Despite its existence on the Chinese maps for more than six decades, the U-shaped line, as a traditional maritime boundary line of China in the South China Sea, has never received a wide recognition in the world community, much less by the other claimant states in the South China Sea. The U-shaped line is a legal conundrum not only for China but also for the world community, particularly after the map with the U-shaped line, together with China’s Notes Verbale with respect to the claims to the outer continental shelves made by Malaysia and Vietnam, were submitted to the UN Commission on the Limits of Continental Shelf in May 2009. This article discusses China’s recent practice relating to the U-shaped line as well as the external factors that affect the validity of the
line and tries to unravel the legal puzzle posed by the line.
The U-shaped line in the South China Sea is the line with nine segments displayed on
Chinese maps. Its official Chinese name is “traditional maritime boundary line” (chuantong
haijiang xian) though it is referred to in different ways, such as the U-shaped line,1 nine-interrupted-lines,2 the nine-dashed intermittent line,3 the line of “national boundary,”4 the
“dotted-line,”5 the “dashed lines,”6 the tongue-shaped line,7 as well as “the Chinese border.”8
Despite the existence of all these varied names, the U-shaped line name is what I use in
this article.
More than a decade ago I published a long paper addressing the U-shaped line in the
International Journal of Marine and Coastal Law.9 As one of the pioneer papers specifically
addressing issues concerning the U-shaped line,10 it has been widely cited. Numerous other
papers have been published.11 Though there have been academic discussions and debates
on the line, the Chinese position on either side of the Taiwan Strait remains ambiguous
with there being no official explanation of the line. It is unknown whether what China
claims within the line is its national territory, including the islands, underwater rocks, the
seabed, and the water column. In recent years, the discussion and debate on the U-shaped
line has intensified, particularly after China attached the map with the line to its diplomatic
note protesting the submissions of outer continental shelf by Vietnam and Malaysia to
the Commission of the Limits of the Continental Shelf (CLCS) in 2009.12 In this article, I
reexamine the U-shaped line by taking into account recent developments and commentaries.
Brief Background
The South China Sea is categorized as semienclosed sea under the United Nations Conven-tion on the Law of the Sea (the LOS Convention).13 It is surrounded by six countries—China,
Vietnam, the Philippines, Brunei, Malaysia, and Indonesia—and has an area of 648,000
square nautical miles, twice the area of the Sea of Japan.14 There are hundreds of small
insular features in the South China Sea, which are uninhabited islets, shoals, reefs, banks,
sands, cays, and rocks in the form of four groups of islands and underwater features: the
Pratas Islands (Dongsha Qundao), the Paracel Islands (Xisha Qundao), the Macclesfield
Bank (Zhongsha Qundao), and the Spratly Islands (Nansha Qundao). The Pratas Islands
are under the firm control of Taiwan. No competing claims exist there under the current con-ception of “One China.” For the Macclesfield Bank, the only claimant is China (mainland
China and Taiwan).15 The Paracel Islands are under the control of the People’s Republic of
China, though contested by the Vietnamese. The dispute over the Spratly Islands is the most
complicated since it involves as many as six parties (mainland China, Taiwan, Malaysia,
Vietnam, the Philippines, and Brunei), all of whom have made claims over the Spratly
Islands, the whole or in part, and their surrounding water areas.
China’s claim to the South China Sea is based on the U-shaped line. The line first
appeared on the map in December 1914, which was compiled by Hu Jinjie, a Chinese
cartographer,16 but only included the Pratas and the Paracels. In 1935, the Committee of
Examining the Water and Land Maps of the Republic of China published the names of 132
islets and reefs of the four South China Sea archipelagos. The publication had an annexed
map which marked the James Shoal at the location of about 4◦ north latitude, 112◦ east
longitude, though there was no demarcation of the line on the map. On 1 December 1947,
the Chinese Ministry of Interior renamed the islands in the South China Sea and formally
allocated them into the administration of the Chinese Hainan Special Region.17 Meanwhile,
the same ministry prepared a location map of the islands in the South China Sea, which was
first released for internal use.18 In February 1948, the Atlas of Administrative Areas of the
Republic of China was officially published, in which the above map was included. This is
the first official map with the line for the South China Sea. It has two general characteristics:
the southernmost end of the line was set at 4◦ north latitude, thus including the James Shoal;
and an eleven-segment line was drawn instead of the previous continuous line. According
to the official explanation, the basis for drawing the line was: “[t]he southernmost limit
of the South China Sea territory should be at the James Shoal. This limit was followed
by our governmental departments, schools and publishers before the anti-Japanese war,
and it was also recorded on file in the Ministry of Interior. Accordingly it should remain
unchanged.”19 The map is official and, therefore, different from those previously drawn by
individual cartographers. Since 1948, maps officially published in both mainland China
and Taiwan are the same regarding the line.
The publication of maps in the People’s Republic of China is subject to the approval of
the competent government agency—the State Surveying and Mapping Administration. The Regulations on the Management of Map Compilation adopted in 1995 provide that China’s
historical boundaries from 1840 up to the founding of the People’s Republic of China in
1949 should follow the standard exemplary map, which is jointly prepared by the Foreign
Ministry and the competent surveying and mapping department of the State Council.20 The
Regulations on the Management of the Review and Approval of Maps give the authority
to the competent surveying and mapping department of the State Council to review and
approve maps with national boundaries.21 Since illustrative maps of China concern state
sovereignty and territorial integrity, the preparation of such maps must follow the standard
map issued by the State Council, with special attention to the important islands such as
Taiwan Island, the islands in the South China Sea, and the Diaoyu Islands.22 It has been
warned that the absence of the South China Sea limit line on a map would cause diplomatic
difficulties.23
While mainland China has remained silent on the line, Taiwan’s attitude is more
assertive. In 1993 the Taiwanese government adopted South China Sea Policy Guidelines.
Taipei indicated that it regarded the entire area within the U-shaped line as its historical
waters—“the South China Sea area within the historic water limit is the maritime area
under the jurisdiction of the Republic of China, in which the Republic of China possesses
all rights and interests.”24 However, recent developments indicate that Taiwan has retreated
from its original position. For example, in its draft Territorial Sea Law, the water areas in
the South China Sea were regarded as “historic waters” but on the second reading in the
Legislative Yuan, this wording was dropped.25 In this sense, the positions of the two sides
across the Taiwan Strait remain ambiguous again. As commented by Hasjim Djalal, the
positions of China and Taiwan on the South China Sea are very similar.26 However, in this
article, I examine only the recent practices of mainland China concerning the U-shaped
line.
Defending and Enhancing the U-Shaped Line
While there is no official explanation from China regarding the U-shaped line, China has
recently reinforced its claims within the line. In addition to fisheries operations carried out
by the Chinese fishermen in the South China Sea, China has made numerous moves in
support of the line.
