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The State Practice Supplement to Limits in the Seas no. 150, released by the U.S. State Department on January 12, advances a critique of China’s maritime claims in the South China Sea that departs from Washington’s previous rationale.
While the U.S. has historically interpreted UNCLOS as prohibiting continental states from applying straight baselines to their outlying archipelagos across the board, the State Practice Supplement instead engages Chinese maritime claims on the level of de-facto state practice and its capacity to generate customary international law which contradicts the Convention.
The supplement relies primarily on drawing distinctions on the bases of archipelagic geography and opinio juris in an attempt to isolate Beijing’s claims as unique in their excesses and reliance on customary norms.
This document demonstrates the Biden Administration’s willingness to bring the U.S. position on international maritime law away from a ‘purist’ reading of UNCLOS and more in line with the sensitivity to general state practice seen in the rest of the world.
This new formulation seems to be motivated by a desire in Washington to allow for some more pragmatically lax interpretations of UNCLOS while still maintaining the United States’ credibility as a champion of international maritime law, a useful tool in its campaign against Beijing’s ‘excessive maritime claims.’
While the supplement is a step in the right direction, several argumentative flaws still undergird where the U.S. draws the line between ‘legitimate’ and ‘illegitimate’ baseline practice. These contradictions must be resolved if China is going to respond to U.S. criticism in good faith.
With the U.S. State Department’s release of Limits in the Seas no. 150 on January 12, 2022, the Biden Administration has reinvigorated the legal component of its challenge to China’s maritime claims in the South China Sea. This fresh and comprehensive study is certainly generating lots of commentary, primarily on Washington and Beijing’s substantive differences in opinion regarding how maritime features (shoals, rocks, islands, etc.) in the South China Sea are classified and what maritime rights they ought to generate in turn. Setting these matters aside, a less obvious but more profound implication that this release has on the dispute can be found in the State Practice Supplement to the study (hereafter ‘the supplement’). In this supplement, the State Department responds to an often ignored argument: that the practice of continental states besides China who draw straight baselines around their outlying archipelagos constitutes a general international custom that legitimately supersedes a strict reading of the United Nations Convention on the Law of the Sea (UNCLOS).
Washington’s reply approaches straight baselines in dependent archipelagos and divides them based on their nature and justification, characterizing some as legitimate and others as illegitimate. The key distinctions raised are: (1) baselines within archipelagos versus those around archipelagos as a whole, (2) geographical factors like the water-to-land ratio enclosed by these baselines, and (3) opinio juris, or how these baselines are legally justified. In doing so, despite the American tradition of formally holding to the UNCLOS stipulation that only states composed entirely of islands can apply straight baselines in their outlying archipelagos, the Biden Administration has moved towards a novel framework that tacitly accepts the existence of some straight baselines which violate the Convention, while still casting China’s baselines as uniquely excessive. This is a tactful reframing of U.S. maritime policy that brings its position more in line with the rest of the world, but its argumentation is not without flaws. While the U.S. wants to have it both ways—maintaining its pro-UNCLOS credentials as a tool against China’s maritime claims while allowing for some generally-accepted ‘bending of the rules’—the leaps it makes to isolate Chinese policy only further muddy the waters.
Before unpacking the implications of the State Practice Supplement, it is necessary to review the relevant concepts of international maritime law that inform Washington’s critique of Chinese maritime claims. The first of these is the concept of a baseline. In maritime law, a baseline is a set of points or lines along a state’s coast from which zones of sovereignty and sovereign rights are measured. For example, a state’s sovereign territorial sea can extend up to 12 nautical miles from the baseline, while a state’s exclusive economic zone (where they enjoy exclusive rights to marine resources, but not sovereign jurisdiction) can extend up to 200 nautical miles from the baseline. However, not all baselines are drawn in the same manner as the type of baseline that a given coastline is legally entitled to depends on the relevant geography. The types of baselines outlined in UNCLOS (click the link if you wish to consult the full text of the Convention) are as follows:
In this case, the key point of contention is whether China, a ‘non-archipelagic’ or ‘continental’ state, is allowed to draw straight baselines around the outlying archipelagos that it claims and administers in the South China Sea (see here for an overview from ICAS of China’s specific claims and the U.S. legal position towards them). Essentially, the U.S. contends that China’s declared straight baselines are untenable, as China is not an ‘archipelagic state’ and the archipelagos in question are not “fringe[s] of islands along the coast.” Washington instead argues that the islands should be subject to normal baselines around individual islands rather than straight baselines connecting islands in the respective groups. Take, for instance, the State Department’s illustration of this contrast in the case of the Paracel Islands (Xisha Qundao):
However, the matter of state practice adds an additional layer to the interpretation of UNCLOS. While Article 47 of UNCLOS reserves the right to draw straight baselines in outlying archipelagos to archipelagic states, around half of the world’s continental states with dependent archipelagos apply straight baselines per Article 7 to one or more of their outlying archipelagos (see Appendix A here for an overview from ICAS of continental state practice towards outlying archipelagos). State practice is important to this dispute because of the concept of customary international law. In simple terms, a customary law that contradicts a written treaty can be established if a general international practice exists and is understood as being legal (opinio juris) by the states engaged in the practice. According to the International Law Commission, in order to generate a customary rule separate from treaty law, a state practice must become general “because [the states] felt or believed themselves…entitled to do so by reason of a rule of customary international law…[rather than] seeking to comply with a treaty obligation.”
