June 09th, 2011 | Beijing Review Indisputable Sovereignty
Opposition to China’s ocean claim is poorly supported
In recent years, there has been heated debate on China’s claims in the South China Sea in international media. Despite massive support for these claims, suspicions are still being harbored. China’s stance, they say, is not in line with the UN Convention on the Law of the Sea (UNCLOS). This accusation is groundless. China’s claims in the South China Sea, including the sovereignty of the Nansha Islands and the jurisdiction of waters surrounding those islands, are based on historical facts and legal validity, and also have been recognized by many other countries.
The UNCLOS, which was signed in 1982 and came into force in 1994, defines the rights and responsibilities of nations in their use of the world’s oceans. The National People’s Congress, China’s top legislature, ratified the convention in 1996. China’s claims to the territory in the South China Sea are not something new according to the UNCLOS, which can by no means be used as the legal base for discussing sovereignty of islands in general legal terms. From the historical viewpoint, the claims were made by various Chinese feudal dynasties and modern governments in succession.
A matter of fact
China was the first country to discover, use and manage the islands in the South China Sea and possesses the most sufficient historical evidence. A large number of ancient Chinese records such as books, maps and official documents contain references to Chinese people’s knowledge and actual use of the South China Sea.
China has exercised jurisdiction over the South China Sea islands throughout history. In the mid-19th century, the Chinese Government began to send military and civilian officials to the islands to erect boundary markers, raise flags and fire guns to demonstrate sovereignty.
Successive governments in China also included the islands in their vast domain and marked them on various official maps. There were many cases that showed Chinese governments had granted permits to businessmen and fishermen to work on the islands, protested against foreign invasion of some of the islands and established administrative agencies to govern the islands in the South China Sea.
Among all the countries around the South China Sea, China is the only country to have exercised continuous and effective jurisdiction over the islands for hundreds of years.
Take the naming of the islands, for example. China named the islands several times, including in 1909, 1935, 1947 and 1983. This is a concrete proof of jurisdiction.
The line of demarcation in the South China Sea serves as further proof. Historical documents clearly show the dotted line, also named as the U-shape line by scholars, in the South China Sea appeared no later than 1914 on privately published maps of China. The Chinese Government confirmed the line in 1947 and marked it on official maps published in the next year.
After the People’s Republic of China was founded in 1949, this line was largely maintained. The government adjusted the dotted line and published it in official maps in 1962. The line has been in use to this day. It is recognized, either publicly or tacitly, by countries including Viet Nam. It is also marked out on maps published by countries such as Viet Nam, France and Japan.
The dotted line demarcating the South China Sea emerged long before the UNCLOS. It is by no means a new proposal or new demand made by the Chinese Government after the adoption of the convention. Viet Nam also says it has historical instruments to support its claims to the islands. But Chinese historical scholars have pointed out the mistakes in Viet Nam’s so-called ancient documents.
Other coastal states of the South China Sea claimed sovereignty over all or parts of the Nansha Islands based only on the regime of the 200-nautical-mile Exclusive Economic Zone of the UNCLOS. These claims are surely illegal. Additionally, according to bilateral treaties or national legislations that demarcated the scopes of territorial sovereignty of other coastal states of the South China Sea, the Nansha Islands were excluded.
It has been nearly a century since China first used the dotted line on its maps. The Chinese Government officially released the line 63 years ago, 46 years before the UNCLOS took effect.
From a legal standpoint, those who believe the solving of disputes over the South China Sea shall be only by the UNCLOS either are intentionally misleading the world or have adopted a one-sided interpretation of the convention.
Generally, the UNCLOS can be used to solve only some marine disputes, but cannot be used to solve disputes over territorial sovereignty. This is determined by the legislative purpose of the convention. To be specific, its purpose is to, with due regard to the sovereignty of all countries, establish a regime of law and order in the world’s oceans and seas to facilitate international maritime traffic and promote the peaceful use of the sea. It aims to promote the fair and effective utilization of marine resources, the conservation of living marine resources and protection of the marine environment. It is widely acknowledged the UNCLOS cannot be used as a legal basis for solving disputes over the Nansha Islands’ sovereignty. What’s more, the UNCLOS is only one part of international law, but cannot act as a substitute for international law.
The convention does not directly address maritime disputes either. It only offers principles, means and procedures of dispute settlement in order to achieve an equitable solution.
The disputes in the South China Sea are centered on the sovereignty of some of the Nansha Islands and waters surrounding them. This is not a simple legal issue. Maritime disputes usually involve complicated multiple circumstances, at least including political, diplomatic, military, economic, historical as well as legal factors. They also involve complex state-to-state relations and geopolitical issues.
The South China Sea disputes are no exception. Therefore, the UNCLOS is only one of the factors to consider when seeking a solution to the disputes.
For example, two factors are essential to determining the sovereignty of the Nansha Islands. One is history, as historical facts must be taken into consideration when addressing territorial disputes. The other is international law, especially the rules of obtaining territory. Both go beyond the scope of the UNCLOS.
Of all countries involved in the disputes, China has the longest historical record of jurisdiction over the islands and their surrounding waters. Therefore, those who have repeatedly stressed the UNCLOS is the only rule to abide by in resolving South China Sea disputes, or the disputes could only be solved with the UNCLOS, are actually attempting to deny the historical and legal basis substantiating Chinese claims in the South China Sea.
It is unreasonable to demand China abandon its claims in the South China Sea. This kind of demand not only casts historical facts to the wayside but also runs counter to common sense. In general, without negotiations between states involved in a dispute or a commonly accepted ruling, it is impossible for one state to accept another’s demand to abandon claims.
The disputes in the South China Sea should be solved through peaceful negotiations and friendly consultations. No person or country has the right to demand China give up its claims. And China isn’t obligated to abandon its rights without proper negotiations.
Despite complicated disputes between China and other countries adjacent to the South China Sea, China firmly believes peaceful coexistence, dialogue and cooperation are the keys to solving the disputes.
China is devoted to establishing friendships, enhancing political mutual trust and expanding cooperation with its neighboring countries involved in the South China Sea disputes. It has adopted a policy of restraint and tried to maintain peace and stability in the South China Sea.
On the one hand, China has always held that the disputes should be resolved through bilateral peaceful negotiations, based on historical facts and international laws, including the UNCLOS. On the other hand, it has taken active efforts to safeguard the freedom of navigation in the South China Sea. It has been working together with other countries to cope with non-traditional security issues and challenges.
Negotiation channels between China and other countries concerned have been smooth. Bilateral negotiations between China and Viet Nam, the Philippines and Malaysia are under way. More importantly, safeguards and freedom of navigation in the waters have never been affected by the disputes.
The author is a senior researcher and deputy director general with the China Institute for Marine Affairs of the State Oceanic Administration
By ZHANG HAIWEN