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The South China Sea has generally been a calm area of sea since ancient times. Until the late twentieth century, it had provided a fertile fishing ground for local fishermen from China and other littoral states, and a smooth route of navigation for the nations of the region and the rest of the international community. This tranquility has been disturbed, however, by two recent developments. The first was the physical occupation of the Nansha, or Spratly, Islands by some of the coastal states in the 1970s. This process continued through the rest of the century. Now, nearly all the islands and insular features within the Spratly Islands have been subjected to physical control by one littoral state or another.
1 UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 396, available at http://www.un.org/Depts/los/index.htm [hereinafter UNCLOS].
2 In this article, the term China refers to the state of China both before and after 1949, when the People’s Republic of China was founded.
3 See the map printed with the Editors’ Introduction, 107 AJIL 95 (2013). See also International Hydrographic Organization, Limits of Oceans and Seas 30–31 (3d ed. 1953), available at http://www.iho.int/iho_pubs/standard/S-23/S23_1953.pdf; China Institute of Marine Affairs, State Oceanic Administration, Zhong Guo Hairyang Fa Zhan Bao Gao [China’s Ocean Development Report] 19–20 (2011). This report, published in Chinese as one volume in an annual series, contains a more detailed description of the geography of the South China Sea than the International Hydrographic Organization publication, with coordinates of major turning points all clearly given. On the semi-enclosed sea status of the South China Sea, see Djalal, Hasjim, Indonesia and the South China Sea Initiative, 32 Ocean Dev. & Int’l L. 97, 98 (2001).
4 The term islands in the pinyin romanization of Chinese is spelled as qun dao, which in connotation can also include an archipelago.
5 China Institute of Marine Affairs, supra note 3, at 20. The report also provides, at page 24, the following details: the Xisha Islands comprise 32 islands and islets, each possessing a surface area larger than five hundred square meters; the Zhongsha Islands are composed of rocks, sandbanks, and reefs, among which, by virtue of two rocks, only Huang Yan Island (or Scarborough Shoal or Reef) rises above sea level at high tide; the Nansha Islands consist of over 230 islands, islets, rocks, banks, and shoals, among which 25 are islands. Another Chinese publication describes the Dongsha Islands as comprising Dongsha, or Pratas, Island, the Dongsha, or Pratas, Reef, and two banks. See Geographical Names Commission, Guang Dong Province, Nan Hai Zhu Dao Di Ming Zi Liao Hui Bian [Collection of Materials Regarding the Geographical Names of the Islands in Southern China Sea] 164–68 (1987). Useful references with regard to the geography and names of those islands may also be found in publications in English. See Marwyn S. Samuels, Contest for the South China Sea 183–94 (1982).
6 China Institute of Marine Affairs, supra note 3, at 20.
7 Thao, Nguyen Hong & Amer, Ramses, A New Legal Arrangement for the South China Sea? 40 Ocean Dev. & Int’l L. 333, 334 (2012).
8 Lihai, Zhao, Guan Yü Nan Hai Zhu Dao De Ruo Gan Fa Lü Wen Ti [Certain Legal Questions Concerning Islands in the South China Sea], 4 Fa Zhi Yü She Hui Fa Zhan [Rule L. & Societal Dev.] 50, 51–52 (1995); Cheng, Tao, The Dispute over the South China Sea Islands, 10 Tex. Int’l L.J. 265, 266–67 (1975).
9 See infra part II.
10 Article 122 of Unclos, supra note 1, provides that “‘enclosed or semi-enclosed sea’ means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by an arrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.”
11 John O’Callaghan, Southeast Asia Splashes Out on Defense, Mostly Maritime, Reuters, Oct. 7, 2012, at http://www.reuters.com/article/2012/10/07/us-defence-southeastasia-idUSBRE8960JY20121007 (between 2002 and 2011, defense spending by Southeast Asian countries grew by 42 percent in real terms).
12 Wo Gui Nan Hai Zhu Dai Shi Liao Hui Bian [Collection of Historical Materials Concerning Our Country’s Islands in the South China Sea] (Han Zhenhua, Lin Jinzhi & Wu Fengqi eds., 1988) [hereinafter Collection of Historical Materials]; Nan Hai Wen Ti Wen Xian Hui Bian [Collection of Documents on the Issue of the South China Sea] (Wu Shicun, Li Xiuling, Zhong Tianxiang, Wu Yan & Fu Yu eds., 2001) [hereinafter Collection of Documents on the Issue of the South China Sea].
