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Dots and Lines in the South China Sea: Insights from the Law of Map Evidence

  • Erik FRANCKX (a1) and Marco BENATAR (a1)
Abstract

On 7 May 2009, the People's Republic of China (PRC) protested Vietnamese and joint Malaysian-Vietnamese submissions to the Commission on the Limits of the Continental Shelf (CLCS). In support of Chinese claims, a map was annexed to the letter of protest portraying a dotted U-shaped line engulfing the greater part of the South China Sea. Following a brief primer on the genesis of the U-line, this article aims to decipher the text of the protest letter accompanying the U-line, suggesting several possible interpretations. This contribution argues that the map is of doubtful probative value in the light of various factors fleshed out in international jurisprudence regarding map evidence. Attention will be paid to the reactions of third-party states to the U-line. This article maintains that effective protest on the part of regional states has prevented the map from becoming opposable to them.

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efranckx@vub.ac.be and mbenatar@vub.ac.be
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*

Research Professor, President of the Department of International and European Law and Director of the Centre for International Law, Vrije Universiteit Brussel; Member of the Permanent Court of Arbitration. The substance of this article was prepared for the Second International Workshop organized by the Diplomatic Academy of Vietnam and the Vietnam Lawyers Association, entitled “The South China Sea: Cooperation for Regional Security and Development”, 10–12 November 2010, Ho Chi Minh, Vietnam. This article is a revised version of the paper—“Dotted Lines in the South China Sea: Fishing for (Legal) Clarity”—presented at the Workshop.

**

Doctoral Fellow, Research Foundation—Flanders (FWO). Member of the Department of International and European Law and the Centre for International Law, Vrije Universiteit Brussel.

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1. HIGHET, Keith, “Evidence, the Court, and the Nicaragua Case” (1987) 81 American Journal of International Law 1 at 19.

2. Use of the term “South China Sea” rather than, for instance, “East Sea” (Bién Đông) when viewed from a Vietnamese point of view (see infra note 47) or “West Philippines Sea” (see Philippines, “DFA Releases”, online: Department of Foreign Affairs 〈http://dfa.gov.ph/main/index.php/newsroom/dfa-releases〉 (several statements since June 2011)) has no legal implications whatsoever as to entitlements to the waters or insular features. See FRANCKX, Erik, BENATAR, Marco, JOE, Nkeiru, and VAN DEN BOSSCHE, Koen, “The Naming of Maritime Features Viewed from an International Law Perspective” (2011) 11 China Oceans Law Review 1 at 3940 (in English) and 69 (in Chinese). The same applies to the naming of insular features located in these water areas, which usually receive different names in the different languages of the countries surrounding the area. Because of the absence of any legal implications, the present article uses the specific nomenclature normally encountered in the English language. Only when the source itself uses a different nomenclature will the latter be used with the English translation in brackets.

3. Although sometimes referred to as the “historic claim line”, this characterization should be avoided. Most Chinese terms used to describe the line do not include the Chinese ideogram for “historic”. DZUREK, Daniel J., “The Spratly Islands Dispute: Who's on First?” (1996) 2(1) Maritime Briefing (International Boundaries Research Unit, Durham University) at 11.

4. LI Jinming and LI Dexia, “The Dotted Line on the Chinese Map of the South China Sea: A Note” (2003) 34 Ocean Development and International Law 287 at 289. In a letter to the UN Secretary-General, the PRC stated that “since [sic] 1930s, the Chinese government has given publicity several times [sic] the geographical scope of China's Nansha Islands and the names of its components”, but it does not mention cartographic activities. Thus, while this could mean that the PRC officially endorses the naming activities of the Committee, the same cannot be inferred for maps. See People's Republic of China, “Letter to the Secretary-General of the United Nations—CML/8/2011” (14 April 2011), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf〉.

5. Zou Keyuan mentions the existence of an even earlier line in the South China Sea drawn by a Chinese cartographer, Hu Jinjie, in 1914 and subsequently in the 1920s and 1930s. Such lines can also be found in some atlases from this period. Nonetheless, it must be stressed that:

  1. 1.

    1. These earlier apparitions are prior to the first official map depicting the “U-line”.

  2. 2.

    2. The aforementioned atlases were compiled by individuals, thus acting in their personal capacity.

See ZOU, Keyuan, “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” (1999) 14 International Journal of Marine and Coastal Law 27 at 3233.

6. Reproduced in HU, Nien-Tsu Alfred, “South China Sea: Troubled Waters or a Sea of Opportunity?” (2010) 41 Ocean Development and International Law 203 at 208.

7. WANG, Kuan-Hsiung, “The ROC's Maritime Claims and Practices with Special Reference to the South China Sea” (2010) 41 Ocean Development and International Law 237 at 248.

8. SHEN, Jianming, “China's Sovereignty over the South China Sea Islands: A Historical Perspective” (2002) 1 Chinese Journal of International Law 94 at 129, note 122.

9. Li and Li, supra note 4 at 290. This view is contradicted by Zou Keyuan, who states that the two segments were removed in the 1960s. See Zou, supra note 5 at 34–35.

10. Malaysia-Socialist Republic of Viet Nam, “Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect of the Southern Part of the South China Sea, Executive Summary” (May 2009), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_vnm2009excutivesummary.pdf〉. As indicated by the letter of the Secretary-General of the UN, acknowledging receipt, this joint submission was made on 6 May 2009, online: UN 〈http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/mysvnm_clcs33_2009e.pdf〉.

11. Socialist Republic of Vietnam, “Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982, Partial Submission in Respect of Vietnam's Extended Continental Shelf: North Area (VNM-N), Executive Summary” (April 2009), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm2009n_executivesummary.pdf〉. As indicated by the letter of the Secretary-General of the UN, acknowledging receipt, this submission was made on 7 May 2009, online: UN 〈http://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/vnm_clcs37_2009e.pdf〉.

12. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into force 16 November 1994), online: UN 〈http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf〉 [UNCLOS], art. 76(8).

13. Because Malaysia and Vietnam ratified the UNCLOS on 14 October 1996 and 25 July 1994, respectively, the normal deadline for their submissions, according to its Annex II, art. 4, should have been in 2006 and 2004, respectively. But since many states encountered difficulties in meeting this Annex II deadline, the State Parties to UNCLOS decided in 2001 to use another starting point to determine this deadline: instead of the entry into force of UNCLOS, the date of adoption by the CLCS of its Scientific and Technical Guidelines became the starting point of the 10-year period. See Decision Regarding the Date of Commencement of the Ten-Year Period for Making Submissions to the Commission on the Limits of the Continental Shelf Set Out in Article 4 of Annex II to the United Nations Convention on the Law of the Sea, Meeting of State Parties, UN Doc. SPLOS/72 (2001). With respect to all states for which UNCLOS had entered into force before 13 May 1999, including thus both Malaysia and Vietnam, 12 May 2009 became the new deadline.

14. This map is reproduced in Appendix I at the end of this article.

15. See also NGUYEN, Hong Thao, “Vietnam and Maritime Delimitation” in Ramses AMER and ZOU Keyuan, eds., Conflict Management and Dispute Settlement in East Asia (Farnham, Burlington: Ashgate, 2011), 171 at 184, who notes that this is the first occasion on which the PRC has expressed its official position concerning the 9-dotted-line.

16. People's Republic of China, “Letter to the Secretary-General of the United Nations—CML/17/2009” (7 May 2009), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf〉; People's Republic of China, “Letter to the Secretary-General of the United Nations—CML/18/2009” (7 May 2009), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf〉. The map was attached to these letters. It was also reproduced in the following Chinese sources: (2009) 9 China Oceans Law Review at 200 and 202 and ZHU, Lijiang, “Chinese Practice in Public International Law: 2009” (2009) 9 Chinese Journal of International Law at 622.

17. Paracel Islands.

18. Spratly Islands.

19. Macclesfield Bank.

20. Pratas Islands.

21. Hu, supra note 6 at 204–6.

22. See FRANCKX, Erik, “American and Chinese Views on Navigational Rights of Warships” (2011) 10 Chinese Journal of International Law 187 at 196, with further reference found in note 48, indicating that some Western scholars tended to consider it an endorsement of the historic title claim, while others thought otherwise based on what the clarification did not contain, i.e. any specific reference to historic waters.

23. Republic of the Philippines, “Letter to the Secretary-General of the United Nations—No. 000228” (5 April 2011), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf〉. Vietnam issued a response to both the Philippines and the PRC, yet refrained from giving any interpretation to these terms. Vietnam, “Letter to the Secretary-General of the United Nations—77/HC-2011” (3 May 2011), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_2011_re_phlchn.pdf〉.

24. People's Republic of China, supra note 4.

25. People's Republic of China, “Foreign Ministry Spokesperson Hong Lei's Regular Press Conference” (7 July 2011), online: Ministry of Foreign Affairs 〈http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t838221.htm〉; People's Republic of China, “Foreign Ministry Spokesperson Hong Lei's Regular Press Conference” (28 June 2011), online: Ministry of Foreign Affairs 〈http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t835066.htm〉; People's Republic of China, “Foreign Ministry Spokesperson Hong Lei's Regular Press Conference” (21 June 2011), online: Ministry of Foreign Affairs 〈http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t833157.htm〉; ZHU, Lijiang, “Chinese Practice in Public International Law: 2010” (2011) 10 Chinese Journal of International Law 427 at 438.

26. On numerous occasions prior to the 2009 note verbale, the PRC reasserted its “indisputable” or “undeniable” sovereignty over the Spratly and Paracel Islands. See ZHU, Lijiang, “Chinese Practice in Public International Law: 2009” (2010) 9 Chinese Journal of International Law 607 at 612; ZHU, Lijiang, “Chinese Practice in Public International Law: 2008” (2009) 8 Chinese Journal of International Law 493 at 504505; ZHU, Lijiang, “Chinese Practice in Public International Law: 2007 (I)” (2008) 7 Chinese Journal of International Law 485 at 498499; ZHU, Lijiang, “Chinese Practice in Public International Law: 2006 (II)” (2007) 6 Chinese Journal of International Law 711 at 760; CHEN, Qiang, “Chinese Practice in Public International Law: 2004 (II)” (2005) 4 Chinese Journal of International Law 607 at 630631; CHEN, Qiang, “Chinese Practice in Public International Law: 2003 (II)” (2004) 3 Chinese Journal of International Law 591 at 598599; PRC Ministry of Foreign Affairs, “China's Indisputable Sovereignty over the Xisha and Nansha Islands”, (1980) 7 Beijing Review 15, discussed in Yoshio, Otani, “À qui appartient l'archipel des Spratley? Un point de vue sur les revendications chinoises” (1996) 1 Annuaire du droit de la mer 179.

27. H, Charles C.yde, “Maps as Evidence in International Boundary Disputes” (1933) 27 American Journal of International Law 311 at 315; DJALAL, Hasjim, “South China Sea Island Disputes” in Myron H. NORDQUIST and John Norton MOORE, eds., Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation (The Hague: Nijhoff, 1998), 109 at 113; MÜNCH, F., “Maps” in R. BERNHARDT, ed., Max Planck Encyclopedia of Public International Law vol. III (Amsterdam: Elsevier Science, 1995), 287 at 288; MURTI, T.S., “Boundaries and Maps” (1964) 4 Indian Journal of International Law 367 at 388; SCHAEFFER, Daniel, “L'interprétation du droit de la mer par la Chine : ses effets majeurs en Extrême-Orient” (2008) 13 Annuaire du droit de la mer 23 at 43; RESS, Georg, “The Delimitation and Demarcation of Frontiers in International Treaties and Maps” (1985) 14 Thesaurus Acroasium 435 at 443.

