Refuting Chinas Nine-Dash Claim OpEd

By Eurasia Review May 24, 2012 By Huan Tran The South China Sea in Southeast Asia is bordered by 7 countries: China, Taiwan, the Philippines, Brunei, Indonesia, Malaysia and Vietnam. The name of that water, like others such as Gulf of Mexico, Indian Ocean, Arabian Sea, Persian Gulf, Gulf of Thailand, Philippines Sea, East China Sea and Sea of Japan, do not imply any notion of sovereignty because they were invented for convenience by European explorers. In the South China Sea, there are three islands groups Paracel islands, Spratly islands and Scarborough shoal which are not permanently inhabited because the islands are small and do not have dependable fresh water. Some man-made objects have been found on some of them, indicating transient human presence, because since prehistory, fishermen, merchants and pirates from various countries built temporary shelter on them. Because those islands cannot support permanent human habitation, various national governments in the area recently had to build superstructures on them, as on Okinotori (a Japanese islet in the Pacific Ocean), to support human habitation.

South China Sea

China claimed sovereignty over 90% of the water and all the islands in the South China Sea by drawing a nine-dash line covering 90% of that sea, prompting her neighbors to protest that her claim contradicts international law, specifically the 1982 United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS gave a coastal nation or an inhabited island an exclusive economic zone (EEZ) of 200 miles from the baseline (shoreline at low tide) in which the coastal nation or the inhabited island has the exclusive right to exploit natural resources. Chinas nine-dash claim extends beyond her EEZ, biting into the EEZs of her neighbors. Also, UNCLOS said that rocks on the sea that cannot support human habitation and do not have economic life of their own cannot have EEZ. By UNCLOS definition, the South China Sea islands cannot have EEZ because they cannot support permanent human habitation on their own. Only China argued that they have EEZs, a hypocritical argument because in the dispute about Okinotori, China had argued that Okinotori cannot have EEZ because Okinotori cannot support human habitation on its own. As the Paracel islands lie halfway between China and Vietnam while Spratly islands and Scarborough shoal lie within the EEZs of Chinas neighbors, China argued that those islands have EEZs simultaneously with claiming sovereignty over all the islands in order to maximize Chinas EEZ at the expense of her neighbors.

China justified her exaggerated claim on the South China Sea by arguing that ancient Chinese texts mentioned certain islands in the South China Sea, proving that Chinese people were the first to navigate that sea and the first to discover the islands in the area, that China was the first country to exercise jurisdiction over the islands and that the South China Sea was Chinas historic water. China further argued that in 1947, when China published a map of that sea with an eleven-dash line (predecessor of the nine-dash line), nobody protested, proving that the world had accepted Chinas claim. However, close examination shows that Chinas arguments are baseless. First, in 1947, the world did not react to the map of the South China Sea with the eleven-dash line because the world ignored that map. That map carried as much legal weight as the traditional Chinese political thought which said that the world (All-under-heaven) is under the authority of Chinese emperors. Can China argue that the world had accept Chinas sovereignty over the world because nobody protested when the Chinese emperors declared tha t the world is under their authority ? . Second, countries that had historical border with the Arctic Ocean formed the Arctic Council to divide the Arctic natural resources according to the rules of UNCLOS. China never had any historical border with the Arctic Ocean, yet China asked to join the Arctic Council in order to have a share of Arctic natural rersources, arguing that the Arctic Ocean is a common heritage for all of humankind. If the Arctic Ocean is a common heritage for all of humankind, then the South China Sea is a common heritage for all the peoples who live on its shores, not only for China. Third, peoples of the Austronesian language family, more specifically the Malayo-Polynesian branch, were the first to navigate the South China Sea. Their original homelands were Southern China or Taiwan. Between 5000-2500 BC, they crossed the South China Sea to populate the Philippines, Indonesia and Malaysia. From Southeast Asia, they crossed the Pacific Ocean to populate Melanesia and Micronesia by 1200 BC, Polynesia by 1000 BC, Easter Island by 300 AD, Hawaii by 400 AD and New Zealand by 800 AD. They also crossed the Indian Ocean to populate Madagascar by 0-500 AD. The Indo-Pacific maritime space, including the South China Sea, was their historic water. Since the Austronesian peoples (ancestors of the Filipinos, Indonesians and Malaysians) were the first to navigate the South China Sea, they were the first to discover the islands in the area and to fish in the associated waters. Though they did not invent writing to record their discovery, it would be ludicrous to deny their discovery of the islands so close to the Philippines and Indonesia in light of the fact that they were able to discover the various islands in the vast Pacific Ocean. By the way, they have been displaced or reduced to aboriginal minority status in their original homelands. Fourth, the South China Sea has always been an international waterway since prehistory. Indian traders navigated that sea early in prehistory, introducing Indian philosophies to Southeast Asia, leading to the formation of many Indianised states on Islands Southeast Asia in ancient time. One of those states was Srivijaya, located on Indonesia in the 7th century and exercised prominent maritime activities in the South China Sea. During ancient time, the influence of Chinese civilization on Southeast Asia was limited to Vietnam whereas the influence of Indian civilization was dominant throughout Islands Southeast Asia, indicating Indian traders were very active in the South China Sea. Persian and Arab traders also navigated that sea, introducing Islam to Indonesia and the Philippines. The Arabs even settled in Guangzhou during the 7th century. A 7th-century Chinese monk, I-Tsing, went pilgrimage to India by embarking at Guangzhou on a Persian ship, stopped over at Srivijaya before continued onto India. Fifth, even if Chinese people were the first to navigate the South China Sea (not true), China cannot claim sovereignty over the water that is used by many other countries. The Philippines, Indonesia and Malaysia do not claim sovereignty over the South China Sea, the Indian Ocean and the Pacific Ocean even though their Austronesian ancestors were the first to navigate those waters. Norway does not claim sovereignty over the Norwegian Sea even though the Norsemen (Vikings) were the first to navigate that water to populate Iceland and Greenland in the 9th century. Portugal does not claim sovereignty over the water off the West African coast, the water around the Cape of Good Hope and the Indian Ocean even though Portuguese under Bartolomeu Diaz and Vasco da Gama were the first to navigate those waters in 1488 and 1498. Spain does not claim sovereignty over the Atlantic Ocean, the Magellan Strait and the Pacific Ocean even though Spaniards under Christopher Columbus and Ferdinand Magellan were the first to navigate those waters in 1492 and 1521. Russia does not claim sovereignty over the Bering Sea even though Russians under Vitus Bering were the first to navigate that water in 1741.

