Limits in the Seas

United States Department of State
Bureau of Oceans and International
Environmental and Scientific Affairs
Limits in the Seas
No. 143
China:
Maritime Claims in the South China Sea
LIMITS IN THE SEAS
No. 143
CHINA
MARITIME CLAIMS IN THE
SOUTH CHINA SEA
December 5, 2014
Office of Ocean and Polar Affairs
Bureau of Oceans and International Environmental and Scientific Affairs
U.S. Department of State
This study is one of a series issued by the Office of Ocean and Polar Affairs, Bureau of Oceans
and International Environmental and Scientific Affairs in the Department of State. The purpose
of the series is to examine a coastal State’s maritime claims and/or boundaries and assess their
consistency with international law. This study represents the views of the United States
Government only on the specific matters discussed therein and does not necessarily reflect an
acceptance of the limits claimed.
This study, and earlier studies in this series, may be downloaded from
http://www.state.gov/e/oes/ocns/opa/c16065.htm. Comments and questions should be emailed to
LimitsInTheSeas@state.gov. Principal analysts for this study are Kevin Baumert and Brian
Melchior.
1
Introduction
This study analyzes the maritime claims of the People’s Republic of China in the South China
Sea, specifically its “dashed-line” claim encircling islands and waters of the South China Sea.
1
In May 2009, the Chinese Government communicated two Notes Verbales to the UN Secretary
General requesting that they be circulated to all UN Member States.
2
The 2009 Notes, which
contained China’s objections to the submissions by Vietnam and Malaysia (jointly) and Vietnam
(individually) to the Commission on the Limits of the Continental Shelf, stated the following:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent
waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed
and subsoil thereof (see attached map). The above position is consistently held by the Chinese
government, and is widely known by the international community.
The map referred to in China’s Notes, which is reproduced as Map 1 to this study, depicted nine
line segments (dashes) encircling waters, islands, and other features of the South China Sea.
Vietnam, Indonesia, and the Philippines subsequently objected to the contents of China’s 2009
Notes, including by asserting that China’s claims reflected in the dashed-line map are without
basis under the international law of the sea.
3
In 2011, China requested that another Note Verbale
be communicated to UN Member States, which reiterated the first sentence excerpted above, and
added that “China’s sovereignty and related rights and jurisdiction in the South China Sea are
supported by abundant historical and legal evidence.”
4
China has not clarified through legislation, proclamation, or other official statements the legal
basis or nature of its claim associated with the dashed-line map. Accordingly, this Limits in the
Seas study examines several possible interpretations of the dashed-line claim and the extent to
which those interpretations are consistent with the international law of the sea.
1
This claim is referred to by commentators by various names, including the “Nine-Dash Line,” “Dotted Line,”
“Cow’s Tongue,” and “U-Shaped Line.”
2
Permanent Mission of the People’s Republic of China, Notes Verbales CML/17/2009 and CML/18/2009, May 7,
2009, available from the UN Division for Ocean Affairs and the Law of the Sea (DOALOS) at:
http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf and
http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf.
3
Notes available from DOALOS at:
http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm.
4
Permanent Mission of the People’s Republic of China, Note Verbale CML/8/2011, April 14, 2011, available from
DOALOS at: http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf.
This Note did not contain a dashed-line map.
2
3
The Dashed-Line Maps
Origins and Evolution
Although China has not provided an
official account, the first dashed-line map
is widely reported by scholars and
commentators to pre-date the existence of
the People’s Republic of China, having
been published in 1947 by the Nationalist
government of the Republic of China.
5
That map, which shows 11 dashes, is
reproduced as Map 2 to this study.
Scholarly accounts indicate that the 1947
map, titled “Map of South China Sea
Islands,” originated from an earlier one
titled “Map of Chinese Islands in the
South China Sea” (Zhongguo nanhai
daoyu tu) published by the Republic of
China’s Land and Water Maps Inspection
Committee in 1935, and that Chinese
maps produced after the establishment of
the People’s Republic of China in 1949
“appear to follow the old maps.”
6
The
maps published by the People’s Republic
of China, however, removed the two
dashes originally depicted inside the Gulf
of Tonkin.
7
Although not visible on the
2009 map (Map 1), modern Chinese maps
since at least 1984, including the
vertically oriented maps published by
China in 2013 and 2014,
8
also include a tenth dash located to the east of Taiwan.
5
Scholarly accounts place the publication date from 1946 to 1948. For simplicity, this study refers to the “1947
map.” See, e.g., M. Sheng-Ti Gau, “The U-Shaped Line and a Categorization of the Ocean Disputes in the South
China Sea,” Ocean Dev’t & Int’l L., 43:1, 57-69 at 58 (2012) (stating the map was “first published” by the Republic
of China in December 1946); K-H. Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the
South China Sea,” Ocean Dev’t & Int’l L., 41:237-252 at 243 (2010) (stating the map was “released” in 1947); L.
Jinming and L. Dexia, “The Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Dev’t & Int’l
L., 34:287-95 at 290 (2003) (stating the map was “printed” in 1947 and “published” in February 1948).
6
Jinming and Dexia, supra note 5 at 289-90 (2003). See also, N. Alfred Hu, “South China Sea: Troubled Waters or
a Sea of Opportunity?” Ocean Dev’t & Int’l L., 41:203-213 (2010).
7
This area was eventually partly delimited by China and Vietnam. Agreement on the Delimitation of the Territorial
Seas, Exclusive Economic Zones and Continental Shelves in the Beibu Gulf [Gulf of Tonkin] between the People’s
Republic of China and the Socialist Republic of Vietnam, Beijing, Dec. 25, 2000, entered into force June 30, 2004,
Law of the Sea Bulletin No. 56, at 137 (2004); V International Maritime Boundaries 3745-3758 (2005).
8
See, e.g., “China’s New Weapon in the Battle for the South China Sea is … a Vertical Map,” Wall Street Journal,
ChinaRealTime blog, Jun. 25, 2014. This “vertical map” was first published by Sinomaps in 2013 and later
reproduced by Hunan Map Publishing House in 2014.
4
Geographic Description
9
The map included in China’s 2009 Notes Verbales contains nine dashes that encircle islands,
waters, and other features of the South China Sea. China has not published geographic
coordinates specifying the location of the dashes. Therefore, all calculations in this study
relating to the dashed line are approximate.
10
The dashed line encompasses approximately 2,000,000 square kilometers of maritime space, an
area equal to about 22 percent of China’s land area. This constitutes a significant percentage of
the maritime space in the South China Sea.
11
Excluding Taiwan and Pratas Island (referred to by
China as Dongsha Qundao), the dashed line
encompasses approximately 13 square
kilometers of land area.
12
This land area
includes the three groups of land features within
the South China Sea: (1) the Paracel Islands
(referred to by China as Xisha Qundao), (2) the
Spratly Islands (Nansha Qundao), and (3)
Scarborough Reef (Huangyan Dao). The
largest of these islands is Woody Island in the
Paracel Islands, with an area of 2.4 square
kilometers. The dashes likewise encompass
numerous submerged features such as
Macclesfield Bank (Zhongsha Qundao) and
James Shoal (Zengmu Ansha).
13
Map 3 to this study depicts the dashed line with
a number assigned next to each dash for
descriptive purposes only. It should be noted
that China does not assign numbers to the
dashes. The dashes are not uniformly
distributed and are separated from one another
by between 106 (dashes 7 and 8) and 274
(dashes 3 and 4) nautical miles (nm). The
9
Calculations for this study were conducted in ESRI ArcMap 10. The dashes used in geographic depictions and
calculations for this study were digitized from 1:10,600,000 scale (2009) and 1:12,000,000 (approx.) scale (1947)
maps and assumed a Mercator projection.
