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The Continuous U-Shaped Line Does Not Have Legal Status

9-dash-line-274x300SCSC - Hong Kong media recently reported a China’s maritime research project proposing “a new boundary line” in the South China Sea, which can help the study of natural science” while “adding weight to China’s claims over the sea area. The proposed boundary is a continuous line coinciding exactly with the current U-shaped line that encircles a vast area rich in natural resources in the South China Sea, over which China lays its claims.

What is the implication of the continuous U-shaped line from an international law angle?

Assuming that the 1951 map is real (yet this is questionable since China is a master in making such fake evidences to muddy the waters), what will happen?

In order to understand the legal nature of the continuous U-shaped line, three questions need to be answered: First, can a map that depicts the continuous U-shaped line establish an official claim of territory for China? Second, what behind a proposal which was based on a 1951 map? Third, can this continuous U-shaped line become the “national maritime boundary of China in the South China Sea”?

Can the map of the continuous U-shaped line become a territorial claim of Chinese Government?

At first, whether it illustrates a continuous or dashed line, can a map itself constitute a territorial claim for China?

To answer, we can refer to Judge Oda’s opinion in the case of Kasikili/Sedudu: “…a claim to territory can only be made with the clear indication of a government’s intention, which may be reflected in maps. A map on its own, with no other supporting evidence, cannot justify a political claim”.

It can also be cited from the decision of the Court of Justice in the case of Burkina Faso/Republic of Mali: “maps can still have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps, except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier…”

Thus, it is apparent that if a map is discovered (not sure whether it is real or not) without any clear expression that it indicates the Chinese Government’s claim, it cannot be considered as a territorial claim. A territorial claim must be expressed by an official statement made by the government rather than through some ideas imagined by “researchers”.

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Source: Internet

What is the implication of the proposal based on the 1951 map?

Chinese researchers said that they have recently found a map published in 1951 which depicted the continuous U-shaped line. What is its implication?

Given the year of 1951, Chinese researchers can argue that this map “matches” with previous statements made by Chinese Government in term of “historic rights” in the area within the line because this map predated the UNCLOS 1982. Since its entry into force, the UNCLOS 1982 has been considered as the “Constitution for the Ocean”, providing the rights and duties of coastal states. However, China is not able to base on the UNCLOS 1982 to justify their nine-dashed line, therefore, instead of that, China claims for “historic rights” over the area within this line. “Historic rights” can be understood as China’s exclusive rights to the natural resources in this area, formed throughout the long course of history, predating the UNCLOS 1982 and it is consequently not necessary to be in compliance with the UNCLOS 1982 in this particular case.

Nonetheless, in the South China Sea Arbitration Award (12 July 2016), the Tribunal decided that: historic rights of China relating to the natural resources in the South China Sea are superseded because of their incompatibility with the regime of the exclusive economic zone provided by the UNCLOS 1982. The Tribunal acknowledged that in history, seafarers such as fishermen from China and other states had used the islands on the South China Sea, but there is no evidence showing that only China in history did regulate or control the area and the natural resources within it. Therefore, the Tribunal decided that China does not have legal basis to claim historic rights to the natural resources in the area encompassed by the nine - dashed line.

Can the “continuous U-shaped line” become China’s maritime boundary in the South China Sea?

The next question relates to whether the continuous U-shaped line becomes China’s maritime boundary in the South China Sea. In the past, international researchers’ viewed that the U-shaped line was drawn arbitrarily without any precise coordinates and it was a dashed-line, so that it could not be considered as an official national boundary.

Given that, Chinese researchers, with support from the government, attempt to “discover” the map containing a continuous line to fill this gap.

In the proceedings of the arbitration against China initiated by the Philippines to the Arbitral Tribunal established under Annex VII of the UNCLOS 1982, the Philippines’ counsels proved that: one of the methods China uses to justify the nine-dashed line is to consider it as its national maritime boundary. However, according to some statements, especially from 2014, Chinese government has officially stated that it “respects and safeguards the freedom of navigation and over-flight within the nine-dashed line to which all countries are entitled under international law”. By officially acknowledging the freedom of navigation and over-flight within the nine-dashed line, China indirectly rejected the ‘nine-dash line’ as its national maritime boundary. This is because in accordance with international law, there is no freedom of navigation or over-flight in the area within a national boundary.

The Tribunal accepted this argument of the Philippines. However, while Chinese Government official statement indirectly rejects the role of the nine-dashed line as the national maritime boundary, Chinese scholars are trying to prove the contrary. Which one is more official is easy to see.

Conclusion

This proposal evidenced that China’s ambition in the South China Sea never wanes, even when it was thrown cold water on by the Ruling.

China has made many attempts to realize the U-shaped line and one of them is the discovery of this 1951 map with a continuous U-shaped line. Yet it does not have the legal nature and cannot be accepted by international law.

Even though China now is a very powerful country; it cannot change the truth in the contemporary world. Every power will collapse one day, but international law will continue to evolve. Therefore, a claim which does not have any legal basis such as the U-shaped line, either continuous or broken, will never be recognized by international law.

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