Sixth, ancient Chinese texts which mention the South China Sea islands do not describe discovery of the islands but only describe general knowledge about the islands, knowledge shared among the fishermen, merchants and pirates from various countries who navigated that sea since prehistory. Chinese writers were the first to write about the South China Sea islands because China invented writing earlier, not because Chinese people were the first to navigate that sea or the first to discover the islands. This principle is illustrated by the Sea of Japan and the Black Sea. Japan first appeared in written records in 57 AD in Chinas Book of the Later Han as followed: Across the sea from Lelang were the people of Wa. Lelang was a Han Empires military outpost in Korea and Wa referred to Japan. The sea between Lelang and Wa is now known as Sea of Japan. Chinese writers were the first to write about Japan and Sea of Japan because China invented writing early, not because Chinese people were the first to navigate the Sea of Japan or the first to discover Japan. Korean and Japanese peoples lived by the Sea of Japan since prehistory and sailed into that sea to fish and to trade with each other, and knew about the existence of each others since prehistory, long before Chinese writers wrote about Japan and Sea of Japan. The Black Sea first appeared in written records in 5th century BC in the writing of the Greek poet Pindar as Pontos Axeinos. By the 5th century BC, the Greeks had established many colonies by the Black Sea. Greek writers were the first to write about the Black Sea because Greece invented writing early, not because Greeks were the first to discover or the first to navigate the Black Sea. There were other peoples who lived by the Black Sea alongside with the Greeks and had sailed into that water to fish and to trade since prehistory, even though they did not invent writing to write about that. The Black Sea, like the South China Sea, is a common heritage for all the peoples who live on its shores. Seventh, ancient Chinese texts which mention the South China Sea islands mention those islands as foreign lands, not as Chinas territories, and do not describe which activities the authority of ancient China exercised on the islands. Therefore, there is no proof of Chinas jurisdiction over the islands. In the case of Scarborough shoal, China argued that Kublai Khans officials were the first to map out and to establish jurisdiction over those islands in 1279. However, Kublai Khan was the Great Khan of the Mongol Empire who conquered China. If any country can inherit Scarborough shoal from Kublai Khan, it is Mongolia, not China. In 1279, Kublai Khans officials neither discovered nor established jurisdiction over Scarborough shoal because that place was already the historic water and traditional fishing ground of Filipino fishermen, descendants of the Austronesian sailors who navigated the South China Sea and populated the Philippines in 5000-2500 BC. Scarborough shoal was known as bajio de Masinloc, meaning shoal of Masinloc, in a Spanish-made map of the Philippines in 1734. Masinloc is not a Spanish word and is the name of a municipality on the Philippines main island, confirming that Filipino fishermen had been to and had named the islands after their own tongue for centuries. Eighth, official maps of the Yuan Dynasty and Ching Dynasty, including but not limited to Da Qing Zhi Sheng Quan Tu (published in 1862) and Huang Chao Yi Tong Yu Di Zen Du (published in 1894), show that the southernmost extent of China ends at Hainan islands (see below). Finally, the Chinese empire originated on the Yellow river basin and eventually conquered many lands and peoples, including Tibet and Sinkiang, which is why China is a multiethnic, multi-languages country. At the time when China allegedly discovered the South China Sea islands, Chinas border on the mainland was not what it is today, Tibet and Sinkiang were independent countries of the Tibetans and the Uyghurs, respectively. The Tibetans and the Uyghurs are demanding self-determination. Three dozens Tibetan monks have burned themselves to death to draw attention of humanity to the sufferings of their people under Chinas rule. If China is serious about its historical claim, it should return to its historical border on the mainland, return Tibet and Sinkiang to the Tibetans and the Uyghurs, respectively. China knows that her arguments for claiming sovereignty over the South China Sea and all the islands in that water are baseless, which is why China refused the Philippines invitation to submit the dispute to an international court.