13 Shen, Jianming, China’s Sovereignty over the South China Sea Islands: A Historical Perspective, 1 Chinese J. Int’l L. 94, 102–05 (2002). in the present article, translations from the Chinese are given by the authors unless otherwise indicated.
14 Id. at 104.
15 Ministry of Foreign Affairs of the People’s Republic of China, Nan Hai Zhuan Ti [The Issue of the South China Sea], pt. II (Nov. 22, 2000), at http://www.fmprc.gov.cn/chn/pds/ziliao/zt/ywzt/wzzt/2305/.
16 Shen, supra note 13, at 119–20 (relating to a Chinese publication in the year 1178 that described the tributary routes to and from China in the South China Sea). But the more impressive account was by Zhao Rushi of Southern Song Dynasty in his Zhu Fan Zhi [Records of Foreign Peoples], compiled in the years 1225 to 1242, which provided “locational coordinates” that left little doubt about the objects of his account: the Xisha and Zhongsha Islands. See Samuels, supra note 5, at 16–17.
17 Brice Swanson, Eighth Voyage of the Dragon: A History of China’s Quest for Seapower 37–38 (1982), cited in Shen, supra note 13, at 121–22.
18 Samuels, supra note 5, at 20–22.
19 Id. at 22.
20 Chen Yan, Lun Hai Shang Xi Chou Zhi Lu Yu Zhong Wai Wen Hua Jiao Liu [The Maritime Silk Road and Sino-Foreign Cultural Relations], in Zhong Guo Yu Hai Shang Si Chou Zhi Lu [China and the Maritime Silk Route: Proceedings of the UNESCO Quanzhou International Seminaron China and the Maritime Routes of the Silk Roads] 1, 1–4 (1991). The naval expeditions by Admiral Cheng He demonstrated the great importance of the “Silk Road of the Sea” and represented the peak of its popularity. See Wu Ding Guo, Zheng He Xia Xi Yang Zai Hang Hai Shang De Wei Da Cheng Jiu [Great Achievement of Zheng He in Seafaring by His Voyages ], in China and the Maritime Silk Route, supra, at 266, 270.
21 Li Zhi Yan, Hai Shang Si Chou Zhi Lu De Kai Tuo Dui Zhong Guo Tao Ci Fa Zhan De Gong Xian [The Contribution of the Opening of the Maritime Silk Road to the Development of China’s Porcelain Industry], in China and the Maritime Silk Route, supra note 20, at 86, 87, 89, 91–92.
22 For early published maps, see Shen, supra note 13, at 126–28 (commenting that although the “ancient maps lack precision due to limitations on map drawing techniques, they do establish that China not only considered the South China Sea Islands her territory by action and words, but also illustrated her sovereignty over these areas through visual devices”).
23 Collection of Historical Materials, supra note 12, at 355.
24 Id. at 356.
25 Collection of Documents on the Issue of the South China Sea, supra note 12, at 13–19 (reproducing the commission’s bulletin, especially the pages on which the list of names was set forth). The commissioners were drawn from the foreign ministry, ministry of the interior, ministry of education, ministry of the navy, chiefs of staff, and Mongolian-Tibet Commission.
26 Id. at 14. It may be that the incentive for establishing the commission was the confusion caused by an incident in which France took possession of nine small islets in the Nansha group by force on July 25, 1933: see Chiu, Hungdah & Park, Choon-Ho, Legal Status of the Paracel and Spratly Islands, 32 Ocean Dev. & Int’l L. 1, 12–13 (1975). Deciding to protest, China immediately notified the French ambassador, on August 4, 1933, that it reserved its right in connection with this incident, pending further information required of the French side as to the location and coordinates of the seized is lets. See Collection of Historical Materials, supra note 12, at 261 (reporting the statement by the spokesperson of the Chinese Foreign Ministry); Collection of Documents on the Issue of the South China Sea, supra note 12, at 8 (the original Chinese note verbale).
27 The Cairo Declaration stated that it was the “purpose” of the “Three Great Allies” that
Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.
Point 8 of the Potsdam Proclamation stated that the “terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” See U.S. Department of State, The Axis in Defeat: A Collection of Documents on American Policy Toward Germany and Japan 4–5, 27–28 (1946).
28 Collection of Historical Materials, supra note 12, at 180–81 (reproducing, in a publication of May 1948, an account by the Chinese naval command of the Chinese navy’s action on the islands, which included a surrender ceremony and the hoisting of the national flag, firing of gun salutes, and erecting of commemorative stone tablets).
