VietNamNet Bridge - China is using the concept of "historic waters" or "historical rights" to escape the constraints of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) in order to monopolize the East Sea.
China is urgently carrying out illegal renovation and construction activities on many reefs in the East Sea.
China is urgently carrying out illegal renovation and construction activities on many reefs in the East Sea (internationally known as the South China Sea). However, based on international practice and international law, and despite the large scale of construction, this does not help China consolidate its claims in the East Sea.
Anticipating the failure of this plot, China is ready to implement Plan B called "historic waters" or "historic rights". With this plan, China wants to exclude and escape from the binding regulations of the UNCLOS, and uses vague "historic" grounds to monopolize the East Sea.
Many countries along the East Sea have exclusive economic zone and continental shelf consistent with the UNCLOS. This law does not permit claims based on “historic” grounds of a country to clear up or overlap the waters of others. In other words, historic sovereignty cannot exclude the UNCLOS.
In recent years, instead of using the UNCLOS, China often used the phrase "historic evidence" to impose its claims in the East Sea.
The spokesman of the Chinese Foreign Ministry has said "China has indisputable sovereignty over the South China Sea and the islands there." It can be noticed immediately that the legal basis of this claim is not based on the UNCLOS because the sovereignty of a coastal state shall not exceed the limit of 12 nautical miles.
In 2012, the China National Petroleum Corporation opened bids for the oil and gas lots located opposite the central coast of Vietnam. China defiantly declared that this area is located in the "waters under the jurisdiction of the People's Republic of China". However, part of these lots (BS16, DW 04) is outside the waters of 200 nautical miles from any island that China claims. This claim violates the UNCLOS.
Chinese law also shows that China’s claims in the East Sea are not based on the UNCLOS. For example, the Marine Environment Protection Law of this country has the scope of application: "the internal waters, territorial waters, exclusive economic zone, continental shelf of the People's Republic of China and the other waters under the jurisdiction of the People's Republic of China."
Compared with the UNCLOS, it is unclear that the concept "other waters" are also referring to any other area besides the exclusive economic zone and continental shelf. This phrase can be interpreted for waters that China claims to have historic rights, etc ...
Obviously, besides fabricating legal basis, China has another different approach, using historic title or rights to set up a new status quo in the East Sea.
Based on his scientific studies on this issue, Professor Michael Yahuda, from the London School of Political Science and Economics, (UK) confirmed that there is no historical basis for China's claim.
"I discovered something very interesting that China's claim is based on historical evidence, but studies show the truth that ... there is no historical basis for its claims," he said.
However, let’s examine whether China’s claim of the historical waters or historic rights is grounded in international law.
A country that raises historic claims must inform the international community about its claims so that other states at least have the opportunity to deny any implied tacit recognition to the claims.
China has never given a clear claim of the "historic waters" or "historic rights"; and has no legal documents, statements or official statements before the international community about the historic claim to the large part of the East Sea.
The words "historic rights" in the Chinese Law on Exclusive Economic Zone and Continental Shelf, in legal terms, is a vague phrase. These terms do not themselves generate a claim. Several other laws and regulations of China have mentioned "other waters under the jurisdiction of the People's Republic of China" but they also did not have any explanation for nature, the grounds or the geographical location of the jurisdiction, and these laws did not mention the grounds for the so-called "historic claims".
China’s publication of the "nine dash line" map in 1947 was not an official notification of a maritime claim. Publishing a map within this country in Mandarin Chinese cannot be a sufficiently clear announcement to make the international community clearly understand the claim, even if earlier, China had asserted the claim.
Moreover, the judgment in the border dispute between Burkina Faso and Mali, the International Court of Justice (ICJ) declared the legal strength of the map as follows: "The map is only valid for the provision of information that the accuracy varies by case; the map itself and the mere existence of the map cannot set up nominal sovereignty, but a document with legal validity under international law for establishing territorial rights. Of course, in some cases, the map can achieve that legal effect but that legal effect is not derived from the value of the map but because the map is embedded in the will of the nation or countries concerned. For example, the map is the annex of an official document, an integral part of that document. Except for this obvious case, the map is only the subsidiary proof with different levels of reliability or unreliability, being used together with other indirect evidence to establish or restore the actual events."
Professor Erik Franckx, a member of the Hague Permanent Court of Arbitration, said only the "nine dash line" map is not enough to be able to decide the legal status of the East Sea and the islands in it.
"China itself so far has not come up with a reasonable, legal explanation of their claims. The ‘nine dash line’ map is not sufficient to protect their sovereignty in the East Sea, they must have a lot of other factors to demonstrate historical rights," he said.
The Territorial Waters Statement 1958 of China is also contrary to the view that China has claimed "historic waters" or "historic rights" over 80% of the East Sea. This statement reads: the high sea splits China mainland and coastal islands with "all other islands of China".
The word "high sea" makes clear that China does not see the waters around the semi-submersible reefs as historic waters. The term "high sea" is different in term of legal status than the waters of a nation and it is not the subject for a nation to possess or exclusively use. This is a legal principle that was established for centuries before the 1958 declaration of China.
US Senator John McCain said that the statement that the East Sea belongs to China’s historic sovereignty is not true. "China said that it has sovereignty in the South China Sea. That statement is not true. This area is in international waters," he said.
This claim is also not recognized by UNCLOS!
There are two provisions in the UNCLOS mentioning the "historic" bay (Article 10) and the name of "history" (Article 15). But these terms are only applicable to bays and similar coastal structures, not for the exclusive economic zone or continental shelf and the high sea. Thus, the UNCLOS restricts the historic claims for the bay and in the delimitation of the territorial waters. Clearly, modern international law does not recognize history as a basis for jurisdiction.
Historical claims of China in the East Sea may include the waters far away from the entity that it claims, and thus they must be bound by the terms of the UNCLOS on the exclusive economic zone international, continental shelf and possibly the high sea. Because the provisions of the UNCLOS relating to the exclusive economic zone or continental shelf and the high sea do not include the exception of historic rights, the terms of UNCLOS will have higher value than any statement of historical claims in this area. Accordingly, historical claims cannot infringe on sovereign rights and jurisdiction of coastal states or the general freedom of all nations.
In the Gulf of Maine case (1984), the Institute for Dispute Resolution of the International Court of Justice indicated that coastal states have exclusive jurisdiction over fishing activities within the range of 200 nautical miles from the coast of that country. This privilege has higher value than the rights or the use of waters existed previously of other countries in that waters.
Some Chinese scholars have said that the "historic title" and "historical rights" are not within the scope of regulation of the UNCLOS, and therefore they are governed by the rules and principles of international law in general.
This view is not consistent with international law, and completely wrong about the comprehensiveness of the UNCLOS. The UNCLOS has set legal regulations for all parts of the ocean. The UNCLOS does not allow any country citing "general international law" as an alternative base to justify water claims against the specified rules in the UNCLOS.
China's claim was given before the UNCLOS was issued and is also not grounds for violating the UNCLOS. Allowing a country to violate the provisions of the UNCLOS by the claims made before that country accepting the constraints of UNCLOS is against and harms the object and purpose of the UNCLOS. A country claiming more than 200 nautical miles for territorial waters in the 1950s cannot keep that claim today.
China or any other country cannot maintain historic water claim or historical rights to the waters that are too far from their shores. The UNCLOS does not allow such claims.
Translated by Tran Cham