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U-shaped line and Maritime Delimitation

A debate between Chinese and Vietnamese scholars on China’s new ten-dashed line map

On July 4, Wang Junming from the Party School of the Central Committee of the Communist Party of China published an article on China Daily USA with title “New map boosts China’s claim in sea”, attempting to establish its legal basis. Nguyen Thi Lan Anh from the Diplomatic Academy of Vietnam has written an article refuting the Chinese colleague’s arguments, pointing out how the map has no basis under international law. The article was originally published on Vietnam plus.

Below are the two articles in full text:

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Wang Junming: New map boosts China’s claim in sea

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A local publishing house in China has published a vertical map of the country giving equal weight to land and sea areas. The new map is different because, unlike traditional horizontal maps that show the islands in the South China Sea in cut-away boxes in a bottom corner, it gives a good idea of China’s land and sea territories at a single glance, and thus strengthens its territorial claims.

The map, however, has evoked strong reactions from Vietnam and the Philippines. The two countries have criticized China’s “unreasonably expansive claim” and urged it to respect international laws. Besides, Philip Goldberg, the US ambassador to the Philippines, has said China’s “artificial creations” have no basis in international law.

Contrary to the accusations, the publication of the map can help promote Chinese public’s territorial awareness and high-light its historic title over the South China Sea and is thus a legitimate move.

This is not the first time these countries have questioned China’s historic title over the South China Sea or wrongly accused Beijing of violating the United Nations Convention on the Law of the Sea. China is a party to the UNCLOS and has been adhering to its principles. Moreover, there is no conflict in China abiding by the UNCLOS and substantiating its sovereign claim over the islands and the adjacent waters by high-lighting its historic title. After all, reference to historic titles is part of the UNCLOS.

Historic title generally signifies the rights a state has had over certain waters for a considerable time, which can be sovereign rights or other non-exclusive rights unrelated to territorial sovereignty such as traditional fishing rights. From the perspective of the UNCLOS, historic title is considered an exception to the applicability of the provisions on sea boundary delimitations.

For instance, according to Article 10 of the UNCLOS, related provisions on bays do not apply to the so-called historic bays, and Article 15 says provisions on the delimitation of the territorial sea between states with opposite or adjacent coasts do not apply “where it is necessary by reason of historic title or other special circumstances”. Article 47 stipulates that, “if a part of the archipelagic waters of an archipelagic state lies between two parts of an immediately adjacent neighboring state, existing rights and all other legitimate interests which the latter state has traditionally exercised in such waters” shall continue and be respected.

China has a long history of exploring and exploiting the South China Sea and, hence, has historic title over the sea, which is proven by the nine-dash U-shaped line marked on official maps since the 1940s. Although China’s Exclusive Economic Zone and Continental Shelf Act says conflicting claims on the exclusive economic zone and the continental shelf by China and countries with opposite or adjacent coasts shall be settled on the basis of international law, it clarifies that “the provisions of this act shall not affect the historical rights of the People’s Republic of China”.

With historical rights over the South China Sea, China is entitled to draw the baselines for measuring the territorial sea of the islands in the South China Sea. In fact, in September 1958 China issued the Declaration on the Territorial Sea, which states that China’s territorial sea along the mainland and its coastal islands takes as its baseline the line composed of the straight lines connecting basepoints on the mainland coast and on the outermost of the coastal islands; and the water area extending 12 nautical miles outward from this baseline is China’s territorial sea, and the water areas inside the baseline are China’s inland waters, and no foreign vessels for military use and no foreign aircraft may enter China’s territorial sea and the air space above it without the permission of the Chinese government.

In July 1973, in a working paper on the sea area within China’s jurisdiction submitted to the UN Seabed Committee, Beijing suggested that an archipelago or an island chain consisting of islands close to each other be taken as a whole in defining the limits of the territorial sea around it. Article 3 of the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, too, says that the method of straight baselines composed of all the straight lines joining the adjacent basepoints should be used to draw the baselines of China’s territorial sea.

Given that, China has the right to take archipelagoes such as the Xisha Islands as an integral whole and use straight baselines to delimit its territorial sea and determine the limits of the contiguous zone, exclusive economic zone and continental shelf in accordance with the provisions of the UNCLOS applicable to other land territory.

Apart from sovereign rights, China also enjoys traditional fishing rights in certain areas within the exclusive zones or archipelagic waters of an adjacent state, and such rights should be recognized and respected as stipulated in the UNCLOS. For hundreds of years, Chinese people have engaged in fishing and other activities to exploit marine resources. With the rapid advancement in navigational technology in recent decades, such activities have expanded further within the nine-dotted line.

Even though some neighboring countries have earmarked exclusive fishing areas and/or incorporated areas that fall within China’s nine-dash line into their exclusive economic zone, China is still entitled to its traditional fishing rights and should still have access to the surplus resources in certain areas within the exclusive economic zone of other countries. As Article 51 of the UNCLOS says, an archipelagic state shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas falling within archipelagic waters.