28. Dzurek, supra note 3 at 13.

29. Policy Guidelines for the South China Sea, Point 1, 10 March 1993, in SUN, Kuan-Ming, “Policy of the Republic of China Towards the South China Sea: Recent Developments” (1995) 19 Marine Policy 401 at 408 (Annex I).

30. Dzurek, supra note 3 at 13.

31. Republic of China (Taiwan), Statement (1 July 1999), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.tw/webapp/ct.asp?xItem=2353&ctNode=1902&mp=6〉.

32. PAN Shiying, “South China Sea and the International Practice of the Historic Title”, Conference on the South China Sea, American Enterprise Institute, Washington, 7–9 September 1994, referenced in ZOU, Keyuan, “Historic Rights in International Law and in China's Practice” (2001) 32 Ocean Development and International Law 149 at 161, note 97; SONG Yann-huei and Peter Kien-hong YU, “China's ‘Historic Waters’ in the South China Sea: An Analysis from Taiwan, R.O.C.” (1994) 12 American Asian Review 83.

33. ZHAO, Guocai, “Analysis of the Sovereign Dispute over the Spratlys under the Present Law of Sea” (1999) 9 Asian Review at 22 (in Chinese), translated in Li and Li, supra note 4 at 293. It should, however, be stated that despite their government's official position, not all Taiwanese legal experts have supported the historic claims approach. See ZOU, Keyuan, “China and Maritime Boundary Delimitation: Past, Present and Future” in Amer and Zou, eds., supra note 15, at 160.

34. See GIOIA, Andrea, “Historic Titles” in Rüdiger WOLFRUM, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008), online: MPEPIL 〈http://www.mpepil.com〉.

35. Zou, supra note 33 at 152.

36. Juridical Regime of Historic Waters, Including Historic Bays, Study Prepared by the Secretariat, UN Doc. A/CN.4/143 (1962), (1962) 2 Yearbook of the International Law Commission 1 [Historic Waters Study].

37. Ibid., at 13. The study mentions a potential fourth requirement (justification “on the basis of economic necessity, national security, vital interest or a similar ground”) for which there is less agreement. One should, however, complete this list with the more general requirement that proof of historic title must be clear. See Ahmed ABOU-EL-WAFA, “Les différends internationaux concernant les frontières terrestres dans la jurisprudence de la Cour internationale de justice” (2010) 343 Collected Courses of the Hague Academy of International Law 9 at 397.

38. Zou, supra note 33 at 161 and references, supra note 25.

39. For a treatment of both positions, see Historic Waters Study, supra note 36 at 16–19.

40. See, for instance, in the English language, KOTZUR, Markus, “Intertemporal Law” in WOLFRUM, ed., supra note 24. For a more detailed analysis in the French language, see TAVERNIER, Paul, Recherches sur l'application dans le temps des actes et des règles en droit international public (problèmes de droit intertemporel ou de droit transitoire) (Paris: Librairie générale de droit et de jurisprudence, 1970).

41. See DJALAL, Hasjim, “South China Sea Island Disputes” (2000) The Raffles Bulletin of Zoology (Supplement No. 8) 9.

42. Clive Ralph SYMMONS, Historic Waters in the Law of the Sea: A Modern Re-appraisal (Leiden: Nijhoff, 2008) at 1737. Making a similar reasoning on the basis of the work of the International Law Commission with respect to the 1958 conventional framework as well as on the basis of UNCLOS, see Franckx, supra note 22 at 197, and especially note 50.

43. The only time China is mentioned relates to the historic claim of the former USSR to Peter the Great Bay (Symmons, supra note 42 at 144).

44. SCOVAZZI, Tullio, “Book Review of ‘Historic Waters in the Law of the Sea: A Modern Re-appraisal by Clive Ralph Symmons, Leiden, Martinus Nijhoff, 322 pp., 2008’ ” (2010) 25 International Journal of Marine and Coastal Law 637 at 642. See also ibid., at 639–40 and in the same sense Symmons, supra note 42, at 242–5, 299–300. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), [1982] I.C.J. Rep. 18 at 73–4:

[T]here is neither a definition of the concept nor an elaboration of the juridical régime of “historic waters” or “historic bays”. There are, however, references to “historic bays” or “historic titles” or historic reasons in a way amounting to a reservation to the rules set forth therein. It seems clear that the matter continues to be governed by general international law which does not provide for a single “régime” for “historic waters” or “historic bays”, but only for a particular régime for each of the concrete, recognized cases of “historic waters” or “historic bays”.

45. This argument has been made in WU, Fengbing, “Historical Evidence of China's Ownership of the Sovereignty over the Spratly Islands” in China Institute for Marine Development Strategy, ed., Selected Papers of the Conference on the South China Sea Islands (Beijing: Ocean Press, 1992) at 111 (in Chinese), referenced in Zou, supra note 33 at 161, note 98.

46. In general, see Franckx, Benatar, Joe, and Van den Bossche, supra note 2. With respect more specifically to the South China Sea, see NGUYEN Hong Thao, Le Vietnam et ses différends maritimes dans la Mer de Bien Dong (Mer de Chine méridionale) (Paris: Pedone, 2004) at 258.

47. As already mentioned supra note 2, Vietnam refers to this maritime area as “Bién Đông” (“East Sea”). See National Border Committee under the Ministry of Foreign Affairs of Vietnam, online: National Border Committee 〈biengioilanhtho.gov.vn/bbg-vie/home.aspx〉.