10
This same caveat applies to the calculations referring to the dashed line on the 1947 map, coordinates for which
have also not been published by either the People’s Republic of China or the Republic of China.
11
Media reports frequently refer to estimates of 80 percent or higher. The exact percentage depends upon the
assumed geographic extent of the South China Sea. The dashed line encompasses 62 percent of the waters in the
South China Sea when using the limits that are described in the International Hydrographic Organization’s (IHO) S-23 Limits of the Oceans and Seas (1953), available from IHO at:
http://www.iho.int/iho_pubs/IHO_Download.htm#S-23. The S-23 describes the limits for the South China Sea as
including the Taiwan Strait, the Gulf of Tonkin, and what is sometimes referred to as the Natuna Sea.
12
CIA World Factbook entries for Spratly and Paracel Islands, at: https://www.cia.gov/library/publications/theworld-factbook/.
13
Nothing in this study is intended to take a definitive position regarding which features in the South China Sea are
“islands” under Article 121 of the LOS Convention or whether any such islands are “rocks” under Article 121(3).
5
dashes are located in relatively close proximity to the mainland coasts and coastal islands of the
littoral States surrounding the South China Sea. Dash 1 is 50 nm from the mainland coast of
Vietnam and 36 nm from Vietnam’s coastal island of Ly Son. Dash 3 is 75 nm from the closest
Indonesian island, Pulau Sekatung. Dash 4 is 24 nm from the coast of Malaysia on the island of
Borneo. Dash 5 is 35 nm from the closest point on the Philippines’ southeastern island of
Balabac. Dash 9 is 26 nm from Y’Ami Island, Philippines’ northernmost island in the Luzon
Strait.
As shown on Map 4 to this study, the dashes are generally closer to the surrounding coasts of
neighboring States than they are to the closest islands within the South China Sea. In other
words, the distances between the dashes and the islands are generally farther than the
aforementioned distances to the surrounding coasts. At their closest points, the dashes are 84 nm
from the nearest island within the Paracel Islands (dash 1 to Triton Island), more than 46 nm
from the nearest island within the Spratly Islands (dash 5 to Half Moon Shoal), and nearly 75 nm
from Scarborough Reef (dash 7). Some of the dashes are far from the nearest islands within the
South China Sea. For instance, dash 3 is 235 nm from the nearest such island, which is Spratly
Island. Dash 4 is 133 nm from Louisa Reef. Dash 8 is 179 nm from the closest island on
Scarborough Reef.
A geographic description of China’s dashed line is complicated by inconsistencies between
China’s 2009 map and other Chinese maps, such as the 1947 map. The geographic description
above is applicable to the 2009 map, but not to the 1947 map or even contemporary Chinese
maps because those maps appear to depict the dashes in varying sizes and locations. Map 5 to
this study depicts the dashed line from both the 2009 and 1947 maps, indicating that the sizes
and locations of the dashes from the 2009 map are generally shorter and closer to the coasts of
6
7
Map 6: Dash 4 location in 2009 (solid red) & 1984 maps
neighboring States than the dashes in the 1947 map. Near the Vietnam coast, dash 2 from the
2009 map is 45 nm closer to Vietnam’s coast than the nearest dash on the 1947 map, and dash 1
is 15 nm closer. Dash 4 is closer (about 8 nm) to the Malaysian coast and dash 8 is likewise
closer (about 19 nm) to the northern part of the Philippine island of Luzon. Additionally, dash 5
from the 1947 map is 15 nm closer to Indonesia’s Pulau Sekatung than dash 3 from the 2009
map. Despite having a similar curvature to dash 5 of the 2009 map, dash 7 of the 1947 map is
longer and slightly closer to the Philippine island of Palawan, as well as to Malaysia’s and
Brunei’s coasts on the island of Borneo. The dashes used in the 1947 map are also spaced such
that they are generally closer to one another than those of the 2009 map, with the exception of
the distance between dashes 8 and 9,
which is about 290 nm. Otherwise, the
1947 dashes are separated from one
another by between 31 (dashes 10 and
11) and 225 (dashes 4 and 5) nm of
sea.
The dashed-line map distributed by
China to the international community
in 2009 is also cartographically
inconsistent with other published
Chinese maps. The dashes from the
2009 map do not appear to be in the
identical geographic locations as the
dashes from the 2013-2014 maps
published by Sinomaps and those of its
predecessor, Cartographic Publishing
House (Ditu Chubanshe), dating back
to at least 1984. Map 6 to this study
depicts the difference with respect to
dash 4.
8
Basis of Analysis
Under international law, the applicable legal framework for assessing maritime claims is the
international law of the sea, as reflected in the United Nations Convention on the Law of the Sea
(LOS Convention).
14
Maritime Zones
International law, as reflected in the LOS Convention, contains rules governing a coastal State’s
entitlement to maritime zones.
Part II of the Convention sets forth rules governing coastal baselines, from which the seaward
limits of maritime zones are measured. The normal baseline is the low-water line along the
coast, as described in Article 5 of the Convention. The Convention also permits the method of
straight baselines to be used “[i]n localities where the coastline is deeply indented and cut into,
or if there is a fringe of islands along the coast in its immediate vicinity” (Article 7). Waters on
the landward side of the baseline are internal waters (Article 8). Part IV of the Convention
contains the rules regarding baselines enclosing archipelagic waters of archipelagic States such
as Indonesia and the Philippines.
15
Part II of the Convention also sets forth the rules governing the territorial sea, which may extend
up to 12 nm from the baselines, and in which the coastal State exercises sovereignty subject to
the right of innocent passage and other rules of international law. In addition, Part II describes a
contiguous zone, extending beyond the territorial sea to a maximum of 24 nm from the baselines,
within which a coastal State may exercise the control necessary to prevent and punish
infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its
territory or territorial sea.
Part V of the Convention sets forth provisions related to the exclusive economic zone (EEZ),
which may extend to a maximum of 200 nm from the baselines. Within the EEZ, the coastal
State has enumerated rights, notably, “sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources” and “jurisdiction as provided for” in
the Convention with regard to “the establishment and use of artificial islands, installations and
structures” as well as “marine scientific research” and “the protection and preservation of the
marine environment” (Article 56). At the same time, the freedoms of navigation, overflight,
laying and maintenance of submarine cables, and other uses related to these freedoms are
preserved in the EEZ (Article 58).
14
United Nations Convention on the Law of the Sea, Montego Bay, opened for signature Dec. 10, 1982, entered into
force Nov. 16, 1994, 1833 UNTS 397, available from DOALOS at:
http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm. China ratified the Convention on
June 7, 1996. The United States considers the substantive provisions of the LOS Convention cited in this study to
reflect customary international law, as do international courts and tribunals. See, e.g., J.A. Roach, “Today’s
Customary International Law of the Sea,” Ocean Dev’t & Int’l L., 45: 239-252 (2014).
15
An “‘archipelagic State’ means a State constituted wholly by one or more archipelagos and may include other
islands.” LOS Convention, supra note 14, Art. 46(a). Archipelagic States therefore do not include continental
States such as China or the United States.
9
Part VI of the Convention sets forth provisions relating to the continental shelf, which extends to
the outer edge of the continental margin or to a distance of 200 nm from the baselines, as
described in Article 76. The coastal State exercises sovereign rights for the purpose of exploring
the continental shelf and exploiting its natural resources; these rights are “exclusive” and “do not
depend on occupation, effective or notional, or on any express proclamation” (Article 77).
