Beijing’s 9-dash line encroaches high seas

“Grand Theft of the Global Commons.” With that theme, Supreme Court Senior Associate Justice Antonio T. Carpio spoke at the recent 75th anniversary of the University of San Agustin-College of Law, Iloilo City. He dwelt on the concept of “the global commons,” our planet’s resources that commonsensically belong to all mankind, but which China’s communist rulers shamelessly claim as exclusively theirs.

This is the second of a four-part serialization of Justice Carpio’s research.

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Before UNCLOS, the territorial sea was a belt of 3-NMs of waters from the coast, and beyond this 3-NM territorial sea was the high seas, belonging to all mankind as part of the global commons. Under international law, before and after UNCLOS, no State could appropriate the high seas as its own exclusive waters. Before and after UNCLOS, the high seas were part of the global commons.

In 1967 negotiations for a new law of the sea treaty had become moribund under the UNCLOS-I and -II negotiating Conferences. Then, on November 1, 1967, Ambassador Arvid Pardo of Malta, in an impassioned speech before the General Assembly, beseeched the United Nations to declare “the seabed and the ocean floor a common heritage of mankind.” The concept of the “common heritage of mankind” electrified the General Assembly. This paved the way for the UNCLOS-III Negotiating Conference that resulted in the signing of UNCLOS in 1982.

Thus, UNCLOS expressly provides: “The Area and its resources are the common heritage of mankind. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources... All rights in the resources of the Area are vested in mankind as a whole.”

Clearly, international law, specifically UNCLOS, indisputably declares that the fishery resources in the high seas, which are the waters beyond the EEZ of a coastal State, and the fishery and mineral resources in the Area, which is the maritime zone beyond the ECS of a coastal State, belong to all States as the common heritage of mankind. These fishery and mineral resources are part of the global commons. No State can appropriate these resources as its own. No State can bar other States from enjoying these resources in accordance with international law. Any State that bars other States, and appropriates for its own exclusive use, these fishery and mineral resources is shamelessly stealing what belongs to all mankind.

Global Commons vs. China’s 9-Dashed Lines

In the South China Sea, the global commons for fishery resources refers to the area beyond the EEZs of coastal States. In maps of the South China Sea that indicate the EEZs of coastal States, the global commons appears as the elongated hole of a doughnut right in the middle of the South China Sea. This “hole of a doughnut” was a phrase coined by the late Foreign Minister of Indonesia, Ali Alatas. This global commons, beyond the EEZs of coastal States, comprises about one-fifth of the South China Sea. All States, coastal and landlocked, have the right to fish in this global commons. However, China’s infamous 9-dashed lines gobble up entirely this global commons.

China’s 9-dashed lines were first made known by China to its own people in 1947. China officially submitted a map of its 9-dashed lines to the United Nations only in 2009. Up to today the 9-dashes, which have been increased to 10 dashes in 2013, have no fixed coordinates. China has never explained the legal or factual basis of the 9-dashed lines. Under its 9-dashed lines China asserts control and “indisputable sovereignty” to almost 90 percent of the South China Sea, including China’s coastal waters outside the 9-dashed lines. Of course, this blatantly violates international law because no State could appropriate for itself the high seas, whether before or after UNCLOS. China is the only country in the world today that is claiming “indisputable sovereignty” over the high seas.

Under China’s 1986 Fisheries Law, foreign fishing vessels are required to secure permission from Chinese authorities “before entering the territorial waters of the People’s Republic of China to carry on fishery production or investigation of fishery resources.” This law refers to “territorial waters” of China. Other States have no quarrel with this Chinese law since obviously foreigners cannot engage in fishing in the “territorial waters” of China. There is no dispute that China has indisputable sovereignty over its own “territorial waters.”

Under China’s 2011 amendment to its Fisheries Law, foreign fishing vessels are required to secure permission from Chinese authorities if they wish “to enter the waters under the jurisdiction of the People’s Republic of China to engage in fishery production or survey of fishery resources.” This amendment refers to “waters under the jurisdiction” of China, which legally is more expansive than the “territorial waters” of China. Under UNCLOS, a State has jurisdiction over its EEZ, and this jurisdiction includes the exclusive right to fish in its own EEZ. Thus, other States still have no quarrel with China’s 2011 amendment to its Fisheries Law because under UNCLOS a coastal state has exclusive fisheries jurisdiction over its own EEZ.

Under Article 35 of the Hainan Provincial Government’s 2014 Regulations to implement China’s Fisheries Law, foreign fishing vessels “entering the waters under the jurisdiction of this province (Hainan) to engage in fishery operations or fishery resource surveys shall secure approval from relevant departments of the State Council.” The fishery Regulations, which took effect January 1 this year, require permission from Chinese authorities to enter “waters under the jurisdiction” of Hainan.

(To be continued)

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