On Dec. 5 last year, the US Department of State published an article written by analysts Kevin Baumert and Brian Melchior, entitled “China: Maritime Claims in the South China Sea,” on its Web site. The article was an attempt to examine China’s maritime claims from the perspective of international law.
Baumert and Melchior addressed two notes that China sent to the UN secretary-general in May 2009 to express its objections to a submission by Vietnam and one by Vietnam and Malaysia to the Commission on the Limits of the Continental Shelf (CLCS). In the notes, China proposed the South China Sea “nine-dash line,” which encircles China’s territorial claims in the region.
In April 2011, Beijing sent another note to the UN member states saying that “China’s sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence.”
Although Baumert and Melchior address China’s claims, their analysis also involves Taiwan’s claims to the waters and it therefore deserves attention.
They open their article with an analysis of the position of the nine-dash line drawn by China and the distance between the line and neighboring countries, saying that the line does not follow the middle line, but is closer to the surrounding coasts of neighboring states. They then compare the nine-dash line proposed by the People’s Republic of China (PRC) in 2009 with the “U-shaped line” proposed by the Republic of China (ROC) in 1947.
Such an analysis is unreliable, because Taiwan and China have never announced the latitude of the demarcations, nor have they announced that they are the middle line between Taiwan or China and neighboring countries.
The dash near the Philippines is generally drawn along the very deep Palawan Trough and Luzon Trough, so it is closer to the Philippines and is not the middle line shown on the map. Strictly speaking, the dashes merely involve ownership of islands.
The lines proposed by Taiwan and China are merely diagrams specifying the positions of their claims to islands in the area; they are not borderlines between states.
Baumert and Melchior discuss at length the Chinese line and proposed three possible interpretations of it: the dashed line as a claim to islands, the dashed line as a national boundary and the dashed line as a historic claim. However, such discussion is meaningless, because Taiwan and China have never defined the legal status of the nine-dash line.
The two men said that Article 14 of China’s 1998 Law on the Exclusive Economic Zone and the Continental Shelf states: “The provisions of this law shall not prejudice any historic right enjoyed by the PRC.”
They also note that some Chinese academics and experts think that the nine-dash line describes China’s historic right and claim to the South China Sea.
“While such statements and actions do not amount to express assertions of a historic claim, they may indicate that China considers that it has an alternative basis — such as historic title or historic rights — for its maritime claims in the South China Sea,” Baumert and Melchior wrote.
They also said that the Second Thomas Shoal (Renai Shoal, 仁愛暗沙) lies outside China’s 12 nautical mile (22.2km) territorial maritime zone, and that the James Shoal (Zengmu Shoal, 曾母暗沙) is merely a submerged feature, adding that “[a]ccordingly, it is possible that China considers the legal basis for its claimed maritime sovereignty in the South China Sea to be one of historic waters.”
Both features are part of the Spratly Islands (Nansha Islands, 南沙群島), which are claimed by Taiwan and China.
These comments are groundless, because neither nation has declared that the South China Sea its own historical waters. In addition, the PRC’s claim to James Shoal originated from the ROC’s decision in 1935 and reaffirmation of that claim in 1947. At the time, international law did not state that territorial claims should not be based on submerged features, so it is really unnecessary to view the issue from the perspective of “historical waters” stated in the 1982 UN Convention on the Law of the Sea, because they are irrelevant to each other.
Nevertheless, the rules regarding continental shelf claims stated in the convention are also applicable to the James Shoal. If it can be proved that the Spratly Islands belong to Taiwan or China, then the James Shoal is on the continental shelf of the islands.
This is just like the Philippines’ claim that the Benham Rise region to the east of Luzon in April 2009 is on its continental shelf. The Benham Rise region is also beneath the surface.
Baumert and Melchior said that the ROC’s publication of the “U-shaped line” map in 1947 could not have constituted “official notification” of a maritime claim, and that its domestic publication in Chinese was not an act of sufficient international notoriety. However, looking at the publication of its map of South China Sea islands, the ROC did release the “U-shaped line” map to the media and foreign news agencies had access to the information. Besides, Chinese was one of the UN’s official languages at that time. No rule said that only publication in English was an act of sufficient international notoriety.