Part VIII of the Convention defines an island as “a naturally formed area of land, surrounded by
water, which is above water at high tide” (Article 121(1)). It provides that islands have the same
entitlements to the foregoing maritime zones as other land territory, except that “[r]ocks which
cannot sustain human habitation or economic life of their own shall have no exclusive economic
zone or continental shelf” (Article 121(3)).
Submerged features that do not emerge above water at high tide are not “islands” and are not
entitled to maritime zones.
16
They form part of the seabed and subsoil, and are subject to the
regime of the maritime zone in which they are found. The Convention also makes clear that
“[a]rtificial islands, installations, and structures do not possess the status of islands. They have
no territorial sea of their own, and their presence does not affect the delimitation of the territorial
sea, the [EEZ] or the continental shelf” (Article 60(8)). They too are subject to the regime of the
maritime zone in which they are located.
Maritime Boundaries
Maritime boundary delimitation issues arise when the maritime zones of neighboring States
overlap. Articles 15, 74, and 83 of the Convention set forth provisions regarding the delimitation
of maritime boundaries between opposite and adjacent States. Article 15, concerning
delimitation of the territorial sea, provides that “failing agreement . . . to the contrary,” one State
is not entitled “to extend its territorial sea beyond the median line every point of which is
equidistant from the nearest points on the baselines from which the breadth of the territorial seas
of each of the two States is measured.” However, this provision “does not apply . . . where it is
necessary by reason of historic title or other special circumstances to delimit the territorial seas
of the two States in a way which is at variance therewith.”
With respect to the delimitation of the EEZ and continental shelf, Articles 74 and 83 provide,
respectively, that the delimitation “shall be effected by agreement on the basis of international
law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to
achieve an equitable solution.” In recent years, international courts and tribunals have generally
delimited the EEZ and continental shelf by drawing a provisional equidistance line and then
adjusting that line if necessary in light of the coastal configuration and features, including rocks
and other small islands.
17
16
However, the LOS Convention, supra note 14, Art. 13, provides: “Where a low-tide elevation is situated wholly
or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water
line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.” A “low-tide
elevation” is defined as “a naturally formed area of land which is surrounded by and above water at low tide but
submerged at high tide.” Id.
17
See, e.g., Territorial and Maritime Dispute (Nicaragua v. Colombia), I.C.J., Judgment of Nov. 19, 2012.
10
“Historic” Bays and Title
The substantive provisions of the LOS Convention refer to “historic” bays or title in two
instances. First, Article 10 (“Bays”) provides that the provisions of that article concerning
juridical bays “do not apply to so-called ‘historic’ bays.” Second, Article 15, as mentioned
above, provides that the general rule governing delimitation of overlapping territorial seas does
not apply in instances of “historic title or other special circumstances.” These provisions are
substantially identical to those contained in Articles 7 and 12 of the 1958 Convention on the
Territorial Sea and the Contiguous Zone.
18
The burden of establishing the existence of a historic bay or historic title is on the claimant. The
United States has taken the view that, in order to establish the existence of a historic bay or
historic title, a State must demonstrate (1) open, notorious, and effective exercise of authority
over the body of water in question; (2) continuous exercise of that authority; and (3)
acquiescence by foreign States in the exercise of that authority.
19
These limitations are
consonant with the views of influential international legal authorities, including the International
Court of Justice and the 1962 study on the “Juridical Régime of Historic Waters, Including
Historic Bays,” commissioned by the Conference that adopted the 1958 Geneva Conventions on
the law of the sea.
20
International jurisprudence addressing historic claims has been limited to
(1) disputes concerning maritime boundaries and sovereignty over land territory
21
and (2) other
disputes over near-shore waters which, under the current law of the sea, could be enclosed using
the method of straight baselines.
22
Articles 10 and 15 are strictly limited geographically and substantively. They apply only with
respect to bays and similar near-shore coastal configurations, not in areas of EEZ, continental
shelf, or high seas. In the past, prior to the emergence of today’s maritime zones, the high seas
regime applied very close to the low-water line along the coast, animating desires for broader
protection of coastal State interests—desires which previously informed the “historic waters”
23
and other claims of coastal States in derogation of that classic high seas regime. The LOS
Convention regimes and their geographic limits accommodated those desires, and set forth the
framework governing all parts of the sea from which no reservations are permitted (Article 309).
18
Convention on the Territorial Sea and the Contiguous Zone, Geneva, Apr. 29, 1958, entered into force Sept. 10,
1964, 516 UNTS 205, available at: https://treaties.un.org/doc/Publication/UNTS/Volume%20516/v516.pdf.
19
See, e.g., Limits in the Seas No: 112: “United States Responses to Excessive National Maritime Claims,” U.S.
Dep’t. of State, Mar. 9, 1992; Memorandum from Bernard H. Oxman, Dep’t of State Ass’t Legal Adviser for Ocean
Affairs (Sept. 17, 1973), excerpted in Digest of U.S. Practice in International Law 1973, at 244 (A.W. Rovine ed.).
20
Fisheries Case (U.K. v. Norway), 1951 I.C.J. 116 (Dec. 18), p. 130, 133, 138, 142; Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras), 1992 I.C.J. 350 (Sept. 11), paras. 384, 394; Int’l Law Comm’n, Juridical
Régime of Historic Waters, Including Historic Bays, [1962] 2 Y.B. Int’l L. Comm’n 1, U.N. Doc. A/CN.4/143
[hereinafter UN Study]. See also jurisprudence of the U.S. Supreme Court, e.g., United States v. Louisiana, 394
U.S. 11, 23 (1969), and United States v. California, 381 U.S. 139, 172 (1965).
21
See, e.g., El Salvador/Honduras, supra note 20; Continental Shelf (Tunisia/Libya), 1982 I.C.J. 18 (Feb. 24);
Eritrea/Yemen, Award in the First Stage of the Proceedings, (Perm. Ct. Arb. Oct. 9, 1998) and Award in the Second
Stage of the Proceedings, paras. 103, 107 (Perm. Ct. Arb. Dec. 17, 1999), http://www.pcacpa.org/showpage.asp?pag_id=1160.
22
Fisheries Case, supra note 20.
23
“By ‘historic waters’ are usually meant waters which are treated as internal waters but which would not have that
character were it not for the existence of an historic title.” Fisheries Case, supra note 20, p.130.
11
Analysis
China’s possible claims related to the dashed-line maps can be divided into two categories:
claims to land and claims to water. With respect to land claims, China’s position is clear; it is
claiming sovereignty over the islands within the dashed line. China’s 2009 Notes Verbales state
that “China has indisputable sovereignty over the islands in the South China Sea.” This
assertion, while disputed by neighboring States with competing sovereignty claims over these
islands, is consistent with previous official pronouncements of the People’s Republic of China,
dating back to at least its 1992 territorial sea law.
24
Thus, it is apparent that China intends its
dashed-line maps to indicate the islands in the South China Sea over which it claims
sovereignty.
25
With respect to maritime claims, China’s position is unclear. Therefore, this study examines
below three possible interpretations of the dashed-line claim and the extent to which those
interpretations are consistent with the international law of the sea.
26
These alternative
interpretations are identified with reference to primary sources, notably the official statements
and acts of the People’s Republic of China.
27
1. Dashed Line as a Claim to Islands
Discussion
Under this possible interpretation, the dashed line indicates only the islands over which China
claims sovereignty. It is not unusual to draw lines at sea on a map as an efficient and practical
means to identify a group of islands. If the map depicts only China’s land claims, then China’s
maritime claims, under this interpretation, are those provided for in the LOS Convention.
China’s statement accompanying the map in its 2009 Notes Verbales could be read to support
this meaning:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent
waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed
and subsoil thereof (see attached map).
