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Vietnam’s media has been vigorously reporting and analyzing the text of a provocative Chinese submission to the United Nations Law of the Sea Commission in support of its far-reaching territorial claims in the ‘East Sea’ - the strategic area that the world knows as the ‘South China Sea.’
In today’s story, VietNamNet Bridge summarizes the accounts in the Vietnamese press that has been triggered by the Chinese document. A follow-up story will analyze suggestions by Vietnamese and foreign experts on how should Vietnam’s policy be to response to China’s claims and for the East Sea dispute in general.
VietNamNet Bridge - With a diplomatic note dated May 7, 2009 to the UN Secretary General objecting to a Vietnamese submission to a United Nations commission on its outer limits of the continental shelf, China also included a map stating its ‘nine-dash line’ claims over the East Sea.
Historian claims islands for Vietnam
The Chinese note asserted that “China has indisputable sovereignty over the islands in the South China Sea (or the East 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).”
Only a day later, May 8, Vietnam’s permanent mission to the UN sent a diplomatic note to the UN Secretary General refuting the claim and the map submitted by China. On the same day, Foreign Ministry spokesman Le Dung reiterated Vietnam’s incontrovertible sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes.
Dung also stated that the Chinese territorial claim represented on the map attached to its diplomatic note is null and void as it has no legal, historical and factual grounds.
This article, drawn from reportage in Vietnamese newspapers, will not analyze Vietnam’s sovereignty over the Hoang Sa and Truong Sa archipelagoes, but rather address the East Sea as a whole and provide an in-depth analysis of the ‘nine-dash line’ China drew on the map attached to its diplomatic note.
The dubious line
The dotted line – drawn in the East Sea on the Chinese map – is referred to as the ‘nine-dash line’ (since it is defined by nine dashes) or alternatively as the ‘U-shaped line.’ International scholars have used both terms when they commented on this demarcation of China’s claims to over 80 percent of the East Sea. The line was drawn very close to the coast of several countries, including Vietnam, Indonesia, Malaysia, Brunei and the Philippines.
An original 11-dotted line map was first drawn by the Chinese Kuomintang government in 1947. Its successor, the government of the People’s Republic of China, later altered it by deleting two dashes in the Gulf of Tonkin off Vietnam’s northern coast.
China’s note dated May 7, 2009 is evidently the first diplomatic statement in the last 60 years of China’s official stance regarding the international legal significance of the nine-dash line. It is also the first time China has formally introduced the nine-dash line map to the world.
Until May, China had never issued any official declaration on the international or national legal significance of this line, notwithstanding that it is often drawn on Chinese maps.
Basic legal documents issued by China, like its 1958 Declaration on China's Territorial Sea, the 1992 Declaration of the People's Republic of China on the Territorial Sea and the Contiguous Zone, the 1996 Declaration of the People's Republic of China on the Baselines of the Territorial Sea, and the 1998 Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf did not mention this nine-dash line claim.
Moreover, Chinese scholars participating in numerous international conferences, such as the annual Workshop on Managing Potential Conflicts in the East Sea since 1991, offered different and even divided explanations of what the dotted line means.
There is a very important question that has remained unanswered by Chinese scholars and the Chinese State itself: how were the exact locations of each dash established?
No document, be it official or unofficial, accounts for this.
A claim with no international legal value
The first and most common argument Chinese scholars have clung to when explaining the dotted lines drawn on the Eastern Sea map is that the claim must be considered under the international laws existing when the map was drawn. With this argument, China has dismissed reference to the 1982 UN Convention on the Law of the Sea (UNCLOS) as a way to evaluate the legality of its claim.
At the time the original 11-dotted line was drawn in 1947, the International Law of the Sea stipulated that the territorial waters of a country extended three nautical miles from the low tide mark. Outside the territorial waters of each country were international waters, a realm in which every country could enjoy the freedom of the high seas.
Until 1958, different governments of China all recognized, or at least did not publicly object to, the three-mile sea limit rule. Thus, even according to the international laws then current, China’s claims over 80 percent of East Sea cannot be considered legal.
Dr. Hasjim Djalal, a prominent Indonesian sea law expert, wrote: “It is inconceivable that in 1947, when general international law still recognized only a three mile territorial sea limit, that China would claim the entire South China Sea.” (Djalal, H. South China Sea Island Disputes. The Raffes Bulletin of Zoology, Supplement No.8/2000).