Maritime Policing
The China Maritime Surveillance, established in 1998 and subordinated to the State Oceanic
Administration, is mandated to carry out the following: (1) to cruise at sea in order to
safeguard the national maritime interests; (2) to monitor and maintain surveillance of the
marine environment; (3) to investigate, obtain proof and inspect pollution incidents; (4) to
be in charge of work relating to marine pollution from oil exploration and exploitation; (5)
to be in charge of dumping at sea; (6) to be in charge of the laying of submarine cables and
pipelines; and (7) to be in charge of foreign marine scientific research in China’s sea areas.27
In February 2007, the State Council approved a program of regular rights safeguarding law
enforcement patrols to be carried out by China Ocean Surveillance in the Yellow Sea and the
South China Sea. In 2008, China Maritime Surveillance began its regular law enforcement
patrols covering all sea areas within China’s jurisdiction from the mouth of Yalu River to
James Shoal.28 It is reported that the China Haijian 83 followed and kept watch on the
USNS Impeccable in the South China Sea in March 2009 and the China Haijian 84, which
is a new and more advanced surveillance vessel, joined the South China Sea Brigade of the
China Maritime Surveillance in May 2011. As of May 2011, the South China Sea Brigade
was equipped with 13 vessels and 3 aircraft.29
In addition, law enforcement is being conducted by other government departments, in-cluding those with respect to fisheries management. The Bureau of Fisheries Management
and Fishing Port Superintendence was established in 1978 and 4 years later transferred to
the Ministry of Agriculture. Under the bureau, there are four direct fishing divisions—the
Yellow, Bohai, East, and South China Seas. In March 2009, China’s largest fishing surveil-lance vessel Yuzheng 311 was dispatched to the South China Sea. According to the Chinese
Foreign Ministry, the Chinese government is paying great attention to the management of
fisheries production in the South China Sea and the Chinese vessel was sent there to carry
out regular tasks relating to fishery administration.30 Mischief Reef is used as a base for
fisheries administration. On 23 June 2010, the Yuzheng 311, together with another fish-ing administration vessel, forced Indonesia warships to release a detained Chinese fishing
vessel in the sea area 57 nautical miles from the Natuna Islands, from which Indonesia
claims an exclusive economic zone (EEZ) that China does not recognize.31 The above
water area is within the U-shaped line. The China Ocean Surveillance sent Haijian 81 and
Haijian 83 to the South China Sea and put a sovereignty tablet on James Shoal in April
2010.32
China has intensified its maritime law enforcement patrols in the South China Sea. The
South China Sea Brigade of the China Maritime Surveillance increased its patrol journeys
from 2 in 2001 to 24 in 2008.33 According to the Law Enforcement Bulletin 2008, China
Maritime Surveillance sent 113 vessels/time and 242 aircraft/time, monitoring 285 foreign
vessels/time and 43 foreign aircraft/time, including stopping illegal foreign activities in
outer continental shelf investigations in 200834 while in 2010, the numbers increased to
188 vessels/time, 523 aircraft/time, monitoring 1303 foreign vessels/time, and 214 foreign
aircraft/time.35 In addition, two China Maritime Surveillance branches were created in 2010
for the South China Sea—the 10th Branch stationed in Haikou and the Law Enforcement
Branch for the Paracel, Spratly, and Macclesfield Islands.36
Wednesday, 1 February 2012
Article 14 of the EEZ Law
On 26 June 1998, China officially promulgated the Law on the Exclusive Economic Zone
and the Continental Shelf in which Article 14 provides that “the provisions of this Law shall
not affect the historic rights enjoyed by the People’s Republic of China.”37 It is generally
agreed that this section is connected to China’s claim to the South China Sea within the
U-shaped line. However, instead of using the term “historic waters,” China wisely chose
the more softened term “historic rights.” The provision of the EEZ Law on historic rights
can be understood as follows: (1) it might be mean that the sea areas which are not part of
China’s EEZ and/or continental shelf should have the same legal status as the EEZ and/or
continental shelf; (2) it might mean that the sea areas which embody China’s historic rights
include undefined areas beyond the 200-nautical-mile limit; or (3) it might mean that the
sea areas that embody China’s historic rights which are within the 200-nautical-mile limit
can have an alternative management regime different from the EEZ and or continental shelf
regime.38
While China asserts its historic rights in the South China Sea, it is to be noted that since
such “historic rights” are contained in the 1998 Law on the EEZ and Continental Shelf, they
may not be treated as equivalent to “historic waters” as generally understood in international
law. Having said that, it is also to be noted that in other Chinese legislation the wording such
as “other sea areas within China’s jurisdiction” has been used in addition to the internalwaters, territorial sea, EEZ, and continental shelf. An example is the amended Law on
Marine Environmental Protection of 1999.39 Article 2 provides that “the Law shall apply
to 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” (emphasis added). The original 1982 Law contained the same
wording.40 It is unknown where “other sea areas within China’s jurisdiction” are located.
One possibility is that it might refer to the sea areas within the U-shaped line that China is
unable to claim as part of its territorial sea, EEZ, or continental shelf.
As early as April 1986, Liu Huaqing, the then commander of the Chinese Navy stated
that “the sea areas which should be under our jurisdiction are more than three million
square kilometres,”41 which may be based on the following calculation: in the Yellow Sea,
an equidistance line for delimitation with the Korean Peninsula; in the East China Sea, a
delimitation with Japan the middle line of the Okinawa Trough according to the principle
of natural prolongation; and, in the South China Sea, the sea areas within the U-shaped
line in addition to the EEZ east of Taiwan.42 According to a Chinese source, the areas in
the South China Sea encroached upon by other states are as follows: Vietnam, 1,170,000
square kilometers; the Philippines, 620,000 square kilometers; Malaysia, 170,000 square
kilometers; Brunei, 50,000 square kilometers; and Indonesia, 35,000 square kilometers.43
These estimations are based on the use of the U-shaped line.
Oil Exploration Lease in Vanguard Bank
While the fishery activities do not sufficiently explain the Chinese stance to the line, a
lease of an oil exploratory block in the South China Sea to a foreign oil company may have
profound significance for the line. In May 1992, Beijing granted a concession to the Crestone
Energy Corporation to explore oil in a 7,347 square-nautical-mile area between Vanguard
Bank (Wan’an Tan) and the Prince of Wales Bank (Guangya Tan), 160 nautical miles
from Vietnam’s coast.44 Since China had not declared its EEZ at that time, some scholars
assumed that the Crestone concession reflected China’s view that it was asserting sovereign
authority over the waters and resources within its “nine-interrupted-lines” historic claim.45
The assumption is plausible since the block is situated around a permanently submerged
bank that is difficult to claim unless it is claimed as being within the historic waters or
within China’s EEZ or continental shelf that could be generated from insular features in
the Spratly Islands.