24
Law on the Territorial Sea and the Contiguous Zone of 25 February 1992, available from DOALOS at:
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHN_1992_Law.pdf. See Article 2.
25
This study makes no attempt to examine the merits of claims by China or other States to land features in the South
China Sea. The United States has repeatedly reaffirmed that it takes no position as to which country has sovereignty
over the land features of the South China Sea. See, e.g., Statement by the Acting U.S. Dept. of State Spokesperson,
May 10, 1995 (“The United States takes no position on the legal merits of the competing claims to sovereignty over
the various islands, reefs, atolls and cays in the South China Sea”). This continues to be the position of the United
States, and nothing in this study should be construed as a U.S. Government position regarding the merits of
competing claims of sovereignty over any island in the South China Sea, which is not a matter governed by the law
of the sea.
26
See id.
27
In assessing the position of the Government of China with respect to the scope of its maritime claims in the South
China Sea, this study has, by necessity, focused on the views asserted by that Government and has not attempted to
attribute to China the views or analysis of non-governmental sources, such as legal or other Chinese academics.
12
The “sovereignty” over the waters “adjacent” to the islands could refer to the 12-nm territorial
sea, which is indeed a zone of “sovereignty” under international law.
28
Likewise, the “sovereign
rights and jurisdiction” could be understood to refer to the legal regimes of the EEZ and
continental shelf under the LOS Convention, which uses the same terminology to describe
coastal State authority within those zones.
29
The “relevant waters” and the “seabed and subsoil
thereof” likewise could be understood to refer to the EEZ and continental shelf.
Support for this interpretation can be found in China’s laws and statements. Article 2 of China’s
1992 territorial sea law claims a 12-nm territorial sea around the “Dongsha [Pratas] Islands,
Xisha [Paracel] Islands, Nansha (Spratly) Islands and other islands that belong to the People’s
Republic of China.”
30
China’s 1958 Territorial Sea Declaration makes similar claims.
31
With
respect to the “relevant” areas seaward of the territorial sea, China’s 1998 EEZ and continental
shelf law establishes a 200-nm EEZ and describes China’s continental shelf rights and
jurisdiction.
32
Indeed, China’s 2011 Note Verbale clarified its view that “China’s Nansha
Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ), and Continental
Shelf,” and no mention was made of any other maritime claims.
33
Cartographic evidence and official statements also provide support for an interpretation that
China’s dashed line describes island claims and not distinct maritime claims. As noted above,
the original 1930s dashed-line map, on which subsequent dashed-line maps were based, was
titled “Map of the Chinese Islands in the South China Sea.” That map was apparently brought
into use domestically by the Republic of China in the late 1940s during a time when the
international law governing maritime claims by most accounts recognized only a narrow belt of
territorial sea. Indeed, China’s own Declaration on its territorial sea of 1958 states:
This provision [a 12-nm territorial sea] 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 and all other islands belonging to China which are separated from the
mainland and its coastal islands by the high seas [emphasis added].
34
The reference to “high seas”—maritime space under no country’s jurisdiction—separating
China’s mainland and coastal islands from “all other islands belonging to China” indicates that in
1958 China made no claim to the entirety of the ocean space within the dashed line.
Assessment
Setting aside issues related to competing sovereignty claims over land features and unresolved
maritime boundaries in the South China Sea, if the above interpretation of China’s dashed-line
28
LOS Convention, supra note 14, Art. 2.
29
LOS Convention, supra note 14, Arts. 56, 77, 79, 80, and 81.
30
Territorial Sea law, supra note 24.
31
Declaration on China’s Territorial Sea, reprinted in Limits in the Seas No. 43: “Straight Baselines: People’s
Republic of China,” U.S. Dep’t of State, July 1, 1972.
32
Exclusive Economic Zone and Continental Shelf Act, adopted, June 26, 1998, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/chn_1998_eez_act.pdf. See Article 2.
33
Note Verbale, supra note 4.
34
Declaration, supra, note 31, para. 1, at 2.
13
claim is accurate, then the maritime claims provided for in China’s domestic laws could
generally be interpreted to be consistent with the international law of the sea, as follows:
1. China’s mainland coast and Hainan Island are entitled to a territorial sea, contiguous
zone, EEZ, and continental shelf, including in areas that project into the South China
Sea.
35
2. Other islands, as defined by Article 121(1) of the LOS Convention, claimed by China in
the South China Sea would likewise be entitled to the above-mentioned maritime zones.
Under Article 121(3) islands that constitute “rocks which cannot sustain human
habitation or economic life of their own” would not be entitled to an EEZ and a
continental shelf.
36
3. Submerged features, namely those that are not above water at high tide, are not subject to
sovereignty claims and generate no maritime zones of their own.
37
They are subject to
the regime of the maritime zone in which they are found.
4. Artificial islands, installations, and structures likewise do not generate any territorial sea
or other maritime zones.
38
This assessment is subject to several important caveats.
First, China’s sovereignty claims over islands in the South China Sea are disputed.
39
The
Paracel Islands are also claimed by Vietnam and Taiwan; Scarborough Reef is also claimed by
the Philippines and Taiwan; and some or all of the Spratly Islands are also claimed by Vietnam,
the Philippines, Malaysia, Brunei, and Taiwan. Because China’s land claims are disputed, its
maritime claims described above that are based on those land claims are likewise disputed.
Second, China has not yet clarified its maritime claims related to certain geographic features in
the South China Sea. For instance, China has not clarified which features in the South China Sea
it considers to be “islands” (or, alternatively, submerged features) and also which, if any,
“islands” it considers to be “rocks” that are not entitled to an EEZ or a continental shelf under
paragraph 3 of Article 121 of the LOS Convention. With respect to Scarborough Reef and
certain features in the Spratly Islands, these issues are the subject of arbitration proceedings
between the Philippines and China under Annex VII of the LOS Convention.
40
Third, Vietnam, the Philippines, Malaysia, Indonesia, and Brunei have maritime zones that
extend from their mainland shores into the South China Sea. Assuming for the sake of argument
35
These maritime zones must be drawn from baselines that are consistent with those set forth in the LOS
Convention. The United States has protested China’s use of straight baselines (including on its mainland, Hainan
Island, and the Paracel Islands) as excessive and not consistent with the Convention. J.A. Roach and R.W. Smith,
Excessive Maritime Claims, 3rd ed. (Nijhoff, 2012), at 98 and note 103. See also, Limits in the Seas No. 117:
“Straight Baselines Claim: China,” U.S. Dep’t. of State, July 9, 1996.
36
LOS Convention, supra note 14, Art. 121. With respect to United States views, see supra note 13.
37
See supra note 16, referring to the measurement of maritime zones from low-tide elevations.
38
LOS Convention, supra note 14, Art. 60.
39
The United States takes no position regarding these sovereignty disputes. See supra, note 25.
40
See, e.g., “Notification and Statement of Claim,” Jan. 22, 2013, available from the Philippines Department of
Foreign Affairs at: http://www.dfa.gov.ph/index.php/component/docman/doc_download/56-notification-andstatement-of-claim-on-west-philippine-sea?Itemid=546. Materials related to this case are available from the
Permanent Court of Arbitration at: http://www.pca-cpa.org/showproj.asp?pag_id=1529.
14
that China has sovereignty over all the disputed islands in the South China Sea, maritime zones
generated by South China Sea islands would overlap with those generated by the opposing
coastlines of the aforementioned States.
2. Dashed Line as a National Boundary
Discussion
Under this possible interpretation, the dashed line that appears on Chinese maps is intended to
indicate a national boundary between China and neighboring States.