48. International Hydrographic Organization, Limits of Oceans and Seas, 3rd ed. (Monte-Carlo: Imp. Monégasque, 1953) at preface and 30, online: IHO 〈http://www.iho-ohi.net/iho_pubs/standard/S-23/S23_1953.pdf〉. Old maps also use this denomination merely due to the fact that historically European navigators encountered predominantly Chinese ships. See LACOSTE, Y., “Mer de Chine ou mer de l'Asie du Sud-Est” (1981) 24 Hérodote at 13, referenced in Nguyen, supra note 46 at 257.

49. Nguyen, supra note 46 at 257.

50. Republic of China (Taiwan), “Statement of the Ministry of Foreign Affairs concerning the Declaration on the Conduct of Parties in the South China Sea signed by the Association of Southeast Asian Nations (ASEAN) and the People's Republic of China (PRC) in Cambodia on November 4, 2002” (5 November 2002), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.tw/webapp/ct.asp?xItem=2357&ctNode=1902&mp=6〉:

The government of the Republic of China reiterates its territorial sovereignty over Dongsha (the Pratas Islands), Xisha (the Paracel Islands), Zhongsha (the Macclesfield Bank) and Nansha (the Spratly Islands) in the South China Sea, over which it has all lawful rights according to international law;

Republic of China (Taiwan), “The Position of the Ministry of Foreign Affairs on Taiwan's Sovereignty over Islands in the South China Sea” (20 November 2007), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.tw/webapp/ct.asp?xItem=27782&ctNode=1903&mp=6〉:

The Spratly Islands, the Paracel Islands, Macclesfield Bank and the Pratas Islands have always been an intrinsic part of Taiwan's territories, whether looked at from the perspective of history, geography, international law or plain fact. According to the principles of international law, the government of Taiwan's sovereignty over these islands is unquestionable and it enjoys all rights accordingly;

Republic of China (Taiwan), “The Government of the Republic of China (Taiwan) Reiterates its Sovereignty over the Spratly Islands and has Proposed a Spratly Initiative that Focuses on Environmental Protection Instead of Sovereignty Disputes” (15 August 2008), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.tw/webapp/ct.asp?xItem=32920&ctNode=1903&mp=6〉:

The Spratly Islands, including the Swallow Reef (Layang-Layang atoll), are located in Taiwan's territorial waters. From either a historical, geographical or international legal perspective, the Spratly Islands, Paracel Islands, Macclesfield Islands, Pratas Islands and nearby waters are part of Taiwan's territory and territorial waters;

Republic of China (Taiwan), “Solemn Declaration of the Ministry of Foreign Affairs of the Republic of China concerning the Philippine Senate Bill 2699 and House Bill 3216” (6 February 2009), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.tw/webapp/ct.asp?xItem=36914&ctNode=1902&mp=6〉:

In terms of either history, geography, reality or international law, the Spratly Islands, Paracel Islands, Macclesfield Islands, Pratas Islands, as well as the surrounding waters, are the existent territories of the Republic of China. The fact that sovereignty of these areas belongs to our government is undeniable, Taiwan enjoys and deserves all rights accordingly. Any sovereignty claims over, or occupation of, these islands and their surrounding waters will not be recognized by the government of the Republic of China.

51. Republic of China (Taiwan), “Declaration of the Republic of China on the Outer Limits of Its Continental Shelf, no 003” (12 May 2009), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.tw/webapp/content.asp?cuItem=38077&ctNode=1036&mp=6〉.

52. DJALAL, Hasjim, “Conflicting Territorial and Jurisdictional Claims in South China Sea” (1979) 7(1) The Indonesian Quarterly 36 at 4142.

53. SMITH, Robert W., “Maritime Delimitation in the South China Sea: Potentiality and Challenges” (2010) 41 Ocean Development and International Law 214 at 224. See also GAO, Zhiguo, “The South China Sea: From Conflict to Cooperation?” (1994) 25 Ocean Development and International Law 345 at 346: “careful study of Chinese documents reveals that China never has claimed the entire water column of the South China Sea, but only the islands and their surrounding waters within the lines.” See also the statement of Wang Xiguang, who assisted the Geography Department of the Ministry of Internal Affairs in compiling maps in the 1940s and used the same technique, but arrived at a different outcome: “the dotted national boundary line was drawn as the median line between China and the adjacent states”, in XU Sen'an, “The Connotation of the 9-Dotted Line on the Chinese Map of the South China Sea” in ZHONG Tianxiang, ed., Paper Selections of the Seminar on “The South China Sea in the 21 stCentury: Problems and Perspective” (Hainan Research Center of the South China Sea, 2000) at 80 (in Chinese), translated in Li and Li, supra note 4 at 290.

54. Dzurek, supra note 3 at 11.

55. For a book-length treatment of these issues, see Monique CHEMILLIER-GENDREAU, Sovereignty over the Paracel and Spratly Islands (The Hague: Kluwer Law International, 2000).

56. RIDDELL, Anna and PLANT, Brendan, Evidence Before the International Court of Justice (London: British Institute of International and Comparative Law, 2009) at 31.

57. Frontier Dispute (Burkina Faso/Republic of Mali), [1986] I.C.J. Rep. 554 at 582, para. 54.

58. Kasikili/Sedudu Island (Botswana/Namibia), [1999] I.C.J. Rep. 1045 at 1098, para. 84, stating: “[t]he Court will begin by recalling what the Chamber dealing with the Frontier Dispute (Burkina Faso/Republic of Mali) case had to say on the evidentiary value of maps”; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), [2007] I.C.J. Rep. 659 at 723, para. 215, stating: “[t]he Court reaffirms the position it has previously taken regarding the extremely limited scope of maps as a source of sovereign title”; Frontier Dispute (Benin/Niger), [2005] I.C.J. Rep. 90 at 119–20, para. 44, stating: “[t]his principle [as described in Frontier Dispute (Burkina Faso/Republic of Mali)] will also guide the Chamber in its assessment of the maps relied on by the Parties in the present case”; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), [2002] I.C.J. Rep. 625 at 667, para. 88; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Separate Opinion of Judge Kooijmans, [2001] I.C.J. Rep. 225 at 242, para. 68.