Prior to this release, Washington formally condemned all uses of straight baselines in outlying archipelagos, but its challenges of such claims by states besides China were at best, lackluster, and, at worst, hypocritically absent. In contrast, this supplement crucially argues a key distinction between the opinio juris of China and other contravening states: while most states that apply straight baselines to their outlying archipelagos believe that they are in accordance with Article 7 of UNCLOS, Beijing is unique in deriving its baselines in the South China Sea not solely through UNCLOS but through “UNCLOS and general international law.” Thus, to uniquely undermine China’s position, this supplement seeks to show not only where continental state practice is in accordance with UNCLOS but, that where it is not so, it is still generally understood as being in line with the Convention. If Washington convincingly shows this, then the customary law factor upon which Beijing bases its maritime claims would be lacking as the requisite opinio juris would not be “general.”
As noted in the last section, since the 1980s the U.S. has held to a strict ‘UNCLOS purist’ position with respect to baselines and the maritime rights they generate. This position suggests that only archipelagic states can declare straight baselines around outlying archipelagos and that continental states must apply normal baselines (following the coastline of individual islands) to their outlying islands in the absence of deeply indented coastal geography. However, the first distinction drawn by the U.S. in the January 12 supplement stretches this position, voiding a strict reading of UNCLOS. The authors notably distinguish between straight baselines drawn within outlying archipelagos and straight baselines enclosing island groups, describing the former as done “often”—and with few protests noted in the attached table—while the latter as not “general and consistent” and garnering relatively greater protest. While this is a generally fair characterization, the divide is not as cut-and-dry as the authors make it out to be. For instance, no states have protested straight baselines declared by France, Australia, and the U.K. around the entirety of some of their respective dependent archipelagos. What this all infers is that the U.S. has stopped legalistically applying Article 47’s ‘archipelagic-state-only’ provision to Article 7, accepting that continental states can apply straight baselines to outlying archipelagos “provided that the other requirements of Article 7 are met.”
As a sub-component of the distinction between baselines ‘within’ vs. ‘around’ outlying archipelagos, the supplement also brings up the water-to-land stipulation in Article 47 applied to archipelagic baselines. This mention suggests the Biden Administration’s awareness that some legal scholars interpret Article 7 straight baselines as “approximating archipelagic baselines” and, thus, warrant a response on the grounds of Article 47. The authors note that water-to-land ratio is “not determinative of the legality of these baseline systems,” but that “these indicators provide a sense of the geographic scale of the baselines and the degree to which the water areas within the baselines are linked to the land domain.” This rationale expands the criteria of what the U.S. may consider “other requirements of Article 7.” For example, while Article 7’s language of a “deeply indented coastline” applies to continental terrain, the U.S. contends that the Svalbard, Kerguelen, Guadeloupe, Furneaux, and Falkland archipelagos warrant enclosing their islands within a single baseline “considering the coastal geography of these island groups.” In contrast, it is contended that the baselines around India’s Lakshadweep Islands and China’s Paracel Islands do not meet these requirements. Therefore, it is clear that some concepts absent from Article 7—such as water-to-land ratio, coastal geography of islands, and archipelagic unity—influence the U.S. standard of leeway for whether straight baselines can be applied to a given archipelago.
Finally, the U.S. understanding of opinio juris (the ‘opinion of law or necessity’) adds another layer that further isolates China’s baseline practice. The supplement argues that “there are only two States—the PRC and Ecuador—that justify their baseline practice with reference to criteria not found in the Convention.” It is true that many states have explicitly couched their questionable straight baselines in terms of Article 7, thus ceding the necessary opinio juris for the development of customary international law. However, the authors also take several leaps with case studies of Argentina, Burma, and India to establish that their opinio juris is reliant upon UNCLOS, writing in those cases:
It appears that [the given state] considers the legal basis for its straight baselines to be Article 7 of the Convention. This is evidenced by the fact that [the given state] has deposited a chart depicting its baselines and a list of geographical coordinates of points “in accordance with article 16 of the Convention.” Article 16 of the Convention specifies that it pertains to “baselines…determined in accordance with articles 7 [straight baselines], 9 [mouths of rivers] and 10 [bays]…”
Evidently, as these three states do not explicitly mention Article 7 in their national legislation or straight baseline declarations, it is necessary for the U.S. to apologetically link Article 7 to these baselines through Article 16 to deny customary law-generating opinio juris. The U.S. also conveniently omits the fact that China’s deposits of baseline charts to the United Nations were also noted as “pursuant to article 16” by the Secretary-General, the same language used in the other deposits. If the U.S. accepts that these other states have an opinio juris premised on UNCLOS, consistency would suggest that China’s language of “conforming to UNCLOS and general international law” in their baseline deposits brings China’s baselines in the South China Sea under the umbrella of UNCLOS as well. Instead, the State Department report portrays China as isolated alongside Ecuador in an opinio juris premised in a non-existent customary international law.
Taking these three points into account, this issue of Limits in the Seas, with its State Practice Supplement in particular, is subtly innovative. It introduces nuances into what for a while has seemed like a publicly uncompromising but privately hypocritical U.S. approach to continental state baseline practice. Indeed, the Biden Administration has taken the pragmatic step of tolerating some applications of Article 7 to outlying archipelagos and provided its answer as to what constitutes a legitimate straight baseline. Doing so has shed America’s former burden of strict UNCLOS purism which obfuscates general state practice. While preserving its credentials as a champion of international maritime law, this supplement provides Washington with a better footing from whence to challenge states who explicitly derive their baseline policy from sources beyond the Convention. This more liberal instrumentalization of UNCLOS may allow the Biden Administration to ‘have its cake and eat it too’ for a time…but the erroneous conflations made in the supplement that inculpate China while excluding the similar policies of other states detract from its overall cogency. There is still an illustrative question that the Administration has yet to convincingly answer: Why does it “appear” to them that India’s baseline around the Lakshadweep islands (which evidently exceeds certain Article 7 and Article 47 stipulations) is legally grounded while China’s dual justification contravenes UNCLOS?
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