Moreover, Baumert and Melchior expressed a belief that the legal force of a map is insufficient, citing the International Court of Justice’s 1986 ruling in the frontier dispute between Burkina Faso and Mali. Indeed, using a map to establish territorial rights will be challenged, but for the 1947 publication, the situation is different, as the line was included in foreign maps around the world and marked as Chinese territory.
The authors also expressed a belief that even if China claims the South China Sea as its historic waters, the claim cannot stand the test of three limitations: First, open, notorious and effective exercise of authority over the body of water in question; second, continuous exercise of that authority; and third, acquiescence by foreign states in the exercise of that authority.
They said that after China submitted the nine-dash line to the CLCS in 2009, it was immediately opposed by neighboring countries.
However, neighboring states such as Malaysia, the Philippines and Vietnam did not express opposition to the line, only to Beijing’s sovereignty claims to the Paracel Islands (Xisha Islands, 西沙群島) and the Nansha Islands. The only country that officially expressed its opposition to the demarcation was Indonesia.
It is important to note that the US never expressed any opposition to the line between 1947 and February last year. US officials even conducted geographic measurements at the Scarborough Shoal (Huangyan Island, 黃岩島) and the Nansha Islands with the ROC government’s permission on Sept. 2, 1956.
The US is not party to the South China Sea dispute. However, in recent years it has shown greater interest in the waters than a neutral country should. Baumert and Melchior’s commentary and analysis of the nine-dash line or U-shaped line was solely based on their assumptions, because to this day, neither Taiwan nor China have offered a formal explanation on the legal status of the lines.
Since further deliberation on some points in the article is needed, the Department of State might be displaying a lack of impartiality by publishing it on the Web site of its Bureau of Oceans and International Environmental and Scientific Affairs.
Chen Hurng-yu is a professor in the Graduate Institute of Asian Studies at Tamkang University.
Translated by Eddy Chang
As Taiwan’s domestic political crisis deepens, the opposition Chinese Nationalist Party (KMT) and Taiwan People’s Party (TPP) have proposed gutting the country’s national spending, with steep cuts to the critical foreign and defense ministries. While the blue-white coalition alleges that it is merely responding to voters’ concerns about corruption and mismanagement, of which there certainly has been plenty under Democratic Progressive Party (DPP) and KMT-led governments, the rationales for their proposed spending cuts lay bare the incoherent foreign policy of the KMT-led coalition. Introduced on the eve of US President Donald Trump’s inauguration, the KMT’s proposed budget is a terrible opening
The Chinese Nationalist Party (KMT) caucus in the Legislative Yuan has made an internal decision to freeze NT$1.8 billion (US$54.7 million) of the indigenous submarine project’s NT$2 billion budget. This means that up to 90 percent of the budget cannot be utilized. It would only be accessible if the legislature agrees to lift the freeze sometime in the future. However, for Taiwan to construct its own submarines, it must rely on foreign support for several key pieces of equipment and technology. These foreign supporters would also be forced to endure significant pressure, infiltration and influence from Beijing. In other words,
“I compare the Communist Party to my mother,” sings a student at a boarding school in a Tibetan region of China’s Qinghai province. “If faith has a color,” others at a different school sing, “it would surely be Chinese red.” In a major story for the New York Times this month, Chris Buckley wrote about the forced placement of hundreds of thousands of Tibetan children in boarding schools, where many suffer physical and psychological abuse. Separating these children from their families, the Chinese Communist Party (CCP) aims to substitute itself for their parents and for their religion. Buckley’s reporting is
Last week, the Chinese Nationalist Party (KMT) and the Taiwan People’s Party (TPP), together holding more than half of the legislative seats, cut about NT$94 billion (US$2.85 billion) from the yearly budget. The cuts include 60 percent of the government’s advertising budget, 10 percent of administrative expenses, 3 percent of the military budget, and 60 percent of the international travel, overseas education and training allowances. In addition, the two parties have proposed freezing the budgets of many ministries and departments, including NT$1.8 billion from the Ministry of National Defense’s Indigenous Defense Submarine program — 90 percent of the program’s proposed
RSS