29 Collection of materials Regarding the Geographical Names of the Islands in Southern China Sea, supra note 5, at 45 (showing the atlas (as produced by the Ministry of the Interior’s Frontier Department), which was the first to contain the dashed lines); Collection of Historical Materials, supra note 12, at 181–82 (reproducing are solution by the Ministry of the Interior, Foreign Ministry, Defense Ministry, and Naval Command to confirm Chinese sovereignty over the Xisha and Nansha Islands, among others); see also Chiu & Park, supra note 26, at 14 & n.66.
30 Collection of Documents on the Issue of the South China Sea, supra note 12, at 28–36.
31 Collection of Materials Regarding the Geographical Names of the Islands in Southern China Sea, supra note 5, at 212.
32 Collection of Documents on the Issue of the South China Sea, supra note 12, at 37–38.
33 Daniel J. Dzurek, The Spratly Islands Dispute: Who’s on First? 12, 14, 46–47, 49 (1996) (suggesting that the dashed lines roughly followed the 200-meter isobath). The 1945 Truman Proclamation on the continental shelf was based on a rough estimate of 100 fathoms, or 600 feet of depth, for the water column above the seaward edge of the shelf. See 4 Marjorie Whiteman, Digest of International Law 757–58 (1965) (reproducing a White House press release of September 28, 1945, commenting on the proclamation). The same idea is reflected in the reference to the slightly deeper, 200-meter isobath in the definition of the continental shelf in Article 1 of the 1958 Convention on the Continental Shelf, Apr. 29, 1958, 499 Unts 311.
34 Collection of Historical Materials, supra note 12, at 270–71 (reproducing notes verbale of the two states).
35 4 Zhong Hua Ren Min Gong He Gui Dui Wai Guan Xi Wen Jian Ji [Collection of Documents on the Foreign Relations of the People’s Republic of China] (1956–1957), at 61–62 (1961) [hereinafter Collection of Documents on the foreign relations of the people’s republic of china].
36 2 Collection of Documents on the Foreign Relations of the people’s Republic of China (1951–1953), supra note 35, at 30 (1961).
37 Yu, Jia, Nan Hai “Duan Xu Xian” De Fa Lü Di Wei [Legal Status of the “Broken Line” in the South China Sea], 15 Zhong Guo Bian Jiang Shi Yan Jiu [China’s Borderland History and Geography studies] 112, 113 (2005). As for the reason of this reduction, it likely reflected a warming in relations between China and Vietnam in the 1950s. The first two lines lay within the Beibu Gulf, or Gulf of Tonkin, bordered by Vietnam and China, and they were taken as effective during the pre-1949 period. When the nine-dash line emerged in the 1950s, the two states were politically close, with each having a three-mile territorial sea. Although political circumstances have changed again since the two dashes were removed, the nine-dash line has remained the norm for Chinese-published maps and atlases. Id. at 115, 120.
38 5 Collection of Documents on the Foreign Relations of the People’s Republic of china (1958), supra note 35, at 162–63 (1959). The declaration was approved by the Standing Committee ofthe People’s Congress on September 4, 1958, thus making it part of Chinese law.
39 Collection of Materials Regarding the Geographical Names of the Islands in Southern China Sea, supra note 5, at 163.
40 Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s Republic of China, The Laws of the People’s Republic of china (1983–1986), at 146 (1987). The region was under the authority of the Guang Dong Province. This arrangement was reaffirmed when Hainan became a province in April 1988. See The laws of the people’s republic of china (1987–1989), supra, at 249 (1990).
41 The Laws of the People’s Republic of China (1990–1992), supra note 40, at 343 (1993).
42 It provides, in relevant part:
The land territory of the People’s Republic of China includes the mainland of the People’s Republic of China and its offshore islands, Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands that belong to the People’s Republic of China.
This English translation is available at http://www.lehmanlaw.com/resource-centre/laws-and-regulations/general/law-of-the-peoples-republic-of-china-concerning-the-territorial-sea-and-the-contiguous-zone-1992.html.
43 See United Nations, Division for Ocean Affairs and Law of the Sea, Declarations and Statements, at http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm.
44 Office of Policy, Legislation and Planning, State Oceanic Administration, Zhong Hua Ren Min Gong He Guo Hai Yang Fa Gui Xuan Bian [Collection of Select Maritime Laws and Regulations of the People’s Republic of China] 8 (1998).
