China’s “historical evidence” worthless to international law

VietNamNet Bridge would like to introduce several articles written by Hoang Huong during her trip to Hawaii (USA), Beijing and Hainan (China), Masinloc and Manila (the Philippines) and Singapore with journalists from 14 countries in the Asia-Pacific region to discuss the East Sea (South China Sea) conflict, held by the Jefferson Fellowships program of the East-West Center (USA).

The East Sea: Risk of conflict, opportunities for cooperation?

Dr. Denny Roy, East Sea, South China Sea, China, nine dash line

Dr. Li Guoqiang, a senior expert from the Chinese Academy of Social Sciences (CASS). Photo: Jim Gomez

China may show 'evidence' that Chinese sailors used to be present in the East Sea (South China Sea in international name), but according to international law, that does not prove its ownership.

In the perspective of China, the country with many plans to turn the East Sea into its own pond, Mr. Li Guoqiang, a senior expert from the Chinese Academy of Social Sciences (CASS), said that to face the new developments in the East Sea, all parties need to try harder. There is both the risk of conflict and opportunity for cooperation. When the parties cannot reach agreement on the issue of territorial sovereignty, why do they not prioritize cooperation and development and through collaboration and development to enhance reliability, eliminate hindrances and disagreement?

As a senior expert on administration and security from the East-West Center (USA), Mr. Denny Roy, commented: “It is safe to assume that Beijing carefully considers the potential impact of all Chinese moves on regional tensions and on China’s relations with other countries in the region.  What is important is that Beijing seems less concerned about appearing aggressive, and more determined to force other countries to accept Chinese preferences.”

Meanwhile, Prof. Sherry P. Broder, a lecturer from the William S. Richardson School of Law, Hawaii University, was also not in agreement about the "increase of reliability” in theory of Mr. Li Guoqiang, saying that other Asian countries were quite wary about the aggressive attitude of the Chinese and their pressure to achieve the purpose of seeking to control the region, including the East China Sea and the East Sea (South China Sea).

Prof. Broder also indicated that China’s increasing investments in military shows that it wants to increase military pressure and tension in the region.

These concerns have been discussed publicly. In a statement issued after the 26th ASEAN Summit on April 27, 2015, ASEAN leaders expressed their serious concerns on the land reclamation being undertaken in the East Sea, which has “eroded trust and confidence and may undermine peace, security and stability in the sea.”

The nine-dashed line has no value to international law

Dr. Denny Roy, East Sea, South China Sea, China, nine dash line
Dr. Denny Roy. Photo: Jim Gomez

Mr. Li Guoqiang reiterated the view of the Chinese government as saying that "the nine-dashed line in terms of history does not only include nine but 11 segments. The nine-dashed line was formed 70 years ago after the World War II and China has a history of 2,000 years of discovering, naming and using this route. And in 1946 – under the principles in the Boston Cairo Declaration - China recovered the islands in the East Sea and the West Sea from Japan. And in December 1947, China "drew" the 11-dashed line on the map and determined the sovereignty over these islands.”

But the Chinese scholar also had to admit that as a member of the United Nations Convention on the Law of the Sea, China will have to comply with the convention. So how can the "nine-dashed line” match the current Law of the Sea and how can this be resolved satisfactorily. It would require the effort of China and relevant countries, he said.

Based on his research, Roy analyzed the viewpoint of Chinese scholar Li Guoqiang: “The nine dashed line (actually it’s now the “ten dashed line”) is based on a traditional Chinese outlook but has no legitimate basis in modern international law. The Chinese argument is that China discovered and used the East Sea islands before anyone else, so therefore China has a kind of soft ownership of the ocean around the islands. This basically reflects the Chinese idea that as the historical and now returning great power of the region, China is entitled to a sphere of influence in the sea bordering China.”

Roy said that other Asia-Pacific countries should put strong pressure on Beijing to at least explain, if not to give up the claim suggested by the ten dashed line, which is that China owns almost the entire East Sea.

Sharing this view, Broder said that China is ambiguous about the precise meaning of the nine-dash line and China has never offered an official explanation and clarified its legal basis.

“Although the nine-dash line map was first circulated in 1948 or 1949, it was not used again until 1999. In 2009, China submitted a note verbal to the United Nations Attorney General citing the nine-dash line in defense of its claim over the East Sea. China asserts that the nine-dash line represents the limit of historic use and thus China claims historic title and has offered some historical documents in support from its long record of written history. Under UNCLOS it is a weak legal position,” she said.

“In addition, other countries in the region can also make claims based on their seafaring histories. Moreover the presence of fishermen and sailors would not seem to be sufficient to establish the claim of any of the China or any of its neighbors. Until very recently neither customary international law nor international practice recognized sovereign rights over maritime zones, beyond three nautical miles,” she added.

According to Prof. Broder, China also argues that these small features are islands and generate full EEZ territorial claims that actually can be said to correspond to the maritime region “delimited” by its nine-dash line.  Article 121 of UNCLOS has been interpreted many times now in several cases before the international tribunals. It is clear that these features should not qualify as islands. Uninhabited islands can only claim a 12 mile territorial sea. Some of the features are on the seabed, do not qualify as islands and do not generate any maritime zone as all. Thus China’s argument on this point is also weak under UNCLOS.

* Dr. Denny Roy taught Chinese studies, the history of Asia, and Southeast Asian politics at the Navy School of Monterey, California, in 1998 - 2000; researched on security - defense at the University of Canberra, Australia; taught political science at schools in Singapore and England before becoming a senior researcher of the East - West Research Centre in Honolulu, Hawaii, United States. He is the author of many research works such as The Pacific War and Its Political Legacies; Taiwan: A Political Policy and China's Foreign Relations, and many articles in scientific - politics journals.

* Prof. Sherry P. Broder is a lecturer at the William S. Richardson Law School, University of Hawaii, Honolulu, Hawaii, USA. Her major teaching and research fields are is international law, ocean law, environmental law and human rights. Also, she is a media advisor and arbitrator for Hawaii’s government. She is the founder and executive director of the Jon Van Dyke Institute for International Law and Justice, which regularly organizes seminars and events related to the UNCLOS, the International Environmental Law and the International law on human rights.

* Dr. Li Guoqiang is a researcher in the field of philosophy and social sciences. He is working at the border research center of the CASS, China.

Hoang Huong

Dr. Denny Roy, East Sea, South China Sea, China, nine dash line