“Nine-dashed line” – An irrational claim (cont.)

For the second condition, China has never previously officially declared its claim over the East Sea as described in this “nine-dashed line” area. According to international law, the behaviour that a country exhibits must show, openly, their will to exercise their sovereignty in that territory. This behaviour must be genuinely in the name of that country as it practices its normal activities. Secret behaviour or activities cannot be grounds for historical rights as, at the very least, other countries must have a chance to know what is going on.

The conference in San Francisco in 1951

The Chinese scholars wanted to imply that this line has existed for a long time and there were no protests from other countries. However, international law dictates that a claim must be openly and officially declared and be maintained for a long time, at least long enough for a disagreeing country to present their official comments. This “u-shaped line” stemmed from “a personal map”, not a legal document for other countries to comment on. Moreover, the countries participating in a conference in San Francisco in 1951 denied the USSR’s proposal to give China Hoang Sa and Truong Sa archipelagos, and the very fact that there exists disputes between Vietnam and China over the Hoang Sa and Truong Sa sovereignty, as well as The Philippines’ and Malaysias claim over the whole or a part of the Truong Sa indicates that it is impossible to say that the “nine-dashed line” that China claims is accepted by any other involved countries.

This “nine-dashed line” contradicts China’s official viewpoint in the Declaration on 4th September, 1958 on its territorial sea:

“The People's Republic of China hereby announces:

1. This width of the territorial sea of the People's Republic of China is twelve national miles. This provision applies to all Territories of the People's Republic of China, including the mainland China and offshore islands, Taiwan (separated from the mainland and offshore islands by high seas) and its surrounding islands, the Penghu Archipelago, the Dongsha Islands, the Xisha islands, the Zhongsha Islands, the Nansha Islands and other islands belonging to China.”

Obviously, China recognises that the islands are separated from the mainland by the sea, not by “historical water” areas. In its Law on the Territorial Sea and the Contiguous Zone of 25th February 1992, China only claimed its territorial sea, measured at 12 nautical miles from its baseline of the territorial sea, and the contiguous zone of 12 nautical miles for tariffs, economic and similar purposes, with no discussion or definition of so-called “historical waters”. In 1996, China ratified the United Nations Convention on the Law of the Sea 1982 and proclaimed the baseline extending to Hoang Sa Islands. This “proclamation” violated two basic principles: both Vietnam’s declared and publicised sovereignty and the international law of the sea relating to the baseline. If one puts aside the sovereignty issue to just view the technical perspective, China’s baseline proclamation on Hoang Sa Islands did not respect the spirit of the UNCLOS 1982. This straight baseline system links the outermost points and drying reefs of the outermost islands like Beijiao (Da Bac), Zhaoshudao (Con Cat Tay), Beidao (Dao Bac), Nandao (Dao Nam), Dongdao (Dao Lincon), Langhuajiao (Da Bong Bay). Here, China applies an archipelagic baseline drawing method, applied to archipelagic states (Article 47 of the UNCLOS 1982) to outline the baseline to offshore islands.

Article 47 of the UNCLOS 1982 rules that “an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1”.

The area that China recently declared baseline encompasses is about 17,000 square km, meanwhile, the whole area of Hoang Sa Islands is 10 square km. Besides, most of the reefs that China uses here are not suitable for habitation or does not have any specific economic life. These islands are more than 24 nautical miles from each other so that there are no reasons to link these lines to the baseline. Therefore, any sea areas that China claims encircling the sea areas of the reefs are technically against the UNCLOS 1982.

China’s declaration on the baseline in 1996, which included Vietnams Hoang Sa Islands, shows that Chinas claim on international waters within “historic waters”, as being part of the same “internal waters” system, is a serious contradiction in their position. This position of China also contradicts its own declaration in the example of the matter of the U.S. warship violating China’s exclusive economic zone in the case of 8th March, 2009. Did China at the same time claim one sea area with two different legal systems: sovereignty in the exclusive economic zone is in the internal water of sovereignty?