When Vietnam protested China’s concession, the reason given by the spokesperson
from the Chinese Foreign Ministry was that China had “indisputable sovereignty” over the
Nansha and Xisha Islands and the contiguous waters and, as a result, that “[t]he exploitation
by China’s oil company is irreproachable.”46 There was no mention of the U-shaped line or
historic waters. On the other hand, China protested the Vietnamese concession to foreign
oil companies near Vanguard Bank. On 17 April 1996, a spokesperson from the Chinese
Foreign Ministry stated that Vietnam’s granting of rights to foreign petroleum companies
for oil exploration in the sea area of the Nansha Islands was “illegal and invalid” and “an
encroachment on China’s sovereignty and its maritime rights and interests.”47 The entire
area covered by the Vietnamese contract falls within the Wan’an Tan Bei-21 block licensed
by Beijing to Crestone Energy Corporation. In 1996, the contract for the Wan’an Tan Bei-
21 block was transferred to another U.S. oil company, Harvest Natural Resources, which continues to hold its interest with the license being extended to 31 May 2013.48
With the China Maritime Surveillance intensifying its patrols in the South China Sea,
more incidents have happened in and around Vanguard Bank. The recent incident involving the Vietnamese vessel Binh Minh No. 02 is an example. On 26 May 2011, three Chinese
law enforcement vessels tried to stop and finally did sever the seismic survey cable of the
Binh Minh No. 02 operating within Vietnam’s claimed EEZ on the Vanguard Bank.49 It
caused a spike in tension between the two countries. There have been other similar incidents
between China and Vietnam and between China and the Philippines.
and the Continental Shelf in which Article 14 provides that “the provisions of this Law shall
not affect the historic rights enjoyed by the People’s Republic of China.”37 It is generally
agreed that this section is connected to China’s claim to the South China Sea within the
U-shaped line. However, instead of using the term “historic waters,” China wisely chose
the more softened term “historic rights.” The provision of the EEZ Law on historic rights
can be understood as follows: (1) it might be mean that the sea areas which are not part of
China’s EEZ and/or continental shelf should have the same legal status as the EEZ and/or
continental shelf; (2) it might mean that the sea areas which embody China’s historic rights
include undefined areas beyond the 200-nautical-mile limit; or (3) it might mean that the
sea areas that embody China’s historic rights which are within the 200-nautical-mile limit
can have an alternative management regime different from the EEZ and or continental shelf
regime.38
While China asserts its historic rights in the South China Sea, it is to be noted that since
such “historic rights” are contained in the 1998 Law on the EEZ and Continental Shelf, they
may not be treated as equivalent to “historic waters” as generally understood in international
law. Having said that, it is also to be noted that in other Chinese legislation the wording such
as “other sea areas within China’s jurisdiction” has been used in addition to the internalwaters, territorial sea, EEZ, and continental shelf. An example is the amended Law on
Marine Environmental Protection of 1999.39 Article 2 provides that “the Law shall apply
to 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” (emphasis added). The original 1982 Law contained the same
wording.40 It is unknown where “other sea areas within China’s jurisdiction” are located.
One possibility is that it might refer to the sea areas within the U-shaped line that China is
unable to claim as part of its territorial sea, EEZ, or continental shelf.
As early as April 1986, Liu Huaqing, the then commander of the Chinese Navy stated
that “the sea areas which should be under our jurisdiction are more than three million
square kilometres,”41 which may be based on the following calculation: in the Yellow Sea,
an equidistance line for delimitation with the Korean Peninsula; in the East China Sea, a
delimitation with Japan the middle line of the Okinawa Trough according to the principle
of natural prolongation; and, in the South China Sea, the sea areas within the U-shaped
line in addition to the EEZ east of Taiwan.42 According to a Chinese source, the areas in
the South China Sea encroached upon by other states are as follows: Vietnam, 1,170,000
square kilometers; the Philippines, 620,000 square kilometers; Malaysia, 170,000 square
kilometers; Brunei, 50,000 square kilometers; and Indonesia, 35,000 square kilometers.43
These estimations are based on the use of the U-shaped line.
Oil Exploration Lease in Vanguard Bank
While the fishery activities do not sufficiently explain the Chinese stance to the line, a
lease of an oil exploratory block in the South China Sea to a foreign oil company may have
profound significance for the line. In May 1992, Beijing granted a concession to the Crestone
Energy Corporation to explore oil in a 7,347 square-nautical-mile area between Vanguard
Bank (Wan’an Tan) and the Prince of Wales Bank (Guangya Tan), 160 nautical miles
from Vietnam’s coast.44 Since China had not declared its EEZ at that time, some scholars
assumed that the Crestone concession reflected China’s view that it was asserting sovereign
authority over the waters and resources within its “nine-interrupted-lines” historic claim.45
The assumption is plausible since the block is situated around a permanently submerged
bank that is difficult to claim unless it is claimed as being within the historic waters or
within China’s EEZ or continental shelf that could be generated from insular features in
the Spratly Islands.
When Vietnam protested China’s concession, the reason given by the spokesperson
from the Chinese Foreign Ministry was that China had “indisputable sovereignty” over the
Nansha and Xisha Islands and the contiguous waters and, as a result, that “[t]he exploitation
by China’s oil company is irreproachable.”46 There was no mention of the U-shaped line or
historic waters. On the other hand, China protested the Vietnamese concession to foreign
oil companies near Vanguard Bank. On 17 April 1996, a spokesperson from the Chinese
Foreign Ministry stated that Vietnam’s granting of rights to foreign petroleum companies
for oil exploration in the sea area of the Nansha Islands was “illegal and invalid” and “an
encroachment on China’s sovereignty and its maritime rights and interests.”47 The entire
area covered by the Vietnamese contract falls within the Wan’an Tan Bei-21 block licensed
by Beijing to Crestone Energy Corporation. In 1996, the contract for the Wan’an Tan Bei-
21 block was transferred to another U.S. oil company, Harvest Natural Resources, which continues to hold its interest with the license being extended to 31 May 2013.48
With the China Maritime Surveillance intensifying its patrols in the South China Sea,
more incidents have happened in and around Vanguard Bank. The recent incident involving the Vietnamese vessel Binh Minh No. 02 is an example. On 26 May 2011, three Chinese
law enforcement vessels tried to stop and finally did sever the seismic survey cable of the
Binh Minh No. 02 operating within Vietnam’s claimed EEZ on the Vanguard Bank.49 It
caused a spike in tension between the two countries. There have been other similar incidents
between China and Vietnam and between China and the Philippines.
