In Bad Faith: ’s Words and Actions in the Adrienne Ou I. INTRODUCTION

One of the largest geopolitical concerns facing the nations of is the legal and historical debate regarding the South China Sea. Six nations lay claim to various parts of the enclosed waters: People’s Republic of China (PRC), Republic of China (ROC, henceforth referred to as ), Vietnam, Malaysia, the , and Brunei. China’s claim is the largest, encompassing four main archipelagic groups of islands, the Spratlys (Nansha), Paracels

(Xisha), Pratas (Dongsha), and Macclesfield Bank (Zongsha), with the so-called “nine-dash line.”i This has caused much discontent with its rival claimants, leading to military skirmishes and a pending China-Philippines international arbitration under Annex VII of the United Nations

Conference on the Law of the Sea (UNCLOS).ii However, the corpus of research has concluded that any multilateral arbitration willingly undertaken, most likely with the International Tribunal of the Law of the Sea (ITLOS), is unlikely given China’s “strategic ambiguity” towards the issue and the dearth of legal evidence that supports its claim.iii This paper seeks to illuminate the relation between international law and use of force in East Asian relations by evaluating the strength of China’s legal claim to the sea and comparing it to the tactics utilized in attempting to establish control over the area. Through a careful examination of both treaty and customary law,

I show that China’s legal claim over the area is weak, thereby leading to its salami-slicing tactics in the South China Sea.

The first issue is that China has never fully explained the nature of its claims over the sea.

As Dupuy and Dupuy note, China’s claims over the area went unexplained until 1998 when it passed its China’s Exclusive Economic Zone and Continental Shelf Act. That legislation contained the first mention of historic rights as a basis for its claims. The only other legal clarification came in 2009 when it submitted a note verbale to the UN secretary-general claiming

NOT FOR DISTRIBUTION 1 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou “indisputable sovereignty” over the islands in the South China Seas and “adjacent waters”.iv

Blood-Patterson has noted that the lack of mention until 1998 can be rooted to the Marxist ideology that China touted until its opening, in which China first repudiated “bourgeois international law,” especially considering that the initial eleven-dash map was drawn by

Kuomingtang (KMT) officials.v The first problem is that China has not continually espoused its claims. The second problem is that historic rights as a legal concept is ill defined. None of the three UNCLOS treaties address the concept, and the third, the 1982 United Nations Law of the

Sea Convention (LOS Convention), mentions it briefly without fully defining the regime.vi Since explanation from the Chinese government is not forthcoming, Chinese legal scholars have attempted to fulfill the vacuum. Gao and Jia root their analysis in customary law, in which China has exercised continual and effective sovereignty over the area since the Ming dynasty in the fifteenth century. They argue that the sporadic explorations conducted by Zheng He, use of the

Spratlys by Chinese fishermen for rest, and the 1951 San Francisco Treaty that forced Japan to renounce its imperial possessions created a legal precedent for a choate title based on historic rights.vii Hence, there are two ways to interpret the nine-dash line. The first way is to use

UNCLOS, in which treaty law is used to determine the maritime boundaries surrounding the islands once legal title of the Spratlys and Paracels have been finally determined. However, that way would require the dispute over island and maritime feature ownership to be decided prior to

ITLOS arbitration. The second way is for a tribunal, probably the International Court of Justice

(ICJ) to determine the status of the islands and the maritime boundaries using a regime of customary law.