As shown on Map 7 to this study, modern Chinese maps and atlases use a boundary symbol to
depict the dashed line in the South China Sea. Indeed, the symbology on Chinese maps for land
boundaries is the same as the symbology used for the
dashes, and the text in the legend of such maps
translates the boundary symbol as either “national
boundary” or “international boundary” (国界, romanized
as guojie). These maps also use another boundary
symbol, which is translated as “undefined” national or
international boundary (未定国界, weiding guojie), but
this symbology is not used for the dashed line. The
placement of the dashes within open ocean space would
suggest a maritime boundary or limit.
Assessment
Articles 74 and 83 of the LOS Convention provide with
respect to the EEZ and continental shelf that boundary
delimitation “shall be effected by agreement on the
basis of international law . . . in order to achieve an
equitable solution.”
41
Because maritime boundaries
under international law are created by agreement (or
judicial decision) between neighboring States, one
country may not unilaterally establish a maritime
boundary with another country. Assuming for the sake
of argument that China has sovereignty over all the
disputed islands, the maritime boundaries delimiting
overlapping zones would need to be negotiated with the
States with opposing coastlines—Vietnam, the
Philippines, Malaysia, Indonesia, and Brunei. The
dashes also lack other important hallmarks of a
maritime boundary, such as a published list of
geographic coordinates and a continuous, unbroken line
that separates the maritime space of two countries.
41
Emphasis added. See discussion under Basis of Analysis, supra.
Map 7: Symbologyon Modern Chinese
Map Depicting Dashed Line
15
To the extent the dashed line indicates China’s unilateral position on the proper location of a
maritime boundary with its neighbors, such a position would run counter to State practice and
international jurisprudence on maritime boundary delimitation. In determining the position of
maritime boundaries, States and international courts and tribunals typically accord very small
islands far from a mainland coast like those in the South China Sea equal or less weight than
opposing coastlines that are long and continuous.
42
(Map 4 above shows selected locations
where the dashes are considerably closer to the coasts of other States than to the South China Sea
islands claimed by China.)
If the dashed line is intended to depict a unilateral maritime boundary claim, this interpretation
also does not address the related question of what kind of rights or jurisdiction China is asserting
for itself within the line. The dashed line, to be consistent with international law, cannot
represent a limit on China’s territorial sea (and, therefore, its sovereignty), as the dashes are
located beyond the 12-nm maximum limit of the territorial sea of Chinese-claimed land features.
Moreover, dashes 2, 3, and 8 are not only relatively close to the mainland shores of other States,
all or part of those dashes are also beyond 200 nm from any Chinese-claimed land feature. The
dashed line therefore cannot represent the seaward limit of China’s EEZ consistent with Article
57 of the LOS Convention, which states that the breadth of the EEZ “shall not extend beyond
200 nautical miles” from coastal baselines.
43
3. Dashed Line as a Historic Claim
Discussion
Under this possible interpretation, the dashed line that appears on Chinese maps is intended to
indicate a so-called “historic” claim. A historic claim might be one of sovereignty over the
maritime space (“historic waters” or “historic title”) or, alternatively, some lesser set of rights
(“historic rights”) to the maritime space.
Some Chinese government statements and acts could be read to support a version of this historic
claim interpretation.
44
Most notable is China’s 1998 EEZ and continental shelf law, which states
42
See, e.g., Continental Shelf (Libya /Malta), 1985 I.C.J. 13, para. 73 (June 3) (considering both the “general
geographical context in which the islands of Malta appear as a relatively small feature” and “the great disparity in
the lengths of the relevant coasts of the two Parties.”). See also Nicaragua v. Colombia, supra note 17. For a
discussion of State practice and jurisprudence, see, e.g., V. Prescott and G. Triggs, “Islands and Rocks and their
Role in Maritime Delimitation,” International Maritime Boundaries, 3245-3280 (ASIL, 2005).
43
LOS Convention, supra note 14, Art. 76, paragraph 1, provides that continental shelf limits may extend beyond
200 nm. Considering the geomorphology of the seabed of the South China Sea and the absence of an assertion by
China of entitlement to continental shelf beyond 200 nm in the South China Sea, this study assumes that China does
not consider that continental shelf generated by Chinese-claimed islands within the SCS extends beyond 200 nm.
44
Considering that the dashed-line maps pre-date the People’s Republic of China, the views of Taiwan are also of
interest. In 1993, Taiwan officially approved “Policy Guidelines for the South China Sea,” which state the view that
the waters within the dashed line are its “historic water limit” within which Taiwan “possesses all rights and
interests.” Cited in K-H. Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the South
China Sea,” Ocean Dev’t & Int’l L., 41:237-252 (2010). Subsequent maritime legislation enacted by Taiwan and
subsequent public statements, however, suggests that this view may no longer be officially held by Taiwan. See id.
and Limits in the Seas No. 127: “Taiwan’s Maritime Claims,” U.S. Dep’t. of State, Nov. 15, 2005.
16
without further elaboration that “[t]he provisions of this Act shall not affect the historical rights
of the People’s Republic of China.”
45
China’s 2011 Note Verbale states that China’s position
regarding its claims of “sovereignty and related rights and jurisdiction” in the South China Sea is
“supported by abundant historical and legal evidence” (emphasis added). Although not
attributable to the government of China, some Chinese institutions and commentators have
considered that the dashed-line maps depict China’s historic title or historic rights in the South
China Sea.
46
Furthermore, some of the Chinese government’s statements and actions relating to the South
China Sea are inconsistent with the LOS Convention. While such statements and actions do not
amount to express assertions of a historic claim, they may indicate that China considers that it
has an alternative basis—such as historic title or historic rights—for its maritime claims in the
South China Sea.
For instance, the Chinese government has stated that China exercises “sovereignty” in certain
areas, or even the entirety, of the South China Sea. China’s Ministry of Foreign Affairs (MFA)
spokesperson has referred to Second Thomas Shoal as under China’s “sovereignty,”
47
despite its
location beyond the limits of any territorial sea. More expansively, an MFA spokesperson has
stated: “I would like to reaffirm that China enjoys indisputable sovereignty over the South China
Sea and the island[s].”
48
Similarly, Chinese naval vessels reportedly conduct periodic oathtaking ceremonies at James Shoal to affirm “sovereignty” over this bank. Although James Shoal
is a submerged feature far from any Chinese-claimed island, China apparently regards this
feature as its “southernmost territory.”
49
It is not clear that such references to Chinese
“sovereignty” should be taken literally, but if so, their legal basis could not be the LOS
Convention because a coastal State’s “sovereignty” under the Convention cannot extend beyond
the 12-nm limit of the territorial sea. Accordingly, it is possible that China considers the legal
basis for its claimed maritime sovereignty in the South China Sea to be one of historic waters.
In 2012 the China National Offshore Oil Corporation (CNOOC) introduced lease blocks opposite
the central coast of Vietnam that purport to be in “waters under [the] jurisdiction of the People’s
Republic of China.”
50
However, as illustrated in Map 8 to this study, quite apart from questions
45
Act, supra note 32. Article 14 (emphasis added).
46
See, e.g., Xiamen University South China Sea Institute, “New map boosts China’s claim in sea,” South China Sea
Bulletin, Vol. 2, No. 8, Aug. 1, 2014, at 1-2; Z. Gao and B.B. Jia, “The Nine-Dash Line in the South China Sea:
History, Status, and Implications,” Am. J. Int’l L. 107:98-124, 124 (2013); and Keyuan, infra notes 58 and 65.
47
MFA Spokesperson Qin Gang’s Regular Press Conference, Mar. 10, 2014, available at:
http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1136288.shtml. “It is known to all
that China has sovereignty over the Nansha Islands and their surrounding waters, including the Ren’ai Reef”
(emphases added). Ren’ai is the Chinese name for Second Thomas Shoal.