45 Laws of the People’s Republic of China (1998), supra note 40, at 61 (1999).
46 Cheng, supra note 8, at 270–71 (citing a New York Times report, July 11, 1971, at A18, on the content of the note); see also Drigot, Diane C., Oil Interests and the Law of the Sea: The Case of the Philippines, 12 Ocean Dev. & Int’l L. 23, 24, 36 & n.65, 41 (1982). This declaration was followed by Presidential Decree No. 1596, June 11, 1978. See Samuels, supra note 5, at 89 & n.60.
47 Samuels, supra note 5, at 99. in June 1956, Vietnam’s vice foreign minister stated to the Chinese chargé d’affaires in Hanoi that according to Vietnam’s historical records, the Xisha and Nansha Islands belong to China. See The Issue of the South China Sea, supra note 15, pt. V. In September 1958, the premier of the Democratic Republic of Vietnam wrote a letter to his Chinese counterpart, Zhou Enlai, to inform the latter of Vietnam’s recognition of, and respect for, the Chinese Declaration on the Territorial Sea. That declaration included the four island groups within Chinese territory. See also Collection of Historical Materials, supra note 12, at 542–43 (reproducing a news report published in the Ren Min Ri Bao [People’s Daily], Sept. 22, 1958, at 3). As for the legitimacy of the Democratic Republic of Vietnam in representing the people of Vietnam and the merger of South Vietnam with North Viet Nam, see James Crawford, The Creation of States in International Law 476–77 (2d ed. 2006). As regards the representation of the state of Vietnam by North Vietnam, see Communique of the Political Consultative Conference on National Reunification, in The Reunification of Viet Nam (Documents of the Political Consultative Conference on National Reunification) 99, 101 (1975).
48 Zhiguo, Gao, The South China Sea: From Conflict to Cooperation? 25 Ocean Dev. & Int’l L. 345, 348 (1994). Vietnam had occupied twenty-one islands and the like by 1993 and had taken another eight by 2004.
49 Collection of Materials Regarding the Geographical Names of the Islands in Southern China Sea, supra note 5, at 381–82 (citing Can Kao Xiao Xi [Reference News], Mar. 31, 1983; the news paper has been published by the New China News Agency since 1931).
50 Collection of Documents on the Issue of the South China Sea, supra note 12, at 63–69 (citing the statement by the head of the Chinese delegation to Unclos III on July 2, 1974).
51 2336 UNTS 179. The treaty entered into force on June 30, 2004, upon exchange of instruments by the parties in Hanoi in accordance with Article 11 of the Agreement.
52 Convention Concerning the Delimitation of the Border Between China and Tonkin, June 26, 1887, at http://www.chinaforeignrelations.net/node/167.
53 McDorman, Ted L., Central Pacific, East Asia, Southeast Asia, in 5 International Maritime Boundaries 3446 (Colson, David A. and Smith, Robert W. eds., 2005).
54 See Sinanet interview with Director of the Law of the Sea, Department of Treaties and Law, Ministry of Foreign Affairs of the People’s Republic of China (Aug. 3, 2004), at http://news.sina.com.cn/c/2004-08-03/04203274593s.shtml, on the effect of the delimitation agreement on Chinese fishing rights, in which he confirmed China’s view on the effect of the 1887 treaty’s dividing line of longitude 108°03′13″ E. See also Nguyen Thao, Hong, Maritime Delimitation and Fishery Cooperation in the Tonkin Gulf, 36 Ocean Dev. & Int’l L. 25, 26–28 (2005).
55 Joint Submission by Malaysia and the Socialist Republic of Vietnam to the Commission on the Limits of the Continental Shelf, May 6, 2009, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm. In a written communication addressed to the UN secretary-general, the commission, and all states parties to Unclos, filed on May 20, 2009, Malaysia acknowledged that it had informed China of its position before the filing of the joint submission, at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_re_chn_2009re_mys_vnm_e.pdf.
56 Note Verbale CML/17/2009 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf.
57 Note Verbale No.86/HC-2009 from the Permanent Mission of the Socialist Republic of Viet Nam to the UN Secretary-General (May 8, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_chn_2009re_mys_vnm_e.pdf.
58 Note Verbale HA 24/09 from the Permanent Mission of Malaysia to the UN Secretary-General (May 20, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_re_chn_2009re_mys_vnm_e.pdf.
59 Malaysia has so far claimed some of the shoals of the Nansha Islands. See Chiu, Hungdah, Fa, Xian Dai Guo Ji [Modern International Law] 565 (2d rev. ed. 2006); see also Gao, supra note 48, at 346.
60 Note Verbale No. 000819 from the Permanent Mission of the Republic of the Philippines to the UN Secretary-General (Aug. 4, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/clcs_33_2009_los_phl.pdf.