NOT FOR DISTRIBUTION 2 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou II. TREATY LAW

Article 38(1) of the Statute of the International Court of Justice (ICJ) codifies the sources of international law. The three primary sources of international law are treaties, customary law, and general principles of law. Judicial decisions and qualified juridical writings are secondary sources of international law.viii Under the first source of law, China’s claim can be determined under UNCLOS, a comprehensive treaty that China is a party to. It details the rights of states with regards to territorial and res communis waters. Coastal states have possession of waters extending from their coasts 12 nm outward. Aside from these territorial waters, additional economic and research rights are granted if a state has a contiguous zone, a continental shelf, or an exclusive economic zone (EEZ). The most relevant concept for China is the EEZ, as an EEZ surrounding a land territory can extend up to 200 nm outwards without a continental shelf, or

350 nm with a continental shelf.ix China’s claim can be interpreted to mean that it claims all island features within the sea, and the EEZs generated extend to the parameters of the nine-dash line. However, the nature of its claims runs into several legal problems. First, the 2009 note verbale does not utilize any of the language contained in UNCLOS. It references “relevant waters” and “adjacent waters,” which are terms not found in any of the UNCLOS treaties.x This makes aligning the note verbale with the UNCLOS regime difficult. Second, Article 121 of

UNCLOS determines that not all maritime features are capable of generating a full 200 nm EEZ; only islands, which are capable of sustaining human habitation and economic life, can generate an EEZ. A maritime feature like the can only generate a 12 nm territorial sea.xi This has been supported by ICJ cases like the 2001 arbitration between Qatar and Bahrain, in which the ICJ noted that state practice has evolved to not permit low-tide elevations to be annexed to islands to further an EEZ. It was furthered by the 2012 case between Nicaragua and

NOT FOR DISTRIBUTION 3 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou Colombia, in which the ICJ firmly prohibited the extension of EEZs using low-tide elevations.xii

Given that several of these maritime features do not qualify as islands, the maritime boundaries of the nine-dash line are not in alignment with UNCLOS, and if China were to submit to ITLOS

Annex VII ad hoc arbitration like the Philippines wants, it would have to severely modify its claim to bring it in line with the terms of the treaty. However, China need not rely on the

UNCLOS regime under one condition: if it can use customary law to supplant the treaty.

III. CUSTOMARY LAW

Customary law has evolved through the centuries as countries created ad hoc tribunals, and later, the ICJ, to deal with interstate matters. It has led to the creation of a corpus of law that evolves with and amends treaty law. However, in this case, customary law is only applicable if it predates UNCLOS or has served to clarify the treaty regime.xiii The foundation of the law of the seas is not friendly to China’s concept of a South China Seas that is undeniably theirs. The famous legal writer Hugo Grotius established the basis of freedom of the seas in the seventeenth century with the Mare Liberum, which eventually became the orthodox position of nations regarding law of the sea. It was originally meant to deal with Spanish and Portuguese conquests of the New World and the disagreements that subsequently ensued, and so China did not partake in this as isolationist as it was at the time.xiv However, exclusion does not equate applicability and so the bounds of international law apply to all nations of this planet regardless of whether they agree or not.

Under a historic waters claim, all land and maritime boundary enclosed within the nine- dash line is Chinese territory. There are two main issues with China’s claim under this regime: the validity of the nine-dash map as evidence, and the nature of historic rights. The nine-dash line map cannot constitute legal evidence. In the 1986 border arbitration between Burkina Faso

NOT FOR DISTRIBUTION 4 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou and Mali, the ICJ refuted cartographic title by saying that maps “constitute information which varies in accuracy from case to case … they cannot constitute a territorial title.”xv The only exception to this case is if the map in question is attached to an official text, such as a treaty.

Since the nine-dash map is a unilateral statement by China, this exception does not apply.

Buttressing this decision is the Kasikili/Sedudu judgment, in which the ICJ ruled that contradicting maps could not be used as legal evidence in the case. Given the variety of maps with differing information regarding the ownership of the South China Sea since the map was first drawn in December 1946, maps would have little evidentiary value in any ICJ tribunal. This is compounded by the fact that China added a tenth dash in October 2010 to include the southern half of Taiwan.xvi It is hard to admit a map as evidence of legal title or take the historic claim seriously if the government changes the extent of the title sixty years later. The Kasikili/Sedudu judgment also produced Judge Oda’s separate opinion, in which he ruled that a map used in support of a territorial claim must be made with “the clear indication of a government’s intention.”xvii Since the Chinese government has yet to issue an explanation of the legal reasoning behind the nine-dash map and scholars are divided on its meaning, it suffices to say that China has not fulfilled this criterion. Furthermore, the map is not impartial, which reduces its usability as evidence. The Beagle Channel Arbitration set the precedent by noting that partial maps should be used as exceptions, not norms. Given that the map originated with the ROC’s

