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A Legal Analysis of China’s Historic Rights Claim in the South China Sea

  • Florian Dupuy (a1) and Pierre-Marie Dupuy (a2)

Extract

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.” 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 inthe arguments brought by states claiming sovereignty in this region and, in particular, by the People’s Republic of China (China). 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.

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1 For a general overview of the dispute, see, for example, Full Unclosure? As Oil-and-Gas Exploration Intensifies, So Does the Bickering, Economist, Mar. 24, 2012, at 41, available at http://www.economist.com/node/21551113.

2 We will generally use the term China to refer to the state we now know as the People’s Republic of China. It will occasionally be useful to refer separately to Taiwan, either as a political entity that makes a claim to certain territory, see infra text accompanying note 5, or as a physical feature, an island off the coast of mainland China. It will always be clear from the context which of these two alternatives is intended.

3 Note Verbale No. CML/17/2009 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf; Note Verbale No. CML/18/2009 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf.

4 This nine-dash line can be seen on the map printed with the Editors’ Introduction, 107 AJIL 95 (2013).

5 Although the term historical rights rather than historic rights has occasionally been used on the Chinese side, we shall prefer not to attach too much importance to this lexical variation, which may result from translation issues, rather than from an actual intent. We shall use historic rights, which is the term normally used in international law.

6 Note Verbale No. 77/HC-2011 from the Permanent Mission of the Socialist Republic of Viet Nam to the UN Secretary-General (May 3, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm_2011_re_phlchn.pdf.

7 See Note Verbale No. 000228 from the Permanent Mission of the Republic of the Philippines to the UN Secretary-General (April 5, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/phl_re_chn_2011.pdf.

8 Although there has been little detailed exploration of the area, some estimates put possible oil reserves as high as 213 billion barrels, see http://www.eia.gov/countries/regions-topics.cfm?fips = SCS), which would be roughly ten times the proven reserves of the United States, see http://www.eia.gov/countries/country-data.cfm?fips=US&trk=p1#pet.

9 This English translation is available on the website of the Asian Law Information Institute, at http://www.asianlii.org/cn/legis/cen/laws/rotscotnpcotaotdotgocts1338/. Note, however, that China had already asserted its claim over the Spratly Islands on May 29, 1956, in response to the Philippines’ claim over some islands of this group. See, e.g., Smith, Edmond D. Jr., China, Technology and the Spratly Island: The Geopolitical Impact of New Technology (March 1994) (unpublished Ph.D. dissertation, Salve Regina University), at http://www.dtic.mil/dtic/tr/fulltext/u2/a280214.pdf.

10 Geneva Conventions on the Law of the Sea, Apr. 29, 1958, 2 Official Rec. 146, UN Doc. A/Conf.13/L.58.

11 Declaration on China’s Territorial Sea, supra note 9, para. 1.

12 An official translation of the Law [of the People’s Republic of China] on the Territorial Sea and the Continguous Zone is reproduced in Annex 2 of U.S. Dep’t of State, Limits in the Seas No. 117, Straight Base Line Claim: China (1996), available at http://www.state.gov/documents/organization/57692.pdf.

13 UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter Unclos].

14 See paragraph 3 of China’s declaration upon ratification of UNCLOS, at www.un.org/depts/los/convention_agreements/convention_declarations.htm: “The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone....”

15 See supra note 3 and accompanying text.

16 Note Verbale No. CML/8/2011 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (Apr. 14, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf.

17 China declared in Note Verbale No. CML/8/2011, supra note 16, that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.” Note that the statement is limited to the Spratly (Nansha) Islands because it is a response to a note by the Philippines, which does not have any claim in respect of other islands. Presumably, however, China would make the same claim in relation to the Paracel Islands.

18 See UNCLOS, supra note 13, Art. 121.

19 See supra note 16 and accompanying text.

20 See, e.g., Jinming, Li & Dexia, Li, The Dotted Line on the Chinese Map of the South China Sea: A Note, 34 Ocean Dev. & Int’l L. 287 (2003); Keyuan, Zou, Historic Rights in International Law and in China’s Practice, 32 Ocean Dev. & Int’l L. 149, 160 (2001).

