In January 2013, the American Journal of International Law (AJIL, vol.107, No.1) issued a special series (Agora) on the South China Sea, which includes three articles in addition to an Editor’s Introduction. The legal debates demonstrated in the articles did help facilitate an incisively academic discussion on the subject, which is the most attractive attribute of this Agora. Why their views contrast sharply? How do the authors carry out their argument from different perspectives? This paper purports to review the points of debate in the articles and offer some comments in the end.
The South China Sea twice the area of the Sea of Japan, is now contested among six surrounding countries, namely China, Vietnam, Philippines, Brunei, Malaysia and Indonesia. There are hundreds of small islands in the South China Sea, namely uninhabited islets, shoals, reefs, banks, sands, cays and rocks, and they distribute in the form of four archipelagos i.e., the Dongsha archipelago (Pratas islands), the Xisha archipelago (Paracel islands ), the Zhongsha archipelago (Macclesfield Bank), and the Nansha archipelago (Spratly islands). However, the rest of the world knew little about these islands until early 1970s, when preliminary explorations indicated that these islands may lay atop huge untapped oil and natural gas reserves. In fact, the Dongsha, Zhongsha and Xisha archipelagos are under the control of China, where the competing claims only involve one or two countries. By contrast, the dispute in the Nansha archipelago involves the largest number of regional claimants and is extraordinarily complex.
The various claims of the six countries pose complicated legal issues and attract widespread attention. In the first month of 2013, the American Journal of International Law (AJIL, vol.107, No.1) published a special series (Agora) on the South China Sea, which includes three articles in addition to an Editor’s Introduction. Zhiguo Gao and Bingbing Jia’s article (hereinafter referred to as Gao and Jia's article) is the first in the Agora, titled The Nine-Dash Line in the South China Sea: History, Status, and Implications, elaborating China's claim through the clarification of the nine-dash line. The second article is titled A legal analysis of China's historic rights claim in the south China sea, co-written by Florian Dupuy and Pierre-Marie Dupuy ( hereinafter Dupuys’ article), doubting on the legitimacy of China's historic rights claim.The third is titled The UN convention on the law of the sea and the maritime disputes in the south China sea, focusing on the justifiability of China claiming the rights and entitlements that predate UNCLOS and the modern law of the sea, whose author is Robert Beckman (hereinafter Beckman's article). In a nutshell, apart from Gao and Jia's article, both Dupuys’ and Beckman’s articles hold the critical views on China's claim, and two sides of the argument nearly match point by point. It is safe to say that, the Agora articles present a provocatively legal debate having representativeness among the academic discussions on the topic.
Three main points of debate can be summarized from the Agora articles: the meaning and legal relevance of the nine-dash line, the meaning and nature of China’s historic rights claim, and the applicability of UNCLOS and relevant law. The purpose of this paper is to review the legal debates reflected in the articles and offer some comments in the end. Therefore, the texts of the three articles are the main reference and my analysis will follow the disagreements among them. Thus, this paper will be grouped into four sections. Sections 1 to 3 are designed to introduce and review the points of debate one by one. Section 4 will finally offer some comments and conclude with some further questions.
Ⅰ. The Meaning and Legal Relevance of the Nine-Dash Line
Although Chinese official maps embracing the four archipelagos can be formally traced back to 1930s, authors of the Agora articles without exception notice that the nine-dash line has become a focus of controversy since 2009. On May 6 of 2009, Malaysia and Vietnam made a joint submission to the Commission on the Limits of the Continental Shelf (hereinafter CLCS) with respect to the continental shelf in the southern part of the South China Sea. On 7th of May, Vietnam made a separate submission to the CLCS with respect to the continental shelf in the northern part of the South China Sea. Responding to Malaysia and Vietnam, China submitted a notes verbale to the United Nations requesting the Commission not to consider them, and the nine-dash line was depicted on the map attached to that notes verbale.
Florian Dupuy and Pierre-Marie Dupuy (Hereinafter Dupuys) raised a series of questions regarding the nine-dash line: Does the map have any effect on the contours--the geographical scope and legal justification of China’s claim? Does the map constitute legally relevant support for the Chinese claim? Or, does the map make the claim more persuasive from the perspective of an international court’s or tribunal? Thus, they set forth the argument from many aspects concerning the design, origin, implication, legal foundation of the line.
First, Dupuys start with a word “peculiarity” to describe the particular design of the line composed of nine segments encompassing virtually all islands in the South China Sea and most of its waters. Through a glance at the map, Dupuys further considered that, it quickly reveals the nine-dash line “does little to prove real clarification as to the contours, either geographical or legal of China’s claim”, “far from providing any clarification, the map only reinforces the confusion surrounding China’s claim”, and they summarized a number of reasons for it, including: First, the map’s intrinsic meaning is ambiguous for China has never provided any explanation as to the meaning of the nine-dash line and, as to whether it is meant to delimit China’s waters or to encircle insular features belonging to China. Second, the relation between the map and historic rights is unclear, for China’s intention in providing it was also ambiguity, and this uncertainty raises the question of how the map and the argument based on historic rights are related. Likewise, they also doubted the emergence of the map, considering its source and author remain unknown.
