A legal analysis of China's historic rights claim in the South China Sea.

Author:Dupuy, Florian
Position:Agora: The South China Sea
 
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The recent turmoil created by the competing sovereignty claims of several countries over islands and waters in the South China Sea has caused the resurgence of the concept of "historic rights." (1) Although the term historic rights (sometimes confusingly used in this context in combination with other germane notions, such as historic waters and historic title) has often been imbued with a certain degree of confusion and controversy in international law, it seems bound to play an important part in the arguments brought by states claiming sovereignty in this region and, in particular, by the People's Republic of China (China). (2) The vagueness of the legal terminology used by China raises the issue of whether that very vagueness is being used as an element of political strategy.

On May 7, 2009, China submitted two notes verbales to the UN secretary-general, in which it declared that "China has indisputable 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." (3) In support of this declaration, China produced a map of the South China Sea, which had the peculiarity of showing a dashed line composed of nine segments encompassing virtually all islands in the South China Sea and most of its waters. As per China's notes verbales, this "nine-dash," or "U-shaped," line was meant to illustrate the limits of its sovereignty in the South China Sea. (4)

Although the May 7, 2009, declaration was essentially echoing repeated assertions made by China since the 1950s, it seems to have exacerbated tensions in the region. Countries such as Malaysia, the Philippines, and Vietnam have vigorously criticized the Chinese legal position for its irrationality and the two wobbly pillars on which it rests: China's alleged historic title over the South China Sea and the nine-dash-line map.

The South China Sea is a semi-enclosed sea located south of mainland China and Taiwan, east of Vietnam, west of the Philippines, and north of Brunei and Malaysia. The South China Sea has hundreds of insular features (islands, islets, shoals, reefs, banks, rocks), most of them uninhabited. The most important groups of islands are the Paracel Islands and the Spratly Islands, followed by the Pratas Islands and the Macclesfield Bank.

The South China Sea islands have been the subject of competing sovereignty claims by the surrounding states for several decades. China has long had the largest claim, and Taiwan has claimed sovereignty over the same areas. The claim extends over all islands in the South China Sea (including their surrounding waters), an area stretching hundreds of miles south and east from China's most southerly province, Hainan. China has repeatedly asserted this claim, which, since 2009, has been officially embodied in the nine-dash-line map. In support of China's claim, its proponents have placed repeated emphasis on the notion of "historic rights." (5) In a nutshell, China appears to claim that it ought to enjoy sovereignty over the vast majority of the South China Sea, as established through China's long-standing historical presence and display of authority in the region.

The second-largest claim is that of Vietnam, which claims sovereignty over the entirety of the Paracel and Spratly Islands. This claim was most recently asserted in Vietnam's May 3, 2011, note verbale to the UN secretary-general. (6) The Philippines claims only the western section of the Spratlys, known in the Philippines as the Kalayaan Island Group. (7) Brunei and Malaysia have similarly limited claims, which cover only the parts of the Spratlys that are closest to their respective coasts.

These competing claims have inevitably created tensions. The South China Sea is of strategic importance for the entire region because the subsoil contains potentially substantial reserves of natural resources (oil and gas). (8) It is also one of the region's main shipping lanes and is home to a fishing ground that supports the livelihoods of millions of people and provides valuable export products for the states in the region.

In this article we focus on China's claim in order to understand the articulation of its "historic rights" argument and to assess its merits in light of the principles of public international law. our main purpose is to explore the potential relevance of such an argument if it came to be invoked by China in the context of an international dispute-settlement procedure.

This study has two parts: in part I, we define the geographical and legal contours of China's historic rights claim as expressed by state practice and the secondary literature, and in part II we analyze and assess the merits of the Chinese position.

  1. THE CONTOURS OF CHINA'S "HISTORIC RIGHTS" CLAIM IN THE SOUTH CHINA SEA

    In drawing the geographical and legal contours of China's official position regarding the extent of its sovereignty in the South China Sea, our initial step is to summarize the geographical scope of China's claims. We will then set out the legal principles on which China appears to rely.

    The Scope of China's Claim

    To establish the precise geographical scope of China's claims in the South China Sea, one should first look at the official declarations that China has made on the international level during the past decades. in the interest of clarity, we shall examine territorial and maritime claims separately.

    Extensive Territorial Claim

    China made its first official claim--to practically all islands of the South China Sea--in its Declaration on China's Territorial Sea of September 9, 1958, (9) in the wake of the first generation of codification conventions on the law of the sea.(10) Although China itself was not a party to the conventions, it seized the opportunity to assert the limits of its own maritime sovereignty and, by the same token, the geographical scope of its territorial sovereignty. Thus, in this 1958 declaration China affirmed its sovereignty over most islands in the South China Sea--in particular, the Pratas (Dongsha), Paracels (Xisha), Macclesfield Bank (Zhongsha), and Spratlys (Nansha):

    The breadth of the territorial sea of the People's Republic of China shall be twelve nautical miles. This provision applies to all territories of the People's Republic of China including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas. (11) The territorial claims as set out in this declaration have remained relatively stable up to the present day and have been reasserted on several occasions. On February 25, 1992, China promulgated its Law on the Territorial Sea and the Contiguous Zone, of which Article 2 provides:

    The land territory of the People's Republic of China includes the mainland of the People's Republic of China and its coastal islands; Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands belonging to the People's Republic of China. (12) China thus reiterated its sovereignty claim over the South China Sea islands, including the Pratas, Paracel, and Spratly Islands.

    The claim was confirmed again on the occasion of China's ratification of the UN Convention on the Law of the Sea (13) (UNCLOS) in 1996, by express reference to its 1992 law. (14)

    In two notes verbales filed in 2009 (15) and one filed on April 14, 2011--in the aftermath of submissions of Malaysia and Vietnam to the UN Commission on the Limits of the Continental Shelf--China reaffirmed its territorial pretensions in an even broader fashion, stating that "China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters". (16)

    Uncertain Maritime Claim

    As noted above, part of China's maritime claim directly derives from its territorial claim: by applying the principles of UNCLOS to the claimed islands (primarily the Paracels and Spratlys), China has recently made clear that it claims not only the territorial waters and contiguous zones around the islands but also, for each island, its exclusive economic zone (EEZ) and continental shelf.(17) This broad assertion obviously raises a problem, as China does not distinguish between insular features that qualify as "islands" within the meaning of UNCLOS (and which would thereby generate rights to a full EEZ and continental shelf) and those qualifying as "rocks" (which would thereby generate rights only to internal and territorial waters). (18)

    Moreover, a great deal of uncertainty remains, mainly as a result of the introduction of the nine-dash-line map, combined with occasional references to "historic waters." As we shall discuss below, it remains unclear whether the function of the nine-dash line is to delimit the waters claimed by China. If the line does have such a function, then some ambiguity still remains as to the geographical coordinates of the line. The nine-dash line would even seem to suggest that, at least in certain areas, China's EEZ should prevail over the EEZs of other countries.

    A further ambiguity has resulted from the absence of any reference to the nine-dash-line map in China's most recent official declaration, its note verbale of April 14, 2011. (19)

    As a result, the overall geographical scope of China's maritime claim remains essentially unclear. Possible interpretations of China's position in this respect will be discussed below.

    The Legal Justifications for China's Claim

    To our knowledge, the basis for China's broad sovereignty claim in the South China Sea has never been officially set out in clear legal terms. As a consequence, one can only attempt...

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