The same conclusion can only be drawn about the claims of “sovereignty and jurisdiction” over 80 percent of the East Sea stated in China’s May 7, 2009 note, because in 1947, coastal countries had no rights to expand their sovereignty outside their territorial waters. It needs to be emphasized that the International Law of Sea includes the “seabed and subsoil thereof” inside the territorial waters. Thus, China cannot demand the sovereignty and jurisdiction over the large sea located in its dotted line.
The second argument offered by Chinese scholars to account for the dotted line is that because the line was drawn in 1947, 62 years ago, China can say the sea area located in the line is its “historic” territory.
It needs to remembered that participating countries at the 3rd UN Conference on The Law of the Sea were at odds over incorporating references, regulations and definitions regarding ‘historic waters’ into the 1982 UN Convention on the Law of the Sea. From deliberations at the workshop, however, it can be concluded that the criteria necessary to declare historical sovereignty over territory are that the claim has to be made public; the claiming country has to exercise sovereignty over the area efficiently, continuously, and peacefully for a long period of time; and the claim must be recognized by the other countries involved.
International law has never recognized the demands made by China in relation to the East Sea. Putting that aside for a moment, let’s consider objectively if China can meet the aforesaid criteria.
Firstly, maritime, oil, and fishing activities of all countries inside and outside the East Sea faced no obstruction from the Chinese side until the 1990s. It is thus easy to understand why people have doubted that Chine can meet the criterion of exercising real sovereignty in a continual and peaceful manner for a long period of time, or even since 1947.
Secondly, countries in the region have refused to recognize what China calls its “historic rights”. On the contrary, they have worked out their own regulations on the waters and signed joint treaties on overlapping waters and on cooperative activity in the East Sea despite objections from China and other disputes about sovereignty over archipelagoes in the East Sea.
Thirdly, the nine-dashed line China drew on the map attached with the May 7, 2009 note fails to meet the criteria of sovereignty and jurisdiction over the waters inside the line as stipulated by the 1982 Convention on the Law of the Sea on the Exclusive Economic Zone and the Continental Shelf.
In a study called “Competing Claims of Vietnam and China in the Vanguard Bank and the Blue Dragon Areas of the South China Sea”, US lawyer Brice M. Claget wrote: “China's claim to ‘historic’ sovereignty and title to virtually the entire South China Sea and/or its seabed and subsoil is contrary to the entire development of the modern international law of the sea, and cannot be taken seriously as a matter of law.” (Journal Oil and Gas Law & Taxation Review, vol. 13 issue 10 10-1995 và vol. 13 issue 11 11-1995).
Thus, from the perspective of international law, the nine-dash line claim of China has no scientific grounds, no legal value and is utterly unacceptable.
Going against the regional trend
The East Sea dispute involves six countries: the Philippines, Malaysia, Brunei, Indonesia, Vietnam and China.
On 7th May 2009, Malaysia and Vietnam made a joint submission relating to an area in the South of the East Sea. On 8th May 2009, Vietnam made a submission on its own relating to an area near the centre of the East Sea.
Vietnam had also invited Brunei to make a joint submission with Malaysia and Vietnam relating to an area of overlapping claims in the southern part of the East Sea, and Brunei had accepted. In the event, however, Brunei has not made any submission. Nor has Brunei protested Malaysia and Vietnam’s joint submission.
The Philippines has not made a submission for any area in the South China Sea. According to the Philippines, its reason for not making such a submission is to avoid creating new conflicts or exacerbating existing ones. The Philippines has not protested either Vietnam’s own submission or Malaysia and Vietnam’s joint submission.
Despite their differences over jurisdiction in the Spratlys, Malaysia, Vietnam, Brunei and the Philippines have consulted, worked with and given each other opportunities to participate, and have refrained from making excessive claims that might have infringed on the rights of other countries. This is an encouraging sign for conflict resolution in the East Sea.
In stark contrast to this, China did not make a joint submission with any country. Instead, it protested both Vietnam’s own submission and the joint submission by Malaysia and Vietnam.