From a similar perspective, Beckman argued that the title of this map was “Map on Location of Islands in the South China Sea”, which suggests that the map was originally intended only to depict the location of the islands claimed by China in the South China Sea, and it is difficult to see how China can now assert that it has rights to, and jurisdiction over, the natural resources in and under all the waters inside the nine-dash line.
Second, the nine-dash line map as an evidence of China’s historic rights claim is also challenged by Dupuys. From their standpoint, the main factor that undercuts the probative value of the map is the “impartiality” of its origin. They pointed out that the nine-dash-line map is not, and has never been alleged to be, the product of independent cartographers, and even Chinese scholars, who argue that the map was first published in 1948 by the then Republic of China’s Ministry of Interior, thereby admit that the map has always been a unilateral illustration of the limits of China’s sovereignty. Therefore, the map itself cannot meet the standard of “impartiality”, as noted by Charles Cheney Hyde in 1933 in “Maps as Evidence in International Boundary Disputes” “When a cartographer possessed of requisite geographical data proceeds to make a map setting out political as well as physical situations, his trustworthiness as a witness must depend upon the impartiality with which he paints his picture.” Besides, another reason for the lack of reliability of the map Dupuys argued, is that the line is drawn in the most inaccurate possible way: the thickness of the line, its lack of precision, and the absence of geographical coordinates make it impossible to determine the precise area enclosed by it.
On the other side, Zhiguo Gao and Bingbing Jia (hereinafter Gao and Jia) correspondingly elaborated the justification of the nine-dash line in China’s claim and put forward the argument in a quite different way. Their overall position is that the nine-dash line has always had a foundation in international law, including the customary law of discovery, occupation, and historic title, as well as UNCLOS itself.
First, regarding the origin and the particular design of the nine-dash line, Gao and Jia traced back to historical evolution of the map in Chinese practice and detailed it in three periods: the pre-1935 history of Chinese activities in the South China Sea: peaceful and effective use; developments between 1936 and 1956; the evolution of the nine-dash line: 1958–2011, whereby prove that when and how the four archipelagos have been named, utilized by Chinese people, depicted the limits of Chinese sovereignty in map with several dashed line, and gradually confirmed by Chinese government through official administrations and legislations. In addition, Gao and Jia emphasized that, the nine-dash line map had been respected by other countries during a long history which should be supported by the customary international law like the acquiescence, recognition, and estoppel.In comparison, no opposing evidences raised by Dupuys or Beckman deny these facts.
Second, with regard to legal relevance of the line, it is interesting that, although both sides cited the similar historical origin of the nine-dash line, their views on its legal characterization are diametrically opposing. From Dupuys’ view, the nine-dash line map is a poor piece of evidence to support China’s claim for it was not the product of independent cartographers but was published by the China’s Ministry of Interior representing the government. Hence, as a unilateral illustration of the limits of China’s sovereignty, it violates the standard of “impartiality”. On the contrary, Gao and Jia look on the nine-dash line map as an evidence of China’s discovery and occupation pertaining to the acquisition of territorial sovereignty, because the circumstances of its origin can be attribute to China, for example, the publisher of the map, such as a government-appointed commission or China’s Ministry of Interior, meet the standard of the act of state. Thus, Gao and Jia proposed that:
“…the nine-dash line, after sixty years of evolution, has become synonymous with a claim of sovereignty over the island groups that always belonged to China and with an additional Chinese claim of historical rights of fishing, navigation, and other marine activities (including the exploration and exploitation of resources, mineral or otherwise) on the islands and in the adjacent waters. The lines may also have a residual function as potential maritime delimitation boundaries.
Their above proposition is based on no less than five factors, briefly including: 1) the consistency of the maps in China’s legislative and administrative practice; 2) the disputes with the relevant states in this area always concerning sovereignty over islands or insular features in such area, but not involving the nine-dash line before 2009 notes verbales; 3) the precise meaning of some relevant terms used by China, such as “adjacent waters”, “relevant waters as well as the seabed and subsoil thereof ” has never been defined by China, also, no evidence showing that China treated those waters through domestic law as if they were part of internal waters; 4) maybe that at some time in the past, the nine-dash line and its predecessors had embraced the idea of historic waters, as supported by the resolution at the 1947 China’s inter-ministry meeting, using the expression “limit of territory in the South China Sea”, which extended that limit to Zengmu Ansha, or James Shoal. 5) there is evidence suggested that the dashed lines were drawn in the 1948 atlas as if they were median lines between the islands and the opposite coasts of the neighboring states, serving a potential delimitation purpose.