61 See Note Verbale No. 240HC-2009 from the Permanent Mission of the Socialist Republic of Viet Nam to the UN Secretary-General (Aug. 18, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_re_phl_2009re_mys_vnm_e.pdf. The declaration is available at http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-the-south-china-sea.
62 Note Verbale No. 480/POL-703/VII/10 from the Permanent Mission of the Republic of Indonesia to the Un Secretary-General (July 8, 2010), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf.
63 Note Verbale No. 000228 from the Permanent Mission of the Republic of the Philipines to the Unsecretary-General (Apr. 5, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf.
64 Note Verbale CML/8/2011 from the Permanent Mission of the People’s Republic of China to the UN Secretary-General (Apr. 14, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf.
65 Note Verbale No.77/Hc-2011 from the Permanent Mission of the Socialist Republic of Viet Nam to the UN Secretary-General (May 3, 2011), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_2011_re_phlchn.pdf.
66 Keyuan, Zou, China’s U-Shaped Line in the South China Sea Revisited, 43 Ocean Dev. & Int’l L. 18, 18 (2012) (including “dotted-line,” “tongue-shaped line,” “U-shaped line,” and “nine-interrupted-lines”).
67 See Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), 2008 ICJ Rep. 12, para. 222 (May 23) (deeming “ownership” equivalent to sovereignty).
68 See supra note 44 and accompanying text.
69 Dzurek, supra note 33, at 12.
70 See supra part II.
71 See Note Verbale CML/8/2011, supra note 62 (citing Unclos in support of the Nansha Islands having a territorial sea, Eez, and continental shelf).
72 The Issue of the South China Sea, supra note 15, pt. IV.
73 Dzurek, supra note 33, at 14; Gau, Michael Sheng-Ti, The U-Shaped Line and a Categorization of the Ocean Disputes in the South China Sea, 43 Ocean Dev. & Int’l L. 57, 62 (2012).
74 Collection of Historical Materials, supra note 12, at 181–82.
75 Chiu & Park, supra note 26, at 5.
76 Jinming, Li & Dexia, Li, The Dotted Line on the Chinese Map of the South China Sea: A Note, 34 Ocean Dev. & Int’l L. 287, 290 (2003) (noting that this information came from an interview with one of the employees of the Ministry of the Interior who was involved in producing the 1948 atlas that first showed the eleven lines).
77 Kuen-Chen Fu, Nan (Zhong Guo) Hai Fa Lô Di Wei Zhi Yan Jiu [Legal Status of the South (China) Sea], 43–44 (1995).
78 See supra note 40.
79 See, e.g., National Administration for Surveying, Mapping and Geo-Information, Ji Chu Di Tu: Guo Jie [Basic Map: National Borders] (2005), at http://www.webmap.cn/basicmap/index.php?&embeded=&map=guojie. This map, with a scale of 1:4,000,000, was itself based on the topographical Atlas of the People’s Republic of China that the National Administration of Surveying, Mapping and Geo-Information and Foreign Ministry produced in 2004.
80 Cheng, supra note 8, at 276.
81 Brownlie, Ian, Principles of Public International Law 140 (7th ed. 2008).
82 Chiu & Park, supra note 26, at 20; Fu, supra note 77, at 57–108.
83 Island of Palmas (Neth./U.S.), 2 R.I.A.A. 829, 869 (Perm. Ct. Arb. 1928).
85 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (Ser. A/B) No. 53 (Apr. 5).
86 Minquiers and Ecrehos (Fr./Uk), 1953 ICJ Rep. 47 (Nov. 17).
87 See Legal Status of Eastern Greenland, supra note 85, at 44; see also Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12, para. 79 (Oct. 16) (“it was a cardinal condition of a valid ‘occupation’ that the territory should be terra nullius”).
88 Western Sahara, supra note 87.
89 Legal Status of Eastern Greenland, supra note 85, para. 102; see also Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.; Eq. Guinea, intervening), 2002 ICJ Rep 303, para. 223 (Oct.11).
90 1 Oppenheim’s International Law 717 (Jennings, Robert & Watts, Arthur eds., 9th ed. 1996); see also Van Dyke, Jon and Brooks, Robert A., Uninhabited Islands: Their Impact on the Ownership of the Ocean’s Resources, 12 Ocean Dev. & Int’l L. 265, 267–70 (1983).
91 See Island of Palmas, supra note 83, at 867.
92 Legal Status of Eastern Greenland, supra note 85, para. 98 (“[I]n many cases the tribunal has been satisfied with very little in the way of the actual exercise sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.”).