48
“China warns on South China Sea oil,” Economic Times, Sept. 15, 2011 (emphasis added).
49
“Chinese ships patrol southernmost territory,” Xinhua, Jan. 26, 2014. See also, B. Hayton, “How a non-existent
island became China’s southernmost territory,” South China Morning Post, Feb. 9, 2013 and “Loss of James Shoal
could wipe out state’s EEZ,” Borneo Post, Feb. 5, 2014. These ceremonies reportedly involve dropping steel
markers or engraved stones over the side of the ship and onto the submerged bank. Id.
50
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,” available at: http://en.cnooc.com.cn/data/html/news/2012-06-22/english/322127.html. CNOOC is “a state-owned company operating directly under the State-owned Assets
Supervision and Administration Commission of the State Council of the People’s Republic of China.” Id.
17
under Article 121 and questions of maritime
boundary delimitation, portions of two of these
blocks (BS16, DW04) extend without
explanation to waters that are beyond 200 nm
from any Chinese-claimed island (blue hatch).
This is an assertion of maritime jurisdiction that
exceeds what is provided for under the LOS
Convention.
The domestic laws of China also suggest that
China asserts a legal basis for its maritime
claims that is separate from, and additional to,
the LOS Convention. For instance, China’s
1999 Law on Marine Environmental Protection
describes its scope of application as covering
“internal waters, territorial sea, contiguous zone,
exclusive economic zone, continental shelf of
the People’s Republic of China and other sea
areas under the jurisdiction of the People’s
Republic of China.”
51
Since coastal State
jurisdiction under the LOS Convention is limited
to the aforementioned maritime zones, it is
unclear what “other sea areas” are contemplated,
and perhaps this phrase refers to areas where China considers that it has historic claims.
The assessment below examines whether there is a basis under international law for a Chinese
claim to historic waters or historic rights to the waters within the dashed line.
Assessment Part 1 – Has China Made a Historic Claim?
As a threshold matter, as the preceding discussion suggests, China has not actually made a
cognizable claim to either “historic waters” or “historic rights” to the waters of the South China
Sea within the dashed line.
A State making a historic claim must give international notoriety to such a claim.
52
As stated in
a recent comprehensive study on historic waters, “formal notification of such [a historic] claim
would seem normally to be necessary for it to attain sufficient notoriety; so that, at the very least,
other States may have the opportunity to deny any acquiescence with the claim by protest etc.”
53
51
Law on Marine Environmental Protection, 1999. Articles 2 and 39. Similar references to “other sea areas under
the jurisdiction of China” can be found in the Surveying and Mapping Law of the People’s Republic of China, 2002
(Articles 2, 7, 32, 41, and 51) and the Regulations of the People’s Republic of China on the Management of ForeignRelated Marine Scientific Research, 1996 (Articles 2, 4, 9 and 10).
52
See e.g., UN Study, supra note 20, at paras. 125-130 (concluding that there are “strong reasons for holding that
notoriety of the exercise of sovereignty . . . is required . . . .”) and para. 96.
53
C.R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Nijhoff, 2008), at 145. Emphasis
in original.
18
With respect to the South China Sea, there appears to be no Chinese law, declaration,
proclamation, or other official statement describing and putting the international community on
notice of a historic claim to the waters within the dashed line. The reference to “historic rights”
in China’s 1998 EEZ and continental shelf law is, as a legal matter, a “savings clause”; the
statement makes no claim in itself, and the law contains no reference to the dashed-line map.
54
Although certain Chinese laws and regulations refer to “other sea areas under the jurisdiction of
the People’s Republic of China,” there is no indication of the nature, basis, or geographic
location of such jurisdiction, nor do those laws refer to “historic” claims of any kind. While
China’s 2011 Note Verbale states that “historical and legal evidence” support China’s
“sovereignty and related rights and jurisdiction,” that Note, like the 1998 EEZ and continental
shelf law, is not a statement of a claim itself. Furthermore, the “historical … evidence” could
refer to China’s sovereignty claim to the islands, and not the waters.
55
The mere publication by China of the dashed-line map in 1947 could not have constituted
official notification of a maritime claim. China’s “Map of South China Sea Islands” made no
suggestion of a maritime claim, and its domestic publication in the Chinese language was not an
act of sufficient international notoriety to have properly alerted the international community to
such a claim, even if it had asserted one.
56
The various maps published by China also lack the
precision, clarity, and consistency that could convey the nature and scope of a maritime claim.
The International Court of Justice’s (ICJ) “statement of a principle” in the Frontier Dispute
between Burkina Faso and Mali describes the legal force of maps as follows:
Whether in frontier delimitations or international territorial conflicts, maps merely constitute
information which varies in accuracy from case to case; of themselves, and by virtue solely of their
existence, they cannot constitute a territorial title, that is, a document endowed by international law
with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases
maps may acquire such legal force, but where this is so the legal force does not arise solely from
their intrinsic merits: it is because such maps fall into the category of physical expressions of the will
of the State or States concerned. This is the case, for example, when maps are annexed to an official
text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic
evidence of varying reliability or unreliability which may be used, along with other evidence of a
circumstantial kind, to establish or reconstitute the real facts.
57
China’s 1958 Territorial Sea Declaration also contradicts the view that China has made a claim
of either “historic waters” or “historic rights” within the dashed line. That declaration refers to
the “high seas” separating China’s mainland and coastal islands from “all other islands belonging
to China.” The notion of “high seas” as juridically distinct from any kind of national waters and
not subject to national appropriation or exclusive use was an established rule of international law
54
Act, supra note 32, Art. 14 (“The provisions of this Act shall not affect the historical rights….” (emphasis
added)).
55
Indeed, historical evidence is relevant under the international law applicable to sovereignty disputes over land,
and this body of law is separate and distinct from the law of the sea. See, e.g., Nicaragua v. Colombia, supra note
17, paras. 66-84 (applying concepts of “critical date” and “effectivités” to the sovereignty dispute over islands).
56
Emphasis added. See also, E. Franckx and M. Benatar, “Dots and Lines in the South China Sea: Insights from the
Law of Map Evidence,” Asian J. of Int’l L., 2 (2012), 89-118 (commenting on the dashed line that “the map is of
doubtful probative value in the light of various factors fleshed out in international jurisprudence regarding map
evidence”).
57
Frontier Dispute (Burkina Faso/Republic of Mali), 1986 I.C.J. 554 (Dec. 22), para. 54. The Court’s most recent
assessment of the evidentiary value of maps is Nicaragua v. Colombia, supra note 17, paras. 96-102.
19
for centuries before China’s 1958 Declaration. Further, to the extent the 1958 Declaration makes
a historic claim, it is to a different body of water—Bo Hai (Pohai), a gulf in northeastern
China.
58
Had China considered in 1958 that the waters within the dashed line published on its
maps constituted China’s historic waters, it would presumably have referenced this in its 1958
Declaration along with its claim regarding Bo Hai. Instead, the contents of that Declaration,
particularly the reference to “high seas,” indicate that China did not consider the waters within
the dashed line to have a historic character.
The international community has largely regarded China’s dashed-line map in a manner
consistent with this view. Indeed, a comprehensive study on historic waters published in 2008
did not even discuss China’s dashed line,
59
nor has the dashed line been identified in U.S.
Government compendiums of historic waters claims in the public domain.
60
Formal
international protest of the dashed line began only after China’s issuance in 2009 of its Notes
Verbales described earlier in this study.
61
Assessment Part 2 – Would a Historic Claim have Validity?
