China’s “U-shaped Line” in the South China Sea – by Huy Duong | Asia Sentinel

19 September 2012

Historic rights derived from the U-shaped line?
The second and fourth interpretations differ in this respect: in the latter interpretation, the proponents do not claim that the “historic rights” in the third layer mean historic sovereignty, or that the area enclosed by the U-shaped line is historic waters. Instead, the proponents of this interpretation suggest that these “historic rights” are not absolute or exclusive, but entail the right to a share, perhaps even a preferential one, of the resources right up to the U-shaped line, even where the exclusive zone and continental shelf of the disputed islands fall short of this line.

By taking a step back from claiming historical water status and absolute sovereignty for the entire area enclosed by the U-shaped line, the proponents of the fourth interpretation appear to hope to avoid the indefensibility of the second interpretation, while allowing China to claim a share to the resources right up to the U-shaped line, something that would not be possible with the first interpretation.

For this fourth interpretation, i.e., the “historic rights” argument, to be valid, two conditions must be satisfied. First, China must have legally acquired historic rights over the maritime space beyond 12 nautical miles from the disputed features prior to the existence of the United Nations Convention on the Law of the Sea. Second, these historic rights must be of the types that are preserved by that convention.

Although the U-shaped line first appeared on its official maps in 1948, China has never declared that that line represents a claim to rights over maritime space for the area enclosed. In recent years, Beijing has studiously ignored calls on it to “clarify its claim.”

To date, therefore, the U-shaped line remains a line on the map with unspecified meaning and has never been officially advanced as a claim to rights over maritime space for the area enclosed. No rights over maritime space for the area enclosed, whether pre-UNCLOS or not, can be derived from a line that has never become a claim to such rights.

Even if, hypothetically, in 1948 China had declared that the U-shaped line represented a claim to rights over maritime space, that line lies too far from the disputed islands to be a legitimate claim to rights over maritime space under the law of the sea at that time. That line, therefore, could never have become a legitimate claim over maritime space, and it has never been recognized as such by any country.

What about other sources of historic rights?
If not the U-shaped line, then, can traditional fishing activities by Chinese fishermen be the basis for claims to historic rights over maritime space? It should be note that Chinese fishermen were by no means the only fishermen who traditionally fished in the South China Sea. Therefore, even if some historic rights could be derived from traditional fishing activities, China would not have a monopoly of these rights.

Additionally, in a case concerning the continental shelf of Libya and Tunisia, the International Court of Justice ruled that historic rights derived from traditional fishing activities stemmed from a legal regime distinct from that of the continental shelf and were not relevant. Therefore, while traditional fishing activities by the peoples around the South China Sea might give rise to a common fishing area through a political settlement, they do not provide the basis for claims against the continental shelf.

Can any other declarations or actions by China be the legal basis for claims to historic rights over maritime space? In practice, when Indonesia and Malaysia made claims to the continental shelf in the southern part of the South China Sea in the 1960s, when they signed a demarcation agreement in 1969, and when South Vietnam made a claim in this area in 1971, China did not protest these actions. It was not until the 1990s that China made its own claim to the continental shelf in this area. Therefore, in the southern part of the South China Sea, if anything, Indonesia, Malaysia and Vietnam have pre-UNCLOS rights over the continental shelf beyond 12 nautical miles from the disputed islands, while China does not.

The most legally valid interpretation
Therefore, while it is true that some rights that a country acquired prior to UNCLOS over the maritime space between 12 and 200 nautical miles from its territory might affect the post-UNCLOS delimitation of areas of overlapping entitlements, this consideration is moot because it is highly questionable that China ever acquired such rights in the first place.

In conclusion, none of the three interpretations of the U-shape line as the basis or limit to claims to rights over the entire maritime space enclosed by it, namely, as a claim to historical waters, a claim to the exclusive zone and continental shelf, or a claim to historic rights over resources, has sufficient legal basis. The most legally valid and reasonable interpretation of the U-shaped line remains that of a claim only to the islands within that line.

The basis and extent of any subsequent claim to rights over maritime space should then be derived from the islands using UNCLOS and the international courts’ past rulings on maritime delimitation, and not from the U-shaped line.

(Duong Danh Huy is a physicist and resident of the United Kingdom whose whose avocation is international maritime law.)

(Original version is available at Asia Sentinel)

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