Communication of t he U-Shaped Line Map to the United Nations
In May 2009, China sent two diplomatic notes to the UN secretary-general protesting
Vietnam’s submission and Vietnam-Malaysia’s joint submission of their outer continental
shelf claims to the CLCS.50 In these notes, a map of the South China Sea with China’s
U-shaped line is attached as part of the documents. This is the first time that China had
officially used the U-shaped line in defending its claims in the South China Sea. By this
move, China called to the attention of the international community that China’s territorial
and maritime claims were within the U-shaped line. Furthermore, as the U-shaped line map
is attached to China’s objection to outer continental shelf claims, China intended to express
that it would enjoy its rights to the continental shelf within the line.
In response to the Philippines’ diplomatic note dated 5 April 2011,51 China stated in its
Note Verbale that “China’s sovereignty, related rights and jurisdiction in the South China
Sea are supported by abundant historical and legal evidence.”52 China further states that
“[s]ince 1930s, the Chinese Government has given publicity several times the geographical
scope of China’s Nansha Islands and the names of its components. China’s Nansha Islands
is therefore clearly defined.”53 How is China’s Nansha Islands clearly defined? It is through
the use of the U-shaped line.
The 2011 official communication may reinforce the legal effect of the U-shaped line
as it is possible that China has noticed the recent judgments rendered by the International
Court of Justice with regard to the legal force of maps in the resolution of territorial and
maritime disputes. In this regard, the paragraph contained in the 2002 Sovereignty over
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) Case, which has appeared in the
Court’s previous judgments, states that:
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. (footnote deleted)54
While it is unknown to what extent the map with the U-shaped line would have legal force
in a future settlement of the South China Sea disputes, it is clear that China has attempted
to give it as much legal force as possible. The U-shaped line map now unquestionably
forms an integral part of China’s official documents and, therefore, may “fall into the
category of physical expressions of the will of the State,” thus producing important legal
force.
Raising Questions About the U-Shaped Line
Reduction of Two Segments i n t he Gulf of Tonkin
The U-shaped map originally had eleven segments. But in the late 1950s, two segments
of the line which were located in the Gulf of Tonkin disappeared from the map. Beijing
did not give a public explanation about why the two segments were eliminated from the
map, but this might be related to the transfer of the sovereignty over the Bai Long Wei
Island (Bach Long Vi in Vietnamese) in the Gulf of Tonkin from China to Vietnam.55 It
is said that elimination of the two segments was approved in 1953 by Zhou Enlai, then
primary minister of the People’s Republic of China.56 This change to the map may have
implications. The disappearance of the two segments in the Gulf of Tonkin indicates that
the U-shaped line is flexible with the consequent question that, if China could give up two
segments in the Gulf of Tonkin, why could China not give up the other nine remaining
segments? Since the cancellation of the two segments was relevant to Vietnam’s territorial
and maritime interests, it is not surprising that Vietnam is the most vehement opponent to
the U-shaped line.
Straight Baselines for the Paracel Islands
In May 1996, China publicized part of its baselines along the mainland coast and encircling
the Paracel Islands by the method of straight baselines.57 China used lines connecting
28 basepoints to encircle the Paracels and the surrounding waters. The waters within the
baselines are internal waters and, from the baselines outward, there is a territorial sea of
12 nautical miles. In the same statement, it was declared that China would decide on other
baselines in due time, including baselines for the Spratly Islands.
From these baselines, China may claim an EEZ and/or the continental shelf of the
Paracel Islands. The publication of the Paracel baselines indicates that China did not
consider the U-shaped line to be the maritime boundary line in the South China Sea for
historic waters that were equivalent to internal waters or the territorial sea. Otherwise, the
Paracel baselines would have been unnecessary.58 The baselines within the U-shaped line
have added uncertainty to the interpretation of the legal status of the U-shaped line.
The 2002 Declaration on Conduct in the South China Sea
In November 2002, China, together with 10 member states of the Association of Southeast
Asian Nations (ASEAN), signed the Declaration on the Conduct of Parties in the South
China Sea (DOC),59 which is the first significant regional document specifically applying
to the South China Sea. The DOC expressly acknowledges that China and some ASEAN
countries have territorial and maritime disputes in the South China Sea and that they pledge
to resolve these disputes through peaceful means in accordance with international law,
including the LOS Convention. Since the Declaration is applicable to the entire South
China Sea, it has an impact on the understanding of the U-shaped line. On the other hand,
as a political document, the DOC carries no legal binding force. The existence of the
U-shaped line may be one of the reasons why China has been reluctant to sign a legally
binding code of conduct with the ASEAN countries.
Vietnam’s submission and Vietnam-Malaysia’s joint submission of their outer continental
shelf claims to the CLCS.50 In these notes, a map of the South China Sea with China’s
U-shaped line is attached as part of the documents. This is the first time that China had
officially used the U-shaped line in defending its claims in the South China Sea. By this
move, China called to the attention of the international community that China’s territorial
and maritime claims were within the U-shaped line. Furthermore, as the U-shaped line map
is attached to China’s objection to outer continental shelf claims, China intended to express
that it would enjoy its rights to the continental shelf within the line.
In response to the Philippines’ diplomatic note dated 5 April 2011,51 China stated in its
Note Verbale that “China’s sovereignty, related rights and jurisdiction in the South China
Sea are supported by abundant historical and legal evidence.”52 China further states that
“[s]ince 1930s, the Chinese Government has given publicity several times the geographical
scope of China’s Nansha Islands and the names of its components. China’s Nansha Islands
is therefore clearly defined.”53 How is China’s Nansha Islands clearly defined? It is through
the use of the U-shaped line.
The 2011 official communication may reinforce the legal effect of the U-shaped line
as it is possible that China has noticed the recent judgments rendered by the International
Court of Justice with regard to the legal force of maps in the resolution of territorial and
maritime disputes. In this regard, the paragraph contained in the 2002 Sovereignty over
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) Case, which has appeared in the
Court’s previous judgments, states that:
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. (footnote deleted)54
While it is unknown to what extent the map with the U-shaped line would have legal force
in a future settlement of the South China Sea disputes, it is clear that China has attempted
to give it as much legal force as possible. The U-shaped line map now unquestionably
forms an integral part of China’s official documents and, therefore, may “fall into the
category of physical expressions of the will of the State,” thus producing important legal
force.
Raising Questions About the U-Shaped Line
Reduction of Two Segments i n t he Gulf of Tonkin
The U-shaped map originally had eleven segments. But in the late 1950s, two segments
of the line which were located in the Gulf of Tonkin disappeared from the map. Beijing
did not give a public explanation about why the two segments were eliminated from the
map, but this might be related to the transfer of the sovereignty over the Bai Long Wei
Island (Bach Long Vi in Vietnamese) in the Gulf of Tonkin from China to Vietnam.55 It
is said that elimination of the two segments was approved in 1953 by Zhou Enlai, then
primary minister of the People’s Republic of China.56 This change to the map may have
implications. The disappearance of the two segments in the Gulf of Tonkin indicates that
the U-shaped line is flexible with the consequent question that, if China could give up two
segments in the Gulf of Tonkin, why could China not give up the other nine remaining
segments? Since the cancellation of the two segments was relevant to Vietnam’s territorial
and maritime interests, it is not surprising that Vietnam is the most vehement opponent to
the U-shaped line.
