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
No comments:
Post a Comment