Standoff at Scarborough Shoal: Implications for US-China Relations

Carlyle A. Thayer

May 9, 2012 Tags: military, South China Sea, Territorial Dispute

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On April 10th China and the Philippines became embroiled in a naval standoff in disputed waters in the South China Sea. The standoff occurred when the Philippine Navy frigate, BRP Gregorio del Pilar, was sent to investigate the sighting of eight Chinese fishing boats at Scarborough Shoal 124 nautical miles west of Luzon. On arrival an armed boarding party searched the Chinese boats and discovered that one of them contained coral, giant calms and live sharks, all protected under Philippine law.

Shortly after, two unarmed China Marine Surveillance (CMS) vessels appeared and interposed themselves between the fishing boats and the frigate thus preventing any arrest or confiscation of their catch. Two days later, while the Philippines replaced the frigate with a Coast Guard vessel, China deployed an armed Fishery Law Enforcement Command (FLEC) ship at the shoal.

This series of events prompted both the Philippines and China to lodge multiple diplomatic protests with each other. Both sides claimed that Scarborough Shoal was an integral part of its territory. China even ordered the Philippine frigate to leave its waters.

While these diplomatic exchanges were taking place all of the Chinese fishing boats and two Chinese escorts left the shoal. Expectations that the stand off would be resolved quickly were dashed when one of the Chinese ships returned and a Chinese aircraft flew over the Coast Guard vessel. A third FLEC ship has been sent to the area as the stand off continues.

On the face of it the Scarborough Shoal incident is a dispute over sovereign rights to the fishing area surrounding the shoal. The Philippines claims sovereign rights under the terms of the United Nations Convention on Law of the Sea (UNCLOS) and its provision for a 200 nautical mile Exclusive Economic Zone (EEZ).

The Philippines may have erred tactically by dispatching a naval warship to engage in fishery law enforcement. A Philippines Coast Guard commander was quoted at the time as stating that the navy should not be involved in the enforcement of maritime laws because that was the responsibility of the Coast Guard. The Philippines quickly rectified the matter by replacing the navy warship with a Coast Guard vessel.

It is important to note that all the Chinese vessels involved were civilian. The CMS vessels fall under the authority of the State Oceanographic Administration, while the FLEC ships fall under the Ministry of Agricultures Bureau of Fisheries Administration.

This incident has at least three major implications that go beyond a fisheries jurisdiction dispute. First, the standoff at Scarborough Shoal exposes the Philippines lack of capacity to enforce its sovereignty over its EEZ and thus undermines the credibility of official Philippines statements that it will secure our sovereignty.

China is building up the size of its civilian maritime enforcement fleets and it is only a matter of time before China either dominates the fishing grounds off the west coast of the Philippines or a clash occurs between Chinese and Philippines vessels.

Second, the Scarborough Shoal incident has provoked a domestic outcry in the Philippines that is largely critical of the role its ally, the United States. Philippine Senators and Congressmen have berated the US for its inaction. So far the US has only released a statement urging all parties to exercise full restraint and seek a diplomatic resolution. Filipino elites have also been critical of the Association of Southeast Asian Nations (ASEAN) for not providing political support.

The domestic reaction in the Philippines reveals unrealistic expectations about its Mutual Defense Treaty with the United States. This treaty provides for consultations in the event the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific. So far China has scrupulously avoided using force.