In brief, what is the meaning and legal relevance of the nine-dash line map? Compare to Dupuys and Beckman’s view of “ambiguity”, Gao and Jia consider it can be best defined in view of China’s long-standing practice, as a line to preserve both its title to territory and its historic rights. Therefore, they summarize the nine-dash line into three meanings: First, it represents the title to the territory that the line encloses. That is to say, within the nine-dash line in the South China Sea, China has sovereignty over the islands and other insular features, and has sovereignty, sovereign rights, and jurisdiction--in accordance with UNCLOS--over the waters and seabed and subsoil adjacent to those islands and insular features. Second, it 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 surrounded by the line. Third, it is likely to allow for such residual functionality as to serve as potential maritime delimitation lines.
Ⅱ.The Meaning and Nature of China’s Historic Rights Claim
Regarding the historic rights claim in the South China Sea dispute, a main source of controversy is the vagueness of terminology used by the claimant countries. For example, Dupuys began their argument with stating that the term historic rights sometimes confusingly used in combination with other germane notions, such as historic waters and historic title, which seems bound to play an important part in the arguments brought by states claiming sovereignty in the South China Sea.Further, they particularly studied the recurrence of phrases in China’s claim making reference to history, such as “historic rights”, “historical rights”, “historic title”, and “historic waters”, and stated that the use of this kind of language raises two central questions: In China’s view, what is the legal relevance of historical factors? More generally, does China, by using such ambiguous and changing terminology, intend to articulate territorial claims, maritime claims, or both?”
To address the two questions, Dupuys first attempted to define the geographical and legal contours of China’s historic rights claim by looking at China’s official declarations and some scholarly literatures, then to clarify the territorial and maritime claims separately. However, they again criticized the terminology used by China, stating that, “to our knowledge, the basis for China’s broad sovereignty claim in the South China Sea has never been officially set out in clear legal terms”, and that.:
“……a review of China’s official discourse inevitably leads to the conclusion that the Chinese position is and remains essentially ambiguous. While it is beyond doubt that the recurring references to “historic rights” or “historical rights” are aimed at emphasizing China’s long-standing claim to the area as the determining factor in establishing its sovereignty, the meaning and legal relevance that China attributes to such language remain obscure. For instance, although claims invoking “fishing rights” could potentially be analyzed in terms of the fishing zones traditionally allowed to Chinese fishermen, claims invoking “historical rights,”while seemingly referring to long-established legal titles to the islands in question, provide no clear indication as to their origin, form, and geographical scope”.
Beckman criticized the ambiguity of China’s claim as well. While discussing the two potential interpretations of China’s note verbale in 2009, Beckman argued that: On the one hand, it suggests its claim to sovereignty consists only of a claim to the islands and their adjacent waters, which is likely to be referring to the territorial sea. It also suggests that the islands are entitled to EEZs and continental shelves of their own, and it makes no reference to the nine-dash-line map. These statements suggest that China might be making a maritime claim in conformity with UNCLOS. On the other hand, the statement that “China’s sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence” suggests that it may also be basing its maritime claim on historical evidence. Thus, taken together, Beckman pointed out that thus potential interpretations suggest China is maintaining a policy of “strategic ambiguity” with respect to its maritime claims in the South China Sea.
Another objection to China’s historic rights claim concerns the term “historic rights” in international law level, which itself is said being essentially ambiguous and controversial. Therewith, Dupuys argued from two aspects. First, putting it under the law of the sea, the term historic rights originates from the narrower category of “historic waters”, which was expressed by the International Law Commission as a category. However, there is no generally accepted definition of “historic waters,” and the legal regimes of “historic bays” and “historic waters” have never been spelled out in an international convention, including UNCLOS. It is significant that neither Article 7 on straight baselines nor Article 10 on bays contains any definition of these concepts.Second, in the context of title to territory, the same term is often used as a state’s possession of a legal title of ancient origin and also, in respect of a process of historical creation or consolidation of the same title through the actual, continuing display of authority by the claimant state and acquiescence by third states. However, the former refers to a legal instrument, such as a treaty of cession, as of the latter, as a mode of acquiring territory, consolidation by historic title also remains highly controversial and has been expressly rejected by the ICJ on several occasions.
By contrast, Gao and Jia view the meaning and nature of China’s historic rights claim quite differently. First of all, as discussed in the preceding section, they considered the line “has become synonymous with a claim of sovereignty over the archipelagos that always belonged to China and with an additional Chinese claim of historic rights on the islands and in the adjacent waters”. Hence, understanding of China’s historic rights claim should be bound up with discussion of the nine-dash line or its substitute, China’s title and rights in whole. In this context, Gao and Jia generalized that China’s title is based on discovery and occupation, and, alternatively, on historic title. Besides, they added that, title to territory may in particular accrue through boundary treaties.Therefore, among many sources of China’s title in the South China Sea, historic title plays a part.
