On 23 June 2014, the Hunan Map Publishing House released a new vertical map of China covering most of the South China Sea under the so-called “nine dashed line”, now with an added “dash” to become ten.
In justifying the new map, Wang Junming, a professor of international law and marine law at the Party School of the Central Committee of the Communist Party of China argued for China’s sovereign rights and traditional fishing rights in the South China Sea, albeit in very strange ways inconsistent with international norms and contemporary laws of the sea.
In his first argument, Wang claims that China has the right to take the Paracels (Hoang Sa in Vietnamese) as a whole, apply the straight baseline for the archipelago, and claim maritime zones from the baseline accordingly. These arguments are in faulted on several aspects. First, Vietnam has sufficient evident and legal basis to prove its sovereignty over the Paracels. China, in 1956, taking advantage of France’s retreat from Indochina, occupied the Eastern group of islands of the Paracels. In 1974, China once again used military force to occupy the entire Paracels and currently still maintained its illegal occupation. Second, notwithstanding the sovereignty issues, the Paracels cannot be subjected to the baseline currently misapplied by China. Under the 1982 Convention on the Law of the Sea (UNCLOS), only archipelagic states, which solely consisted of archipelagoes, are entitled to draw archipelagic baseline connecting the outermost point of the archipelagoes.
Both China and Vietnam are mainland countries, thus cannot apply the archipelagic baseline to the Paracels. China in fact applied the archipelagic baseline for the Paracels, however, Professor Wang has confused, deliberately or not, the concepts of archipelagic baseline to straight baseline to justify their misapplication to the Paracels.
As a state party to UNCLOS, China should fully adhere to its treaty obligation and should not have quoted either the provisions of its domestic law, the 1992 China’s Law on the Territorial Sea and Contiguous Zones, or the working paper on the sea area within China's jurisdiction submitted to the UN Seabed Committee in July 1973, which was rejected by the third United Nations Conference on the law of the sea, to justify for the incompliance. No maritime zones claimed for the Paracels will be legitimate if they were measured from an illegitimate baseline.
The second argument, Professor Wang again arbitrarily applied the provision of traditional fishing rights, strictly provided by UNCLOS for archipelagic waters, to the exclusive economic zones of other littoral states in the South China Sea. This is obviously an abuse of law as under UNCLOS, no traditional fishing rights are recognised within the exclusive economic zone of coastal states.
The traditional fishing rights are only provided for under UNCLOS in the context of archipelagic states. When granting a special regime for archipelagic states by accepting the concept of archipelagic baseline and archipelagic water entitlement, UNCLOS also imposed an obligation to archipelagic states to recognize the traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas within archipelagic waters.
Accordingly, if China thought it had traditional fishing rights, such rights could only be claimed in the archipelagic waters of the Philippines and Indonesia, the two “adjacent” archipelagic neighbors of China. China cannot arbitrarily claim traditional fishing rights anywhere in the South China Sea, overlapping these claims with the exclusive economic zones of other coastal states, because such rights do not exist under UNCLOS.
In the Gulf of Main case, when the United States claimed traditional fishing rights in Canada’s exclusive economic zone, the Court ruled that “whatever preferential situation the United States may previously have enjoyed, this cannot constitute in itself a valid ground for its now claiming the incorporation into its own exclusive fishery zone of any area which, in law, has become part of Canada's”.
It should also be further pointed out that although UNCLOS recognised certain traditional fishing rights in such very limited and very specific circumstances, it does not recognise traditional rights to other resources. China attempts to illegally claim fishing rights in the whole of the South China Sea, and conflates the “rights” to include other resources, such as rights to hydrocarbon deposits in the seabed are another serious offense to law of the sea.
Deliberately and desperately applying irrelevant concepts and provisions of UNCLOS will not create the legal basis for the nine dashed line claim. The introduction of the new map, the additional “dash line” and accompanying clumsy arguments in its justification only further reveals China’s ambition to monopolise the South China Sea by all means and to realise its naval power status through China’s 21st century version of the “Monroe doctrine”. It also revealed China’s readiness to by pass and twist international law and order to realise its “great dream”./.
Nguyen Thi Lan Anh is the Vice Dean at the International Faculty of the Diplomatic Academy of Vietnam.