Reaction from International Community
Even when China circulated internally the map with U-shaped line, other South China Sea countries have already indirectly rejected it when they officially and publicly announced their maritime claims, adopted a number of legal documents, issued statements, signed maritime delimitation agreements with others and conducted various types of activities in the areas overlapping with the U-shape line. (34)
Since 2009, when China internationally published the map with U-shaped line, several countries have protested to the line or requested China to clarify it. Vietnam immediately responded to China’s Note Verbal in 2009 by sending a Note to CLCS stating “China’s claim for the nine-dotted line on the map attached to its diplomatic note is null and void as it has no legal, historical and factual ground.” (36) Indonesia, in a note sent to the UN on July 8, 2010, to protest the map attached to China’s note, stated “the so called nine-dotted-lines-map as contained in the Note… clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982.” (37)
On April 5, 2011, the Philippines sent a Note Verbal to CLCS to protest against China’s nine-dotted line. (38) Following Vietnam and Indonesia, the Philippines rejected the historical basis, if any, of China’s nine-dotted line. The Note states that China’s claim of the areas outside the “geological features” in the Kalayan group and their “adjacent water” has no basis under international law, specifically under the UNCLOS and that “with respect to these areas, sovereignty, and jurisdiction and sovereign rights… appertain or belong to the appropriate coastal or archipelagic state”. The extent of “adjacent” water to relevant “geological features” are clearly defined under the provisions of UNCLOS, specifically Article 121 which elaborates on the regime of islands. (39)
Singapore, a non-claimant, also calls on China to clarify its claims in the South China Sea. On 20 June 2011, comment on visit of Chinese Maritime Surveillance vessel Haixun 31 to Singapore, MFA spokesperson said that:
We think it is in China’s own interests to clarify its claims in the SCS with more precision as the current ambiguity as to their extent has caused serious concerns in the international maritime community. The recent incidents have heightened these concerns and raise serious questions in relation to the interpretation of the 1982 UN Convention on the Law of the Sea (UNCLOS). (40)
Regarding ASEAN position as a group, in a document of “ASEAN’s Proposed Elements of a Regional Code of Conduct in the South China Sea (COC) between ASEAN Member States and the People’s Republic of China” agreed by all ASEAN members before ASEAN Minister Meeting in July 2012 in Cambodia, ASEAN proposed COC is legal document and one of its objectives is to:
Encourage efforts to clarify disputes in accordance with international law, in particular the UNCLOS. Encourage the parties concerned to work together to define and clarify the territorial and maritime disputes in the South China Sea, based on international law, including UNCLOS. (41)
The ASEAN proposed COC also binds parties to “commit to respect the exclusive economic zone and continental shelf of the coastal states as provided for in 1982 UNCLOS”. (42)
Since 2010 the United States have called “claimants should pursue their territorial claims and accompanying rights to maritime space in accordance with the UN convention on the law of the sea.” (43) The United States also indirectly rejected any argument of “historic water” or “historic rights” of U-shaped line when Secretary of State Hillary Clinton said, “Consistent with customary international law, legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.” (44) Speaking at a hearing of the US Senate Committee on Foreign Relations, Secretary of State Hillary Clinton said, “China’s claims in the South China Sea exceed what is permitted by the UNCLOS”. (45)
Regarding position of other countries, speaking about South China Sea issues at ARF19 in Cambodia in July 2012, Australian foreign minister “calls on governments to clarify and pursue their territorial claims in accordance and accompanying maritime rights in accordance with international laws, including UNCLOS 1982.” (46)
At ARF 19, Japanese foreign minister also calls for clarification of claims and indirectly rejected the U-shaped line:
While we have no intention to intervene in the territorial dispute over the islands in the South China Sea, we believe that all claimants should further clarify their claims in accordance with the relevant international law including the UNCLOS. In this regard, we would like to point out that among the notes verbal distributed at the UN since 2009, we find an assertion that is not supported by convincing legal grounds. In this connection, we would like to recall the statement by the US Secretary Clinton delivered in the 2011 ARF meeting “claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features”. Japan shares such position. (47) (emphasis added)
China’s U-shaped line remains the most controversial issue in South China Sea dispute. Although China is increasingly referring to the line as a claim but it has not yet officially declared and clarified the legal basis for the line. There are different views and various possible interpretations of the legal status of the U-shaped line but almost all of them are inconsistent with international law. There is only the 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. International community is still calling on China to clarify its claim. However it seems that People’s Republic of China already clarified its U-shaped claim by using the combination of the concept of sovereign rights in the exclusive economic zone and continental shelf provided for in the UNCLOS 1982 and the concept of “historic rights” for claiming all living and nonliving resources within U-shaped line.
