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CHINA'S "HISTORIC WATERS"

IN THE SOUTH CHINA SEA:

AN ANALYSIS FROM TAIWAN, R.O.C.

Yann-huei Song , Academia Sinica, Taiwan

And Peter Kien-hong Yu, National Sun Yat-sen University

In January 1948, the Ministry of Interior (MOI) of the Republic of China (ROC) officially published a map-Nanhai zhudao weizhi tu (Map of Locations of South China Sea Islands)-on which a "U"-shaped line was drawn to enclose a large part of the waters of the South China Sea. 1 The four groups of South China Sea islands, namely, the Pratas (Dongsha), the Paracels (Xisha), the Macclesfield Bank (Zhongsha), and the Spratlys (Nansha), were enclosed by the line. Because no protests or opposition were expressed by the states concerned or the international community in general after the map was published, and the legal status of the enclosed waters has never been clarified by the ROC, questions concerning the nature of this "U"-shaped boundary line continue to be raised. Particularly since the naval skirmish between the People's Republic of China (PRC) and the Socialist Republic of Vietnam (SRV) in March 1988, questions regarding the legal status of the "U"-shaped line have been raised, with different opinions among scholars specializing in international law and politics in the ROC on Taiwan on what the line represents. 2 Recently scholars, and even government officials, from Indonesia, Malaysia, and the Philippines have began to raise questions about the "U"-shaped line. 3

Given the fact that the South China Sea territorial dispute has become one of the most important security problems in the region, and that the Chinese claim to a large part of the South China Sea as its "historic waters" will have a tremendous impact on the future delimitation of maritime boundaries in the area, deepening animosity among the six claimants-the PRC, the ROC, the SRV, the Philippines, Malaysia, and Brunei-there is an urgent need to explore the issue thoroughly.

This article will examine the legal question of Taipei's claim to the waters of the South China Sea enclosed by the "U"-shaped line as its "historic waters." After a discussion of the emergence and development of the ROC's claim, the concept and definition of historic waters will be examined. Thereafter, the nature of the "U"-shaped line and the legal status of the waters enclosed by the line will be considered. Finally, the potential impact of the ROC's claim on its relations with other Southeast Asian states will be evaluated.

The "U"-shaped Line and China's "Historic Waters"

After France reasserted claims to the Paracels in 1931 and the Spratly islands in 1933, it was generally agreed that China had to take actions to defend its sovereignty over the island groups in the South China Sea. 4 As a result, a Review Committee for Sea and Land Maps was established in June 1933. Four months later, a revised "Review Regulation for Sea and Land Maps" was issued by the Executive Yuan of the ROC. In December 1934, the Committee started to review the names of South China Sea islands in both Chinese and English. And in April 1935, the Zhongguo Nanhai gedao yu tu (Map of the Islands of the South China Sea), believed to lye the first official Chinese map of the South China Sea, was published by the governments. 5

Between 1946 and 1947, the MOI conducted a further study of the situation in the South China Sea and, based upon information collected by the Nationalist navy, published a "Cross Reference Table of the New and Old Names of the South China Sea Islands" in December 1947, listing 159 islands or islets. In January 1948, the "Map of Locations of South China Sea Islands" on which a "U"-shaped line was drawn to encircle the four larger groups of the South China Sea islands as well as their surrounding waters was officially Published and became available to the public. Since then, this "U"-shaped line has been used in Chinese maps for the purpose of showing the boundary limit of the Chinese maritime areas and the Chinese claim to the South China Sea islands. 6 The line was drawn "arbitrarily" and there was no precise delimitation of this line by coordinates. However, for over four decades, no protests were issued by neighboring countries, whose interests were involved in the area encircled by the line, or by the international community in general. Scholars, Chinese or foreign, specializing in ocean law and politics, did not examine the question either. Although occasionally mentioning that the line indicated China's claim to the islands and maritime areas in the South China Sea, no one, to our knowledge, ever raised a question concerning the line during that time. Neither the ROC nor PRC governments clarified the nature of the line or the legal status of the waters enclosed. In recent years, however, the question was raised both in Taiwan and mainland China, and by other concerned states.

About one year after the naval skirmish between the PRC and Vietnam in 1988, the ROC's MOI established an ad hoc committee to help determine the basepoints and baselines to be used for measuring the breadth of the ROC's territorial seas. At the same time, another ad hoc committee was set up to help draft the ROC's laws on the exclusive economic zone (EEZ) and the territorial seas.7 It was these two ad hoc committees that raised the question of "historic waters" and the legal nature of the "U"-shaped line, but committee members were divided over the issue.

One group argued that the waters encircled by the "U"-shaped line should be claimed as China's historic waters. The reasons given were twofold: First no protests or opposition were issued when the map became available to the Public in 1948; and second, the claim to the enclosed waters as historic waters did not violate Article 47 (1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS III), which provides:

    An archipelagic State may draw archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

A second group opposed this position, arguing that China's historic waters claim could hardly be justified: The "U"-shaped line was drawn arbitrarily and it was impossible to locate the line at sea because of the lack of coordinates, causing difficulties in determining the legal status of the claimed waters. Also, the concept of "historic waters" was outdated and can hardly be used to support Taipei's claim." However, when the committee drafted Article 3 of the Draft Law on the Territorial Sea and the Contiguous Zone of the ROC it adopted the view that the waters enclosed by the "U"-shaped line are China's "historic waters."" Moreover, in the preamble of the Guidelines for Nanhai (South China Sea) Policy, approved by the Executive Yuan in April 1993, the waters enclosed by the "U"-shaped line were claimed as Chinese territory, subject to the jurisdiction of the ROC." Furthermore, in September 1993, a two-day conference on the South China Sea was held in Taipei and both the Interior Minister and the Premier, during the opening ceremony, reiterated that the waters of the South China Sea have long been the ROC's historic waters. 13 Although the waters enclosed by the "U"-shaped line are claimed as China's historic waters, the legal status of the area remains to be clarified-are they "internal waters," "territorial sea," "archipelagic waters," or something else ?

The question regarding the legal status of the waters enclosed by the "U"-shaped line has not only been raised by ROC scholars, but also by scholars from the member states of the Association of the Southeast Asian Nations (ASEAN). For example, Dr. Hasjim Djalal, the former Director General of the Research and Development Agency and Indonesia's Ambassador to Germany, and Dr. B. A. Hamzah, Director General of the Malaysian Institute of Maritime Affairs (MIMA) both challenged Chinese claims at the Workshop on Managing Potential Conflicts in the South China Sea hosted by Indonesia." Hamzah argued:

    There are parties which have claimed the entire South China Sea as their own on the basis of antiquity. Such claims cannot be serious nor treated with much respect . . . . By no stretch of imagination can the South China Sea be considered by any nations as its internal waters or historic lake as a basis to assert claim. Since such area claims are frivolous, unreasonable and illogical, I urge the Parties concerned to drop area claims and focus instead on their claim to islands and non-islands. I would also urge all parties to reject claims to the entire South China Sea (referring to area claims) as there is no basis in law or history.15

Given the developments outlined above, the legal status of the waters of the South China Sea encircled by the "U"shaped line and claimed by the ROC as its historic waters must be examined. Before considering the legal status of the claimed waters, it