Land and Water Maps Inspection Committee, it is in no way impartial.xviii On a more technical note, the map is also vague in its specifications: there is no way to calculate the exact area that

China claims, nor any way to determine the coordinates that make up the edge of the nine-dash claim. In the landmark Island of Palmas case that set the rules of acquisition of island territory,

NOT FOR DISTRIBUTION 5 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou the arbitrator Max Huber noted that a map’s admissibility rests on its technical quality and the impartial nature of its origins, which the Chinese map clearly lacks.xix

There is one last argument that China uses with regards to maps: acquiescence and estoppel. In the Temple of Prear Vihear case, Thailand was said to have acquiesced to

Cambodian sovereignty over the historic temple over two factors. The first was that the Thai

(then Siam) president visited the temple when the French flag flew over the temple in December

1906, when Cambodia was the French colony of Indo-China. Siam did not protest this action.

The second was that France published a map showing Prear Vihear within its territory and Siam failed to protest those actions as well. The ICJ concluded that Thailand, by failure to protest these actions, had acquiesced to Cambodian sovereignty and thus was estopped from lodging a claim for Prear Vihear.xx Chinese legal scholars use this case to argue that the other claimants had not protested the publication of the map in 1946 until 1998, when the map resurfaced in the public consciousness. However, it is difficult to protest an action that the Communist government failed to publicize due to its KMT origins, as discussed above. This is compounded with the fact that post-World War II East Asia was rife with conflict as former colonies engaged in the struggle for independence from their European imperial powers and subsequently consumed with the process of building new nations.xxi It is hard to presume that the would-be successful revolutionaries would have the time to protest a map while simultaneously trying to fight another army before they even gained independence.

In addition, there are qualifications to the use of acquiescence to estop a state from lodging a claim. It is only accepted following a prolonged period of passivity without complaints as the state effectively controls and administers the territory. In the 2008 arbitration between

Malaysia and Singapore, Malaysia argued that it had sovereignty over the Pedra Branca maritime

NOT FOR DISTRIBUTION 6 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou features since its fishermen had used the islands since “time immemorial.” Similarities of the

Malaysian claim to the Chinese claim notwithstanding, Singapore rebutted by stating that it had administered the islands since 1850, when Singapore’s colonial power, Great Britain, built a lighthouse on the island. The ICJ ruled that Singapore had acquired the islands by governance à titre de souverain.xxii Although none of the maritime features have a state effectively controlling them à titre de souverain, states have been quick to protest China’s actions since 1998. These complaints are not restricted to those made by rival claimants either; in 2009, Indonesia questioned the nine-dash map and the ability for rocks to generate EEZs.xxiii

The second aspect of relevant customary law is the concept of historic rights. As Zou explains, there is no definition of historic rights in any case or treaty. However, most scholars from both sides of the debate use Yehuda Z. Blum’s definition from the Encyclopaedia of Public

International Law and define historic rights as: “the possession by a State, over certain land or maritime areas, of rights that would not normally accrue to it under the general rules of international law, such rights having been acquired by that State through a process of historic consolidation.”xxiv Historic rights are not to be confused with historic waters. According to

Bernard, a historic rights claim has three differences from a historic waters claim: 1) historic waters constitute a title of full sovereignty, whereas historic rights do not, 2) historic rights claims are not exclusive, and 3) historic rights claims are specific regarding the nature of the claim, i.e. a historic right to activities or a historic right to the resources in a certain area.xxv This process of acquiring title over historic waters consists of three parts: 1) the state must exercise authority over the area, 2) this authority must persist through time, and 3) other states must acquiesce to this claim.xxvi However, Bernard notes that any historic claims cannot supersede the UNCLOS regime, as the ICJ has not set a precedent of supporting any