Bringing the line into conformity with international law, particularly the UNCLOS 1982 will help to defuse ambiguity and tension in the region and to secure Chinese international image as a responsible rising maritime power. Taiwan as author of original map can clarify legal status of the U-shaped line as a line encompassing land features in the South China Sea. Acting such a way, Taiwan will play a constructive role in settling the South China Sea dispute and “save face” for mainland China while securing its own interest as a claimant occupying the biggest island in the Spratly. (48)
(1) Jinming Li and Dexia Li, “The Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Development and International Law 34 (2003), at 290
(2) Zou Keyuan (2012): China’s U-‐Shaped Line in the South China Sea Revisited, Ocean Development & International Law, 43:1
(3) Jinming Li and Dexia Li, “The Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Development and International Law 34 (2003), at 290
(4) Remarks by Prof. Liu Nan Lai at the first international workshop “The South China Sea: Cooperation for Regional Security and Development”, jointly organized by the Diplomatic Academy of
Vietnam and the Vietnam’s Lawyers Association in Hanoi in November, 2009.
(5) Zou Keyuan (2012): China’s U-‐Shaped Line in the South China Sea Revisited, Ocean Development & International Law, 43:1, 19
(6) Policy Guidelines for the South China Sea, Point 1, 10 March 1993, in Kuan-‐Ming Sun, “Policy of the Republic of China Towards the South China Sea: Recent Developments”, Marine Policy, vol. 19, 1995, p. 408 (annex I).
(7) See “Juridical Regime of Historic Waters, Including Historic Bays,” Yearbook of the International
Law Commission, 1962, vol. 2, p. 6.
(8) Vietnam’s MOFA White Book “the Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagos and International Law” published in 1988 argued at page 15 that:
In Hoangchao Yitong Yudi Zongtu (General Map of the Unified Empire) published in the 20th year of Guangxu’s reign (1894), Chinese territory extended only as far as Hainan island. Its annotation clearly wrote that the southernmost point of the Qing country is “Zhouya, Giongzhou Fu, Guangtung, 18°13′ North”. In Zhongguo Dilixue Jia Keshu written by Wu Jin Tu in the 31st year of Guangxu’s reign (1905) and published in 1906, it was clearly written in Book I that: “The southernmost point is the Yashou coast of Qiongzhou Island, 18°13′ North parallel” (page 24b).
(9) Note of 29 September 1932 from the Legation of the Chinese Republic in France to the Ministry of
Foreign Affairs, Paris. Annex 10 in “Sovereignty over the Paracel and Spratly Islands”, 2000, by Monique Chemillier-‐Gendreau, Kluwe Law International.
(11) G.M.C Valero: Spratly Archipelago: Is the question of sovereignty still relevant, IILS, University of the Philippines Law Center, Diliman, Quezon City, 1993.
(14) Agreement between the People’s Republic of China and the Socialist Republic of Viet Nam on the delimitation of the territorial seas, the exclusive economic zones and continental shelves in Beibu Bay/Bac Bo Gulf, signed on 25 December 2000 (entry into force: 30 June 2004)
(16) See, for example: the PRC Ministry of Foreign Affairs: “China’s Indisputable Sovereignty over the Xisha and Nansha Islands”, Beijing Review, n° 7, 18 February1980;
“Historical Evidence To Support China’s Sovereignty over Nansha Islands”; http://www.fmprc.gov.cn/eng/topics/3754/t19231.htm
“International Recognition of China’s Sovereignty over the Nansha Islands”. http://www.fmprc.gov.cn/eng/topics/3754/t19232.htm
(17) Annual Work of the Chinese Government by Premier Li Peng, to the First Plenary Session of the Eighth National People’s Congress” (13 March 1993), reprinted in People’s Daily (2 April 1993), 3
(18) Remarks of Amb. Hasjim Djalal at the second international workshop “The South China Sea: Cooperation for Regional Security and Development”, jointly organized by the Diplomatic Academy of Vietnam and the Vietnam’s Lawyers Association in Ho Chi Minh city in November, 2010.
