China (and Taiwan) has circulated the map of South China Sea with the U-shaped line (or nine-dotted line) in different internal documents and publications since 1948. However, it was not until 2009 that, for the first time, the People’s Republic of China included it in an official international document, namely in the Note Verbal sent to United Nations Commission on the Limits of the Continental Shelf to protest Vietnam and Malaysia joint submissions on the outer limit of their continental shelves in the South China Sea. In recent years, China has increasingly used military and law enforcement vessels, civilian ships and fishing boats to expand its presence within the U-shaped line and try to turn the waters within the line into Chinese maritime zones. At the same time, China has not yet officially clarified its claim and legal basis for the line, leading to a lot of speculations from the scholar community. There are different views and various possible interpretations of the legal status of the U-shaped line among Chinese and non-Chinese observers. This paper will examine the legal basis of all of these possible interpretations; try to find the official position of Chinese government regarding to the line and analyze reactions from international community. Then, it will conclude with suggestions for China (both mainland and Taiwan) to bring the line into conformity with international law, particularly the UNCLOS 1982, to defuse ambiguity and tension in the region.
Tran Truong Thuy
PhD, Director of Center for East Sea (South China Sea) Studies, Diplomatic Academy of Vietnam. He can be contacted at firstname.lastname@example.org
The Origin of China’s U-shaped Line
According to two Chinese scholars Li Jinming and Li Dexia, as an attempt of defining and declaring “the extent of Chinese sovereignty around the Paracel and the Spratly Islands”, in February 1948, the Geography Department in the Ministry of Internal Affairs of the Republic of China published for the first time “the Location Map of the South China Sea Islands”, in which an eleven-dotted line was drawn around the Pratas Islands, the Paracel Islands, the Macclesfield Bank, and the Spratly Islands in the South China Sea and the southernmost line was about the 4º northern latitude.(1) Zou Keyuan described that the line first appeared in a map compiled by an individual Chinese cartographer Hu Jinjie in 1914, but only included Pratas and Paracels. (2) According to Zou, since 1948, maps officially published in both China and Taiwan. Since 1953, two-dotted line portion in the map published by PRC was deleted after Chinese Primer Minister Zou Enlai’s approval. (3)
Possible Explanations and Counter-Arguments
Although since 1953 Chinese maps published internally depicted the U-shaped line, the PRC’s government has officially declared the line as a claim only recently and yet never provided the legal basis for the line.
There exist different viewpoints among Chinese scholars on the legal basis of the U-shaped line. The first viewpoint was that that the U-shaped is the line indicating “historical waters”, over which China has sovereignty like internal water of territorial sea. The second viewpoint was that this is a line depicting the waters over which China is entitled to a number of historical rights like fishing rights and traditional jurisdictional rights. The third viewpoint was that this is a line encompassing all islands in the South China Sea that China claims sovereignty. The fourth viewpoint was that the lines constitutes the outer limit of the exclusive economic zones and continental shelves measured from the most outer features of Paracels and Spratly islands. (4)
Some Chinese scholars argued that China has circulated the map since 1948 without objections from other countries, including those surrounding South China Sea. Therefore, China owns certain historic title to the U-shaped line, not absolute sovereignty to everything within that line but at least some “historical rights” such as fishing and natural resources exploitation. (5)
The first interpretation of some Chinese scholars that the U-shaped is the line indicating “historical waters” was also shared by Taiwanese official position. The 1993 Policy Guidelines for the South China Sea (endorsed by the Executive Yuan) note that:
“In terms of history, geography, international law and facts, the Nansha Islands [Spratly Islands], Shisha Islands [Paracel Islands], Chungsha Islands [Macclesfield Islands], Tungsha Islands [Pratas Islands] are part of inherent territory of the Republic of China; the sovereignty over those islands belongs to the Republic of China. The South China Sea area within the historic water limit is the maritime area under the jurisdiction of the Republic of China, where the Republic of China possesses all rights and interests” (emphasis added). (6)
However, detailed analysis showed that the U-shape line cannot be a line depicting China’s historical waters due to its failure of meeting three requirements, namely: first, the exercise of the authority over the area; second, the continuity over time of this exercise of authority; and third, the acquiescence of foreign states to the claim. (7)
On the first requirement, on the one hand, China fails to meet this requirement because before 1909 in all Chinese maps the Hainan Island is drawn as the southernmost point of China. A Chinese geographical book published in 1906 even put the southernmost point of China at 18°13′ North parallel. (8) The Note of September 29, 1932 from the diplomatic mission of the Chinese Republic in Paris still confirmed that islands of Paracel group were located 145 nautical miles from Hainan Island and “form the southernmost part of Chinese territory”. (9)
On the second requirement, obviously, China could not exercise its sovereignty over such the large body of water. China also officially recognized that. On September 4, 1958, China admitted that islands are separated from the mainland by the high sea in the Declaration of the Government of the People’s Republic of China on China’s Territorial Sea. Article 1 of that Declaration stated that:
“The breadth of the territorial sea of the People’s Republic of China shall be twelve nautical miles. This provision applies to all territories of the People’s Republic of China including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas. (10) (emphasis added)”
In addition, the South China Sea’s recorded activities of fishermen and merchants of neighboring and other countries shows no evidence to prove that the sea belongs to China. Chinese old literature books recorded activities of Arabian, Indian, Malaysian fisherman and merchants in these waters. (11)
On the third requirement, it is obvious that nations encircling the South China Sea never recognized any historical waters for China within the U-shaped line. The argument that other countries’ silence amounting to acquiescence of China’s claim is also unreasonable. China circulated maps with the U-shaped line just internally and did not announce it as an official claim at the time; therefore other countries were not obligated to protest.