93 Island of Clipperton (Mex. v. Fr), 2 R.I.A.A. 1105 (Mar. 2, 1909).
94 Id. at 1110 (English translation by present authors).
95 When the French landed, they were met by Chinese fishermen living on the islets. Fu, supra note 77, at 91.
96 Id. at 94.
97 Chiu & Park, supra note 26, at 18.
98 E. M. Denza, Legal Adviser’s Re-examination of Claims to Sovereignty over the Spratly Islands in a Minute of 1 February 1974 from Mrs Denza to Mr Chapman in South-East Asia Department (annex to “The Spratly Islands,” a memorandum of the British Foreign & Commonwealth Office, Research Department, South and South East Asia Section, D.S. No. 5/75, Fco 51/411 (Jan. 21, 1975)).
99 See supra note 52 and accompanying text.
100 Wenzong, Liu, Yue Nan De Wei Zheng Yu Zhong Guo Dui Xi Sha Qun Dao He Nan Sha Qun Dao Zhu Quan De Li Shi He Fa Li Yi Ju [Forged Evidence of Vietnam vis-à-vis Historical and Legal Grounds for China’s Sovereignty over the Xisha and Nansha Islands], 1989 Chinese Y.B. Int’l L. 336, 344.
101 Samuels, supra note 5, at 53–54, 57– 60; see also Collection of Historical Materials, supra note 12, at 196–208 (reproducing original official documents on the inspections of the Xisha Islands, including the plan for inspection as approved by the Guang Dong provincial government, and relevant official reports, such as the report on the inspection filed with the Guang Dong provincial government by the Department of the Civil Administration and published in the Guang Dong Government Gazette of July 27, 1928. The report stated that “Xisha Islands have always been our territory, and, while desiring them, the Japanese have not dared to make a move.”).
102 Collection of documents on the issue of the South China Sea, supra note 12, at 9, 20–27 (in a series of notes verbales to France, between July 1934 and June 1947, China reaffirmed its sovereignty over the Xisha Islands).
103 Dieter Heinzig, Disputed Islands in The South China Sea 42 (1976).
104 Dzurek, supra note 33, at 49.
105 See supra note 31 and accompanying text.
106 Department of Foreign Affairs, Philippine Position on Bajo de Masinloc (Scarborough Shoal) and the Waters Within Its Vicinity, Official Gazette of the Republic of the Philippines, Apr. 28, 2012, available at http://www.gov.ph/2012/04/18/philippine-position-on-bajo-de-masinloc-and-the-waters-within-its-vicinity/.
107 Id.; Treaty of Peace Between the United States and Spain, Dec. 10, 1898, at http://avalon.law.yale.edu/19th_century/sp1898.asp; see also 1 John Bassett Moore, A Digest of International Law 530 (1906).
108 Supra note 106, at 3.
109 Treaty of Peace Between the United States and Spain, supra note 107, Art. III.
110 Republic Act No. 3046 of 17 June 1961: An Act to Define the Baselines of the Territorial Sea of the Philippines, Art. 1, at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PHL_1961_Act.pdf; see also Drigot, supra note 46, at 31 (the map showing the treaty boundary of the Philippines), 63 n.89 (on the history of the language change in Article 1 of the 1973 Constitution from the 1935 version).
111 Legal Status of Eastern Greenland, supra note 85, at 48 (“Legislation is one of the most obvious forms of the exercise of sovereign power....”).
112 See supra part II.
113 Shen, supra note 13, at 94–157 (note, in particular, pages 155–56).
114 Eritrea v. Yemen, First Stage, Territorial Sovereignty and Scope of the Dispute, 114 ILR 2 (Perm. Ct. Arb. Oct. 9, 1998).
115 This is the first type of historic title, based on common knowledge of the world. Id., para. 106.
116 Oscar Chapuis, A History of Vietnam (from Hong Bang To Tu Duc) 182 (in 1803, the Qing emperor decreed Gia Long as king of Vietnam against a triennial tribute, and this king was the one who allegedly occupied some of the Xisha Islands in 1816), 195 (in 1849, the Qing emperor “enthroned” Tu Duc as emperor of Vietnam) (1995); see also Fu, supra note 77, at 152–58.
117 See materials cited supra note 116.
118 Indeed, there was no unified government to represent Vietnam as a whole between 1954 and 1976: see Stefan Talmon, Recognition of Governments in International Law 98–99 (1998).
