Abstract
In January 2014, a US official for the first time challenged the Chinese U-shaped line in the South China Sea (SCS). In the following month, Washington asked Taipei to define it. One of the reasons could be that the term, historic waters, is not mentioned in the December 1982 United Nations Convention on the Law of the Sea (UNCLOS), yet the Preamble of which has the following words: Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.
In March 1962, the United Nations (UN) Secretariat of the International Law Commission (ILC) published the following seminal study, Juridical Regime of Historic Waters, Including Historic Bay (document A/CN.4/143). On page 6, we were told that it is not possible to define the term, historic waters. However, in another source, we found International Court of Justice (ICJ)’s definition of historic waters in the December 1951 Anglo-Norwegian Fisheries Case as “waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title” (cited in Bautista 2011, p. 36.). On pages 7, 10, and 12 of the March 1962 document, readers are advised that they can regard historic waters as an exceptional regime in international law or an exception to the general rules of international law or customary law (See also Symmons 2008).
This chapter mainly relies on what has been said in the first paragraph to argue that it is possible to dialectically and collectively treat the Chinese historic waters in general and the U-shaped line in particular in much of the SCS as something embracing all of the following maritime zones by applying my one-dot theory: (exceptional) internal waters, (exceptional) territorial sea, (exceptional) contiguous zone, and (exceptional) exclusive economic zone (EEZ), which have become part of the United Nations Convention on the Law of the Sea (UNCLOS). We can also, for example, describe and explain the remaining pockets or other sea areas/QiTaHaiYu of historic waters, treating them as maritime commons governed and managed by one of its multinational or transnational corporations. Arguably, this legal rationale or regime can deflect critics and detractors’ comments and remarks.
Just as there are many flaws, loopholes, as well as ambiguities and deficiencies in the UNCLOS, it is suggested that all the fellow or multiple (dormant) claimants of the SCS, such as the Republic of Philippines (ROP), should first dissolve contradictions between their domestic legislation and international legal obligations regarding their historic waters as well as territorial waters and archipelagic waters, (See, for example, Bautista, 2011) before ShuoSanDaoSi/having an ax to grind, that is, challenging the Chinese historic waters and the U-shaped line.
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Notes
- 1.
This is an abridged version of my 7600-word paper, In Defense of the U-shaped Line, which was presented at ZheJiang University in May 13–15, 2013.
- 2.
http://www.kangxizidian.com/kangxi/0218.gif, accessed on February 6, 2013.
- 3.
http://en.wikipedia.org/wiki/Chinese_characters, accessed on February 6, 2013. See also LIAO WenHao, HanZi Tree (Taipei: Yuan-Liou Publishing Company, December 2012), in Chinese and J. Marshall Unger, Ideogram: Chinese Characters and the Myth of Disembodied Meaning (Honolulu: Hawaii University Press, 2003). There are six categories under the Chinese character classification. See http://en.wikipedia.org/wiki/Chinese_characters, accessed on February 6, 2013.
- 4.
See, for example, http://chinesedigger.blogspot.tw/2009/07/eat.html, accessed on March 6, 2013.
- 5.
See, for example, Robert C. Beckman, “The China-Philippines Dispute in the South China Sea,” RSIS Commentaries (hereinafter RC) (Singapore), No. 036/2012, dated March 7, 2012 and id., “Scarborough Shoal,” RC, No.072/2012, dated April 24, 2012.
- 6.
He could also have mentioned the Western JIN Dynasty period, whereby “Five Barbarians/nomads” in northern China challenged the HAN Chinese, who lived in northern China. In Chinese, it is called WuHuLuanHua.
- 7.
http://www.ichacha.net/%E4%BB%A5%E5%BE%B7%E6%9C%8D%E4%BA%BA.html, accessed on July 23, 2013. As early as the SHANG Dynasty, if not ZhouRen tribe, YiDeFuRen became the idea and ideal. See http://www.CRNTT.com, dated 2013−11−30 11:40:57 and accessed on December 4, 2013.
- 8.
