Wednesday, August 22nd, 2012
By Tuong Nguyen
A recent article published on the EAF1 remarked that the uncertainty and insecurity generated by China’s claims in the South China Sea (SCS) has been on the headline of various Southeast Asian forums. In fact, uncertainty because these claims have no solid legal basis in the international law. Unsecurity because these claims have escalated the tension in the region and the international relations.
The so-called “nine-dashed line” map is a Chinese nationalist map adopted by Zhou Enlai government (China – PRC) in 1949 from the so-called “eleven-dashed line” map drawn unilaterally by Chiang Kai-shek government (Taiwan – ROC) in 1947 while the SCS could be said to be a Japanese lake and they knew that Japan lost the war and all its conquests were returned2.
Effectively, Taiwan and China wanted Japan to renounce Paracels islands and Spratlys islands to them, hence the “eleven-dashed line” map and “nine-dashed line” map respectively to be recognized legally. However, neither Taiwan nor China were present at San Francisco in 1951 for the Treaty of Peace with Japan and the final designation was not specified the beneficiary in the San Francisco Treaty 1952 – SFT19523 (cf. Article 2 (f)). This unspecified beneficiary renouncement of Japan over the sovereignty in the SCS may be the causes of some current issues:
(i) For the multilateral disputes, the bilateral Japan–Taiwan Treaty 1952 (JTT1952)4 as well as the unilateral “eleven-dashed line” map of Taiwan and the unilateral inherited “nine-dashed line” map of China are illegal. Therefore, the SFT1952-based claims of Taiwan and China are invalid.
(ii) It is inconsistent that on the one hand China tried to de-recognize Japan’s claims and use such claims to claim its sovereignty on the other hand.
(iii) Even if the Article 2 of the bilateral JTT1952 is legal, China can not claim its sovereignty inherited from Taiwan, a sovereign state. Internationally, the political and legal status of Taiwan is a contentious issue5. Therefore, China’s claims based on Taiwan’s sovereignty are, first of all, their own unresolved issues.
As all unilateral or bilateral agreements or claims on multilateral disputes are illegal, the United Nations Convention on the Law of the Sea 1982 (UNCLOS) appears in order to settle legally the disputes between coastal claims. Disputes on the sovereignty over the Paracels islands and Spratlys islands in the SCS existed before the World War II6. The multilateral Treaty of Peace with Japan 1952 without specified beneficiary and the bilateral Japan–Taiwan Treaty 1952 are illegal. Therefore, all claimants in the SCS, who ratified the UNCLOS, should base on the UNCLOS to settle their current disputes.
According to the UNCLOS, the coastal states have the sovereignty in foreshore, coastal marine area, internal waters, territorial sea and have the sovereign rights in exclusive economic zone (EEZ), continental shelf7. The sovereign right is a more limited jurisdiction than sovereignty. The sovereign right is the right of exploring and exploiting, conserving and managing natural resources of the waters, seabed and subsoil. The sovereignty is the quality of having supreme, independent authority over a geographic area. That is why one of trivial steps to settle the territorial disputes in accordance with the UNCLOS is to clarify which areas are disputed which one are not (sovereignty or sovereign rights at this area belong legally to a specific state)8.
On 6 May 2009, Malaysia and Vietnam submitted jointly to the United Nations Commission on the Limits of the Continental Shelf (CLCS)9. On 7 May 2009, China submitted as the first time its “9-dashed line” map attached with the Note Verbale to Secretary-General of the United Nation in order to refute the claims of Vietnam and Malaysia and to clarify its claims10. Although the claim in this map was unclear, this submission was considered as a major milestone in the South China Sea disputes. Because this was the first time, the international community knew officially about the China’s claims by map. Vietnam immediately made a Note Verbale to Secretary-General of the United Nation on 8 May 2009 to refute China’s one11. These submissions did not identify clearly the disputed areas, but these are legal and valuable documents for the settlement procedure.