NOT FOR DISTRIBUTION 7 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou historic rights arguments that compete with UNCLOS. Moreover, an EEZ does not surmount to a claim of territorial waters: “It is a specific legal regime whereby coastal States have sovereign rights and jurisdiction over the natural resources in the body of water and subsoil up to 200 nm from the shore and where other States have certain rights and freedoms as provided for in the

LOS Convention.”xxvii In fact, the ICJ has used the equidistance principle and the equity principle far more frequently in delimiting maritime boundaries, so much that equidistance has supplanted historic rights to become the norm.xxviii He concludes that historic fishing rights that can affect the boundary of EEZs can be taken into consideration under limited conditions: 1) per the agreement of the state to whom the EEZ belongs, and, 2) if the equidistance principle results in catastrophic socioeconomic consequences for a community that depends on the fishery resources, known as the Gulf of Maine exception.xxix Seeing as China’s claim extends almost to the territorial seas of all its rival claimants, there is no question as to why the rival claimants have made claims of their own and why they vociferously protest. However, as Bernard also explains, neither EEZs nor historic rights claims are exclusive, so the resources of the South

China Sea can be equitably shared given the involved parties’ willingness to create a joint development regime via multilateral cooperation and agreement.

It is clear that the “indisputable sovereignty” that China claims in its note verbale amounts to nothing more than a non-exclusive historic rights regime, mostly with regards to fishing and other economic activity. Neither UNCLOS nor the corpus of customary law can support China’s claims, leading Frankx and Benatar to conclude: “Maintaining a unilateral claim over an extended period of time without due consideration for the rights of other interested parties is tantamount to imposing a fait accompli. This plainly flies in the face of international law, which prevents the strong states from claiming their ‘lion’s share’ to the detriment of their

NOT FOR DISTRIBUTION 8 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou weaker neighbours.”xxx At the 2010 ASEAN Regional Forum, Chinese foreign minister Yang

Jiechi plainly stated: “China is a big country and other countries are small countries and that is just a fact.”xxxi That attitude epitomizes China’s realist tactics in the South China Seas in the wake of the weakness of its legal claims.

IV. THE WEAKNESS OF WORDS

China’s tactics are rooted in its geopolitical insecurity. As Xue notes, China suffered many national humiliations during the nineteenth and twentieth century, most of which came from the sea. History aside, China also is a coastal state that has overlapping boundaries along its coast and within 400 nm of its coast, thereby creating a disadvantage under the UNCLOS regime.xxxii Returning to the concept of EEZs and their potential ability for China to control the sea, they are not the justification for excluding innocent passage. Exclusive economic zones are just that. Coastal states do not have complete sovereignty over the area, just sovereign rights. As

Odom notes, an EEZ is not “exclusive security zone or an exclusive military zone.”xxxiii Also, as previously mentioned, freedom of the sea is a cornerstone of maritime law, as Grotius’ treatise still stands. UNCLOS and customary law both reaffirm this right.

However, China would like to see this changed. The nine-dash line, according to China’s military actions over the area that it would like to control, marks the boundaries of China’s territorial waters. In 2001, a US Navy EP-3 plane and a PLA Navy F-8 fighter jet collided in the

South China Sea. China declared it a violation of international law, despite the fact that the freedom of the seas allows for innocent passage by all ships and planes in non-territorial waters, including those of foreign militaries.xxxiv March 2009 also bore witness to another incident in which five Chinese vessels surrounded the USNS Impeccable. The situation was so dangerous that it probably would have caused a collision were it not for the emergency maneuver by the

NOT FOR DISTRIBUTION 9 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou Impeccable. After harassing the Impeccable, China again declared it a violation of international law.xxxv

The United States has not been alone in experiencing Chinese harassment. In the summer of 2011, a Chinese vessel cut the equipment of a commercial survey ship from Vietnam.xxxvi To be fair, China and Vietnam have a history of antagonism over the South China Seas and enclosed islands that include races for islands, occupation of maritime features, and maritime battles that are all excluded from the parameters of international law. In 1974, the Chinese took the Crescent group of the Paracels by force from South Vietnam. In 1990, a race for island and maritime feature occupation between China and Vietnam led to casualties in a battle over Johnson

Reef.xxxvii However, past wrongs do not make a right and China did indeed violate freedom of passage in this instance.