119 Collection of Historical Materials, supra note 12, at 450–51 (reproducing the protest as published in the Ren Min Ri Bao (People’s Daily), July 17, 1971, at 5); Samuels, supra note 5, at 90.
120 Legal Status of Eastern Greenland, supra note 85, para. 115.
121 Jeannett Greenfield, China and the Law of the Sea 30–34 (1979).
122 Tieya, Wang, International Law in China: Historical and Contemporary Perspectives, 221 Recueil des Cours 195, 232–34 (1990-II).
123 Supra note 38 and the accompanying text.
124 Mark Valencia, Jon Van Dyke & Noel Ludwig, Sharing the Resources of the South China Sea 24–28 (1997).
125 Brownlie, supra note 81, at 157.
126 Fisheries (Uk v. Nor.), 1951 ICJ Rep. 116, 137 (Dec.18).
127 Land and Maritime Boundary Between Cameroon and Nigeria, supra note 89, para. 65.
128 Eritrea v. Yemen, supra note 114, para. 106.
129 UN Charter, Art. 2(4). (“All Members shall refrain... from the threat or use of force against the territorial integrity or political independence of any state....”).
130 GA Res. 2625 (XXV) (Oct. 24, 1970), Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations.
131 Dzurek, supra note 33, at 46–47; Gao, supra note 48, at 348.
132 Johnson, D.H.N., Acquisitive Prescription in International Law, 1950 Brit. Y.B. Int’l L. 332, 345–46, 349.
133 For example, the Chinese protest on Februrary 18, 2009, over the archipelagic baselines adopted by the Philippine Parliament that included Huang Yan Island. See Ministry of Foreign Affairs of the People’s Republic of China, Press Release (Feb. 19, 2009), at http://www.fmprc.gov.cn/chn/gxh/wzb/wjbxw/t537943.htm.
134 Legal Status of Eastern Greenland, supra note 85, at 51–52, 68.
135 Id. at 68.
136 Supra note 47; see also Samuels, supra note 5, at 53.
137 See Ministry of Foreign Affairs of the Socialist Republic of Vietnam, The Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes and International Law 5 (1988). The evidence presented by Vietnam in this document followed upon what had been produced in a 1979 white paper, both of which documents have been translated into Chinese: Chinese Society of International Law & The International Law Institute, College of Foreign Affairs, 5 Guo Ji Fa Zi Liao [International Legal Materials], at 95–107, 121–44 (1990). The problem with the documents’ evidence, however, is that it is geographically incorrect or from unproven origin. See Collection of Documents on the Issue of the South China Sea, supra note 12, at 107, 116–17 (reproducing a published statement, from January 30, 1980, by the Ministry of Foreign Affairs of the People’s Republic of China).
138 Keyuan, Zou, The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands, 14 Int’l J. Marine & C. L. 27, 37 (1999); Chiu, supra note 59, at 563– 64.
139 To give but a few examples: Weltatlas: Die Staaten der Erde und ihre Wirtschaft 71 (Enzyklopädie Leipzig 1957); Map No. 5, in State Surveying Agency (Vietnam), Tˆap B´an Ðô¨ Viet Nam [Vietnam Atlases] 3375 (1964); Southeast Asia, No. 13B, in Atlas International Larousse: Politique et Economique (1965); Republic of The Philippines: Political Map (Book House, 1970).
140 United Kingdom, Hydrographic Department, The China Sea Pilot 106 (1912) (where it was mentioned that the Paracel (Xisha) Islands and reefs were annexed by China in 1909). Subsequent editions of this publication in 1923 (2d ed., vol. 3, at 89) and 1937 (1st ed., vol. 1, at 107) repeated what had been stated at page 106 of the 1912 edition.
141 Chiu & Park, supra note 26, 19–20; Cheng, supra note 8, 277; Drigot, supra note 46, at 45.
142 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, supra note 67, para. 121.
143 Zou, supra note 138, at 38 (on the reaction of Indonesia and Malaysia).
144 Cf. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, supra note 67, para. 276.
145 Territorial Dispute (Libya v. Chad), 1994 ICJ Rep. 6, 49, paras. 103–09 (sep. op. Ajibola, J.) (Feb. 3).
146 Brownlie, supra note 81, at 153.
147 Temple of Preah Vihear (Cam. v. Thail.), 1962 ICJ Rep. 6, 52, 63 (sep. op. Fitzmaurice, J.) (June 15).
148 Temple of Preah Vihear at 32–33.
149 Island of Palmas, supra note 83, at 845.
151 Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 103 (Dec. 19).