In addition, the 1982 UN Convention on the Law of Sea, to which China is a party and therefore must abide by its regulations, rejects the concept of “historical waters” outside territorial sea and historic bay. It was only mentioned in Article 10.6 on “bays”, section 2 on “limits of territorial sea” that “the provisions (on bays) do not apply to so-called “historic” bays,” and in the Article 15 at the same section stated that the provisions on methods of delimitations territorial sea between states with opposite or adjacent coasts “does not apply where it is necessary by reason of historic title or other special circumstances”. Obviously, the water within the U-shaped line is not a bay in any interpretation and thus cannot be considered as historic bay.
On the other hand, in China’s legislations, including the Law of the People’s Republic of China Concerning the Territorial Sea and the Contiguous Zone, adopted in 1992 (12) and Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China, (13) adopted in 1998, also did not mention about “historic waters”. During negotiations with Vietnam on delimitation of Tonkin Gulf, China also rejected Vietnam’s argument that the Gulf is area of historic water. The final text of agreement between two countries concerning only the delimitation of territorial sea, exclusive economic zones and continental shelf in the Gulf, and not “historic water”.(14)
The argument stating that the U-shape line depicts the waters with “historic rights” of China has the same legal weaknesses with the above-mentioned arguments about the “historic waters”. Not only historic right is not a well-recognised concept in international law, but limited state practices also show that in order to established such historic right, three requirements as applied to historic water are prerequisites. So far, state practices in claiming historical rights proved modest success clearly in only one case (Fisheries between Norway and the UK) and the claimed area actually internal water under current provisions of UNLCOS. (15)
Besides, it is likely that in the past, Chinese fishermen went offshore fishing. However, not only Chinese fishermen but other countries’ fishermen also were fishing in the South China Sea. Regarding rights for other resources, scientific and technological conditions during 1950s did not allow exploitation of natural resources under the seabed, especially oil and gas. On the other hand, during the negotiation for UNCLOS, historic right was discussed and proposed in the draft but did not appear in the final text because such rights had been adequately addressed under EEZ and continental shelf and other related regimes. UNCLOS adopted in 1982 defines the sovereign rights and jurisdiction in the exclusive economic zone and the continental shelf for coastal states.
The third explanation that regards the U-shape line as the line to encompass islands is consistent with the title of the circulated map “the Location Map of the South China Sea Islands” and can be seen internationally as a China’s claim of sovereignty over land features in the South China Sea (emphasis added). This issue would be analysed under the international law concerning territorial acquisition Regarding the fourth explanation about the U-shape line as the outer boundary of the exclusive economic zone and the continental shelf measured from the outer islands of the Paracel and Spratly islands, this argument is an effort to connect the U-shaped line drawn almost half a century ago with the concepts of the exclusive economic zone and the continental shelf in the modern maritime law. Assuming, arguendo, that China can prove its sovereignty over Paracel and Spratly islands, it still cannot claim such a large area of exclusive economic zone and continental shelf as most of land features of these two groups are too small to sustain human habitation or economic life of their own, and therefore they cannot generate exclusive economic zone and the continental shelf. Even in the case if some of these features can be considered as “islands” under Article 121 (3) of the 1982 UNCLOS, the impacts of these features/islands on maritime delimitations are insignificant when opposing to the coast of the mainland. So the delimitation boundary cannot be the equidistant line as a number of Chinese scholars have argued. Even in the extreme case that the islands are given maximum effect in delimitation as the mainland, the boundary as the median line is much smaller than U-shaped line. (see map 2)
(To be continued)