Straight Baselines for the Paracel Islands
In May 1996, China publicized part of its baselines along the mainland coast and encircling
the Paracel Islands by the method of straight baselines.57 China used lines connecting
28 basepoints to encircle the Paracels and the surrounding waters. The waters within the
baselines are internal waters and, from the baselines outward, there is a territorial sea of
12 nautical miles. In the same statement, it was declared that China would decide on other
baselines in due time, including baselines for the Spratly Islands.
From these baselines, China may claim an EEZ and/or the continental shelf of the
Paracel Islands. The publication of the Paracel baselines indicates that China did not
consider the U-shaped line to be the maritime boundary line in the South China Sea for
historic waters that were equivalent to internal waters or the territorial sea. Otherwise, the
Paracel baselines would have been unnecessary.58 The baselines within the U-shaped line
have added uncertainty to the interpretation of the legal status of the U-shaped line.
The 2002 Declaration on Conduct in the South China Sea
In November 2002, China, together with 10 member states of the Association of Southeast
Asian Nations (ASEAN), signed the Declaration on the Conduct of Parties in the South
China Sea (DOC),59 which is the first significant regional document specifically applying
to the South China Sea. The DOC expressly acknowledges that China and some ASEAN
countries have territorial and maritime disputes in the South China Sea and that they pledge
to resolve these disputes through peaceful means in accordance with international law,
including the LOS Convention. Since the Declaration is applicable to the entire South
China Sea, it has an impact on the understanding of the U-shaped line. On the other hand,
as a political document, the DOC carries no legal binding force. The existence of the
U-shaped line may be one of the reasons why China has been reluctant to sign a legally
binding code of conduct with the ASEAN countries.
External Impact of the U-Shaped Line
China has failed to defend or be consistent in defending the waters and islands enclosed by the U-shaped line.The waters with the U-shaped line have been intruded on through the occupation of islands by other claimants; in fact, most of the islands in the Spratly Islands have been occupied by the countries other than Taiwan or mainland China. In addition to actual occupation, countries adjacent to the South China Sea have enacted laws extending their maritime zones and consolidating their maritime claims in the South China Sea.
Table 1 Foreign Laws and Proclamations Affecting the U-Shaped Line∗
Brunei (1) Territorial Sea and Fishery Limits Act, January 1982
(2) Declaration on the Exclusive Economic Zone, 21 July 1993
Malaysia (1) Continental Shelf Act, 1966, Act No. 57, 28 July 1966, as amended by Act No. 83 of 1972
(2) Proclamation of the Exclusive Economic Zone, 25 April 1980
(3) Exclusive Economic Zone Act 1984, Act No. 311
(4) Baselines of Maritime Zones Act 2006
Philippines (1) The Petroleum Act of 1949
(2) Republic Act No. 3046, as amended by Republic Act No. 5446,
17 June 1961
(3) Presidential Proclamation No. 370, 20 March 1968
(4) Presidential Decree No. 1599, 11 June 1978 establishing an Exclusive Economic Zone and for Other Purposes
(5) Constitution of the Republic, 12 July 1979
(6) Presidential Decree No. 1596, 1979, Declaring Certain Areas Part of the Philippine Territory and Providing for Their Government and Administration (Kalayaan Island Group)
(7) Republic Act No. 9522: An Act to Amend Certain Provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, 2009
Vietnam (1) Decree No.4762-CP, 21 December 1933
(2) Decision No. 420-BNV/HCDP/26, 6 September 1973
(3) Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone, and the Continental Shelf of Vietnam, 12 May 1977
(4) Resolution adopted by the National Assembly (7th Legislature) of the Socialist Republic of Vietnam, 28 December 1982.
shows some of these national laws that affect the validity of the U-shaped line. The most recent national legislation is from the Philippines—Republic Act No. 9522: An Act to amend certain provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, to define the archipelagic baselines of the Philippines, and for other purposes.60 It was passed in 2009. China lodged a protest with the United Nations against this law.61 Claimants in the South China Sea have reached numerous bilateral agreements, which have included waters within the U-shaped line. Two such agreements are the 1969 Malaysia
and Indonesia Agreement on the delimitation of the continental shelf62 and the 2003 Vietnam and Indonesia Agreement concerning the delimitation of their continental shelf boundary.63 It is reported that Brunei and Malaysia have recently reached an agreement on oil exploration and exploitation in the South China Sea.64 It is unknown whether there has been any diplomatic reaction by Beijing to the conclusion of these agreements. There has been no public reaction.The recent state activities with respect to the outer continental shelf in the South China Sea further affects the integrity of the U-shaped line. As already noted, Vietnam made two submissions to the CLCS—one individual and the other jointly with Malaysia.65 Brunei submitted Preliminary Information to the Commission for its outer continental shelf in the South China Sea.66 It is likely that the Philippines will also lodge a submission with the CLCS regarding its outer continental shelf in the South China Sea as it has reserved such a right.67 China indicated its objection to the Vietnamese-Malaysian submissions, stating that “China has indispensable 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” and requesting the Commission not to consider the submissions by Vietnam or jointly made by Malaysia and Vietnam.68 Interestingly, there was no official reaction from China regarding Brunei’s Preliminary Information. By comparison, China’s Preliminary Information with respect to the East China Sea has been challenged by Japan.69 Apart from the state practice of the various South China Sea claimants, there exist official and scholarly responses to the U-shaped line from these countries.