Third, from April 16-27, the Philippines and the United States commenced their 28th Balikatan (Shoulder-toShoulder) combined and joint military exercise. This was planned long before the Scarborough Shoal incident. Balikatan involves two phases of simultaneous multiple exercises. The first phase focuses on humanitarian and civic assistance in Palawan, while the second phase involves field training exercises in Luzon and Palawan. None of the Balikatan exercises will take place outside the Philippines territorial waters including an exercise to defend and retake an oil rig captured by terrorists.

Balikatan is designed to promote interoperability between the armed forces of the Philippines and the United States. The Chinese media has been comparatively restrained in its criticism pointedly noting that military exercises should contribute to regional peace and stability. Since China too conducts military exercises with foreign nations it must appear consistent. Indeed, as Balikatan got underway, China commenced joint naval exercises with Russia in the Yellow Sea.

The legal and strategic issues raised by the Scarborough Shoal incident will persist long after the current standoff is resolved. China insists on settling sovereignty disputes bilaterally with the Philippines. The Philippines refuses to enter into bilateral negotiations with China; it prefers a multilateral approach involving fellow members of the Association of Southeast Asian Nations (ASEAN), but ASEAN remains divided on this issue. The Philippines has also invited China to refer their dispute over sovereign rights to the International Tribunal on Law of the Sea. China refuses to do so.

The strategic issues raised by Scarborough Shoal can best be addressed by giving up priority to building up the maritime enforcement capabilities of the Philippine Coast Guard. The United States, Japan, South Korea. Australia and other like-minded states should increase assistance in capacity-building and training.

Over the longer term the Philippines must stick to the present commitment of President Aquino to modernize the countrys armed forces for territorial defense. The objective of force modernization should be to create a minimal credible deterrent against conventional naval threats. Without this deterrent the Philippines cannot defend its sovereignty and effectively contribute to its alliance with the US.

The next five years will be critical.. As the South China Sea becomes more congested the likelihood of an armed incident involving China and the Philippines will increase and possibly trigger US intervention. The US and its allies also must keep up diplomatic pressure on China to refrain from force and intimidation

Carlyle A. Thayer is Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy, Canberra.

Nine-dotted line: a vague claim

(VOV) - China has made its claim about a nine-dash line that stretches along the coastline of a number of countries in the East Sea, covering up to 80 percent of the seas area. Since first raising the argument, China has not made any official statements explaining its bull tongue line. This dearth of information has not stopped the mainland from campaigning both locally and internationally on how most of the East Sea, including four groups of islands, is now part of its territory.

How was the nine-dash line formed and what are Chinas true motivations? VOV provides insight into the case through a series of stories. Story 1: the nine-dash line - a vague claim Scholars have provided different explanations of the lines origins. Li Linghua, a researcher of the China National Ocean Informati on Centre, says in 1946 Lin Zun led a naval fleet to recapture the islands following Japans defeat. Some of the islands were unknown to the world. Japan first occupied them and was forced to cede them to us after surrendering. We were happy to receive them (...). Accompanying the fleet was a man from the Ministry of Geology and Resources who demarcated an imaginary line shaped like a bulls tongue. Upon his return, the line was printed on the national map and was publicised as a new boundary.....

China's first hand drawn map of the bull tongue line (Photo:hudong.cn)
The first map illustrating the bull tongue line was introduced in February 1948 by the Chinese Department of Border Managem ent under the Ministry of Home Affairs. It was named the bull tongue line comprising 11 dots because it resembles a bulls tongue licking further down the East Sea. The Peoples Republic of China (referred to as China from herein) was founded in 1949 after the Chiang Kai -shek administration fled to the Taiwanese islands in defeat. In the same year, China published a map that included a bull tongue line similar to that of the 1948 map . In a new map published in 1953, China eliminated two dots in the Bac Bo (Tonkin) Gulf from the lines original total of 11.