59. DAILLIER, Patrick, FORTEAU, Mathias, and Alain PELLET, Droit international public, 8th ed. (Paris: L.G.D.J., 2009) at 524, para. 301.

60. For a treatment of this limited possibility, see KAMTO, Maurice, “Le matériau cartographique dans les contentieux frontaliers et territoriaux internationaux” in Emile YAKPO and Tahar BOUMEDRA, eds., Liber Amicorum Judge Mohammed Bedjaoui (The Hague: Kluwer, 1999) at 371398.

61. Riddell and Plant, supra note 56 at 266.

62. ZHAO, Lihai, Studies on the Law of Sea (Beijing: Beijing University Press, 1996) at 37 (in Chinese), translated in Li and Li, supra note 4 at 291.

63. JIAO, Yongke, “There Exists No Question of Redelimiting Boundaries in the Southern Sea” (2000) 17 Ocean Development and Management at 52 (in Chinese), translated in STRUPP, Michael, “Maritime and Insular Claims of the PRC in the South China Sea under International Law” (2004) 11 Zeitschrift für chinesisches Recht 1 at 16.

64. Zou, supra note 33 at 160.

65. Grisbadarna Case (Norway v. Sweden), Decision of 23 October 1909, [1910] 4 American Journal of International Law 226 at 231, stating that: “the maritime territory is an essential appurtenance of land territory” (translation from the original French, [2006] XI Reports of International Arbitral Awards 159); North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] I.C.J. Rep. 3 at 51, para. 96: “In both instances [contiguous zone and continental shelf] the principle is applied that the land dominates the sea”. For further elaboration and instances of this principle, see Abou-el-Wafa, supra note 37 at 88–90.

66. Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. Rep. 116 at 132.

67. UNCLOS, supra note 12, has been ratified by all interested parties in the South China Sea dispute with the exception of Taiwan (Vietnam: 25 July 1994, PRC: 7 June 1996, Philippines: 8 May 1984, Malaysia: 14 October 1996, Brunei: 5 November 1996, Myanmar: 21 May 1996, and Thailand: 15 May 2011), online: UN 〈http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm〉.

68. Ibid.

69. For a novel approach considerably limiting the applicability of the Article 121(3) exception to maritime delimitation, see OXMAN, Bernard H., “On Rocks and Maritime Delimitation” in Mahnoush H. ARSANJANI, Jacob Katz COGAN, Robert D. SLOANE, and Siegfried WIESSNER, eds., Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Leiden/Boston: Martinus Nijhoff, 2011), 893. Following the author's reasoning, contentions relating to the precise meaning of human habitation and economic life would be less important, because in the delimitation phase smaller islands often play a minor role.

70. ELFERINK, Alex G. Oude, “The Islands in the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?” (2001) 32 Ocean Development and International Law 169 at 182. See also GJETNES, Marius, “The Spratlys: Are They Rocks or Islands?” (2001) 32 Ocean Development and International Law 191 at 199201; Barry Hart DUBNER, “The Spratly ‘Rocks’ Dispute: A ‘Rockapelago’ Defies Norms of International Law” (1995) 9 Temple International and Comparative Law Journal 291 at 299306.

71. It concerns actions undertaken by China for the inclusion of additional agenda items at the 2009 Meeting of the States Parties to UNCLOS and the 15th Session of the International Seabed Authority (ISA) later that year. See FRANCKX, Erik, “The International Seabed Authority and the Common Heritage of Mankind: The Need for States to Establish the Outer Limits of Their Continental Shelf” (2010) 25 International Journal of Marine and Coastal Law 543 at 563564. Such attempts were repeated at the time of the 2011 Meeting of States Parties to UNCLOS but not at the 17th meeting of ISA held about one month later.

72. As clearly indicated by the title of the presentation of Professor Jia Yu, made during an ISA briefing session in 2009. Even though this contribution was entitled “Safeguarding the Common Heritage of Mankind” in the ISA Press Release (ISA, “Press Release SB/15/10” (June 2009) at 3, online: ISA 〈http://www.isa.org.jm/files/documents/EN/Press/Press09/SB-15–10.pdf〉), the slides distributed at the time of that briefing session had a much more concrete title, namely “The Rock of Oki-no-Tori Shall Have No EEZ and Continental Shelf”. See also Ted McDORMAN, “The South China Sea after 2009: Clarity of Claims and Enhanced Prospects for Regional Cooperation?” (2010) 24 Ocean Yearbook 507 at 514515. For more details and later actions by the parties in this respect, see Yann-Huei SONG, “The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Pacific Ocean” (2010) 9 Chinese Journal of International Law 663 at 671674.

73. Indonesia, “Letter to the Secretary-General of the United Nations—480/POL-703/VII/10” (8 July 2010), online: UN 〈http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf〉. The link between these Chinese interventions and the South China Sea are expressed in this note verbale as follows:

In this connection, the statements of these distinguished representatives of the People's Republic of China are also relevant to the situation in the South China Sea and thus it is only correct to state that those remote or very small features in the South China Sea do not deserve exclusive economic zone or continental shelf of their own. Allowing the use of uninhabited rocks, reefs and atolls isolated from the mainland and in the middle of the high sea as a basepoint to generate maritime space concerns the fundamental principles of the [1982] Convention and encroaches the legitimate interest of the global community. Therefore, as attested by those statements, the so called ‘nine-dotted-lines map’ … clearly lacks international legal basis and is tantamount to upset the … 1982 [Convention].