Vietnam
According to one Vietnamese official, the U-shaped line is exaggerated and legally ground-less. There is nothing in the international law of the sea that can justify this kind of claim. ... The fact that other countries have carried on their activities in the Bien Dong Sea (South China Sea), the use of the sea and legislative provisions, have disproved neglecting completely the existence of such a line.70 Vietnam has also challenged the provision on historic rights in China’s EEZ Law. A Vietnamese scholar asked whether “this article tacitly refers to other interests that China has claimed such as the traditional right of fishing in maritime zones of other countries and the nine broken lines claiming over 80 per cent of area of the East Sea.”71 He further stated that “[a] long time ago, regional countries pursued their normal activities in the East Sea without encountering any Chinese impediment and they have never recognized historical rights of China there.”72 Vietnam officially lodged a protest against China’s historic rights in the South China Sea, stating that it will “not recognize any so-called ‘historical interests’ which are not in consistent with international law and violate the sovereignty, the sovereign rights of Vietnam and Vietnam’s legitimate interests in its maritime zones and continental shelf in the eastern Sea as mentioned in article 14” of China’s EEZ Law.73 In response to
China’s objection to its outer continental shelf claims, Vietnam replied that “China’s claim for the nine- dotted line on the map attached to its diplomatic note is null and void as it has no legal, historical and factual ground.”74
Indonesia
On several occasions, Indonesia has expressed its concern over the publication of Chinese maps showing unclear maritime boundaries between the Natuna and the Spratly Islands.75 Indonesia was satisfied with China’s position that there was no dispute between China and Indonesia regarding the Natuna Islands. In the view of Hasjim Djalal, an Indonesian senior diplomat, the U-shaped line indicates that “the Chinese territorial claims are limited towards the islands and all rights related thereto, and [are] not territorial claims over the
South China Sea as a whole.”76 Recently he commented that, since there is no definition of the dashed lines and there are no stated coordinates, the legality and precise location indicated by the lines is not clear.77 In July 2010, Indonesia sent a diplomatic note to the United Nations stating that the so-called “nine-dotted lines map” as contained in China’s 2009 Notes Verbale “clearly lacks international legal basis and is tantamount to upsetting” the LOS Convention.78
Malaysia
Malaysia has expressed no official stance regarding the U-shaped line.79 However, according to B. A. Hamzah, then director-general of the Maritime Institute of Malaysia, the line as a claim over the entire South China Sea should be regarded as “frivolous, unreasonable and illogical” as there is no basis in law or history.80 He further states that the parties concerned should “drop area claims and focus instead on their claim to islands and non-islands.” He dismissed the idea that the water areas within the line are historic waters saying that “[b]y no stretch of imagination can the South China Sea be considered by any nation as its internal waters or historic lake as a basis to assert a claim.”
Philippines
In April 2011, the Philippines sent a diplomatic note to the United Nations questioning the validity of the U-shaped line, stating that China’s claim to the relevant waters and seabed and subsoil thereof as reflected in the so-called nine-dash line map have no basis in international law, specifically in the LOS Convention.81
Other States The debate concerning the legal nature of the line has expanded to other countries.82 S.
Jayakumar, former senior minister of Singapore, criticized the ambiguity of China’s claims based on the U-shaped line on the occasion of a conference on the South China Sea held in Singapore in June 2011. Jayakumar stated that: “China should not continue to leave unaddressed the concerns and questions raised by many over its puzzling and disturbing nine-dotted-lines map.”83 He further warned that: [t]his ambiguity has led to concerns not just among claimant States, and it is clearly in China’s interests to clarify the extent of its claims and thereby dispel any apprehensions over its intentions. Failure to do so could jeopardise the trust
essential for any peaceful resolution and undermine all the gains of Chinese diplomacy made in the last two decades.84 In response to media queries on the visit of Chinese maritime surveillance vessel Haixun 31 to Singapore on 20 June 2011, the spokesperson of Singapore’s Foreign Ministry commented that: “it is in China’s own interests to clarify its claims in the SCS with more precision as the current ambiguity as to their extent has caused serious concerns in the international maritime community.”85 Following Singapore, the United States also has requested China to explain its claims in the South China Sea. Secretary of State Hilary Clinton, in June 2011, called on all parties “to clarify their claims in the South China Sea in terms consistent with customary international law, including as reflected in the Law of the Sea Convention.”86 She further
stated that “[c]onsistent with international law, claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.”87 A retired U.S. naval officer recently called for his country to “join Indonesia and Vietnam in protesting China’s expansive U-shaped claim of sovereignty in the South China Sea.”88
Table 1 Foreign Laws and Proclamations Affecting the U-Shaped Line∗
Brunei (1) Territorial Sea and Fishery Limits Act, January 1982
(2) Declaration on the Exclusive Economic Zone, 21 July 1993
Malaysia (1) Continental Shelf Act, 1966, Act No. 57, 28 July 1966, as amended by Act No. 83 of 1972
(2) Proclamation of the Exclusive Economic Zone, 25 April 1980
(3) Exclusive Economic Zone Act 1984, Act No. 311
(4) Baselines of Maritime Zones Act 2006
Philippines (1) The Petroleum Act of 1949
(2) Republic Act No. 3046, as amended by Republic Act No. 5446,
17 June 1961
(3) Presidential Proclamation No. 370, 20 March 1968
(4) Presidential Decree No. 1599, 11 June 1978 establishing an Exclusive Economic Zone and for Other Purposes
(5) Constitution of the Republic, 12 July 1979
(6) Presidential Decree No. 1596, 1979, Declaring Certain Areas Part of the Philippine Territory and Providing for Their Government and Administration (Kalayaan Island Group)
(7) Republic Act No. 9522: An Act to Amend Certain Provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, 2009
Vietnam (1) Decree No.4762-CP, 21 December 1933
(2) Decision No. 420-BNV/HCDP/26, 6 September 1973
(3) Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone, and the Continental Shelf of Vietnam, 12 May 1977
(4) Resolution adopted by the National Assembly (7th Legislature) of the Socialist Republic of Vietnam, 28 December 1982.
shows some of these national laws that affect the validity of the U-shaped line. The most recent national legislation is from the Philippines—Republic Act No. 9522: An Act to amend certain provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, to define the archipelagic baselines of the Philippines, and for other purposes.60 It was passed in 2009. China lodged a protest with the United Nations against this law.61 Claimants in the South China Sea have reached numerous bilateral agreements, which have included waters within the U-shaped line. Two such agreements are the 1969 Malaysia
and Indonesia Agreement on the delimitation of the continental shelf62 and the 2003 Vietnam and Indonesia Agreement concerning the delimitation of their continental shelf boundary.63 It is reported that Brunei and Malaysia have recently reached an agreement on oil exploration and exploitation in the South China Sea.64 It is unknown whether there has been any diplomatic reaction by Beijing to the conclusion of these agreements. There has been no public reaction.The recent state activities with respect to the outer continental shelf in the South China Sea further affects the integrity of the U-shaped line. As already noted, Vietnam made two submissions to the CLCS—one individual and the other jointly with Malaysia.65 Brunei submitted Preliminary Information to the Commission for its outer continental shelf in the South China Sea.66 It is likely that the Philippines will also lodge a submission with the CLCS regarding its outer continental shelf in the South China Sea as it has reserved such a right.67 China indicated its objection to the Vietnamese-Malaysian submissions, stating that “China has indispensable 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” and requesting the Commission not to consider the submissions by Vietnam or jointly made by Malaysia and Vietnam.68 Interestingly, there was no official reaction from China regarding Brunei’s Preliminary Information. By comparison, China’s Preliminary Information with respect to the East China Sea has been challenged by Japan.69 Apart from the state practice of the various South China Sea claimants, there exist official and scholarly responses to the U-shaped line from these countries.