According to the United Nation Convention on the Law of the Sea, or UNCLOS, every coastal state is entitled to an exclusive economic zone extending out to a maximum of 200 nautical miles from its baselines. Article 76 of UNCLOS stipulates the criteria upon which a coastal state may claim an extended continental shelf beyond 200 nautical miles. The outer limits of this claim, plus supporting scientific data, had to be submitted to the United Nations Commission on the Limits of the Continental Shelf, or CLCS, for validation. For most states, the deadline for submission was May 13th, 2009.
The CLCS will examine the coastal states’ submissions and make recommendations on valid outer limits of the continental shelf beyond 200 nautical miles. The CLCS has no mandate or authority to settle territorial disputes, nor can it make any recommendation that will prejudice future resolution of such disputes. However, if a coastal state establishes the outer limits of its extended continental shelf on the basis of the CLCS’s recommendations, those limits will become final and binding.
Although the CLCS is neutral regarding territorial disputes, the requirement that the outer limits of continental shelf claims be validated by it has some impact on the resolution of these disputes.
Firstly, the CLCS’s rules have the effect of encouraging the disputing states to be specific about the limits of their claims. Knowing exactly what the different claims are is an important step toward their resolution.
Secondly, these rules have the effect of encouraging the disputing countries to work with each other to determine the outer limits of their combined extended continental shelves. This collaboration might sow the seeds for resolution of the disputes.
Thirdly, UNCLOS’s criteria for the outer limits of the continental shelf, which are scientific and neutral, put countries with excessive claims in a disadvantaged position. Unless those countries adjust their unreasonable claims in order to satisfy UNCLOS’s criteria, it is unlikely that their claims will be accepted by the CLCS.
Fourthly, the procedures of CLCS submission do not favour more powerful states at the expense of weaker ones. As such, these procedures uphold the principle of justice and fairness to all.
Neither of China’s protests, relating to Vietnam’s own submission and to the joint submission by Malaysia and Vietnam respectively, uses any of UNCLOS’s scientific criteria for the outer limits of the continental shelf. Instead, China’s protests simply refer to ‘historic waters’ refer to the map on which China’s nine-dash, U-shaped line loops around 80 percent of the East Sea.
It is worth noting that China did not make any submission of its own to the CLCS relating to the South China Sea. The reason for this is clear: it is simply impossible to justify China’s nine-dash line using UNCLOS’s scientific criteria for the outer limits of the continental shelf.
This is the first time China has presented the nine-dash line to a UN body in the context of maritime delimitation. This qualitatively changes the status of the line from a mysterious and ambiguous claim into something that can be interpreted as a claim to the waters, the seabed and the subsoil within that line.
In short, the actions taken by the different states relating to the CLCS submissions have highlighted two opposing approaches in the East Sea dispute.
The approach undertaken by the five Southeast Asian countries is to put aside differences regarding the island disputes, to apply UNCLOS and to work with each other towards delimiting maritime boundaries.
The one undertaken by China is to reject UNCLOS and to work progressively towards seizing 80 percent of the East Sea. Due to the fundamental differences between these two approaches, it is still highly uncertain that the East Sea dispute can be resolved in a peaceful, lawful and fair way in the foreseeable future.
By the same reasoning, people can understand why during the last years China has printed out maps drawing the nine-dash line but not announced its official claims over the East Sea. It is further likely that China’s caution may stem from a realization that its claim can only damage its image in the eye of the international community.
Put another way, China must worry that its manner of asserting an official claim to 80 percent of the area of the East Sea may shatter the image of a peaceful, hospitable, friendly, and cooperative China that its people have been trying to build for a long time. China may also worry that putting forward the claim and map will affect the way ASEAN countries perceive Chinese policies and actions under the Declaration of the Conduct of Parties in the South China Sea.
Consideration of the topography, natural conditions and socio-economic activities of the East Sea suggests that this body of water is clearly the common house of all regional countries. In recent years, ASEAN countries and China have taken great strides toward sustaining peace and stability and developing international cooperation over the East Sea.
The official issuance of the nine-dash line map is a retrograde step that can only worsen the dispute in the East Sea. It goes against the grain and is contrary to the efforts of regional countries and the international community to attain long-term stable solutions to East Sea disputes.
East Sea issues need fair solutions that are accepted by all countries involved – solutions accepted in the spirit of honoring each others’ sovereignty, developing mutual benefits and observing international law.
VietNamNet/Thanh Nien/Vietnam Week
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