74. See the ample body of case-law and scholarly opinion cited in Gérard NIYUNGEKO, La preuve devant les juridictions internationales (Brussels: Bruylant, 2005) at 322335, and more recently Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] I.C.J. Rep. 1 at 52, para. 168.

75. Raphaële RIVIER, “La preuve devant les juridictions interetatiques à vocation universelles (CIJ et TIDM)” in Hélène Ruiz FABRI and Jean-Marc SOREL, eds., La preuve devant les juridictions internationales (Paris: Pedone, 2007), 9 at 3848. More generally, judicial bodies select the facts they deem pertinent in a discretionary manner. See SALMON, Jean, “Le fait dans l'application du droit international” (1982) 175 Collected Courses of the Hague Academy of International Law 261 at 300. For a critical approach to the freedom of judges with respect to weighing evidence, see Rüdiger WOLFRUM, “Taking and Assessing Evidence in International Adjudication” in Tafsir Malick NDIAYE and Rüdiger WOLFRUM, eds., Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden: Martinus Nijhoff, 2007), 341 at 342; KINSCH, Patrick, “On the Uncertainties Surrounding the Standard of Proof in Proceedings before International Courts and Tribunals” in Gabriella VENTURINE and Stafania BARIATTI, eds., Liber Fausto Pocar—Diritti individuali e giustizia internazionale, vol. 1 (Milan: Giuffrè, 2009), 427 at 438439; AMERASINGHE, Chittharanjan F., Evidence in International Litigation (Leiden: Martinus Nijhoff, 2005) at 232261.

76. Although there is no doctrine of stare decisis in international law, international courts and tribunals will often cite case-law. This is particularly true for the ICJ, which is highly self-referential and will only deviate from its past jurisprudence when substantial reasons are present. See BOYLE, Alan and CHINKIN, Christine, The Making of International Law (Oxford: Oxford University Press, 2007) at 293299; GUILLAUME, Gilbert, “The Use of Precedent by International Judges and Arbitrators” (2011) 2 Journal of International Dispute Settlement 5 at 12.

77. Frontier Dispute, supra note 57 at 582, para. 55, stating: “actual weight to be attributed to maps as evidence depends on a large number of considerations”; Qatar v. Bahrain, supra note 58, Dissenting Opinion of Judge Torres Bernárdez at 274, para. 37, stating: “[t]he weight of maps as evidence depends on a range of considerations.”

78. See Case concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal (Guinea-Bissau/Senegal), Decision of 31 July 1989, Dissenting Opinion of Mr. Mohammed Bedjaoui, [2006] XX Reports of International Arbitral Awards 119 at 166–9, paras. 32–7 (arguing against an automatic transposition of territorial principles to maritime delimitation given “patent” and “irreducible” differences in terms of geography, their relation to populations and States’ rights vis-à-vis these spaces); BRILMAYER, Lea and KLEIN, Natalie, “Land and Sea: Two Common Sovereignty Regimes in Search of a Common Denominator” (2001) 33 New York University Journal of International Law and Politics 703 at 703704 (noting that key significance is accorded to de facto possession in deciding on the allocation of land territory, whereas maritime disputes are settled pursuant to “equitable” rules); KOHEN, Marcelo G., “L'uti possidetis iuris et les espaces maritimes” in Jean-Pierre COT, ed., Liber amicorum Jean-Pierre Cot: le procès international (Bruxelles: Bruylant, 2009), 155 at 157159 (arguing in favour of the applicability of uti possidetis iuris to maritime zones yet still stressing that territorial and maritime spaces are subject to distinct legal regimes).

79. See examples of cases involving in part a maritime dispute supra note 58 citing a passage from Frontier Dispute (Burkina Faso/Republic of Mali) (which is a territorial case).

80. Island of Palmas Case (Netherlands v. U.S.A.), Award of 4 April 1928, [2006] II Reports of International Arbitral Awards 829 at 852–3 stating: “only with the greatest caution can account be taken of maps in deciding a question of sovereignty”, reaffirmed in Nicaragua v. Honduras, supra note 58 at 58, para. 214; Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen), Decision of 9 October 1998, [2006] XXII Reports of International Arbitral Awards 209 at 296, para. 388, stating: “[t]he evidence is, as in all cases of maps, to be handled with great delicacy”. For an opposing view calling into question the reluctant approach of international adjudicators vis-à-vis cartographic evidence, see UBAY, Romulo R. Jr, “Evidence in International Adjudication: Map Evidence in Territorial Sovereignty Dispute Cases” (2011) 1 Aegean Review of the Law of the Sea and Maritime Law 287.

81. Arbitration Between Great Britain and Portugal as Regards Questions Relative to the Delimitation of their Spheres of Influence in East Africa (Manica plateau) (United Kingdom/Portugal), Decision of 30 January 1897, [2007] XXVIII Reports of International Arbitral Awards 283 at 298.

82. Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (India v. Pakistan), Award of 19 February 1968, Proposal of Mr. Nasrollah Entezam, [2006] XVII Reports of International Arbitral Awards 1 at 505, stating: “[m]aps are only secondary evidence. Only such maps are primary evidence as are prepared by the surveyor on the spot by observation. Even they are primary evidence only of what a surveyor can himself observe”; Qatar v. Bahrain, supra note 58, Dissenting Opinion of Judge Torres Bernárdez at 274, para. 37, stating: “[i]n general, the value as evidence attached to them by international courts and tribunals is corroborative or confirmatory of conclusions arrived at by other means unconnected with the maps, because the maps as such are not a legal title”; Island of Palmas, supra note 80 at 853–4, stating: “[a]nyhow, a map affords only an indication—and that a very indirect one—and, except when annexed to a legal instrument, has not the value of such an instrument, involving recognition or abandonment of rights”; ibid., at 853:

If the Arbitrator is satisfied as to the existence of legally relevant facts which contradict the statements of cartographers whose sources of information are not known, he can attach no weight to the maps, however numerous and generally appreciated they may be.