Vietnam
According to one Vietnamese official, the U-shaped line is exaggerated and legally ground-less. There is nothing in the international law of the sea that can justify this kind of claim. ... The fact that other countries have carried on their activities in the Bien Dong Sea (South China Sea), the use of the sea and legislative provisions, have disproved neglecting completely the existence of such a line.70 Vietnam has also challenged the provision on historic rights in China’s EEZ Law. A Vietnamese scholar asked whether “this article tacitly refers to other interests that China has claimed such as the traditional right of fishing in maritime zones of other countries and the nine broken lines claiming over 80 per cent of area of the East Sea.”71 He further stated that “[a] long time ago, regional countries pursued their normal activities in the East Sea without encountering any Chinese impediment and they have never recognized historical rights of China there.”72 Vietnam officially lodged a protest against China’s historic rights in the South China Sea, stating that it will “not recognize any so-called ‘historical interests’ which are not in consistent with international law and violate the sovereignty, the sovereign rights of Vietnam and Vietnam’s legitimate interests in its maritime zones and continental shelf in the eastern Sea as mentioned in article 14” of China’s EEZ Law.73 In response to
China’s objection to its outer continental shelf claims, Vietnam replied that “China’s claim for the nine- dotted line on the map attached to its diplomatic note is null and void as it has no legal, historical and factual ground.”74
Indonesia
On several occasions, Indonesia has expressed its concern over the publication of Chinese maps showing unclear maritime boundaries between the Natuna and the Spratly Islands.75 Indonesia was satisfied with China’s position that there was no dispute between China and Indonesia regarding the Natuna Islands. In the view of Hasjim Djalal, an Indonesian senior diplomat, the U-shaped line indicates that “the Chinese territorial claims are limited towards the islands and all rights related thereto, and [are] not territorial claims over the
South China Sea as a whole.”76 Recently he commented that, since there is no definition of the dashed lines and there are no stated coordinates, the legality and precise location indicated by the lines is not clear.77 In July 2010, Indonesia sent a diplomatic note to the United Nations stating that the so-called “nine-dotted lines map” as contained in China’s 2009 Notes Verbale “clearly lacks international legal basis and is tantamount to upsetting” the LOS Convention.78
Malaysia
Malaysia has expressed no official stance regarding the U-shaped line.79 However, according to B. A. Hamzah, then director-general of the Maritime Institute of Malaysia, the line as a claim over the entire South China Sea should be regarded as “frivolous, unreasonable and illogical” as there is no basis in law or history.80 He further states that the parties concerned should “drop area claims and focus instead on their claim to islands and non-islands.” He dismissed the idea that the water areas within the line are historic waters saying that “[b]y no stretch of imagination can the South China Sea be considered by any nation as its internal waters or historic lake as a basis to assert a claim.”
Philippines
In April 2011, the Philippines sent a diplomatic note to the United Nations questioning the validity of the U-shaped line, stating that China’s claim to the relevant waters and seabed and subsoil thereof as reflected in the so-called nine-dash line map have no basis in international law, specifically in the LOS Convention.81
Other States The debate concerning the legal nature of the line has expanded to other countries.82 S.
Jayakumar, former senior minister of Singapore, criticized the ambiguity of China’s claims based on the U-shaped line on the occasion of a conference on the South China Sea held in Singapore in June 2011. Jayakumar stated that: “China should not continue to leave unaddressed the concerns and questions raised by many over its puzzling and disturbing nine-dotted-lines map.”83 He further warned that: [t]his ambiguity has led to concerns not just among claimant States, and it is clearly in China’s interests to clarify the extent of its claims and thereby dispel any apprehensions over its intentions. Failure to do so could jeopardise the trust
essential for any peaceful resolution and undermine all the gains of Chinese diplomacy made in the last two decades.84 In response to media queries on the visit of Chinese maritime surveillance vessel Haixun 31 to Singapore on 20 June 2011, the spokesperson of Singapore’s Foreign Ministry commented that: “it is in China’s own interests to clarify its claims in the SCS with more precision as the current ambiguity as to their extent has caused serious concerns in the international maritime community.”85 Following Singapore, the United States also has requested China to explain its claims in the South China Sea. Secretary of State Hilary Clinton, in June 2011, called on all parties “to clarify their claims in the South China Sea in terms consistent with customary international law, including as reflected in the Law of the Sea Convention.”86 She further
stated that “[c]onsistent with international law, claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.”87 A retired U.S. naval officer recently called for his country to “join Indonesia and Vietnam in protesting China’s expansive U-shaped claim of sovereignty in the South China Sea.”88
Conclusion
China has not given up maritime claims based on the U-shaped line and recent practice has demonstrated that China is attempting to further consolidate the claim based on the line; in particular by undertaking regular and intensified law enforcement patrols in the South China Sea within the line.
There is no denying that the U-shaped line carries some legal implications for the settlement of territorial and maritime disputes in the South China Sea. China’s submission of the U-shaped line map to the United Nations makes it clear that the line is connected to China’s claim over continental shelves in the South China Sea. It has been observed that the line is coincidental with the 200-meter isobath in the South China Sea.89 This was the general definition of the outer limit of the continental shelf provided for in the 1958 Convention on the Continental Shelf.90 One can argue that the line in the South China Sea was intended to define the continental shelves of the islands within the line. The line along the 200-meter isobath may have been influenced by the 1945 Truman Proclamation.91 The U-shaped line was officially proclaimed more than a half-century before the adoption of the LOS Convention and a decade before the adoption of the 1958 Geneva Convention. The historic rights derived from or area delineated by this line cannot be disregarded. Usually the regime of historic rights is favorable for states with a long history, but relatively unfavorable for the newly independent states founded after World War II. This concern was noted when the issue of historic waters was discussed in the UN International Law Commission in the 1950s. Garc´ıa-Amador contended that the concept of historic bays benefited only older countries having a long history and that there were many comparative newcomers to the international community—countries in Latin America, the Middle East
and the Far East—which could not claim such historic rights.92 In comparison with the claims by other countries bordering the South China Sea, China’s claim has the longest history. This fact can at least partially explain why other claimants to the islands in the South China Sea are opposed to China’s historic claims based on the U-shaped line. On the other hand, China faces a dilemma regarding the line as it is not yet ready to give a reasonable explanation of the line based on international law. Since there are no express legal provisions in the LOS Convention that can be used as a legal basis to support China’s U-shaped line, China is unable to use the LOS Convention to defend its unilateral line in the South China Sea. While the LOS Convention affirms that matters which are not regulated under it should continue to be governed by general international law including customary law, it seems that China faces a dilemma of having no sufficient
expertise in international law to explain the U-shaped line. Thus, China has remained silent when it has been asked or challenged by its neighboring countries for an explanation.93 After communicating the U-shaped line map to the United Nations, China has encountered increased pressure, particularly from the ASEAN countries, for an explanation of the line. Even Singapore, a nonclaimant state in Southeast Asia, has raised concerns about the ambiguous claim made by China in the South China Sea.