To start with, Gao and Jia described China’s historic title as a product of historic development “from time immemorial”, as endorsed by the International Court of Justice in Eritrea v. Yemen case, that a historic title can potentially be established through common knowledge of the possession of a territory. By way of such type of historic title, they exemplified the case of Chinese Bohai Sea, which is considered Chinese internal waters on the strength of past practice, including the 1958 Declaration on the Territorial Sea.
Again, in comparison with the historic rights claim of other claimant countries like Vietnam and the Philippines, Gao and Jia added that, no other claim can be so characterized. They then refute the competing claims one by one. For example, Vietnam’s earliest evidence of a sovereign act is the alleged 1816 occupation of some of the Xisha archipelago. But, it was false to take it as an “occupation” that could be regarded as an independent act of state supporting a Vietnamese claim to that territory since Vietnam remained a tributary to China until 1884. Likewise, between 1887 and 1954, China dealt with France as the protecting power of Vietnam. And it is not possible to see any historic title emerging since 1956 in favor of Vietnam. Meanwhile, the 1887 Sino-French treaty allocated the islands, together with the other archipelagos in the South China Sea, to China, so, in fact, the Vietnamese claim based on historic title was definitively deprived of any effect by the 1887 Sino-French treaty. Besides, when France acted on the pretext of terra nullius in seizing the nine islets of the Nansha archipelago in 1933, the seizure could not lead to title since the islets were not terra nullius, because China had previously discovered and exercised authority over them. Further, in September 1947, when the then Chinese Ministry of the Interior formally decreed to have the four archipelagos included under the authority of the Guang Dong Province, neither France nor any other state reacted. Indeed, from 1933 to 1956, when it departed from Indochina, France performed no further sovereign acts in the region. Therefore, by 1974, France conceded to England that its title to the Nansha archipelago had lapsed.
Further, Gao and Jia clarified the doctrine of historic title playing a supplementary role in China’s claim:
“In support of the nine-dash line, Chinese lawyers have also considered the relevance of the doctrine of historic title. But given what has been stated above about discovery and about peaceful and continuous display of sovereignty by China, the doctrine of historic title is mentioned here for its supplementary role in support of the long possession that is manifest in China’s practice and that has matured into a title by discovery and occupation”.
That is to say, according to their detailed explanation, China’s historic title not only to the archipelagos, but the same provides the foundation for an additional claim—namely, to the amenities of the sea in the area—on behalf of Chinese citizens who have, generation after generation, eked out a living from the waters of the South China Sea. In the interest of proving the way of historic title in this sense, Gao and Jia quoted the Eritrea/Yemen arbitration case ((Perm. Ct. Arb. Oct. 9, 1998).In the tribunal’s view, they pointed out that, certain “historic rights” which accrued in favor of both Parties through a process of historical consolidation as a sort of “servitude internationale” falling short of territorial sovereignty, would provide “a sufficient legal basis for maintaining certain aspects of a res communis that has existed centuries” for populations on both sides of the Red Sea. In finding that each party to the arbitration had sovereignty over certain islands in question, the tribunal stressed that the finding included “the perpetuation of the traditional fishing regime in the region” and that, around the islands that the award assigned to Yemen, Yemen was expected to ensure the preservation of the existing regime of “free access and enjoyment for the fishermen of both Eritrea and Yemen” for the benefit of “this poor and industrious order of men.” The rationale was that the parties, as expressed through their agreement to arbitrate, sought to promote “the establishment and the development of a trustful and lasting cooperation between the two countries.”
In addition, with regard to enquiries about the differences between the notions like “historic rights” and “historic title”, often interchangeably used by China, they argued that the tribunal in the Eritrea v. Yemen case did not distinguish “historic rights” from “historic title”. Also, they quoted some other international tribunal cases as references. For example, in Continental Shelf case (Tunis. v. Libya, 1982), the ICJ stated that “historic titles must enjoy respect and be preserved as they have always been by long usage.” Such rights or titles were concerned with swimming species and sedentary species in the Mediterranean. Again, the issue of historic fishing rights, raised by Tunisia in the instant case, did not affect the delimitation of the continental shelf claimed by it and Libya, but it did show the significance of historic fishing rights in the context of maritime claims in which access to resources is a central issue. Thus, they explained that, the disputes in the South China Sea are obviously of such a kind.
In brief, with regard to China’s historic rights claim, Dupuys and Beckman mainly based their analysis on the terms and principles of UNCLOS, such as historic waters, historic bays, entitlement of EEZ and continental shelf etc., so they view the claim “ambiguous”, or with quite incomprehension. By contrast, Gao and Jia define China’s historic rights claim as a result of historic development “from time immemorial”, which means the rights do not entitled by UNCLOS but the common knowledge of possession of a territory. In this sense, the issue of the applicability of UNCLOS and relevant law deserves further discussion, then we will continue in the next section.
