-Dash Line.” Officials from the Chinese Ministry of Foreign Affairs advanced a new legal theory at a closed-door meeting with U.S.

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The Washington Free Beacon reports that China may be backing away from its most controversial legal justification in the South China Sea: the “Nine-Dash Line.” Officials from the Chinese Ministry of Foreign Affairs advanced a new legal theory at a closed-door meeting with U.S. State Department officials last month that would rely upon China’s sovereignty claims over the “Four Sha” island groups in the South China Sea instead of the Nine-Dash Line.

According to the Beacon, Deputy Director General Ma Xinmin of the Foreign Ministry’s Department of Treaty and Law “assert[ed] sovereignty” and maritime entitlements extending from four island groups in the South China Sea – Dongsha, Xisha, Nansha, and Zhongsha. Collectively, these island groups are referred to as the “Four Sha” (四沙) (“sha” in this context meaning sand). In English, these areas are respectively referred to as the Pratas Islands, Paracel Islands, Spratly Islands, and the Macclesfield Bank area.

While dropping or even de-emphasizing China’s Nine-Dash Line claim in favor of the Four Shas has important diplomatic and political implications, the legal significance of such a shift is harder to assess. The constituent parts of China’s Four Sha claims have long been set forth publicly in Chinese domestic law and official statements. Based on what we know so far, these new Chinese legal justifications are no more lawful than China’s Nine-Dash Line claim. The challenge for critics of Chinese claims in the South China Sea, however, will be effectively explaining and articulating why this shift does not actually strengthen China’s legal claims in the South China Sea.

The Four Sha claim has a long pedigree in Chinese law and practice. China’s 1992 law on the territorial sea and contiguous zone, for example, declared that China’s land territory included the “Dongsha island group, Xisha island group, Zhongsha island group, [and] Nansha island group.” A 2016 white paper disputing the Philippines’ claims in the South China Sea arbitral process similarly claimed that:

China’s Nanhai Zhudao (the South China Sea Islands) consist of Dongsha Qundao (the Dongsha Islands), Xisha Qundao (the Xisha Islands), Zhongsha Qundao (the Zhongsha Islands) and Nansha Qundao (the Nansha Islands). These Islands include, among others, islands, reefs, shoals and cays of various numbers and sizes.

Taken together, this history shows that the Four Sha are not new to China’s claims in the South China Sea. The key question, still largely unanswered, is what legal meaning China intends to impart to these island groups.

In a 2016 white paper, Beijing stated that, “China has, based on Nanhai Zhudao [the “Four Sha”], internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf.” Neither the white paper nor the Beacon’s report explain how China derives these maritime zones from the four island groups. As China recognizes, each island group includes a variety of features, many of which would not independently generate maritime entitlements. The 2016 arbitral tribunal, for example, found that no feature in the Spratly (Nansha) island chain is large enough to generate more than a 12 nautical mile territorial sea. This means that China’s claims in the Spratlys (Nansha) would not generate more than a series of isolated 12 nm zones.

In 1996, China declared straight baselines around the Paracel (Xisha) Islands, treating them as a single geographical unit (likely as a means to maximize Beijing’s maritime claims). Rumors have persisted for at least a year that China may declare similar straight baselines around the Spratly (Nansha) Islands. Indeed, the Beacon’s report could be read to say China is preparing to declare straight baselines around all four “Sha” island groups. While such claims would not extend as broadly as the Nine Dash Line claim, it would still result in China claiming legal entitlements over most of the waters in the South China Sea.

Because China is not constituted “wholly by one or more archipelagos” (think Indonesia or the Philippines), the U.S. and most countries would view straight baselines around an island group as contrary to the UN Convention on the Law of the Sea (UNCLOS). Indeed, Article 47 states that archipelagic baselines, such as those around the Paracels, may only be drawn if they enclose a state’s “main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.” China plainly does not qualify under this definition. China’s total land mass is vastly disproportionate to its maritime entitlements – far beyond UNCLOS’ 9:1 ratio.

For this reason, this new Chinese legal strategy is even weaker than the Nine-Dash Line given that it clearly violates UNCLOS (e.g., Articles 46 and 47). Most Chinese defenses of the Nine Dash Line argued that the claim predated China’s accession to UNCLOS and therefore not governed by it. Despite the legal weaknesses of its possible new strategy, China may still reap some benefits from trading the Nine-Dash Line for the Four Shas.

First, the Chinese leadership may have realized that the Nine Dash Line has become too much of a diplomatic liability. The Nine-Dash Line is completely sui generis and no other state has made a historic maritime claim anything like it. For this reason, the Nine-Dash Line makes China an easy target for foreign criticism in a way that straight baselines around island groups probably will not.

Second, by adopting language more similar to that found in UNCLOS, China may be betting that it can tamp down criticism, and win potential partners in the region. Philippine President Duterte’s continued willingness to work with Beijing despite their conflicting maritime claims would support such a conclusion.

Third, and most intriguingly, China may have concluded that it can better shape (or undermine, depending on your point of view) the law of the sea by adopting UNCLOS terminology. As a rising, revisionist power, China has an interest in reinterpreting the existing rules to better suit its interests. Winning support for straight baselines among international lawyers and governments may be easier than finding support for its Nine-Dash Line claim. China can count on a growing roster of Chinese international lawyers and scholars who could build support for this new approach in the global community. Some have called this strategy a form of “lawfare.”

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. Whether the U.S. government can muster these tools to advance its South China Sea policy remains to be determined.

Julian Ku is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University School of Law. He is a co-founder of Opinio Juris, the leading blog on international law.
Christopher Mirasola is a JD/MPP candidate at Harvard Law School and the Kennedy School of Government, where he studies America's strategic posture in the Asia-Pacific. Prior to graduate school he worked in mainland China for over two years, much of that time focused on the Chinese legal system. Chris is currently an Executive Editor of the Harvard International Law Journal and has held a legal internship at the Naval War College and Department of Defense Office of General Counsel (International Affairs).

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