China has been trying to apply the LOS Convention to the South China Sea. China has enacted a number of laws in accordance with the LOS Convention, including the 1992 Law on the Territorial Sea and the Contiguous Zone94 and the 1998 Law on the EEZ and the Continental Shelf.95 China used straight baselines to define part of its territorial sea along the mainland coast as well as encircling the Paracel Islands.96 It is predicted that once the EEZ and continental shelf problems are settled for the South China Sea islands, the significance of the U-shaped line will be reduced. In the meantime, the line will be the legal and historical basis for China to defend its territorial and maritime claims in the South China Sea. China has to use the line as a countermeasure against the claims of other states to EEZs and continental shelves in the South China Sea. This has recently been demonstrated in the Chinese objection to the submissions by Vietnam and Vietnam-Malaysia to the CLCS.As for any dispute resulting from an explanation on the U-shaped line, China can rely on Article 298 of the LOS Convention, which permits states parties to exclude the compulsory procedures provided for in the Convention from applying to the disputes “involving historic bays or titles.” China has exercised this right through its declaration of exclusion in 2006.97 Like many states, China prefers bilateral negotiations to settle territorial and maritime disputes with its neighbors. Through negotiations, China can use its persuasive power to entice its counterparts to reach an agreement. This approach had had some success as evidenced by the conclusion of the Tripartite Agreement on Seismic
Activities in the South China Sea among three state-owned oil companies from China, the Philippines, and Vietnam in March 2005.98 Though the agreement expired in 2008 with no substantial progress, it is perceived that China will continue in its efforts to reach similar agreements for cooperation in the South China Sea. The U-shaped line is also a dilemma for the ASEAN claimant countries. Given the ambiguity of the basis of the line, except for using words such as “legally groundless” or “null and void,” other claimants cannot rely on norms and rules of international law to rebut China’s U-shaped line. At least three important research questions arise from the U-shaped line. First, is the LOS Convention the only international law to be relied on to explain the U-shaped line? Second, is there support for the U-shaped line in general international law including customary law? Third, do maritime rights that are set out in the LOS Convention override rights that existed prior to the adoption of the LOS Convention?
There is no denying that the U-shaped line carries some legal implications for the settlement of territorial and maritime disputes in the South China Sea. China’s submission of the U-shaped line map to the United Nations makes it clear that the line is connected to China’s claim over continental shelves in the South China Sea. It has been observed that the line is coincidental with the 200-meter isobath in the South China Sea.89 This was the general definition of the outer limit of the continental shelf provided for in the 1958 Convention on the Continental Shelf.90 One can argue that the line in the South China Sea was intended to define the continental shelves of the islands within the line. The line along the 200-meter isobath may have been influenced by the 1945 Truman Proclamation.91 The U-shaped line was officially proclaimed more than a half-century before the adoption of the LOS Convention and a decade before the adoption of the 1958 Geneva Convention. The historic rights derived from or area delineated by this line cannot be disregarded. Usually the regime of historic rights is favorable for states with a long history, but relatively unfavorable for the newly independent states founded after World War II. This concern was noted when the issue of historic waters was discussed in the UN International Law Commission in the 1950s. Garc´ıa-Amador contended that the concept of historic bays benefited only older countries having a long history and that there were many comparative newcomers to the international community—countries in Latin America, the Middle East
and the Far East—which could not claim such historic rights.92 In comparison with the claims by other countries bordering the South China Sea, China’s claim has the longest history. This fact can at least partially explain why other claimants to the islands in the South China Sea are opposed to China’s historic claims based on the U-shaped line. On the other hand, China faces a dilemma regarding the line as it is not yet ready to give a reasonable explanation of the line based on international law. Since there are no express legal provisions in the LOS Convention that can be used as a legal basis to support China’s U-shaped line, China is unable to use the LOS Convention to defend its unilateral line in the South China Sea. While the LOS Convention affirms that matters which are not regulated under it should continue to be governed by general international law including customary law, it seems that China faces a dilemma of having no sufficient
expertise in international law to explain the U-shaped line. Thus, China has remained silent when it has been asked or challenged by its neighboring countries for an explanation.93 After communicating the U-shaped line map to the United Nations, China has encountered increased pressure, particularly from the ASEAN countries, for an explanation of the line. Even Singapore, a nonclaimant state in Southeast Asia, has raised concerns about the ambiguous claim made by China in the South China Sea.
China has been trying to apply the LOS Convention to the South China Sea. China has enacted a number of laws in accordance with the LOS Convention, including the 1992 Law on the Territorial Sea and the Contiguous Zone94 and the 1998 Law on the EEZ and the Continental Shelf.95 China used straight baselines to define part of its territorial sea along the mainland coast as well as encircling the Paracel Islands.96 It is predicted that once the EEZ and continental shelf problems are settled for the South China Sea islands, the significance of the U-shaped line will be reduced. In the meantime, the line will be the legal and historical basis for China to defend its territorial and maritime claims in the South China Sea. China has to use the line as a countermeasure against the claims of other states to EEZs and continental shelves in the South China Sea. This has recently been demonstrated in the Chinese objection to the submissions by Vietnam and Vietnam-Malaysia to the CLCS.As for any dispute resulting from an explanation on the U-shaped line, China can rely on Article 298 of the LOS Convention, which permits states parties to exclude the compulsory procedures provided for in the Convention from applying to the disputes “involving historic bays or titles.” China has exercised this right through its declaration of exclusion in 2006.97 Like many states, China prefers bilateral negotiations to settle territorial and maritime disputes with its neighbors. Through negotiations, China can use its persuasive power to entice its counterparts to reach an agreement. This approach had had some success as evidenced by the conclusion of the Tripartite Agreement on Seismic
Activities in the South China Sea among three state-owned oil companies from China, the Philippines, and Vietnam in March 2005.98 Though the agreement expired in 2008 with no substantial progress, it is perceived that China will continue in its efforts to reach similar agreements for cooperation in the South China Sea. The U-shaped line is also a dilemma for the ASEAN claimant countries. Given the ambiguity of the basis of the line, except for using words such as “legally groundless” or “null and void,” other claimants cannot rely on norms and rules of international law to rebut China’s U-shaped line. At least three important research questions arise from the U-shaped line. First, is the LOS Convention the only international law to be relied on to explain the U-shaped line? Second, is there support for the U-shaped line in general international law including customary law? Third, do maritime rights that are set out in the LOS Convention override rights that existed prior to the adoption of the LOS Convention?
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