Along with a diplomatic note dated May 7, 2009 to the UN Secretary General objecting to Vietnam's Submission on its Outer Limits of the Continental Shelf to the UN, China also attached a map stating its "nine-dash line" claims over the East Sea.
The Chinese note stated that "China has indisputable sovereignty over the islands in the South China Sea (Eastern 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)."
On May 8, Vietnam's Permanent Mission to the United Nations sent diplomatic note 86/HC - 2009 to the UN Secretary-General refuting the claim and the map submitted by China.
On the same day, the Vietnamese Foreign Ministry spokesman Le Dung told a press conference that Vietnam held incontrovertible sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes, saying they were Vietnamese territory.
"China's claim of the nine-dash line on the map attached to its diplomatic note is null and void as it has no legal, historical and factual ground," Dung said.
In this article, I will not analyze Vietnam's sovereignty over the Hoang Sa and Truong Sa archipelagoes, but will instead focus on the larger 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 creation of the dubious line
The dotted line - drawn in the East Sea on the map from the Chinese side - is usually referred to as the "nine-dash line" (since it is composed of nine dashes) or the "U-shaped line."
The "U-shaped" or "nine-dotted" line are two different ways international scholars have addressed the same demarcation of China's claims to over 80 percent of the East Sea. The line was drawn close to several countries, including Vietnam, Indonesia, Malaysia, Brunei and the Philippines.
An original 11-dotted line was first drawn by the Chinese government of 1947. The Chinese government then altered it to the nine-dash line with two dashes in the Gulf of Tonkin deleted.
China's note dated May 7, 2009 is perhaps the first diplomatic statement in the last 60 years of China's official stance on the international legal significance of the nine-dash line. It was also the first time China formally introdrced the world to the nine-dash line map.
China had never ever issued any official declaration on the international and national legal significance of this line before, despite the fact that the line had been drawn many times on Chinese maps.
Even in important legal documents issued by China , like the 1958 Declaration on China's Territorial Sea, the 1992 Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone, the 1996 Declaration of the Government 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, China had always stopped short of explaining this nine-dash line.
At numerous international conferences, such as the annual Workshop on Managing Potential Conflicts in the South China Sea in Indonesia since 1991, Chinese scholars have offered different and even divided explanations of what the dotted line means.
But there is a very important question that has remained unanswered by international and Chinese scholars: how were the exact locations of each dash established?
No document, be it official or unofficial, has been issued to account for this.
A claim with no international legal value
The first and most commonly used 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. China has dismissed the use of the 1982 UN Convention on the Law of the Sea 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 would be a three mile territorial sea limit from the lowest tide. Outside the territorial waters of each country, international waters would be 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 current international laws, 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."
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, since at the moment, coastal countries have 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 the line was drawn in 1947 so China can say the sea area located in the line is it's "historic" territory.
It needs to remembered that participating countries at the Third United Nations Conference On The Law Of The Sea were at odds over the adoption of regulations and definitions about the historic waters into the 1982 UN Convention on the Law of the Sea. However, from deliberations at the workshop, it can be concluded that the criteria necessary to declare historical sovereignty over territory are:
- 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.
- The claim must be recognized by countries involved.
Although international law has never recognized the demands made by China in relation to the East Sea, let's consider objectively if China can meet those aforesaid criteria.
Firstly, it is evident that all maritime, oil, and fishing activities of all countries inside and outside the East Sea had 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 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 as well as other cooperation deals in the East Sea despite objections from China, let alone other disputes about sovereignty over archipelagoes in the East Sea.
The nine-dotted line China drew on the map attached with the May 7, 2009 note also 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 ââ‚¬Ëœhistoric' 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."
Thus, given the classic and modern international laws, the nine-dash line claim of China has no scientific grounds, no legal value and is utterly unacceptable.
An action against the regional trend
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 in the same way. In addition to the reasons analyzed above, China's caution in this regard might stem from its consideration of the impact of the claim over its image in the eye of the international community.
China may be worried that its official claim over 80 percent of the area of the East Seam might shatter the image of a peaceful, hospitable, friendly, and cooperative China its people have been trying to build for a long time. China may also be worried that the claim would affect the way ASEAN countries perceive Chinese policies and actions under the Declaration of the Conduct of Parties in the South China Sea.
Considering the topography, natural conditions and socio-economic activities in the East Sea, the body of water is clearly the common house of all regional countries. ASEAN countries and China have taken great strides in sustaining peace and stability and developing international cooperation over the East Sea.
The official issuance of the nine-dash line now will just worsen the situation in the East Sea. It goes against the grain and is contrary to the efforts of regional countries and the international community in seeking long-term stable solutions to East Sea disputes.
East Sea issues need fair solutions accepted by all countries involved - solutions accepted in the spirit of honoring each others' sovereignty, developing mutual benefits and observing international law.