The nine-dotted line originated from a private map drawn by Bai Meichu that was incorporated into the map of the Republic of China and carried over into the maps of the Peoples Republic of China. The line contradicted international legal standards at the time of the maps publication as laws stipulated the maximum width of a nations territorial waters was restricted to three nautical miles. Chinese scholars wondered if the maps creator was fully aware of this marine law current at the time. It has been said Bai was invited to Beijing in 1990 to elaborate on his drawing. Contrary to their expectations, Bai could not provide any ample evidence supporting the bull tongue line. A number of Chinese scholars still try and defend the imaginary line. Professor Gao Zhiguo, head of the China Institute for Marine Affairs of the State Oceanic Administration, said Chinese materials show Chin a has never claimed the entire area of the South China Sea (East Sea), but just the islands and adjacent areas within this line. Pan Shiying, another Chinese scholar, argued that the line has existed for half a century without any opposition from other countries, establishing a historical Chinese territorial boundary. China has claimed sovereignty over not only the four archipelagos Dong Sa (Pratas), Tay Sa (Hoang Sa), Trung Sa (Macclesfield), and Nam Sa (Truong Sa), but also the entire area of waters within the U-shaped line. Zhu Keyuan, another scholar, posited that the Chinese claim should be considered as based on historic sovereign and jurisdictional rights rather than full and absolute. But several Chinese scholars have voiced opposition against the claim. The Unirule Institute of Economics and Sina.com news wire organised a June 2012 workshop in China examining East Sea disputes, national sovereignty, and international law. China National Ocean Information Centre researcher Li Linghua stressed, There has been no unreal land or marine border demar cating line in the history of international cartography. The nine-dotted line in the East Sea is unreal. Our predecessors invented the line without specific longitudes and latitudes, as well as without legal evidence. Professor Zhang Shuguang, Head of the Academic Committee under the Unirule Institute of Economics, stated The nine-dotted line is not legal, a view once shared by Chinese lawmakers and their colleagues from Taiwan. It was unilaterally claimed by China. Chinas official viewpoints China submitted a diplomatic note to the UN General Secretary on May 7, 2009the first of its kind in over 60 yearsformalising its official stance on the issue. This was the first time China released its map including the nine-dotted line to the world. The note read: China has indisputable sovereignty over the islands in the South China Sea and their adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. Dr Marco Benatar, from the International Law Centre of the Brussels University, Belgium, stated the criteri a for defining Chinas claim are insufficient. Scholars different explanations of the nine-dotted line as well as the unclear note dated May 7, 2009 support this conclusion. In addition to complex sentences, he said phrases such as the relevant waters and the adjacent waters are ambiguous. These phrases are not included in the 1982 UN Convention of the Law of the Sea. The absence of annotations explaining the confusing wording, contrary to international mapping standards, leaves the intentions behind Chinas bull tongue line unclear and its territorial claim invalid. Prof. Erik Franckx, dean of the International and European Law Faculty of the Brussels University, points out that the maps featuring the nine-dotted line conflict with the depictions of the East Sea in other maps and materials submitted by regional coastal countries. The Chinese maps with the nine-dotted line are also inconsistent. Those published before 1953 consist of 11 dots while later editions have only nine. There are no reasonable explanations for the elimination of the two dots. When maps are inconsistent, they are unreliable. Dr Hoang Viet argues a line so lacking in clarity cannot be considered as a national border according to international law. Is it a border line? No, because borders are always stable. Chinas claimed line has no coordinate and the limits were modified arbitrarily from 11 dots at the beginning to the current 9. Such a line cannot be recognised internationally. Chinas map even lacks technical cartographical accuracy. Its worth remembering that in the Island of Palmas case in the 1920s, arbitrator Hax Hubert argued that, The first condition required of maps that are to serve as evidence on points of law is their geographical accuracy. John Hopkins University Professor Marvin Ott shares the view that the Chinese claim is groundless. According to him, China has asserted its sovereignty over the islands but cannot identify the legal evidence defending its claimrendering it null and void.

In recent years, China has tried to legitimise the nine-dash line through legislation and seismic surveying, hoping to attract international recognition. Their fishery protection force is equipped with modern tools capable of seizing and detaining any strange fishing vessels and their crews operating in the area. The China National Offshore Oil Corporation (CNOOC) has invited bids for 9 lots within Vietnams exclusive economic zone and continental shelf. China also announced the establishment of Shansa City, comprising Vietnams Truong Sa and Hoang Sa archipelagos, Macclesfield Bank and the waters within the nine-dash line - an area totalling up to 80 percent of the East Sea. General Daniel Schaeffer, a former French military attach to Vietnam, China and Thailand, summarises Chinas actions clearly. In 2008 the American ConocoPhillips withdrew from the Moc Tinh and Hai Thach gas fields, located within Chinas claimed nine -dash line. The cable severing suffered by Vietnamese ship Binh Minh also occurred within the line, as did the Reed Bank clash between China and the Philippines. They want to communicate the extent of their claim through these incidents, he says. Chinas claim and its vague supporting arguments cannot convince many Chinese scholars. Renmin University Professor Shi Yinhong asks if the entire East Sea belongs to China. According to him, the Chinese press themselves were recently unclear about this. If that is the claim - that the entire East Sea belongs to China - it is certainly not recognised worldwide, he says.