Partially due to a typhoon, called KaMiKaze/thundergod. Toward the end of World War II, Imperial Japan trained KaMiKaZe pilots to conduct suicide attacks on the US naval vessels.
- 9.
Email from him, Ban Chao of East Han Dynasty coined the term, YiDeFuRen, Dated July 23, 2013.
- 10.
See my book, One-dot Theory Described, Explained, Inferred, Justified, and Applied (New York: Springer, 2012).
- 11.
Other synonyms are: golden mean, road, path, line, and track.
- 12.
I came across the following New York Times (NYT) report title, Can the Frog Jump Before the Water Boils? and the last sentence: “Chinese politics is full of pragmatists, like anywhere else, and the next decade will show if the frog gets boiled alive or if it hops out of the pot.” See http://www.nytimes.com/2012/09/20/world/asia/20iht-letter20.html?partner=rssnyt&emc=rss&_moc.semityn.www, accessed on September 24, 2012. In June 2013, my student, LIN Lien Hsiung, alerted me, saying there is one crab, which does not walk sideways. It is called ZhongHuaHuTouXie in Mandarin Chinese or Orithyia sinica in English. I can still put this kind of crab in my model, because the crab can be, normatively, at 1 all the time but, empirically, in different time/space sequence.
- 13.
Zheng, fan, shun, ni, zhen, and wei. There are many dots in the world. For example, each of a Polka dot means “each of a number of round dots evenly spaced to form a pattern on fabric.” See Oxford Student’s Dictionary, p. 792.
- 14.
One perfect example is that of the landmark passage of the March 2007 Property Law of the PRC, by the National People’s Congress (NPC), after 14 years of debates. The law is in between 5 and A.
- 15.
Crabs can also have XiaoShuiBu (quick short steps). In other words, they can move straight forward. See United Daily News (UDN)(Taipei), February 12, 2007, p.A10. In Yilang County, Taiwan Province, ROC, there is a crab museum. Not all crabs can be eaten, because some of them are poisonous. Poison could be dangerous. See Formosa Television (Taiwan, ROC), dated February 7, 2008.
- 16.
Robert C. Beckman also referred to the Chinese U-shaped line as infamous. As another example, see Poling 2013.
- 17.
However, on the whole, he told his audience not to fear of Pax Sinica. So, it is quite safe to swim in the Chinese historic waters. See his article, The Geo-political Reality of Regional Co-existence in a Chinese Lake, paper presented at the international workshop, The South China Sea: Cooperation for Regional Security and Development, co-sponsored by the Diplomatic Academy of Vietnam and the Vietnam Lawyers Association, Hanoi, Vietnam, November 26–27, 2009, pp. 166–174 at p. 166 and p. 168. He said his assertion is not meant to be derogatory. He said the utmost concern of Beijing is that so long as its national security is not subverted, it is prepared to let other stakeholders, which do not gang-up, the rights and obligations to use waters within the U-shaped line. See ibid.
- 18.
http://www.presscenter.org.vn/en/?option=com_content&task=view&id=5290&Itemid=30, accessed on November 11, 2011.
- 19.
- 20.
Ibid.
- 21.
Peter A. Dutton, Testimony before the U.S.-China Economic and Security Review Committee, Hearing on China’s Maritime Disputes in the East and South China Seas, April 4, 2013, p. 2, p. 3, and p. 7.
- 22.
See his article, “Steering between Scylla and Charybdis: The Northwest Passage as Territorial Sea,” Ocean Development & International Law, Vol.45, No.1 (January 2014), pp. 84–106.
- 23.
- 24.
Bautist, pp. 41–42.
- 25.
Sam Bates, “The USS Cowpens Incident,” No.234/2013, RSIS Commentaries (Singapore), December 23, 2013.
- 26.
http://thediplomat.com/2013/12/how-the-us-lost-the-south-china-sea-standoff/, accessed on December 23, 2013; http://freebeacon.com/china-defense-ministry-confirms-naval-confrontation/ and http://eng.chinamil.com.cn/news-channels/china-military-news/2013-12/17/content_5694627.htm, accessed on January 17, 2014.