China has not advanced a cognizable historic claim of either sovereignty over the maritime space
within the dashed line (“historic waters” or “historic title”)or a lesser set of rights (“historic
rights”) in that maritime space. If China nevertheless does consider that the dashed line
appearing on its maps indicates a historic claim, such a claim would be contrary to international
law.
Arguments in favor of China’s historic claims often note that the LOS Convention recognizes
such claims.
62
A Chinese claim of historic waters or historic rights within the dashed-line would
not be recognized by the Convention, however. The text and drafting history of the Convention
make clear that, apart from a narrow category of near-shore “‘historic’ bays” (Article 10) and
“historic title” in the context of territorial sea boundary delimitation (Article 15), the modern
international law of the sea does not recognize history as the basis for maritime jurisdiction. A
Chinese historic claim in the South China Sea would encompass areas distant from Chineseclaimed land features, and would therefore implicate the Convention’s provisions relating to the
EEZ, continental shelf, and possibly high seas. Unlike Articles 10 and 15, the Convention’s
58
Fu Chu, Concerning the Question of Our Country’s Territorial Sea (in Chinese), Peking, 1959, translation
provided in J.A. Cohen and H. Chiu, People’s China and International Law: A Documentary Study, Princeton Univ.
Press (1974), 470-79, 483-84 (stating “if bays or gulfs have important interest with respect to the national defense
and economy of the coastal states and for a long time the coastal states have repeatedly exercised jurisdiction over
the bays or gulf, they may be regarded as historic bays or gulf. . . . The Gulf of Pohai is . . . a historic bay of our
country.”) Keyuan refers to the Fu Chu document as “an official explanatory pamphlet published in China in order
to justify China’s Declaration on the Territorial Sea.” Z. Keyuan, “Historic Rights in International Law and in
China’s Practice,” Ocean Dev’t & Int’l L., 32:149-168, at 156 (2001).
59
Symmons, supra note 53.
60
See, e.g., Limits in the Seas No. 112, supra note 19, at 8-21. The Special Master in U.S. v. Alaska (545 U.S. 75)
considered “the absence of publication [on lists] has significance in international disagreements about historic
waters claims.” No. 128 Original: Report of the Special Master on Six Motions for Partial Summary Judgment and
One Motion for Confirmation of a Disclaimer of Title, Mar. 2004, at 111.
61
Protests, supra note 3 and accompanying text.
62
See, e.g., Xiamen University South China Sea Institute, supra note 46 (describing China’s maps as “high-lighting
[China’s] historic title. After all, reference to historic titles is part of the UNCLOS.”);
20
provisions relating to these maritime zones do not contain any exceptions for historic claims in
derogation of the sovereign rights and jurisdiction of a coastal State or the freedoms of all
States.
63
Because the Convention’s provisions relating to the EEZ, continental shelf, and high seas do not
contain exceptions for historic claims, the Convention’s provisions prevail over any assertion of
historic claims made in those areas. The 1962 study on historic waters commissioned by the
Conference that adopted the 1958 Geneva Conventions reached this same conclusion with
respect to interpretation of the 1958 Convention on the Territorial Sea and Contiguous Zone.
64
The 1982 LOS Convention continued this approach by retaining provisions related to historic
bays and titles that are substantively identical to those contained in the 1958 Convention. Had
the drafters of the LOS Convention intended to permit historic claims of one State to override the
expressly stated rights of other States, the Convention would have reflected this intention in its
text. Instead, as with the 1958 Convention, the LOS Convention limits the relevance of historic
claims to bays and territorial sea delimitation.
Accordingly, with regard to possible Chinese “historic rights” in the South China Sea,
65
any such
rights would therefore need to conform to the Convention’s provisions that deal with the relevant
activities. Rules of navigation are set out in the Convention, and these rules reflect traditional
navigational uses of the sea. Rules related to oil and gas development are also set forth in the
Convention, without exception for historic rights in any context. Also, rules for fishing are set
out in the Convention, including limited rules pertaining to historic uses that do not provide a
basis for sovereignty, sovereign rights, or jurisdiction.
66
As the Gulf of Maine Chamber of the
International Court of Justice noted in its 1984 judgment, the advent of exclusive jurisdiction of a
coastal State over fisheries within 200 nm of its coast overrides the prior usage and rights of
other States in that area.
67
63
In the parts of the Convention covering maritime zones, the Convention contains some provisions relating to
historic or traditional uses of the sea. Article 62(3) requires coastal States to take into account “the need to minimize
economic dislocation in States whose nationals have habitually fished” (emphasis added) in the EEZ. Article 51
also requires archipelagic States, within their archipelagic waters, to recognize “traditional fishing rights and other
legitimate activities” (emphasis added) of immediately adjacent neighboring States. Such provisions might provide
a basis for one coastal State to seek access to the fisheries of another coastal State based on prior usage. They do
not, however, provide a basis for sovereignty, sovereign rights, or jurisdiction.
64
UN Study, supra note 20, paras 72-76, discussing “‘historic waters’ as an exception to the rules laid down in the
general [1958] convention,” including how to interpret the 1958 Convention “in cases where the historic title has not
been expressly reserved in the Convention.” The Study states that, “if the provisions of an article should be found to
conflict with an historic title to a maritime area, and no clause is included in the article safeguarding the historic
title, the provisions of the article must prevail as between the parties to the Convention. This seems to follow a
contrario from the fact that articles 7 and 12 [of the 1958 Convention] have express clauses reserving historic rights;
articles without such a clause must be considered not to admit an exception in favour of such rights” (emphases
added). Id., para. 75.
65
See, e.g., references to historic rights by Z.Gao and B.B. Jia, supra note 46, at 124 (stating that the dashed line
“preserves Chinese historic rights in fishing, navigation, and such other marine activities as oil and gas development
in the waters and on the continental shelf….” ) and Keyuan, supra note 58, at 162 (stating that the “most convincing
[historic] rights that China could enjoy are fishing rights.”).
66
See supra, notes 63 and 64 and accompanying text.
67
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), 1984 I.C.J.
246 (Oct. 12), paras. 233, 235. With respect to the “invocation of historic rights, though that expression has not
been used [by the United States]…” the Chamber stated that “to the extent that [areas of U.S. historical fishing
21
It has also been argued that “historic title” and “historic rights” are “matters not regulated by this
Convention [and thus] continue to be governed by the rules and principles of general
international law” outside of the LOS Convention.
68
This position is not supported by
international law and misunderstands the comprehensive scope of the LOS Convention. The
Convention sets forth the legal regimes for all parts of the ocean. As discussed above, matters
such as navigation, hydrocarbon development, and fishing are in fact “regulated by th[e]
Convention.” Therefore, a State may not derogate from the Convention’s provisions on such
matters by claiming historic waters or historic rights under “general international law.”
Although one may need to refer to “general international law” to identify the meaning of
particular terms in the Convention—such as references to historic bays and historic title in
Articles 10 and 15, respectively—the Convention does not permit a State to resort to “general
international law” as an alternative basis for maritime jurisdiction that conflicts with the
Convention’s express provisions related to maritime zones.
Even assuming that a Chinese historic claim in the South China Sea were governed by “general
international law” rather than the Convention, the claim would still need to be justified under
such law. In this regard, a Chinese historic waters claim in the South China Sea would not pass
any element of the three-part legal test described above under the Basis of Analysis:
(1) No open, notorious, and effective exercise of authority over the South China Sea. China
did not communicate the nature of its claim within the dashed line during the period
when China might purport to have established a historic claim; indeed, the nature of
Chinese authority claimed within the dashed line still has not been clarified. Likewise,
China has not established its claims with geographical consistency and precision. As
such, it cannot satisfy the “open” or “notorious” requirements for a valid claim to historic
waters.