Ⅲ. The Applicability of UNCLOS and Relevant Law
The issue of law applicable in the South China Sea, particularly the application of UNCLOS was extensively discussed in the Beckman’s article. In the first paragraph, Beckman admitted the claimant states have competing claims to territorial sovereignty over the islands in the South China Sea, and UNCLOS does not address questions of sovereignty over land territory. Its provisions on coastal state jurisdiction assume such sovereignty. However, he next pointed out that, although UNCLOS contains no express provisions to assist states in determining competing claims to sovereignty over land territory, it contains extensive provisions concerning the nature and extent of permissible maritime claims and the settlement of disputes regarding such claims. Therefore, throughout the article, Beckman committed to link the South China Sea dispute to applying UNCLOS, and he created a seemingly complex hypothesis that:
“If the states bordering the South China Sea comply in good faith with the applicable provisions of UNCLOS, then the maritime disputes will be clarified, and a framework will be established that will enable the claimants to set aside the sovereignty disputes over land territory and to cooperate in the areas of overlapping maritime claims. By contrast, if one or more states bordering the South China Sea assert maritime claims that are not in conformity with UNCLOS, other states may have no choice but to resort to the Convention’s dispute settlement procedures in order to obtain a legally binding determination of the validity of those claims.”
Next, his argument was divided into three parts which heavily relied on the test of the above hypothesis. First, he offered an overview of the dispute in the South China Sea and pointed out that, although all of the states bordering the South China Sea claim a territorial sea, an EEZ, and a continental shelf from their archipelagic baselines or baselines along their mainland coasts, the precise locations of the outer limits of some of their EEZ and continental shelf claims remain unclear.Because of geographic features in that region, he again questioned that, what maritime zones would be generated by offshore features in the South China Sea? In compliance with the principle that “the land dominates the sea”, maritime zones can be generated only from land territory over which a state has sovereignty. Thus, UNCLOS makes important distinctions between offshore geographic features such as islands, rocks, low-tide elevations, artificial islands, installations, and structures, and submerged features. However, since the majority of features in the South China Sea are not above water at high tide, the claimant states have also not clarified which features they believe are islands. Nor have they clarified what maritime zones they are entitled to claim from such islands.
Next, Beckman examined the evolving positions of the claimant states bordering the South China Sea. From a comparison perspective, he first introduced the evolving position of Malaysia, the Philippines, and Vietnam on offshore islands, next China. Interestingly, Beckman here set out another presupposition that, “it would be in the interests of Malaysia, the Philippines, and Vietnam to take the position that the small features in the South China Sea that are beyond their mainland and archipelagic baselines and that meet the definition of an island because they are above water at high tide should be entitled only to territorial seas and not to EEZs or continental shelves. The maritime areas closest to the coasts of the ASEAN claimant states, where most, though not all, of the hydrocarbons are located, would be outside the areas in dispute.” Then, according to Beckman’s examination, a set of evidences prove Malaysia, the Philippines, and Vietnam are gradually moving to adopt a position similar to the assumptions outlined above. One of their most significant development is that: in their submissions to the Commission on the Limits of the Continental Shelf (CLCS), Malaysia and Vietnam claimed an EEZ only from their mainland coasts. They did not assert any claim from any of the islands beyond their mainland coastal baselines over which they claim sovereignty, and so on.
After that, Beckman turned his voice pointedly at the different evolvement of China’s position on the South China Sea. He stressed that “whereas Malaysia, the Philippines, and Vietnam seem to be taking steps to bring their claims into conformity with UNCLOS, China seems to be moving to assert maritime claims based not JUST upon UNCLOS but also upon history”. Thereby, China’s sovereignty claim was criticized by Beckman again for lack of addressing the issue that whether it is claiming sovereignty over geographic features that do not meet the definition of an island under UNCLOS. He reasoned that, for example, one of the four archipelagos over which China claims sovereignty is Zhongsha archipelago, however, Zhongsha archipelago is reported to be a sunken reef that remains completely submerged even at low tide. If so, it could not be subject to a claim of sovereignty because, claims to sovereignty can be made only to land territory—that is, to features that meet the definition of an island.
Similarly, the problem that China does not distinguish between insular features that qualify as “islands” within the meaning of UNCLOS (and which would thereby generate rights to a full EEZ and continental shelf) and those qualifying as “rocks” (which would thereby generate rights only to internal and territorial waters) has also pointed out by Dupuys in their article. Nevertheless, by which argument, they viewed China’s maritime claim is of “uncertainty”, but did not simply assert that it deviate from UNCLOS.
