[原文标题]China’s claim to 80 percentof East Sea completely unfounded
China’s claim to 80 percentof East Sea completely unfounded
Alongwith adiplomatic note dated May 7, 2009 to the UN Secretary Generalobjecting toVietnam’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 EastSea.
The Chinesenote stated that “China has indisputable sovereignty over the islands in theSouth China Sea (Eastern Sea) and the adjacent waters, and enjoys sovereignrights and jurisdiction over the relevant waters as well as the seabed andsubsoil 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 byChina.
5月8日，越南常驻联合国代表团发出外交照会86/HC – 2009，向联合国秘书长批驳中国地图主张的要求。
On the same day, the Vietnamese Foreign Ministryspokesman Le Dung told a press conference that Vietnam held incontrovertiblesovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes,saying they were Vietnamese territory.
在同一天，越南外交部发言人LeDung在记者招待会上说：“对Hoang Sa (Paracel) 岛和Truong Sa(Spratly)群岛拥有不容置疑的主权，这是越南的领土。”
“China’s claim of the nine-dash line on the map attachedto its diplomatic note is null and void as it has no legal, historical andfactual ground,” Dung said.
In this article, I will not analyze Vietnam’s sovereigntyover the Hoang Sa and Truong Sa archipelagoes, but will instead focus on thelarger East Sea as a whole and provide an in-depth analysis of the nine-dashline China drew on the map attached to its diplomatic note.
在本篇文章中，我不会分析越南对Hoang Sa (Paracel)岛和TruongSa (Spratly)群岛的主权，但是会整体聚焦大东海以及深入分析中国外交照会上提供的九虚线。
The creation of the dubious line
The dotted line – drawn in the East Sea on the map fromthe Chinese side – is usually referred to as the “nine-dash line” (since it iscomposed of nine dashes) or the “U-shaped line.”
The “U-shaped” or “nine-dotted” line are two differentways international scholars have addressed the same demarcation of China’sclaims to over 80 percent of the East Sea. The line was drawn close to severalcountries, including Vietnam, Indonesia, Malaysia, Brunei and the Philippines.
An original 11-dotted line was first drawn by the Chinesegovernment of 1947. The Chinese government then altered it to the nine-dashline with two dashes in the Gulf of Tonkin deleted.
China’s note dated May 7, 2009 is perhaps the firstdiplomatic statement in the last 60 years of China’s official stance on theinternational legal significance of the nine-dash line. It was also the firsttime China formally introdrced the world to the nine-dash line map.
Even in important legal documents issued by China , likethe 1958 Declaration on China'sTerritorial Sea, the 1992 Law of thePeople's Republic of China on the Territorial Sea and the Contiguous Zone, the1996 Declaration of the Government of thePeople's Republic of China on the Baselines of the Territorial Sea, and the1998 Law of the People's Republic ofChina on the Exclusive Economic Zone and the Continental Shelf, China hadalways stopped short of explaining this nine-dash line.
即使是中国发布的重要的法律文件, 像《1958年的中国领海宣言》, 《1992年中华人民共和国领海和毗邻水域法》,1996年政府颁布《中华人民共和国中国的基线领海 》, 1998年《中华人民共和国中国专属经济区和大陆架 》，中国一直没有解释这个九虚线。
At numerous international conferences, such as the annualWorkshop on Managing Potential Conflicts in the South China Sea in Indonesiasince 1991, Chinese scholars have offered different and even dividedexplanations of what the dotted line means.
But there is a very important question that has remainedunanswered by international and Chinese scholars: how were the exact locationsof each dash established?
No document, be it official or unofficial, has beenissued to account for this.
A claim with no international legal value
The first and most commonly used argument Chinesescholars have clung to when explaining the dotted lines drawn on the EasternSea map is that the claim must be considered under the international lawsexisting when the map was drawn. China has dismissed the use of the 1982 UNConvention on the Law of the Sea as a way to evaluate the legality of itsclaim.
At the time the original 11-dotted line was drawn in1947, the International Law of the Sea stipulated that the territorial watersof 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 arealm in which every country could enjoy the freedom of the high seas.