152 Sept. 26, 1928, 93 LNTS 343.
153 Id., para. 80.
154 See Note Verbale CML/17/2009, supra note 54; Note Verbale CML/8/2011, supra note 62.
155 See supra note 67.
156 See Note Verbale No. 000228, supra note 63.
157 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 177 (June 27); see also Bing Jia, Bing, The Relations Between Treaties and Custom, 9 Chinese J. Int’l L. 81, 92 (2010).
158 See See Note Verbale CML/17/2009, supra note 54; Note Verbale CML/8/2011, supra note 62.
159 Hillary Rodham Clinton, Remarks at the Asean Ministerial Meeting, New York (Sept. 27, 2012), at http://www.state.gov/secretary/rm/2012/09/198343.htm (“As I have said many times, the United States does not take a position on competing territorial claim over land features, but we do have a national interest in the maintenance of peace and stability, respect for international law, freedom of navigation, and unimpeded lawful commerce in the South China Sea.”).
160 The Issue of the South China Sea, supra note 15, pt. IV.
161 Ren Min Ri Bao [People’s Daily], May 18, 1995, at 1 (reporting the Chinese Foreign Ministry spokes-person’s statement); see also Zhong Guo Guo Ji Fa Shi Jian Yu An Li [Practice and Cases of China in International Law] 122–23 (Duan Jielong & the Treaty and Law Department, Ministry of Foreign Affairs of the People’s Republic of China, eds., 2011) (on the protest of China against the USS Impeccable’s conduct of a marine survey in the Chinese EEZ in the South China Sea in March 2009, a protest that included an explicit recognition of the freedom of navigation in the EEZ in accordance with Unclos); see also Agnihotri, Kamlesh Kumar & Agarwal, Sunil Kumar, Legal Aspects of Marine Scientific Research in Exclusive Economic Zones: Implications of the Impeccable Incident, 5 Mar. Aff. 135, 135–36 (2009).
162 Ministry of Foreign Affairs of the People’s Republic of China, Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on September 4, 2012 (Sept. 5, 2012), at http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t966813.htm.
163 Pedrozo, Raul (Pete), Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone, 9 Chinese J. Int’l. L. 9, 12–18 (2010); Haiwen, Zhang, Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? Comments on the Raul (Pete) Pedrozo’s Article on Military Activities in the Eez, 9 Chinese J. Int’l. L. 31, 37–42 (2010).
164 Practice and Cases of China in International Law, supra note 161, at 120.
165 See, e.g., EEZ Group 21, Guidelines of Navigation and Overflight in the Exclusive Economic Zone (2005), at http://www.sof.or.jp/en/report/index.php.
166 Ministry of Foreign Affairs of the People’s Republic of China, Declaration on the Conduct of Parties in the South China Sea, Nov. 4, 2002, at http://www.fmprc.gov.cn/eng/wjb/zzjg/gjs/gjzzyhy/2608/2610/t15311.htm.
167 The declaration, of August 25, 2006, asserted that the “Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.” See United Nations, Division for Ocean Affairs and Law of the Sea, Declarations and Statements,at http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm.
168 See, e.g., Lord Commissioner for the Admiralty, 2 The China Sea Directory 113–14, 116 (5th ed. 1906) (mentioning Hainan fishermen as conducting various activities on certain islands, with no mention of fishermen from any other states).
169 Eritrea v. Yemen, First Stage, Territorial Sovereignty and Scope of the Dispute, supra note 114, para. 126.
171 Id., para. 526.
172 Id., para. 525.
173 Blum, Yehuda Z., Historic Rights, in 2 Encyclopedia of Public International Law 710 (1995).
174 Continental Shelf (Tunis. v. Libya), 1982 ICJ Rep. 18, para. 100 (Feb. 24).
175 Id., para. 98.
176 Id., para. 105.
177 Unclos, supra note 1. Article 74(3), identical to Article 83(3), provides:
Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
178 Unclos, supra note 1, pmbl., para. 9.
179 Id., Arts. 10, 15, 149, 298. There are also references to minimizing economic dislocation with regard to fishing. Id., Arts. 61, 66, 69, 70.
* The views expressed in this article are solely those of the authors and do not necessarily represent the opinion of any institution. The authors wish to acknowledge the research assistance rendered by Tan Zhongzheng and Xu Dong, both doctoral candidates at Tsinghua University School of Law; Jiang Chaoyi, currently a master’s degree student at the New York University School of Law; and Jia Yu, Senior Research Fellow, and Mi Chenxi, Research Fellow, at the China Institute of Marine Affairs.
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