If China is seeking to establish a new norm, it is not doing so well. China has conducted military operations in the EEZs of other nations, including those of Japan and the Philippines.

They took place in the equivalent of where the 2001 EP-3 collision and 2009 Impeccable standoff took place in China’s waters.xxxviii This is less about international law than it is about

China trying to project a sphere of influence over the region, albeit in a poor manner as its actions are unsanctioned by all principles of equity and undermine the entirety of international law.

V. CONCLUSION

In the 1987 cult classic film Princess Bride, Inigo Montoya tells Vizzini after he keeps using the word “inconceivable” repeatedly: “You keep using that word. I do not think it means what you think it means.”xxxix Likewise, China uses “international law” without concern for its actual meaning. Its claims are ambiguously defined at best, outright lies at worst. The nine-dash

NOT FOR DISTRIBUTION 10 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou line has barely any legal foundation to stand upon, whether it is treaty law or customary law.

UNCLOS, the primary foundation of maritime law gives no standing to China’s “historic claims” giving “absolute sovereignty” over the South China Seas. Moreover, customary law, the corpus of law that is most closely related to the foundation of China’s claims, also fails to support the country’s claims. Moreover, the country claims its legal rights has been violated when other countries exercise their right of innocent passage through the South China Sea and China’s EEZ while simultaneously doing the same action to its neighbors. China clearly does not respect maritime law in many respects for the simple fact that it is disadvantaged by the present regime of international law. However, the fact remains that there are 195 states in the world not including Taiwan, most of who do fairly well in upholding international law. Should China continue walking down this path, it will find itself increasingly isolated in an age of global supply chains and multilateral discourse.

NOTES AND SOURCES i Robert Beckman. “The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea,” The American Journal of International Law 107.1 (2013): 142-163. See page 153. ii N. Elias Blood-Patterson. “Smoke on the Water: The Role of International Agreements in the Philippine-Chinese Dispute Over the South China Sea,” New York University Journal of International Law and Politics 46.1207 (2014): 1207-1248. See page 1209. iii Beckman. See page 156. iv Florian Dupuy and Pierre-Marie Dupuy. “A Legal Analysis of China’s Historic Rights Claim in the South China Sea,” The American Journal of International Law 107.1 (2013): 124-141. See pages 129-130. v Blood-Patterson. See page 1224, note 65. vi Zou Keyuan. “Historic Rights and Joint Development.” Paper presented at the International Conference on “Recent Development of the South China Sea Dispute and Prospects of Joint Development Regime,” Haikou, China, 6-7 December 2012. See page 2. vii Gao Zhiguo and Jia Bing Bing. “The Nine-Dash Line in the South China Sea: History, Status, and Implications,” The American Journal of International Law 107.1 (2013): 98-124. See pages 100-103. See also: Shen Jianming. “China’s Sovereignty Over the : A Historical Perspective,” Chinese Journal of International Law 1.1 (2002): 94-157.