Finally, Beckman also discussed UNCLOS dispute settlement regime and the maritime disputes in the South China. In this part, his statement implies that the negotiation approaches for provisional joint-development arrangements highly rely on China limiting its claims of entitlement to maritime zones measured from islands in conformity with UNCLOS. If China limited its claims in conformity with UNCLOS, he stated that, “it would not claim sovereignty over features other than islands as defined in UNCLOS or claim historic rights to marine areas or resources as such”. Hence, mainly based on the above reasons, Beckman expressed a “seriously” critical conclusion in the end:
“China itself has created a major obstacle to implementing this approach (applying UNCLOS). It appears to be asserting jurisdiction over the waters and seabed and subsoil of the South China Sea based on historic rights and entitlements that predate UNCLOS and the modern law of the sea; China's position threatens the entire legal regime established under UNCLOS; It engages the fundamental interests in the law of the sea not only of the states bordering the South China Sea but of all states with an interest in the law of the sea and in the continuing vitality of UNCLOS; Unless China is willing to bring its maritime claims into conformity with UNCLOS, it will continue on a legal collision course.”
In comparison, however, Gao and Jia explored the issue of law application from the perspective of two legal systems. That is to say, no treaty can exhaust the rules of international law. China’s alleged title to the archipelagos and relevant waters within the nine-dash line based on the laws include but no limited UNCLOS. On the one hand, the disputes in the South China Sea are chiefly concerned with territorial sovereignty over certain archipelagos, which often resulted from the customary law. On the other hand, the legal nature of the waters adjacent to them is mainly to be regulated by UNCLOS. Accordingly, they pointed up China’s legal foundation of both title and rights in the South China Sea.
First, with respect to evidences and facts concerning discovery and occupation, they stated that, the Chinese people have, without challenge, enjoyed and exercised certain rights in the South China Sea throughout recorded history. The evidence of China’s discovery of the islands in the South China Sea, which preceded the Philippines’ and Vietnam’s discovery of them by many years, is simply overwhelming, and the nine-dash line reflects that long attachment of the Chinese nation to the South China Sea. Also, at the early stages of modern international law, discovery might have been sufficient to establish title to sovereignty. Regarding acquisition based on occupation, acts of occupation by a sovereign state of a piece of land territory must be preceded by a finding of terra nullius with respect to the territory concerned. The finding of terra nullius is for the occupying state to make at the time of occupation, and it cannot be lightly assumed. When terra nullius is said to occur due to lapse of authority or abandonment, there must be a showing of “definite renunciation” on the part of the abandoning state. Abandonment or dereliction is “effected through the owner-state completely abandoning territory with the intention of withdrawing from it forever, thus relinquishing sovereignty over it.” In this connection, the form of occupation known as symbolic annexation may also play a role in the case of the South China Sea, where “very little in the way of the actual exercise of sovereign rights” may equally suffice to establish the Chinese title by discovery and occupation.
Second, recognition, acquiescence, estoppel in the acquisition of territory also play important role for the perfection of a title. For example, the important cases of recognition include the French and Vietnamese recognition of China’s claim of sovereignty over the islands in the South China Sea between 1887 and 1959 --in particular, by the 1887 Sino-French boundary treaty and the Vietnamese recognition of the 1958 Chinese Declaration on the Territorial Sea. Again, the Chinese ownership of the island groups in the South China Sea has been commonly indicated in maps produced world-wide, including China Sea Pilot, produced by the British admiralty in 1912, and so on. Besides, regarding the cases of acquiescence, for example, from 1948 to 2009, neither the Philippines nor Vietnam protested against the nine-dash line.All in all, as Gao and Jia stated in the article, after the Second World War and over the course of the next sixty years, the Chinese governmental proclamation came to be consolidated as a statement combining title and rights. During the six decades in question, the nine-dash line, which defined and preserved China’s territorial title and historic rights of various kinds, had never been protested by any state.Thus, the doctrine of historical consolidation was also considered being helpful to strengthen the Chinese claim to historic title to the islands of the South China Sea and other historic rights within the dashed lines, although the doctrine itself is highly controversial and cannot replace the established modes of acquisition of title under international law.
Third, China has not disregarded or violated the provisions of UNCLOS, to which it is a party. In the introduction part, Gao and Jia explained that, this article attempts to show that the line, albeit based in customary law, does not in its current form contradict China’s obligations under UNCLOS. Rather, by virtue of the wider scope of the rules of customary international law, the line supplements what is provided for under UNCLOS.Again, in the conclusion part, they repeatedly stressed that, the nine-dash line does not contradict the obligations undertaken by China under UNCLOS. Rather, it supplements what is provided for in the Convention. While UNCLOS is a comprehensive instrument of law, it 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—due to the inherent limitations of a multilateral process of drawn-out negotiations.
In brief, Dupuys and Beckman, as well as Gao and Jia, they all don’t deny the applicability of UNCLOS itself, but their approaches to evaluate the legal foundation of China’s claim do not correspond with each other indeed. In Beckman’s view, although UNCLOS contains no express provisions in determining sovereignty over land territory, it contains provisions concerning the nature and extent of permissible maritime claims and the settlement of disputes, thus Beckman criticized that China based its claim “not only upon UNCLOS, but also upon history”. However, according to Gao and Jia, China has relied on historical records only to show that its title to the four archipelagos and relevant waters in the South China Sea has a basis both in law and fact. Meanwhile, the fact involves the application of customary law for custom relies primarily on evidence of state practice. Hence, China’s historic title and rights preceded the advent of UNCLOS by many years, do not mean China disregards application of UNCLOS.