(19) See the agreement at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/VNM.htm
(21) See China’s Note at http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf
(22) Robert Beckman, Islands or Rocks? Evolving Dispute in South China Sea. (RSIS Commentary 75/2011) http://www.rsis.edu.sg/publications/Perspective/RSIS0752011.pdf
(23) Remarks by Foreign Minister Yang Jiechi at the ARF Foreign Ministers’ Meeting. http://www.fmprc.gov.cn/eng/zxxx/t842183.htm
(24) Foreign Ministry Spokesperson Jiang Yu’s Regular Press Conference on September 15, 2011 http://www.fmprc.gov.cn/eng/xwfw/s2510/t860126.htm
(25) “China’s three-‐point naval strategy”, Strategic Comment, Volume 16, Comment 37 – October 2010, The International Institute For Strategic Studies (IISS), http://www.iiss.org/publications/strategic-‐comments/past-‐issues/volume-‐16-‐2010/october/chinas-‐three-‐point-‐naval-‐strategy/
(26) “China pledges to protect maritime sovereignty”, http://www.chinadaily.com.cn/china/2012-‐06/29/content_15533944.htm
(27) For a comprehensive analysis, see: Lyle J. Goldstein, Five Dragons Stirring Up the Sea: Challenge and Opportunity in China’s Improving Maritime Enforcement Capabilities, U.S. Naval War College, China Maritime Study 5, April 2010. http://www.usnwc.edu/Research-‐-‐-‐Gaming/China-‐Maritime-‐Studies-‐Institute/Publications/documents/CMSI_No5_web1.pdf
(28) Ian Storey, China’s “Charm Offensive” Loses Momentum in Southeast Asia, China Brief Volume: 10 Issue: 9, April 29, 2010.
(29) “China flexes muscles in South China Sea”, Mainichi Shimbun, 27 July 2010
(30) Scot Marciel, “Maritime Issues and Sovereignty Disputes in East Asia” Testimony before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign Relations, United States Senate, July 15, 2009. http://foreign.senate.gov/hearings/hearing/20090715_2/
For Summary of leaked US diplomatic cables released by WikiLeaks on China’s protests against international oil firms signing exploration deals with Vietnam in the South China Sea, see Greg Torode, “Beijing pressure intense in South China Sea row”, South China Morning Post, Sep 23, 2011. http://topics.scmp.com/news/china-‐news-‐watch/article/Beijing-‐pressure-‐intense-‐in-‐South-‐China-‐Sea-‐row
(31) CNOOC: “Notification of Part of Open Blocks in Waters under Jurisdiction of the People’s Republic of China Available for Foreign Cooperation in the Year of 2012”. http://en.cnooc.com.cn/data/html/news/2012-‐06-‐22/english/322127.html
(32) Sources: CNOOC, PetroVietnam
(33) “Administrative status of islands raised“. http://europe.chinadaily.com.cn/china/2012-‐06/21/content_15517602.htm
(34) See the table showing other countries adopted documents indirectly rejecting the U-‐shape line at Zou Keyuan (2012): China’s U-‐shape Line in the South China Sea Revisited, Ocean Development & International Law, 43:1, p.25.
(36) Permanent Mission of Indonesia to the United Nations, “Communication dated 8 July 2009,” Commission on the Limits of the Continental Shelf (CLCS), UN Division for Ocean Affairs and the Law of the Sea, http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf.
(37) See Philippine Note at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf
(38) See Philippine Note at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf
(39) Singapore MFA spokesperson’s Comments on Visit of Chinese Maritime Surveillance Vessel Haixun 31 to Singapore: http://www.mfa.gov.sg/content/mfa/overseasmission/phnom_penh/press_statements_speeches/embassy_news_press_releases/2011/201106/press_201106_5.html
(40) “ASEAN’s Proposed Elements of a Regional Code of Conduct in the South China Sea (COC) between ASEAN Member States and the People’s Republic of China”
(44) “China’s Sea Claims Excessive, Says US”, http://www.mb.com.ph/articles/360386/chinas-‐sea-‐claims-‐excessive-‐says-‐us
(45) Record of ARF 19
(47) The best option for Taiwan in the South China Sea issue is maintaining presence in Itu-‐Aba Island and has “a voice” in discussion of the issue. As Taiwan cannot expect for resource in maritime domain, one can question why Taiwan remains claim of “historic water” or “historic right” for the U-‐shaped line.