Philippines, a leading voice in resolution to the SCS issues, have recently proposed ZoPFF/C12, a win-win zone of peace, freedom, friendship and cooperation in the SCS, that requires a clear delimitation of disputed and undisputed areas in accordance with the UNCLOS before peacefully pursuing joint development as China’s proposal13. ZoPFF/C is hoped to be the next step after the Guidelines14 of Code of Conduct (COC) that is also a philippine proposal, but does not segregate the undisputed areas from disputed ones15. Vietnam supports ZoPFF/C16 while China has rejected it and pressed others ASEAN members not to participate in discussions about it17. Unsurprisingly, as China has never made clear its claims by using the so-called “nine-dashed line” covering virtually over 90% of the South China Sea18, this rule-based concept breaks through this kind of unclear policy.
Considered as the future of conflict19, the SCS issues have gained the more and more attention from the international community as the SCS disputes were producing serious negative impact on the regional and world peace and stability. Most worryingly, Beijing’s steps to the SCS more determined and aggressive than ever to assert their claims are escalating the anarchy in the SCS. In order to settle these disputes through peaceful negotiations on the basis of respecting international law, all claimants should be more clear in their claims.
Tuong Nguyen is a computer science postdoctoral fellow in France and free commentator on maritime affairs.
The views expressed are the author’s own.
1. Sourabh Gupta. “China’s South China Sea jurisdictional claims: when politics and law collide”. The East Asia Forum. July 29th, 2012
2. Wang Gungwu. “China and the map of nine dotted lines”. The Straits Times. July 11th, 2012.
3. “San Francisco Peace Treaty.” – Article 2 (f).
4. “Treaty of Taipei.” – Article 2.
5. Philip Yang. “Taiwan’s Legal Status: Going Beyond the Unification-Independence Dichotomy”. CSIS Seminar on Cross-Strait Relations at the Turn of the Century. September 21-22, 1999, Washington D.C
6. Hara, Kimie, “The San Francisco Peace Treaty and Frontier Problems in The Regional Order in East Asia A Sixty Year Perspective,” The Asia- Pacific Journal, Vol 10, Issue 17, No. 1.
7. “Jurisdictional boundaries and areas defined by UNCLOS and under domestic legislation”. Ministry for the Environment of New Zealand.
8. Huy Duong. “Disputed waters are rising in the South China Sea | East Asia Forum.” The East Asia Forum. August 4th, 2012
9. “Joint submission by Malaysia and the Socialist Republic of Viet Nam: CLCS.33.2009.LOS”. <http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm>
10. “China’s Note Verbale to Secretary-General of the United Nation: CML/17/2009 ”. <http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf>
11. “Vietnam’s Note Verbale to Secretary-General of the United Nation: No.86/HC-2009” <http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_chn_2009re_mys_vnm_e.pdf>
12. “Philippine Paper on ASEAN-CHINA Zone of Peace, Freedom.” Philippines’s Department of Foreign Affairs (DFA). 2011.
13. “Set aside dispute and pursue joint development”. Ministry of Foreign Affairs, the People’s Republic of China. 2000.
14. “President Aquino to meet with ASEAN counterparts, world leaders at the 19th ASEAN Summit and related summits in Bali”. Philippines’s Department of Foreign Affairs (DFA). November 8, 2011.
15. Jing Castañeda. “PNoy raises West Philippine Sea zoning in Bali summit”. ABS-CBN News. 2011.
16. Jocelyn Montemayor. “Vietnam pledges to support zone of peace in Spratlys”. Malaya. 2012
17. Barry Wain, “Towards Peace and Prosperity in the South China Sea: Pathways for Regional Cooperation,” A View from Southeast Asia. (2011)
18. “The Bully of the South China Sea”. The Wall Street Journal. August 10th. 2012.
19. Robert D. Kaplan. “The South China Sea Is the Future of Conflict”. Foreign Policy (2011).