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.
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 means of recent origin; it can be traced back two millennia. The developments in the South China Sea and the major disputes now festering among the region's littoral states have a long history indeed, upon which a long shadow has been cast by a heavy Chinese influence.
HISTORIC EVOLUTION OF THE NINE-DASH LINE IN CHINESE PRACTICE
The Pre-1935 History of Chinese Activities in the South China Sea: Peaceful and Effective Use
In 1935, a commission appointed by the then Chinese government published a list of geographical names for islands in the South China Sea. Prior to that, however, the South China Sea had been known to Chinese fishermen and seafarers from time immemorial. There are historical accounts aplenty. (12)
The early history of Chinese use of the South China Sea and its islands includes accounts of tributes made to the Imperial Court of various dynasties before the third century AD by "barbarians" from the southern seas. (13) The term Nan Hai (Southern Sea) appeared in the classic poetry book Shi Jing (The Classic of Poetry), a publication of the Spring and Autumn Period (475-221 BC), (14) and it has remained the standard appellation in Chinese for the South China Sea ever since. In later Chinese dynasties--from the fifth century AD forward, as knowledge of the seas was increasingly corroborated by travelers and other seafarers--references to the southern seas and islands became more frequent in geographical and literary works. (15) The clarification of the location and environs of the South China Sea and beyond, together with advances in shipbuilding and the navigational use of compass, enabled regular journeys to other states in the region (16) and inspired, among others, the famed "Seven Voyages" by the "Three-Jewel Eunuch," Zheng He, in the Ming dynasty of the early fifteenth century. (17) The voyages, conducted between 1405 and 1433, were official in nature, as Zheng was appointed fleet admiral by the Ming emperor, Yong Le, with a mandate to spread overseas the knowledge of the emperor's "majesty and virtue." (18) Although records of his voyages were destroyed or lost in the late Ming dynasty due to anti-maritime policies, other Chinese written records reported on the activities of Chinese nationals in parts of the South China Sea along the routes of those voyages; "the local gazetteers for Hainan infer[red] that all offshore areas, including the Sea of Banks east of Wan-chou, were part of an extended tortoise-gathering, fishing and guano collection zone." (19)
The so-called Silk Road on the Sea was first used in the Qin and Han dynasties (221 BC-220 AD) and flourished in popularity in the Tang and Song dynasties (618-1279 AD). This maritime route of trade and commerce not only preceded its counterpart on land but also extended farther to reach the northern shores of the Mediterranean. (20) It may well be the most enduring maritime trade route in history. It did not decline in use until the late Ming and early Qing emperors issued a ban on maritime trade between 1474 and 1551. After the (first) Opium War broke out in 1840 between China and Great Britain, the Silk Road on the Sea fell into disuse.
The South China Sea lay at the center of this famous route. Chinese ships, loaded with silk, porcelain, tea, and other commodities, set sail from southeast China and navigated along the coasts of the Philippines, Vietnam, Malaysia, and Thailand and through the Malacca Strait to India and the Mediterranean. (21)
Early in the twentieth century, the geographical scope of the Chinese state's dominion increasingly came to attract the attention of both cartographers and the government itself. (22) In 1914, a continuous boundary line enclosing part of the South China Sea, along with two island groups, appeared in a Chinese national atlas compiled by two private cartographers. (23) No later than 1935, the boundary line was extended (again by private cartographers) to include the four island groups in the South China Sea. (24) In January 1935, a government-appointed commission, which was established to examine maps and atlases produced by private sources in China, published its list of 132 names, in both English and Chinese, for islands and other insular features in the South China Sea. (25) In April 1935, the commission's gazette published an atlas of the islands in the South China Sea. (26)
Developments Between 1936 and 1956
In 1946, China, pursuant to the Cairo Declaration and the Potsdam Proclamation, recovered the Xisha and Nansha Islands in the South China Sea from Japan. (27) There was no reaction from Vietnam or any other state, and the Chinese naval contingent sent to the islands for the task erected stone markers on Yong Xing, or Woody, Island, of the Xisha Islands and Tai Ping, or Itu Aba, Island of the Nansha Islands. (28)
Following further inspections and surveys, the Chinese government internally circulated an atlas in 1947, drawing an eleven-dash line to indicate the geographical scope of its...