The nine-dash line in the South China Sea: history, status, and implications.

American Journal of International LawVol. 107 Nbr. 1, January 2013

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Agora: The South China Sea

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The nine-dash line in the South China Sea: history, status, and implications.

The South China Sea has generally been a calm area of sea since ancient times. Until the late twentieth century, it had provided a fertile fishing ground for local fishermen from China and other littoral states, and a smooth route of navigation for the nations of the region and the rest of the international community. This tranquility has been disturbed, however, by two recent developments. The first was the physical occupation of the Nansha, or Spratly, Islands by some of the coastal states in the 1970s. This process continued through the rest of the century. Now, nearly all the islands and insular features within the Spratly Islands have been subjected to physical control by one littoral state or another.

The second development occurred more recently: under Article 76(8) of the UN Convention on the Law of the Sea (hereinafter UNCLOS), (1) states around the world submitted the limits of their claims to the continental shelf beyond two hundred nautical miles from their coastal baselines to the Commission on the Limits of the Continental Shelf. The joint submission of Malaysia and Vietnam in May 2009 was followed by exchanges of notes verbales among the littoral states that appear to have shifted the focus of the controversy to debates about the role of the nine-dash line drawn by China in the South China Sea, as depicted on the map that China attached to its initial response to Malaysia and Vietnam.

Several interrelated issues have emerged. First, what is the function of the nine-dash line and its design? Second, how did it come about, and does it have a foundation in international law? Third, if it is equivalent to an assertion of sovereignty, what is the scope of that assertion, as reflected in Chinese practice over the years? Fourth, is there a role for historic title to play in this situation? If so, what rights are underpinned by that title?

This article attempts to address these important questions by exploring and weighing the historical, legal, and other relevant evidence, with a view to providing some elaboration of its legal nature, current status, and possible implications. To this end, part I contains a brief introduction to the geography and significance of the South China Sea. Part II traces the historical evolution of the nine-dash line in Chinese practice during different periods of history. Part III examines the purpose and status of the line. Part IV addresses various relevant legal issues. Part V sets forth some policy considerations and prospects with respect to dispute resolution. The final part offers some concluding remarks.

The overall position of the authors 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. The 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. In this context, the article argues that historic title provides the basis for China's possession of certain historic rights in addition to the rights granted under UNCLOS.

I. Geography and Its Significance

In geographical terms, the South China Sea covers an area of sea of some 3.5 million square kilometers, semi-enclosed by Brunei, China, (2) Indonesia, Malaysia, the Philippines, and Vietnam. (3) It is dotted by numerous islands, islets, shoals, cays, reefs, and rocks that, in the area surrounded by China's nine-dash line, are conveniently gathered into island groups. Four island groups, including more than two hundred islands, islets, reefs, shoals, and rocks, are pertinent to the present context, known to both Chinese and foreign sources as the Xisha, or Paracel, Islands; (4) Dongsha, or Pratas, Islands; Zhongsha Islands, including Macclesfield Bank and certain reefs, sandbanks, and shoals; and Nansha, or Spratly, Islands.5 Those four groups fall within an area with the coordinates of 3[degrees] 57' to 21[degrees] N and 109[degrees] 30' to 117[degrees] 50' E, stretching for a distance of approximately 1800 km from the north to the south, and about 900 km from the east to the west. (6) By virtue of its geographic position, the South China Sea forms part of the vital route of maritime trade and transport for East Asian and Southeast Asian states and their trading partners in Asia, Africa, and beyond. (7) There are rich fisheries in the South China Sea, (8) along with expanding prospects for oil and natural gas in the seabed and subsoil. (9) While their location provides the littoral states of the South China Sea with the opportunity to become seafaring nations, their proximity to one another surrounding a semi-enclosed sea (10) can also fuel disputes for regional control and influence. (11) The South China Sea's strategic and economic significance is by no ...

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