83. Frontier Dispute, supra note 57 at 583, para. 56. See also The Government of Sudan/The Sudan People's Liberation Movement/Army (Abyei Arbitration), Final Award of 22 July 2009, online: PCA 〈http://www.pca-cpa.org〉 at 256, para. 741:

The Tribunal is similarly very reluctant to equate the eastern and western limits of the area occupied by the Ngok Dinka transferred in 1905 with the 1933 pencil depiction of Ngok Dinka's dry season grazing area on a sketch map, especially when more comprehensive and specific evidence is available.

84. AKWEENDA, Sakeus, “The Legal Significance of Maps in Boundary Questions: A Reappraisal with Particular Emphasis on Namibia” (1990) 60 British Yearbook of International Law 205 at 212; CUKWURAH, A.O., The Settlement of Boundary Disputes in International Law (Manchester: Manchester University Press, 1967) at 224225; Hyde, supra note 27 at 313–15; Victor PRESCOTT and TRIGGS, Gillian D., International Frontiers and Boundaries: Law, Politics and Geography (Leiden: Nijhoff, 2008) at 194195; SANDIFER, Durward V., Evidence before International Tribunals, 2nd ed. (Charlottesville: University Press of Virginia, 1975) at 235; WEISSBERG, Guenter, “Maps as Evidence in International Boundary Disputes: A Reappraisal”, (1963) 57 American Journal of International Law 781 at 781.

85. E.g., BROWNLIE, Ian, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague: Martinus Nijhoff, 1998) at 156.

86. LACHS, Manfred, “La preuve et la Cour internationale de Justice” in Chaïm PERELMAN and Paul FORIERS, eds., La preuve en droit (Brussels: Bruylant, 1981), 109 at 109.

87. The level of concordance among maps need not always be absolute, but it does have to be general. Abou-el-Wafa, supra note 37 at 432–4.

88. Kasikili/Sedudu Island, supra note 58 at 1100, para. 87; see also Dubai/Sharjah Border Arbitration (Dubai v. Sharjah), Award of 19 October 1981, [1993] 91 International Law Reports 543 at 630, para. 168:

In the view of the Court it is necessary to set aside both of the maps prepared by Mr Walker, in so far as the location of Hadlib Azana is concerned, since, although prepared by the same person, they are mutually contradictory on the general line of boundary in this area. It is futile to speculate further on the possible reasons for such a contradiction.

Eritrea/Yemen Arbitration, supra note 80 at 296, para. 388:

The evidence for this period is beset with contradictions and uncertainties. Each Party has demonstrated inconsistency in its official maps. The general trend is, however, that Yemeni map evidence is superior in scope and volume to that of Eritrea. However, such weight as can be attached to map evidence in favour of one Party is balanced by the fact that each Party has published maps that appear to run counter to its assertions in these proceedings.

Delimitation of the Border Between the State of Eritrea and the Federal Democratic Republic of Ethiopia (Eritrea-Ethiopia Boundary Commission), Decision of 1 January 2002, [2002] 41 International Legal Materials 1057 at 1089, para. 4.67:

The map evidence is not uniform and consistent. Much of it supports the existence of a Belesa projection and attributes the territory within it to Eritrea. There are, however, significant maps which do not do so, or do so only in part.

89. But see Separate World's Geography (Chinese Ya Guang Geographic Publisher, 1951) at 18 (Map of Republic of Indonesia), where only about half of the lines are represented [1951 Chinese Map].

90. See Chinese State Bureau of Surveying and Mapping, Map World, online: Map World 〈http://www.chinaonmap.cn〉. This map is partially reproduced in Appendix II at the end of this article.

91. It would therefore seem technically more correct to speak of a dotted line with a varied number of segments, as for instance the 11/9/10-dotted-line. However, since the 9-dotted-line is the only one so far relied upon by China on the international level to clarify its position in a state-to-state dispute, the present contribution will normally use the notion “9-dotted-line”, unless the varying number of dotted lines seems to have legal implications.

92. Eritrea/Yemen Arbitration, supra note 80 at 295, para. 382.

93. The dashes used to draw the Chinese U-line do not match chart specifications developed by the International Hydrographic Organization for indicating international maritime boundaries, the territorial sea, the contiguous zone, the EEZ, the continental shelf, fishery zones, etc. See International Hydrographic Organization, Regulations of the IHO for International (INT) Charts and Chart Specifications of the IHO, 4th ed. (Monaco: International Hydrographic Bureau, 2010) at B-440, C-407 (International Boundaries and National Limits), online: IHO 〈http://www.iho-ohi.net/iho_pubs/standard/S-4/S4_v4.000_Sep10.pdf〉. This type of argument was advanced by Ukraine against Romania in the Black Sea case. See Maritime Delimitation in the Black Sea (Romania v. Ukraine), Counter-memorial of Ukraine, 19 May 2006 at 123–5.

94. International Hydrographic Organization Membership, online: IHO 〈http://www.iho-ohi.net/english/home/about-the-iho/about-iho-member-states/ms-information.html〉.

95. Kasikili/Sedudu Island, supra note 58, Separate Opinion of Judge Oda at 1133–4, para. 40. See also Frontier Dispute, supra note 57 at 583, para. 57, stating: “[t]he Chamber now turns to the maps produced in this case. Not a single map available to the Chamber can reliably be said to reflect the intentions of the colonial administration expressed in the relevant texts concerning the disputed frontier.” See also Abou-el-Wafa, supra note 37 at 425–6.