- 27.
http://eng.chinamil.com.cn/news-channels/china-military-news/2013-12/17/content_5694627.htm, accessed on January 17, 2014.
- 28.
Bautista, p. 42.
- 29.
Directorate of Intelligence, “The Senkaku Islands Dispute,” Intelligence Report, CIA/BGIGR 71−9, marked “secret,” May 1971, pp. 2, 6, and 7. In summer of 1970, the Ryukyu Islands Government, for example removed an ROC flag. See ibid., p. 9. A UN-organization-conducted survey of the East China Sea and the Yellow Sea was conducted in October and November of 1968. See ibid, p. 22. The report mentioned that, for example, some ROC maps did not include DiaoYuTai/Senkakus. See ibid., pp. 18−19. The report also, at the end, stated that “[t]he Japanese claim to sovereignty over the Senkakus is strong, and the burden of proof of ownership would seem to fall on the Chinese.” See ibid., p. 29.
- 30.
http://www.danwei.org/breaking_news/chinese_sailors_moon_us_spy_sh.php, accessed on January 15, 2013. In October 2013, mainland China, for the first time, sent a surveillance ship into the Hawaiian EEZ.
- 31.
- 32.
http://nationalinterest.org/commentary/learning-the-lessons-scarborough-reef-9442, accessed on January 15, 2014.
- 33.
http://www.scmp.com/comment/insight-opinion/article/1349038/how-china-can-cement-its-territorial-claims-south-china-sea, accessed on December 4, 2013. He said there are at least 13 of such geographical features.
- 34.
See also http://richard-rightways.blogspot.tw/2013/02/the-philippines-broken-ranks-with-asean.html, accessed on December 15, 2013.
- 35.
Dutton’s testimony, dated April 4, 2013, p. 5.
- 36.
http://www.humanevents.com/2012/06/10/law-of-the-sea-treaty-may-be-improved-but-remains-deeply-flawed/, accessed on November 25, 2013. According to the author, LOST is an apt acronym for UNCLOS.
- 37.
http://richard-rightways.blogspot.tw/2013/02/the-philippines-broken-ranks-with-asean.html, accessed on December 15, 2013.
- 38.
Cited in Bautista, pp. 36–37.
- 39.
http://www.infowars.com/china-us-remarks-about-territorial-claims-irresponsible/, accessed on February 10, 2014.
- 40.
Ibid.
- 41.
http://thediplomat.com/2012/05/the-folly-of-unclos/, accessed on November 25, 2013.
- 42.
Bautist, pp. 41–42.
- 43.
Cited in Hamzah, p. 167.
- 44.
- 45.
- 46.
Poling, p. 7.
- 47.
Ibid.
- 48.
Cited in Amer 2014b, p. 1.
- 49.
Poling, p. 2.
- 50.
- 51.
Poling, pp. 45–46.
- 52.
http://www.cato.org/publications/commentary/sink-law-sea-treaty, accessed on November 25, 2013.
References
Amer, R. (2014a). China, Vietnam, and the South China Sea. Ocean Development and International Law, 45(1), 17–40.
Amer, R. (2014b). China and Vietnam: Managing Tensions in Troubled Waters. Policy Brief (Sweden), 141, 1–3.
Bautista, L. B. (2011). Philippine territorial boundaries: internal tensions, colonial baggage, ambivalent conformity. Journal of Southeast Asian Studies, 16(1), 35-53.
Poling, G. B. (2013). The South China Sea in Focus (pp. IX, 2). Washington, D.C.: Center for Strategic & International Studies.
Symmons, C. R. (2008). Historic Waters in the Law of the Sea: A Modern Re-appraisal. Leiden: Martinus Nijhoff.
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YU, Ph. (2015). The Chinese Historic Waters as an Exceptional Regime in Ocean Development. In: Ocean Governance, Regimes, and the South China Sea Issues. Springer, Singapore. https://doi.org/10.1007/978-981-287-329-3_10
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