Understanding China’s Ambiguous Claim to Historic Rights in the ‘Nine Dash Line’

The history of a nation may frequently be undervalued, yet it plays an important role in forming the central core of a state’s self-identity.^[1] Specifically, historic rights of area are closely connected to the acquisition of territory in international law.^[2] Commonly, this particular type of claim will raise a question of which state discovered the area prior to any other states.^[3]

To begin with, it is important to understand the basic concept of historic rights, specifically in a maritime area. Unfortunately, neither any international legal instrument nor customary international law provides a definition for this term. However, the Arbitral Tribunal in the 2016 Philippines v China interpreted historic rights as “general and can describe any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances”.^[4] Historic rights can also be understood as a product of a lengthy process involving a long series of acts, omissions and patterns of behavior which bring such rights into being recognized in international law.^[5] 

Historic rights may include sovereignty, but might also include more limited rights, such as historic fishing rights or historic rights of passage that fall short of a full claim of sovereignty.^[6] Historic rights which include sovereignty establishes title to a certain maritime area such as historic waters and historic bays.^[7] The International Court of Justice (ICJ) in the Fisheries defined historic waters as waters treated as internal waters which would not have the character were it not for the existence of a historic title.^[8] Simply put, historic waters is a term for historic title over maritime areas, and historic bay is a bay in which a State claims historic waters.^[9]

On the other hand, historic rights that fall short of sovereignty can be differentiated to exclusive quasi-territorial rights and non-exclusive historic rights.^[10] In Qatar v Bahrain, the ICJ held that Bahrain’s historic fishing rights to the Pearling bank was not a quasi-territorial right as fishermen from neighboring countries were engaged in fishing activities in the bank.^[11] Therefore, Bahrain’s claim is a non-exclusive historic right as the threshold for an exclusive quasi-teritorial right requires such activities to be performed exclusively by the claimant State and the intention to exclude foreign States to perform said activities in the area.^[12]

In the South China Sea dispute, China Claims historic rights to an area known as the ‘nine dash line’.^[13] Such a claim overlaps with the five other Claimant States; Malaysia, The Philippines, Vietnam, Brunei and Taiwan as the ‘nine dash line’ covers over 90 percent of the South China Sea.^[14] However, despite the calls for China to clarify its claims, China has yet to explain the scope of its claimed historic rights, the meaning of the ‘nine dash line’ and whether the line demarcated a claim to only the islands or to islands, shelf and the waters.^[15] This intended ambiguity appears to be a plan devised by China to strengthen its foothold in the South China Sea by preventing other States from instituting proceedings against China.^[16]

Although China has yet to specify its historic rights to the ‘nine-dash line’, the Tribunal defined China’s historic claims to the ‘nine dash line’ as a historic rights short of sovereignty.^[17] This decision was in line with the Eastern Greenland, where the Permanent Court of Justice (“PCIJ”)  held that: 

“A claim to sovereignty based not upon some particular act or title, such as a treaty of cession, but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign and some actual exercise or display of such authority.“^[18]

The Tribunal assessed China’s conduct in the ‘nine dash line’ and considered China’s commitment to respect both freedom of navigation and overflight in the line to establish that China does not consider the sea areas within the ‘nine-dash line’ to be its territorial sea or internal waters.^[19] This shows a lack of display of authority by China as a sovereign to the areas within the line by never seeking to restrict freedom of navigation and overflight. Therefore, China’s claim to the ‘nine dash line’ does not amount to a claim of historic title. Ultimately, this decision is contrary to China’s claim, as China has continued to assert claims to the ‘nine dash line’ of the South China Sea as to what China has termed as “internal waters”.^[20]

However, the Tribunal did not specify to the extent whether China’s historic right falling short of sovereignty falls on the scope of an exclusive quasi-territorial historic right or an exclusive historic right. The Tribunal only vaguely added that China’s claims are a “constellation of historic rights short of title”.^[21] Thus, the characterization of China’s claim to historic rights short of sovereignty remains unclear.

The Tribunal proceeded to assess whether China had acquired historic rights and jurisdiction over living and non-living resources in the waters of the South China Sea beyond the limits of the territorial sea”.^[22] The Tribunal decided to apply the same requirement of establishing sovereignty or title over historic waters to historic rights short of sovereignty as “historic waters are merely one form of historic right and the process is the same for claims to rights short of sovereignty”.^[23]

The requirements set in the UN Secretariat’s Memorandum on the Juridical Regime of Historic Waters, Including Historic Bays are: 1) actual exercise of coastal state authority over the area; 2) continuous exercise of authority over time; and 3) acquiescence on the part of other affected States.^[24] The Tribunal noted that historically, China’s navigation, fishing and trade in the South China Sea beyond the territorial sea, are exercises of high seas freedoms that were permitted to all States under international law.^[25] Mere evidence that shows intensive usage of the area are insufficient, rather the Tribunal stated that in order to establish historic rights in the waters of the South China Sea, it would be necessary to show that China has acted outside of the bounds of what is permitted under international law, and that other States have been unable to challenge or acquiesced China’s actions.^[26] 

In conclusion, to establish China’s historic right to living and non-living resources within the ‘nine-dash line’, it would be necessary to show that China historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States, and that those States have acquiesced in such restrictions.