21 See, e.g., Su Hao, China’s Positions and Interests in the South China Sea: A Rational Choices [sic] in Its Cooperative Policies (2011), at http://csis.org/publication/chinas-positions-and-interests-south-china-sea-rational-choices-its-cooperative-policies; Nozomu Hayashi, Official Says Beijing Has ‘Historical Rights’ over South China Sea, Asahi Shimbun, Jan. 26, 2012, at http://ajw.asahi.com/article/asia/china/Aj201201260061.

22 See, e.g., Li Jinming & Li Dexia, supra note 20; Li Guoqiang, Claim over Islands Legitimate, China Daily, July 22, 2011, at http://www.chinadaily.com.cn/cndy/2011-07/22/content_12956340.htm; Shen, Jianming, International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands, 21 Hastings Int’ L & Comp. L. Rev. 1 (1997); Pan Shiying, South China Sea and the International Practice of the Historic Title (American Enterprise Institute for Public Policy Research, 1994).

23 See, e.g., Song, Yann-Huei & Yu, Peter Kien-hong, China’s “Historic Waters” in the South China Sea, Am. Asian Rev., Winter 1994, at 83 , available at http://paracelspratlyislands.blogspot.com.au/2008/01/chinas-historic-waters-in-south-china.html; Li Jinming & Li Dexia, supra note 20.

24 See supra note 9 and accompanying text.

25 See supra note 12 and accompanying text.

26 As quoted later in this paragraph, the expression actually used in the act, as translated, is “historical rights.” An English translation of the act is available at http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/chn_1998_eez_act.pdf. Note, however, that earlier references to “historic waters” can be seen in declarations made on behalf of Taiwan as early as 1993. See Sun, Kuan-Ming, Policy of the Republic of China Towards the South China Sea, 19 Marine Pol’y 401, 408 (1995).

27 See, for example, the various interpretations proposed by Zou Keyuan, supra note 20, at 162.

28 Nguyen Hong Thao, China’s Maritime Moves Raise Neighbors’ Hackles, Vietnam L. & Legal F., July 1998, at 21.

29 Zou Keyuan, supra note 20, at 162.

30 Vietnam: Dispute Regarding the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China Which Was Passed on 26 June 1998, UN Law of the Sea Bull., No. 38, 1998, at 55.

31 See supra note 3 and accompanying text.

32 See supra note 16 and accompanying text.

33 Nozomu Hayashi, supra note 21.

34 See, e.g., Li Jinming & Li Dexia, supra note 20; Su Hao, supra note 21, at 3; Sheng, Jianming, China’s Sovereignty over the South China Sea Islands: A Historical Perspective, 1 Chinese J. Int’l L. 94, 129 (2002), at http://chinesejil.oxfordjournals.org/content/1/1/94.full.pdf.

35 See supra note 3 and accompanying text.

36 See supra notes 20–23 and accompanying text.

37 Li Jinming & Li Dexia, supra note 20, at 290. See also, from a Taiwanese perspective, Yann-huei Song & Kienhong Yu, supra note 23, at 83:

Because no protests or opposition were expressed by the states concerned or the international community in general after the map was published, and the legal status of the enclosed waters has never been clarified by [China], questions concerning the nature of this “U”-shaped boundary line continue to be raised.

38 See supra note 6 and accompanying text.

39 See, e.g., Durward Sandifer, Evidence Before International Tribunals 229 (rev. ed. 1975) (“The principles applicable to the use of maps in international arbitral proceedings constitute a collateral, rather than a principal, part of the best evidence rule....”); see also Cukwurah, A. Oye, The Settlement of Boundary Disputes in international law 224 (1967) (“With regard to maps as such, the popular approach, arising from their inherent limitations, is not to treat them as conclusive, but of relative value.”).

40 Frontier Dispute (Burkina Faso/Mali), 1986 ICJ Rep. 554, para. 54 (Dec. 22).

41 Island of Palmas (Neth./U.S.), 2 R.I.A.A. 829, 852 (Perm. Ct. Arb. 1928).

42 Hyde, Charles Cheney, Maps as Evidence in International Boundary Disputes, 27 AJIL 311, 314 (1933).

43 See, e.g., Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), 2002 ICJ Rep. 625, para. 88 (Dec. 17); Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), 2007 ICJ Rep. 659, para. 219 (Oct. 8).

44 Yongke, Jiao, [There Exists No Question of Redelimiting Boundaries in the Southern Sea], 17 Ocean Dev. & Mgmt. 52 (2000), translated in Strupp, Michael, Maritime and Insular Claims of the PRC in the South China Sea Under International Law, 11 Zeitschrift für chinesisches Recht 1, 16 (2004).