Ⅳ. Comments and Questions
Having reviewed the legal debates demonstrated in the Agora articles, this paper familiarizes the reader of what issues and points have been raised by those scholars on the subject. In sum, according to Gao and Jia's article, China's claim in that region is always clear and definite, which has been confirmed by China's official declarations and legislations, and depicted by the nine-dash line map. China's claim is a combination of title and rights, which means China has the territorial title over the islands and insular features enclosed by the nine-dash line, and has historic rights over the relevant waters (i.e. adjacent waters surrounding the four archipelagos within the nine-dash line). However, there has been criticism that China’s claim “does not meet standards of public international law; Mere reliance on alleged historical evidence of the kind invoked by Chinese commentators is insufficient to establish sovereignty over the waters enclosed by the nine-dash line or the islands of the South China Sea. China's assertiveness and its reiteration of indeterminate claims do not constitute, from a legal perspective, a position that is even minimally persuasive”. Therefore, the question should be, why the two opposing views meet squarely on the issue in the argument?
First of all, the disagreements showing in the Agora articles can be explained in light of the preferences of authors. As Martti Koskeniemi points out, “the objectives of international law appear differently depending on one’s standpoint. International law certainly seeks to realize the political values, interests and preferences of various international actors.” Hence, it would not be uncommon when different lawyers construe the same law differently.
In the case of Beckman’s article, his argument is based on a series of hypotheses which are obviously in the interests of Malaysia, the Philippines, and Vietnam. For example, at the very beginning, the first hypothesis he established is that, if the states comply in good faith with the provisions of UNCLOS, the maritime disputes will be clarified and a framework will be established to enable them to cooperate. Next, he admitted that it is in the interests of Malaysia, the Philippines, and Vietnam, but not China, to base their claims exclusively on the UNCLOS. Following this logic, he then separately examined the evolving positions of Malaysia, the Philippines, Vietnam, and China. Thus, of course, his findings would be in favor of Malaysia, the Philippines, and Vietnam, showing that they are “gradually moving to base their positions on the UNCLOS”, because those countries would be naturally motivated by their interests. On the contrary, although China’s nine-dash line or historic rights claim, as Gao and Jia clarified in their article, does not contradict China’s obligations under UNCLOS, and not disregard or violate the provisions of UNCLOS, Beckman, still seriously concluded that China, who base its claim not only upon UNCLOS but also upon history, threatens the entire legal regime established under UNCLOS. So, in this context, Beckman’ preference is quite evident.
Debates on the nine-dash line map also show the preference of the authors. For example, when the map was formally published by China’s Ministry of Interior in 1948, the map itself became not only a description of China’s territory limitation, but also an available declaration of sovereignty, which met the standard of the act of state for the purpose of territory acquisition. However, Dupuys considered it from a completely different perspective, when they denied its probative value just because its origin was not from independent cartographers, but from those having government background, stating that it is insufficient by the standard of a pure evidence--“impartiality”, which shows that, the authors used different standards to realize their different objects.
The second noteworthy point is the view of “ambiguity” about China’s position, which finds expression in the critiques of the nine-dash line as well as historic rights claim. Why cannot the critics understand the legal “language” or “terminology” used by China, and keep on considering it to be “vague”, “uncertain”, “obscure”, etc.? The legal foundations of China’s claim concern two legal systems, in particular including the customary international law predating the UNCLOS. However, Dupuys and Beckman insisted on applying the concepts and principles of UNCLOS to evaluate China’s position. For example, regarding the concept of “historic right”, Gao and Jia explained that, with reference to some international tribunals, it is not necessary to distinguish “historic right” from “historic title”, and that China’s historic title or right does not derive from UNCLOS, but is a product of time-immemorial historic development. In contrast, Dupuys argued that the terms “historic right” originate from the notions of “historic waters”, and “historic bays” in UNCLOS, all the terms alike being ambiguous and controversial. Therefore, trapped in the terms and provisions of the UNCLOS may be another important reason that why some academics are puzzled by the terminology used by China.
