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