In their arguments, Chinese scholars referred to some precedential claims on historic waters such as the USSR’s claim on 20th July, 1957 for ‘Peter the Great Bay’ and the Libyan claim on 11th October, 1973 for Sidra Bay. In their opinions, these examples mean that, in terms of international practice, the law on historic bays has a specific legal regulation so that their “9-dashed line” claim is legal. Their arguments are based on 15 cases of claims on “historic waters” that have been criticised by international law. These rare cases cannot create an ‘opinion juris’ or an unchanged practical legal fact as they are not accepted under international law as a practice principle. The waters and territories in the “9-dased line” accounts for 80 per cent of the East Sea, considered by China as a so-called “historic water”, and has no legal foundation. International law has never yet admitted such a large “historic water”. The “9-dased line” claim, therefore, goes against the very theory of “historic waters”. The international community has never recognised such a claim and will not accept that a large area, like the East Sea, one of the biggest seas, will fall under the control of only one country.

The viewpoints of China and Taiwan, the first party to present the “u-shaped line” claim, are different. On 30th December 1992, Taiwan enacted their Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China. This law was based on the principle of practical sovereignty, omitting the articles on “historic waters” (the waters within the “u-shaped line”). On 21st January, 1998, Taiwan enacted a Law on the Territorial Sea and the Contiguous Zone of the Republic of China. This law states that the territorial seas of Taiwan have the width of 12 nautical miles and the points to draw the baseline and border out of its territorial sea in the following time. In these laws, Taiwan, different from China, does not mention “historic characteristics” of the “cow-tongue line”, which they had claimed in 1947. They only claimed reefs and drying reefs within the “u-shaped line” not also the waters within this line.

China’s “9-dashed line” claim runs close to the coastal lines of many countries, and some parts of it are only 50 to 100 km far from Vietnam’s coastal line. Meanwhile, Truong Sa is only 200 nautical miles from Vietnam’s coastal line. This line also runs close to Malaysias Shoal James, Indonesia’s Natuna Island and islands of The Philippines, causing concerns to these regional countries. Therefore, it is hard to agree with the Chinese scholars’ arguments that this line was drawn almost equally distant between the outer edge of four archipelagoes in the East Sea and the coastal lines of adjacent countries. First of all, the international conventions and the practice in the rulings of international jurisdiction institutions do not plan the priority of the equally distant method in demarcation, especially when it relates to historical title. China confirmed that it built the claim on the “historical title” while applying the equally distant line to demarcate this territory. This is not consistent. Secondly, if this line was technically correct when it was drawn, it would not be equally distant between the islands in the middle of the East Sea and the coastal line of the adjacent countries. Moreover, Article 121 of the UNCLOS 1982 rules that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”.

Hamzah, a Malaysian scholar, said that such an irrational claim is nonsense and has no jurisdiction. Sovereignty cannot be deduced and based on baseless evidence. The “9-dashed line”, unidentified by legal foundation and geographic position, not only violates the sovereignty of relevant countries but also is a challenge to maritime and air interests of the international community. For many generations, the regional countries have been using the East Sea normally without any obstacles from China. However, claiming the “u-shaped line” to be a national sea border and most part of the East Sea together with its islands and rocks was to intentionally make Chinese citizens and other people understand simply that this is a confirmation on “an already made thing”- that the South China Sea and four archipelagoes “belong to China”, according to Daniel Schaeffer, a former French Military Attaché in China, Vietnam and Thailand.

However, for those Chinese who want their country to be a reliable and stable member of the international community and the UNCLOS 1982, the renouncement of this line will clear the vague state that prevents the reality, creating trust with relevant countries, making negotiations on sea demarcations more objective, and promoting cooperation and development.

Naturally, the East Sea is a combination of economic regimes among Southeast Asia countries and between them with the southern lands of China. With its geo-political location, natural composition and intertwined socio-economic activities among regional countries, the East Sea is the common home of the regional countries and collects the common concerns of the countries inside and outside the region. Therefore, the issues of the East Sea should be resolved equally with respect to international laws and each country’s sovereignty and interests.