(2) No continuous exercise of authority in the South China Sea. There has long been
widespread usage of the South China Sea by other claimants in a manner that would not
be consistent with Chinese sovereignty or exclusive jurisdiction. Many islands and other
features in the South China Sea are occupied not just by China, but by Malaysia, the
Philippines, Vietnam, and Taiwan, and the mainland maritime claims of Malaysia, the
Philippines, Brunei, Indonesia, and Vietnam also project into the South China Sea. These
countries have all undertaken activities, such as fishing and hydrocarbon exploration, in
predominance] had become part of the exclusive fishery zone of the neighbouring State, no reliance could any
longer be placed on that predominance. Clearly, 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” (emphasis added). Id.
68
LOS Convention, supra note 14, preamble (“Affirming that matters not regulated by this Convention continue to
be governed by the rules and principles of general international law”). See, e.g., Gao and Jia, supra note 46, at 123
(stating that the LOS Convention “…was never intended, even at the time of its adoption, to exhaust international
law. On the contrary, it has provided ample room for customary law to develop and to fill in the gaps that the
Convention itself was unable to fill in 1982 [which is confirmed] in the UNCLOS preamble, which states that
“matters not regulated by this Convention continue to be governed by the rules and principles of general
international law.”)
22
their claimed maritime space that are not consistent with “effective” or “continuous
exercise” of Chinese sovereignty or exclusive rights over that space.
(3) No acquiescence by foreign States in China’s exercise of authority in the South China
Sea. No State has recognized the validity of a historic claim by China to the area within
the dashed line. Any alleged tacit acquiescence by States can be refuted by the lack of
meaningful notoriety of any historic claim by China, discussed above. A claimant State
therefore cannot rely on nonpublic or materially ambiguous claims as the foundation for
acquiescence, but must instead establish its claims openly and publicly, and with
sufficient clarity, so that other States may have actual knowledge of the nature and scope
of those claims.
69
In the case of the dashed line, upon the first official communication of
a dashed-line map to the international community in 2009, several immediately affected
countries formally and publicly protested.
70
The practice of the United States is also
notable with respect to the lack of acquiescence. Although the U.S. Government is active
in protesting historic claims around the world that it deems excessive, the United States
has not protested the dashed line on these grounds because it does not believe that such a
claim has been made by China. Rather, the United States has requested that the
Government of China clarify its claims.
71
The fact that China’s claims predate the LOS Convention does not provide a basis under the
Convention or international law for derogating from the LOS Convention.
72
The Convention’s
preamble states that it is intended to “settle … all issues relating to the law of the sea” and
establish a legal order that promotes stability and peaceful uses of the seas.
73
Its object and
purpose is to set forth a comprehensive, predictable, and clear legal regime describing the rights
and obligations of States with respect to the sea. Permitting States to derogate from the
provisions of the Convention because their claims pre-date its adoption is contrary to and would
undermine this object and purpose. Just as a State that claimed sovereignty over a 200 nm
territorial sea in the 1950s cannot lawfully maintain such a claim today, neither China nor any
other State could sustain a claim to historic waters or historic rights in areas distant from its
shores. The Convention does not permit such claims, and unless the Convention textually
recognizes historic claims—such as Article 10 concerning “bays”—the Convention’s provisions
prevail over any such historic claims. The advent of the LOS Convention, both as treaty law and
as reflecting customary international law, requires States to conform their maritime claims to its
provisions.
69
Symmons, supra note 53, at 245 (“In order to receive the required acceptance by other nations, the coastal State’s
acts of sovereignty must be known to foreign nations.”). See also, UN Study, supra notes 20 and 52.
70
Protests, supra note 3 and accompanying text.
71
See, e.g., Testimony of Scot Marciel, Dep. Asst. Sec’y of State, Subcomm. on East Asian and Pacific Affairs of
the Senate Comm. on Foreign Relations, July 15, 2009, Digest of U.S. Practice in International Law 2009, at 460-63
(“It might be helpful to all parties if China provided greater clarity on the substance of its claims”) and Testimony of
Daniel Russel, Asst. Sec’y of State, Asia and the Pacific Subcomm. of the House Foreign Affairs Comm., Feb. 5,
2014 (“China could highlight its respect for international law by clarifying or adjusting its claim …”).
72
Such a notion is reflected in, e.g., Gao and Jia, supra note 46, at 123 (stating that “In the case of the South China
Sea as enclosed by the nine-dash line, China’s historic title and rights, which preceded the advent of UNCLOS by
many years, have a continuing role to play.”).
73
LOS Convention, supra note 14, preamble.
23
Conclusion
China has not clarified its maritime claims associated with the dashed-line maps in a manner
consistent with international law. China’s laws, declarations, official acts, and official
statements present conflicting evidence regarding the nature and scope of China’s claims. The
available evidence suggests at least three different interpretations that China might intend,
including that the dashes are (1) lines within which China claims sovereignty over the islands,
along with the maritime zones those islands would generate under the LOS Convention; (2)
national boundary lines; or (3) the limits of so-called historic maritime claims of varying types.
As to the first interpretation, if the dashes on Chinese maps are intended to indicate only the
islands over which China claims sovereignty then, to be consistent with the law of the sea,
China’s maritime claims within the dashed line would be those set forth in the LOS Convention,
namely a territorial sea, contiguous zone, EEZ, and continental shelf, drawn in accordance with
the LOS Convention from China’s mainland coast and land features that meet the definition of
an “island” under Article 121 of the Convention.
74
Because sovereignty over South China Sea
islands is disputed, the maritime zones associated with these islands would also be disputed. In
addition, even if China possessed sovereignty of the islands, any maritime zones generated by
those islands in accordance with Article 121 would be subject to maritime boundary delimitation
with neighboring States.
As to the second interpretation, if the dashes on Chinese maps are intended to indicate national
boundary lines, then those lines would not have a proper legal basis under the law of the sea.
Under international law, maritime boundaries are created by agreement between neighboring
States; one country may not unilaterally establish a maritime boundary with another country.
Further, such a boundary would not be consistent with State practice and international
jurisprudence, which have not accorded very small isolated islands like those in the South China
Sea more weight in determining the position of a maritime boundary than opposing coastlines
that are long and continuous.
75
Moreover, dashes 2, 3, and 8 that appear on China’s 2009 map
are not only relatively close to the mainland shores of other States, but all or part of them are also
beyond 200 nm from any Chinese-claimed land feature.
Finally, if the dashes on Chinese maps are intended to indicate the area in which China claims
so-called “historic waters” or “historic rights” to waters that are exclusive to China, such claims
are not within the narrow category of historic claims recognized in Articles 10 and 15 of the LOS
Convention. The South China Sea is a large semi-enclosed sea in which numerous coastal States
have entitlements to EEZ and continental shelf, consistent with the LOS Convention; the law of
the sea does not permit those entitlements to be overridden by another State’s maritime claims
that are based on “history.” To the contrary, a major purpose and accomplishment of the
Convention is to bring clarity and uniformity to the maritime zones to which coastal States are
entitled. In addition, even if the legal test for historic waters were applicable, the dashed-line
claim would fail each element of that test.
74
LOS Convention, supra note 14, Article 121. Any limitations imposed by paragraph 3 of Article 121 regarding
“rocks” would also apply.
75
See Libya/Malta, supra note 42, Nicaragua v. Colombia, supra note 17, and Prescott and Triggs, supra note 42.
24
For these reasons, unless China clarifies that the dashed-line claim reflects only a claim to
islands within that line and any maritime zones that are generated from those land features in
accordance with the international law of the sea, as reflected in the LOS Convention, its dashedline claim does not accord with the international law of the sea.