45 Li Jinming & Li Dexia, supra note 20, at 293 (relying on Blum, infra note 54).

46 Su Hao, supra note 21, at 1.

47 Li Jinming & Li Dexia, supra note 20, at 291 (quoting Shiying, Pan, Spratly Islands, Oil Politics and Inter national Law, in The Petropolitics of The Nansha Islands: China’s Indisputable Legal Case (1996)).

48 See supra note 34.

49 See, e.g., Su Hao, supra note 21, who refers to China’s “historical rights” but then presents an argument for China’s sovereignty over the South China Sea that relies on traditional international law principles for acquiring sovereignty, with no reliance on such rights.

50 See Continental Shelf (Tunis. v. Libya), 1982 ICJ Rep. 18 (Feb. 24).

51 Juridical Regime of Historic Waters, Including Historic Bays, [1962] 2 Y.B. Int’l L. Comm’n1, 2, UN Doc.A/CN.4/SER.A/1962/Add.1, reprinted in UN Doc. A/CN.4/143, available at http://untreaty.un.org/ilc/guide 8_4.htm.

52 Id. at 25.

53 Although Taiwan cannot ratify UNCLOS because the United Nations does not recognize it as a state, Taiwa is taking steps to bring its domestic legislation into conformity with UNCLOS.

54 Blum, Yehuda, Historic Rights, in 7 Encyclopedia of Public International Law 120 (Bernhardt, Rudolf ed., 1984); Charles de Visscher, Theory and Reality in Public International Law 199 (1957).

55 Robert Yewdall Jennings, The Acquisition of Territory in International Law 24 (1963)

56 If, however—as suggested by some authors—effectivité is one of the constitutive elements of historic rights (see Gioia, Andrea, Historic Title, in The Max Planck Encyclopedia of Public International Law (Wolfrum, Rüdige ed., online ed. 2008), at http://www.mpepil.com; Blum, supra note 54), then the usefulness of the concept, compared to established modes of acquiring sovereignty, is questionable.

57 A majority of authors have questioned the usefulness of recognizing historic rights in the context of sovereignty over land. See, e.g., Marcelo G. Kohen, Possession Contestée et souveraineté Territoriale 40–43 (1997); Brownlie, Ian, Principles of Public International Law 157 (7th ed. 2008).

58 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.; Eq. Guinea intervening), 2002 ICJ Rep. 303, para. 65 (Oct. 10); see also Minquiers and Ecrehos (Fr./UK), 1953 ICJ Rep. 47 (Nov. 17).

59 Supra note 37, at 25.

60 Some Chinese scholars have even acknowledged as much—for example, Li Jinming and Li Dexia, supra note 20, at 293, who observe that “China no longer regards the waters within the dotted line as historic waters, because historic waters can only be treated as internal waters or territorial seas, but cannot be included in exclusive economic zones and continental shelves.”

61 The notion that a state may have historic rights in respect of land has been advocated mainly by one state (Israel), one leading scholar (Yehuda Blum), and a small group of writers who have followed in his wake.

62 See Li Jinming & Li Dexia, supra note 20; Zou Keyuan, supra note 20.

63 Blum, supra note 54, at 121.

64 Minquiers and Ecrehos, supra note 58.

65 Id. at 56–57.

66 1 The New Shorter Oxford English Dictionary on Historical Principles (1993).

67 Su Hao, supra note 21, at 1.

68 See. e.g., Monique Chemillier-Gendreau, La Souveraineté sur les Archipels Paracels et Spratleys 120 (1996).

69 Ministry of Foreign Affairs, Republic of Vietnam, White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands (1975), at http://www.bchuvanannc.com/resources/White%20Papers%20of%20Republic%20of%20Vietnam.pdf

70 Vietnam: Dispute Regarding the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China Which Was Passed on 26 June 1998, supra note 30, at 54–55.

71 Note Verbale No. 77/HC-2011, supra note 6.

* The authors wish to thank Veijo Heiskanen and Michael Schneider, Partners at LALIVE, for their comments and suggestions. This essay draws on a prior study commissioned from the authors as independent experts. The views expressed are their own.

A Legal Analysis of China’s Historic Rights Claim in the South China Sea

  • Florian Dupuy (a1) and Pierre-Marie Dupuy (a2)

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