Until 1958, different governments of China allrecognized, or at least did not publicly object to, the three-mile sea limitrule. Thus, even according current international laws, China’s claims over 80percent of East Sea cannot be considered legal.
Dr.Hasjim Djalal , a prominentIndonesian sea law expert, wrote: “It is inconceivable that in 1947, when generalinternational 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 inChina’s May 7, 2009 note, since at the moment, coastal countries have no rightsto expand their sovereignty outside their territorial waters. It needs to beemphasized that the International Law of Sea includes the “seabed and subsoilthereof” inside the territorial waters. Thus, China cannot demand thesovereignty and jurisdiction over the large sea located in its dotted line.
The second argument offered by Chinese scholars toaccount for the dotted line is that the line was drawn in 1947 so China can saythe sea area located in the line is it’s “historic” territory.
It needs to remembered that participating countries atthe Third United Nations Conference On The Law Of The Sea were at odds over theadoption of regulations and definitions about the historic waters into the 1982UN Convention on the Law of the Sea. However, from deliberations at theworkshop, it can be concluded that the criteria necessary to declare historicalsovereignty over territory are:
- The claim has to be made public.
- The claiming country has to exercise sovereignty overthe 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 thedemands made by China in relation to the East Sea, let’s consider objectivelyif China can meet those aforesaid criteria.
Firstly, it is evident that all maritime, oil, andfishing activities of all countries inside and outside the East Sea had facedno obstruction from the Chinese side until the 1990s. It is thus easy tounderstand why people have doubted that Chine can meet the criterion ofexercising real sovereignty in a continual and peaceful manner for a longperiod 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 regulationson the waters and signed joint treatieson overlapping waters as well as other cooperation deals in the East Seadespite objections from China, let alone other disputes about sovereignty overarchipelagoes in the East Sea.
The nine-dotted line China drew on the map attached withthe May 7, 2009 note also fails to meet the criteria of sovereignty andjurisdiction over the waters inside the line as stipulated by the 1982Convention on the Law of the Sea on the Exclusive Economic Zone and theContinental Shelf.
In a study called “Competing Claims of Vietnam and Chinain the Vanguard Bank and the Blue Dragon Areas of the South China Sea”, US lawyer Brice M. Claget wrote:“China's claim to ‘historic’ sovereignty and title to virtually the entireSouth China Sea and/or its seabed and subsoil is contrary to the entiredevelopment of the modern international law of the sea, and cannot be takenseriously as a matter of law.”
在一项研究中所谓的“在南中国海，越南与中国的the Vanguard Bank地区以及the Blue Dragon地区相抵触”，美国律师Brice M. Claget写到：“中国提出的'历史'主权和所有权，几乎是整个南中国海包括/或者未包括海床和底土，这违背了现代国际海洋法的发展，并不能认真考虑作为一项法律文献。
Thus, given the classic and modern international laws,the nine-dash line claim of China has no scientific grounds, no legal value andis utterly unacceptable.
An action against the regional trend
People can understand why during the last years China hasprinted out maps drawing the nine-dash line but not announced its officialclaims over the East Sea in the same way. In addition to the reasons analyzedabove, China’s caution in this regard might stem from its consideration of theimpact of the claim over its image in the eye of the international community.
China may be worried that its official claim over 80percent of the area of the East Seam might shatter the image of a peaceful,hospitable, friendly, and cooperative China its people have been trying tobuild for a long time. China may also be worried that the claim would affectthe way ASEAN countries perceive Chinese policies and actions under theDeclaration of the Conduct of Parties in the South China Sea.
Considering the topography, natural conditions andsocio-economic activities in the East Sea, the body of water is clearly thecommon house of all regional countries. ASEAN countries and China have takengreat strides in sustaining peace and stability and developing internationalcooperation over the East Sea.
The official issuance of the nine-dash line now will justworsen the situation in the East Sea. It goes against the grain and is contraryto the efforts of regional countries and the international community in seekinglong-term stable solutions to East Sea disputes.
East Sea issues need fair solutions accepted by allcountries involved – solutions accepted in the spirit of honoring each others’sovereignty, developing mutual benefits and observing international law.
A map submitted by China to the UN in May declaringits sovereignty over 80 percent of the East Sea, as stipulated by the nine-dashline