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China's Claims for Territorial Acquisition in the South China Sea

                                 

China’s Claims for Territorial acquisition in the South China Sea 

    In May 2009 China sent two Notes Verbales to the UN Secretary General requesting that they be circulated to all UN Member States. The 2009 Note Verbales included China’s unilateral declaration of the Nine-dashed Line that engulfs the entire South China Sea as China’s territorial sea. The 2009 Note Verbales stated the following:

     "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 (see attached map). The above position is consistently held by the Chinese government, and is widely known by the international community."   

    But China’s claim that “China has indisputable sovereignty over the islands in the South China Sea” sounds like an oxymoron in the face of such claim being disputed by China’s neighboring States having equally competing claims over these islands.

    In 2011 China sent out a third Note Verbale relating to the same subject matter, asserting that “China’s sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence.” There have been a few different versions of the dashed line map produced by both the Republic of China and the People’s Republic of China, none of which was accompanied by any of geographic coordinates specifying the location of any of the dashes. China has not published that critical information to date.

    Under international law maritime boundaries are established by agreement between neighboring States, and Article 15 of the United Nations Convention on the Law of the Sea (LOS Convention), governing delimitation of the territorial sea between States with opposite or adjacent coasts, stipulates:

       "Where the coasts of two States are opposite or adjacent to each other,

neither of the two States is entitled, failing agreement between them to the

contrary, to extend its territorial sea beyond the median line every point of

which is equidistant from the nearest points on the baselines from which the

breadth of the territorial seas of each of the two States is measured."  

    “The above provision,” continues Article 15, “does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.” The breadth of the territorial sea of a State is allowed to set “up to a limit not exceeding 12 nautical miles, measured from baselines,” and any of the nine-dashes unilaterally proclaimed by China are all closer to the surrounding coasts of neighboring States than they are to the closest islands within the South China Sea. Such unilaterally proclaimed nine-dashed line is contrary to the provisions of the LOS Convention and customary international law. China understood it perfectly well.

The 1958 Declaration on China’s Territorial Sea states:

       "This [12-nautical mile territorial sea] 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 and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas [emphasis added]."

    According to the 1958 Convention on the High Seas, the term “high seas” means “all parts of the sea that are not included in the territorial sea or in the internal waters of a state.” The LOS Convention further refined the scope of the high seas to mean:

     “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.”

    Thus, the reference in the 1958 Declaration on China’s Territorial Sea to “the high seas” separating China’s mainland and coastal islands from “all other islands belonging to China” underscores that in 1958 China made no claim to the entirety of the ocean space within the dashed line. Accordingly, China’s third Note Verbale claims, albeit unsurely, “abundant historical and legal evidence [emphasis added]” to justify its unilateral assertion of sovereignty over the vast area of the South China Sea. Nonetheless, evidence for such historic rights is nil. Besides, the LOS Convention recognizes only two places for historic claims: “historic bays” under Article 15 and “historic title” in connection with the delimitation of territorial sea boundary under Article 10. Nor do the LOS Convention’s provisions relating to the EEZ, continental shelf, and high seas contain exceptions for historic claims.

     Rather, the LOS Convention provides specific provisions governing activities in the sea. Except “traditional fishing rights” referred to in the context of archipelagic waters, the LOS Convention does not recognize a “traditional” or “historic” basis for sovereignty, sovereign rights or jurisdiction. As the judgment of the ICJ in the Gulf of Maine case stated in 1984, “[the Chamber] can only confirm its decision not to ascribe any decisive weight . . . to the antiquity or continuity of fishing activities carried on in the past” in these expanses that were part of the high seas. Thus, the ICJ concluded that the LOS Convention would prevail over whatever enjoyment other States had had before the coastal States set up exclusive 200-mile fishery zones. The ICJ thus observed, “Third States and their nationals found themselves deprived of any right of access to the sea areas within those zones and of any position of advantage they might have been able to achieve within them.”

    Given these circumstances, China’s foreign policy of late has been anything but contrary to China’s professed principles of its foreign policy. In the words of President Xi Jinping ,

      "Disputes and differences between countries should be resolved through dialogue, consultation and peaceful means. We should increase mutual trust, and settle disputes and promote security through dialogue. Flexing military muscles only reveals the lack of moral grounds or vision rather than reflecting one’s strength."

      But when it comes to implementing these principles, China has engaged in volatile confrontations with several neighbors over claims in the South China Sea, not to mention air and maritime incursions around the Senkaku Islands: confrontations with Vietnam over an oil rig constructed in disputed waters of the Paracel Islands; a naval stand-off with the Philippines over the Scarborough Shoal; escalation of disputes with all Southeast Asian countries over the Spratly Islands. China’s assertion sounds hollow:

     "We should urge upon all parties to abide by international law and well-recognized basic principles governing international relations and use widely applicable rules to tell right from wrong and pursue peace and development."

     Accordingly, the Philippines filed its complaint against China over the legality of the Nine-dash Line for resolution by the Permanent Court of Arbitration. China reacted negatively accusing the Philippines of dragging China into arbitration proceedings. Asked about “a deadline” set by the Permanent Court of Arbitration to respond to the Philippines submission, China’s Foreign Ministry Spokesperson Hong Lei gave a cryptic reply: “China does not accept nor participate in the arbitration case filed by the Philippines. This position remains unchanged.” Subsequently, China issued its position paper on the case on 7 December 2014. China has always insisted that disputes should be “peacefully resolved through negotiations between the countries directly concerned.” The point here is patently obvious. It is China that is in a far stronger, economically and militarily, and more advantageous, geographically, position, having more leverage than any other negotiating parties. Whether negotiations are bilateral or otherwise is irrelevant in this respect. And so China invokes the Declaration on the Conduct of Parties in the South China Sea, on which China places so much reliance. It stipulates at paragraph 4 as follows:

       "The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea."

     China insists that “with respect to all the disputes between China and the Philippines in the South China Sea, including the Philippines’ claims in this arbitration, the only means of settlement as agreed by the two sides is negotiations, to the exclusion of any other means.” That, I must say, is an overstatement by resorting to the question-begging Latinism inclusio unius est exlusio alterius [The inclusion of one is the exclusion of another]. Nowhere does any agreement to which the Philippines is party, be it bilateral or multilateral, state that it agrees to have peaceful settlement by only negotiations to the exclusion of any other means of peaceful settlement.

    Moreover, China insists that the Philippines, or for that matter, ASEAN member States by implication, and China have agreed “to settle their relevant disputes by negotiations, without setting any time limit for the negotiations”! The absence of the specified time limit only means that such negotiations should be completed within a reasonable period of time. The settlement of disputes by negotiations does not require the parties to negotiate indefinitely while denying a party the option of concluding no settlement would be reached and to seek some other peaceful means of its own choice.