‘U-shaped line’ in the South China Sea: Irrationality and ambiguity

On 23 June 2014, China’s “U-shaped line” claim to the South China Sea (SCS) has been extended from nine segments up to 10 segments, covering from 80 percent to 90 percent of the SCS. On 12 August 2014,  Global Times reported that China had recently published its first book on the theories of the nine-dash line of the South China Sea.

The book states that the nine-dash line is a historical line of maritime rights, which include the right to claim Chinese sovereignty on islands of the SCS and the right for Chinese fishing and the exploration of mineral resources inside the line. It concludes that any attempt or behavior to deny or deprive the rights that the nine-dash line stands for is legally wrong and politically impractical. This article emphasizes on the nature of the ambiguity and irrationality which were embodied in its name, origins, expressions and contents of such claims.

Ambiguities of origin: The questions on why China fabricates the “U-shape line,” when it was done, who the author is and what the purposes are behind and under what circumstances are still unknown so far.

According to Chinese scholars, the “U-shaped line” was firstly introduced in the Location Map of the SCS Islands — a compilation of Jiaojin Fu, Wang Xiguang and later on published by the Department of Land management of Chinese Ministry of Home Affairs in 1947. Others have suggested that the”U-shaped line” was made up by Hu Jinjie in 1914 and in December 1947, an official of the Republic of China named Bai Meichu created a re-make in an individual map. This line is also known as broken lines. In essence, it is alegendary line, the origin is totally unclear and irrational, ambiguous.

Ambiguities in expression: At the beginning “the U-Shaped line” comprises 11 consecutive passages, which enclose the main island features of the SCS such as the Pratas islands, Paracel islands, Macclessfield banks and Spratly islands; limit point in the South of the line at latitude 4⁰ N, on James Shoal off the coast of Malaysia.

According to published documents in 1953, the line comprised 11 consecutive lines (also referred to as the eleven-dash line) and it was amended to nine consecutive lines (nine-dash line), the removal of two sections in the Gulf of Tonkin is still unknown. In fact, there is no internationally recongnized available document clarifying the coordinates and exact location of such line. In June 2014, the “nine-dash line” was added another segment along the side of Taiwan. The modification of the line from time to time has expressed the arbitration and ambiguity of the Chinese Party.

Under international law, a border or territorial claim must be expressed by solid lines, of exact coordinates and stability from time to time. On the other hand, the “U-Shaped line” has been modified by periods with 11, 9 or 10 segments, arbitrarily made up with no coordinates and shall not deem to be a legitimate border claim in accordance with international law.

Ambiguties in legal grounds: Official documents of China can not justify the claim contents of “the U-shaped line”. 

It is still unknown if China is aiming at islands, waters or both islands and waters. In 1958, China issued a declaration defining its territorial waters, islands within 12 nautical miles of territorial sea and the high sea beyond without any further information of the “U-shaped line”. In 1998, the Chinese Law of the exclusive economic zone and continental shelf claimed the island within the exclusive economic zones and the continental shelf and reserves its historic right.

Pursuant to Note Verbale No. CML/17/2009 and CML/18/2009 dated 7/5/2009 issued by the Permanent Mission of the PRC sent to the United Nations and the attached maps which expressed the “U-shaped line” in the SCS, asserted “... China has indisputable sovereignty over islands in the SCS and the adjacent waters...”.

However, the UNCLOS does not provide any definition of adjacent waters. Note Verbale dated 14/4/2011 of the Permanent Mission of the PRC sent to the UN denying Note Verbale dated 5/4/2011 of the Philippines delegation also mentioned the historic rights and claimed the territorial sea, exclusive economic zone and continental shelf of the Spratly islands.

Since there is no legally valid ground for such claim, Chinese scholars have come up with at least three explanatory statements for the demands of the “U-shaped line”: (1) this is the claim of sovereignty over the islands within the maritime boundary/border.; (2) such line has existed for nearly half a century and others countries have no objection, which has created the historic tittle for China as the national border. China claims sovereignty not only over the islands but also the whole features and waters within the “U-shaped line”, and; (3) such claim is not the traditional claim on historic waters, but the claim on the sovereignty and historiscal jurisdiction.

The international community can not accept the first explanatory statement because it has seriously violated the legal achievements on the order at sea by law provided in the UNCLOS provisions. A maritime boundary claims must be based on the legitimate ground of land ownership, the geographical features and the basic principle in the law of the sea known as “Land dominates Sea”.

Therefore, the “U-shaped line” has been made up in the manner contrary to international law. The arbitrary act conducted at will by the Chinese government aimes at localizing waters for the claim of all geographical features within the line does not satisfy the conditions on territorial acquisition and material possession under international law.

With the second interpretation, the “U-Shaped line” is the sea boundary in which all waters shall deem to be the historic waters is also inconsistent with international law. According to international practices and the judgment of the International Court of Justice and Arbitrations, a bay or a waters area is considered tho have historic title must satisfy at least two conditions: (1) the sovereignty of the coastal states must be performed in a successive, peaceful and long-term manner without any activitie of others coastal countries to the SCS proved by historic evidences, and; (2) it is publicly recognized or admitted, especially by neighboring countries which have interests in such maritime area.

It is difficult for China to prove its practical sovereignty enforcement over the entire SCS in a succesive, peaceful and long-term manner. Further more, it has never been officially announced and clearly explained by China about those claims regarding the “U-shaped line”. According to international law, national acts over sovereign territory issues must be publicly expressed. A claim must be stated clearly, un ambiguously, formally and maintained in a sufficient time for other countries to provide dissenting opinions.

The third statement has led to a contradiction between the statement and the act of China. If historic right has been justified, there is no need to determine the economic jurisdical right under the law of the sea and such statement also contradicts with the Chinese straight baselines claim dated 15 June 1996, which declared the American warships had violated the exclusive economic zone of China on 8 March 2009 and protested the the Joint Submission of the Continental shelf beyond 200 nautical miles issued by Vietnam and Malaysia in  May 2009.

There is no provision justifying the historic title of sea beyond 12 nautical miles and it is unreasonable to claim such right over a hundred nautical miles from the coastline, as in the case of “the U-shaped line”. Therefore, UNCLOS is not likely to recognize and protect the historic title of China. Also, Article 121 of UNCLOS provides that rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf but the territorial width not exceeding 12 nautical miles. The “U-shaped line” runs close to the coast of Vietnam, embraces James Shoal of Malaysia, close to the Natuna Islands of Indonesia and the Philippines coast has also caused deep concern to the countries in the region.

In order to clarify the legitimacy of “the U-shaped line” raised by global communities, China must first clarify the contents of its claim in the SCS and give up the ambiguity of claimed historic right. If China can justify the legitimacy of the “U-shaped line”, it should be willing to have a multilateral discussion with relevant countries and correspond to the requirement of the Philippines on an arbitration procedure, instead of applying its own rules on other countries by force. The only solution is to abandon the “U-shaped line”, conclude the COC and resolve disputes on the ground of international law, particularly UNCLOS. NGUYEN HONG THAO Ambassador of Vietnam to Malaysia