The third point worth noting is about the definition of “island” in UNCLOS and its relevance to the doctrine of territory acquisition, which has been repeatedly emphasized by Dupuys and Beckman. Article 121(1) of UNCLOS defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide”. However, many features in the South China Sea, particularly the Zhongsha archipelago, are reported to be sunken reefs which remain completely submerged even at low tide. Therefore, they argued that, if China's claim is to all of the islands, rocks, reefs, and shoals in the four archipelagos, it could not be subject to a claim of sovereignty, because claims to sovereignty can be made only to land territory. However, the problem is, as Gao and Jia explained that, China’s title and rights have formed and matured before UNCLOS, then how could it be regulated by UNCLOS? Hence, some questions may deserve further discussion:
1. Before UNCLOS, there were no uniform or universally accepted definitions of “island” and “archipelago”, let alone concepts of EEZ and continental shelf, then there was no need to distinguish island, non-island, or other features in the international law level when China first established title and rights in the region. In fact, China has consistently regarded all the small islets, shoals, reefs, banks, sands, cays and rocks in the South China Sea as “islands”, and the island groups as “qundao” or ”archipelago”, all being integral parts of its territory, since China discovered and occupied them. So far, no evidences of the competing countries, such as Malaysia, the Philippines, and Vietnam can deny or overweigh those of China. Therefore, what deserves emphasizing is that, in a territorial controversy, a lawyer will face a concrete dispute involving the conflicting claims of usually two opponents. For him, the important question is not “what title is good under international law”, but rather “which title is the better one”. Accordingly, to quote Schwarzenberger, he is “not concerned with the elaboration of the general rules governing title to territory, but with the relative superiority of the evidence produced by the parties”.
2. Some islets, shoals, reefs, banks, sands, cays and rocks in the South China Sea may not meet the current definition of “island” in UNCLOS, but it cannot simply be deduced that, they could not be the objects of territory acquisition, because the concept of “territory” in the international law is a “space”, never limited to “land territory”. Further, the purpose of the definition of “island” in the law of the sea is to make sure that smaller bodies, such as rocks and uninhabitable islets, could not be so used as to measure maritime zones around them, but not to deny them being a “territory”. There may, of course, be exceptions. For example, in the Anglo-French Continental Shelf case, the United Kingdom challenged France's interpretation on this matter. The United Kingdom argued that there existed contemporary British practice which treated the Eddystone Rock as an island for all purposes including the use of the low-water line around the island for the maritime zones. Without taking a position on the precise legal status of Eddystone Rock, the Court of Arbitration found that it should be treated as a relevant-point for the delimitation of the continental shelf boundary in the Channel.
3. According to the Article 46(b) of UNCLOS, the four island groups, namely Dongsha, Zhongsha, Xisha and Nansha in the South China Sea actually qualify the definition of “archipelago”, which “means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such”. Therefore, it is of legality and feasible for China to measure the maritime zones around the four archipelagos by drawing straight baselines separately. For instance, in 1996, China announced the straight baselines for Xisha archipelago. Meanwhile, putting aside the controversy about the definition of the “island”, people scarcely doubt whether the “archipelago” is a type of “land territory”. Also, the rules of acquisition of “mid-oceanic archipelago” have been lack of specific discussion.
4. If the ownership of land territory were certain, its maritime claims would also be certain for the scope of territorial sea and maritime zones can simply derive from the application of UNCLOS. Therefore, it could not be simply said that China’s maritime claim in the South China Sea is uncertain, because China’s territorial claims to the four archipelagos have remained stable and certain, as Dupuys admitted in their article.Thus, the problem arising from China’s maritime claim, as currently criticized by Dupuys and Beckman, should be attributed to the un-known locations of the outer limits of China's EEZ and continental shelf in the South China Sea. However, it should be noted that, to date, there are plenty of countries that have not announced the outer limits of their EEZs and continental shelves. In this sense, China has the right to determine when to announce the precise locations of the outer limits of its EEZ and continental shelf in the South China Sea in accordance with UNCLOS.
The legal debates reflected in the three articles did help facilitate an incisively academic discussion on the South China Sea, which is the most attractive attribute of this Agora. Meanwhile, what I find particularly interesting from their disagreements is that, to some extent, the severe controversy on the subject results from the different theoretical perspectives and epistemological assumptions of the authors. Generally speaking, among all the key points of debate, the nine-dash line is the most disputable issue. From Gao and Jia’s standpoint, the line has represented synonymous with China’s claim in the South China Sea since Chinese government drew and announced the line map in 1948. Hence, how to explain the meaning and legal relevance of the line is crucial, and, therewith the law applicable is vital. Dupuys and Beckman analyses the subject mainly by applying some principles of UNCLOS and modern law of the sea, however, Gao and Jia base their argument on two legal systems in particular including customary law predate the advent of UNCLOS. Thus, authors of the Agora articles arrived at opposing conclusions for their usage of different legal rules in essence. Therefore, the Agora articles are not exhaustive and there are some other theoretical questions, as I summarized, may deserve further discussion in the future. Besides, UNCLOS is also not all-embracing, in face of some issues outside the convention, we should trace back to the sources of international law, which is generally accepted that the legal norms emanating from states' own free will. Thus, China's combination claim over land territory and maritime area in the South China Sea constitutes part of the accumulation of state practices and may help enrich the development of the law of the sea.