Parties to the South China Sea disputes, the Philippines and Vietnam in particular, have repeatedly questioned China’s historic title over the South China Sea and spared no effort to paint China as a violator of international laws. The truth is, the approach taken by China so far, including the release of the vertical map, to reaffirm its historic title and thus strengthen its sovereign claim over the South China Sea, does not go against its commitment to the UNCLOS.

The article was originally published on China Daily USA at http://usa.chinadaily.com.cn/opinion/2014-07/04/content_17646922.htm

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Nguyen Thi Lan Anh: New ten-dashed line map revealed China’s ambition

Deliberately and desperately applying irrelevant concepts and provisions of UNCLOS will not create the legal basis for the nine dashed line claim.

On 23 June 2014, the Hunan Map Publishing House released a new vertical map of China covering most of the South China Sea under the so-called “nine dashed line”, now with an added “dash” to become ten.

In justifying the new map, Wang Junming, a professor of international law and marine law at the Party School of the Central Committee of the Communist Party of China argued for China’s sovereign rights and traditional fishing rights in the South China Sea, albeit in very strange ways inconsistent with international norms and contemporary laws of the sea.

In his first argument, Wang claims that China has the right to take the Paracels (Hoang Sa in Vietnamese) as a whole, apply the straight baseline for the archipelago, and claim maritime zones from the baseline accordingly. These arguments are in faulted on several aspects. First, Vietnam has sufficient evident and legal basis to prove its sovereignty over the Paracels. China, in 1956, taking advantage of France’s retreat from Indochina, occupied the Eastern group of islands of the Paracels. In 1974, China once again used military force to occupy the entire Paracels and currently still maintained its illegal occupation. Second, notwithstanding the sovereignty issues, the Paracels cannot be subjected to the baseline currently misapplied by China. Under the 1982 Convention on the Law of the Sea (UNCLOS), only archipelagic states, which solely consisted of archipelagoes, are entitled to draw archipelagic baseline connecting the outermost point of the archipelagoes.

Both China and Vietnam are mainland countries, thus they cannot apply the archipelagic baseline to the Paracels. China in fact applied the archipelagic baseline for the Paracels, however, Professor Wang has confused, deliberately or not, the concepts of archipelagic baseline to straight baseline to justify their misapplication to the Paracels.

As a state party to UNCLOS, China should fully adhere to its treaty obligation and should not have quoted either the provisions of its domestic law, the 1992 China’s Law on the Territorial Sea and Contiguous Zones, or the working paper on the sea area within China’s jurisdiction submitted to the UN Seabed Committee in July 1973, which was rejected by the third United Nations Conference on the law of the sea, to justify for the incompliance. No maritime zones claimed for the Paracels will be legitimate if they were measured from an illegitimate baseline.

The second argument , Professor Wang again arbitrarily applied the provision of traditional fishing rights, strictly provided by UNCLOS for archipelagic waters, to the exclusive economic zones of other littoral states in the South China Sea . This is obviously an abuse of law as under UNCLOS, no traditional fishing rights are recognised within the exclusive economic zone of coastal states.

The traditional fishing rights are only provided under UNCLOS in the context of archipelagic states. When granting a special regime for archipelagic states by accepting the concept of archipelagic baseline and archipelagic water entitlement, UNCLOS also imposed an obligation to archipelagic states to recognize the traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas within archipelagic waters.

Accordingly, if China thought it had traditional fishing rights, such rights could only be claimed in the archipelagic waters of the Philippines and Indonesia, the two “adjacent” archipelagic neighbors of China. China cannot arbitrarily claim traditional fishing rights anywhere in the South China Sea, overlapping these claims with the exclusive economic zones of other coastal states, because such rights do not exist under UNCLOS.

In the Gulf of Main case, when the United States claimed traditional fishing rights in Canada’s exclusive economic zone, the Court ruled that “whatever preferential situation the United States may previously have enjoyed, this cannot constitute in itself a valid ground for its now claiming the incorporation into its own exclusive fishery zone of any area which, in law, has become part of Canada’s”.

It should also be further pointed out that although UNCLOS recognised certain traditional fishing rights in such very limited and very specific circumstances, it does not recognise traditional rights to other resources. China ’s attempts to illegally claim fishing rights in the whole of the South China Sea and conflates the “rights” to include other resources, such as rights to hydrocarbon deposits in the seabed, are another serious offense to law of the sea.

Deliberately and desperately applying irrelevant concepts and provisions of UNCLOS will not create the legal basis for the nine dashed line claim. The introduction of the new map, the additional “dash line” and accompanying clumsy arguments in its justification only further reveals China’s ambition to monopolise the South China Sea by all means and to realise its naval power status through China’s 21 st century version of the “Monroe doctrine”. It also revealed China ’s readiness to by pass and twist international law and order to realise its “great dream”.

The article was originally published on Vietnam plus at http://english.vietnamnet.vn/fms/government/107764/academy-lecturer-opposes-chinese-colleague-s-view-on-east-sea-issue.html

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