NOT FOR DISTRIBUTION 11 In Bad Faith: China’s Words and Actions in the South China Sea Adrienne Ou viii Statute of the International Court of Justice, San Francisco, 26 June 1945. United Nations. Available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0. ix Zou Keyuan. “The Chinese Traditional Maritime Boundary Line in the South China Sea and its Legal Consequence for the Resolution of the Dispute over the ,” International Journal of Marine and Coastal Law 14.1 (1999): 27-55. See page 47. x Erik Frankx and Marco Benatar. “Dots and Lines in the South China Sea: Insights from the Law of Map Evidence,” Asian Journal of International Law 2.1 (2012): 89-118. See page 107. xi Ibid. See page 101. xii Beckman. See page 150. Also see Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, supra note 51; Territorial and Maritime Dispute (Nicaragua v. Colombia), 2012 ICJ Rep. 1, para. 140. xiii Blood-Patterson. See page 1211. xiv Blood-Patterson. See pages 1212-1215. xv Frontier Dispute (Burkina Faso/Republic of Mali), 1986 ICJ Rep. 554 at 582, para. 54. xvi Frankx and Benatar. See pages 90-91 for origin of nine-dash map. See page 106 for ten-dash map change. xvii Kasikili/Sedudu Island, supra note 58, Separate Opinion of Judge Oda at 1133-1134, para. 40. xviii Frankx and Benatar. See page 106 for history of nine-dash map. See pages 107-108 for map neutrality. See also Beagle Channel Arbitration (Argentina v. Chile), Decision of 18 February 1977, 2006 XXI Reports of International Arbitral Awards 53 at 167, para. 142. xix Ibid. See page 109. xx Summary of the Summary of the Judgment of 15 June 1962. International Court of Justice. Available at http://www.icj-cij.org/docket/index.php?sum=284&p1=3&p2=3&case=45&p3=5. See also Temple of Prear Vihear (Cambodia v. Thailand), 1962 ICJ Reports 6 at 23. xxi Alice Lyman Miller and Richard Wich. “Decolonization, Nationalism, and Revolution.” In Becoming Asia: Change and Continuity in Asian International Relations Since World War II, 82-102. Stanford: Stanford University Press, 2011. xxii Pedra Branca (Malaysia v. Singapore), 2008 ICJ Rep. 2, para. 37-38. xxiii Frankx and Benatar. See page 102. xxiv Yehuda Z. Blum. “Historic Rights.” In Encyclopaedia of Public International Law, Installment 7, ed. Rudolf Bernhardt, 120. Amsterdam: North-Holland Publishing Company, 1984. xxv Leonardo Bernard. “The Effect of Historic Fishing Rights in Maritime Boundaries Delimitation.” Paper presented at the Law of the Sea Institute, UC Berkeley- Institute of Ocean Science and Technology Conference, Seoul, Republic of Korea, 21-24 May 2012. See pages 4-5. xxvi UN Doc. A/CN.4/143, supra note 4, at 13. xxvii Bernard. See page 7. xxviii Ibid. See page 11.

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xxix Ibid. See pages 18-19. xxx Frankx and Benatar. See page 115. xxxi “The dragon’s new teeth.” The Economist, 7 April 2012. Available at http://www.economist.com/node/21552193. xxxii Xue Guifang. “China and the Law of the Sea: An Update.” US Naval War College International Law Studies 84.1 (2008): 97-110. See page 98. xxxiii Jonathan G. Odom. “A China in the Bull Shop? Comparing the Rhetoric of a Rising China with the Reality of the International Law of the Sea,” Ocean and Coastal Law Journal 17.2 (2012): 201-251. See page 210. xxxiv Ibid. See page 230. xxxv Odom. See pages 229-230. xxxvi Ibid. See page 230. xxxvii Stein Tønnesson. “International Law in the South China Sea: Does it Drive or Help Resolve International Conflict?” Paper presented at the Third International Workshop: “The South China Sea: Cooperation for Regional Security and Development,” Hanoi, Vietnam, 4-5 November 2011. xxxviii Odom. See page 231. xxxix The Princess Bride. Twentieth Century Fox Film Corporation, 1987. The idea was taken from an excellent article about China’s actions in the South China Seas. It is extremely detailed and incredibly useful, though its focus was out of this paper’s purviews: Lt. Com. Robert T. Kline. “The Pen and the Sword: The People’s Republic of China’s Efforts to Redefine the Exclusive Economic Zone through Maritime Lawfare and Military Enforcement,” Military Law Journal 216 (2013): 122-169.

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