96. Smith, supra note 53 at 224.

97. Kasikili/Sedudu Island, supra note 58, Separate Opinion of Judge Oda at 1133–4, para. 40.

98. It must be made clear though that even in such a scenario, the confection of maps is not a “value-neutral” scientific undertaking. Unintentional distortions can seep into the process as a result of the cartographer's biases and social context. BRANCH, Jordan, “Mapping the Sovereign State: Technology, Authority, and Systemic Change” (2011) 65 International Organization 1 at 7.

99. Unless such a map actually runs counter to its position. See e.g., Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), [2008] I.C.J. Rep. 12 at 95, para. 272. Abou-el-Wafa, supra note 37 at 460–2.

100. Beagle Channel Arbitration (Argentina v. Chile), Decision of 18 February 1977, [2006] XXI Reports of International Arbitral Awards 53 at 167, para. 142. See also Frontier Dispute, supra note 57 at 583, para. 56, stating that: “[o]ther considerations which determine the weight of maps as evidence relate to the neutrality of their sources towards the dispute in question and the parties to that dispute.”

101. Cukwurah, supra note 84 at 224. See also Hyde, supra note 27 at 315:

[T]he aggressive territorial aspirations of a state may, in the course of a span of years, be reflected in a progressive series of maps that grimly depict the actual and gradual advance; and the later portrayals may thus differ sharply from the earlier ones, even though no treaty has in fact extended limits or modified a frontier.

102. Charles DE VISSCHER, Problèmes de confins en droit international public (Paris: Pedone, 1969) at 46. See also Joseph Charles WITENBERG, “La théorie des preuves devant les juridictions internationales” (1936) 56 Collected Courses of the Hague Academy of International Law 1 at 66: “la valeur scientifique de la méthode ayant présidé à leur établissement”; Abou-el-Wafa, supra note 37 at 431.

103. BROWNLIE, Ian, African Boundaries: A Legal and Diplomatic Encyclopaedia (London: Royal Institute of International Affairs, 1979) at 5.

104. Cukwurah, supra note 84 at 217–20.

105. Island of Palmas, supra note 80 at 853. Cited in Dubai/Sharjah Border Arbitration, supra note 88 at 630, para. 168. See also Delimitation Between Eritrea and Ethiopia, supra note 88 at 1075, para. 3.19, stating: “[t]he Commission is also aware that maps, however informative they may appear to be, are not necessarily accurate or objective representations of the realities on the ground.”

106. Frontier Dispute, supra note 57 at 582–3, para. 55. See also Beagle Channel, supra note 100 at 174, para. 154, stating: “[t]he Court is obliged to conclude therefore that the Pelliza map is of too uncertain a character to have the requisite probative value”; Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Order of 18 July 2011, Dissenting Opinion of Judge ad hoc Cot, [2011] I.C.J. Rep. 1 at 4, para. 21–2 (declaring the Court's decision to define a provisional demilitarized zone “imprudent” in light of cartographic material he deems limited and insufficiently reliable from a technical standpoint).

107. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 at 168, para. 80. On the ICJ's acceptance of satellite imagery in contentious cases, see HETTLING, Jana K., “The Use of Remote Sensing Satellites for Verification in International Law” (2003) 19 Space Policy 33 at 38, further elaborated by the same author in Satellite Imagery for Verification and Enforcement of Public International Law (Cologne: Heymann, 2008) at 157–65.

108. Dzurek, supra note 3 at 12; Zou, supra note 5 at 51.

109. Dzurek, supra note 3 at 11.

110. See for instance 1951 Chinese Map, supra note 89. Not only are a good number of segments simply missing (ibid.) but the location of those represented on that map of scale 1:23.500.000 are clearly at variance with those to be found in Annex I: the first three segments are clearly discernable, but the first is located more in a north-western, the second in a south-western, and the third in a northern direction when compared to the Annex I map.

111. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), [1992] I.C.J. Rep. 350 at 550, para. 315. See also Kasikili/Sedudu Island, supra note 58, Dissenting Opinion of Vice-President Weeramantry at 1176, para. 73:

Maps can of course carry varying degrees of weight depending on their authorship and the circumstances in which they were made. Moreover, the scale of the maps is often so small as not to show clearly the particular area which is the subject of the dispute, while other maps which are sufficiently large can indicate the area of dispute in sufficient detail.

112. Delimitation Between Eritrea and Ethiopia, supra note 88 at 1089, para. 4.67. Earlier on in that case (at 1076, para. 3.21), the Commission also stated: “[a] map … on so small a scale that its import becomes a matter for speculation rather than precise observation, is unlikely to have great legal or evidentiary value.” See also Case Concerning the Location of Boundary Markers in Taba (Egypt/Israel), Decision of 29 September 1988, [2006] XX Reports of International Arbitral Awards 1 at 48, para. 184:

The Tribunal does not consider these map-based indications to be conclusive since the scale of the map (1:100,000) is too small to demonstrate a location on the ground as exactly as required in these instances where the distances between disputed pillar locations are sometimes only of a few metres.

Dispute Concerning the Course of the Frontier Between BP 62 and Mount Fitzroy (“Laguna del Desierto”) (Argentina/Chile), Resolution of 13 October 1995, [1999] 113 International Law Reports 1 at 224:

In the first place, some observations are called for as regard the maps of scale 1:10,000 submitted by Chile. These maps drawn to a scale considerably greater than that of the Map of the Mixed Boundary Commission or of those attached to the Chilean Submission of 31 January 1995 claim to provide a more accurate representation of the true topography of the ground.

113. KAMTO, Maurice, “Sur quelques questions techniques liées à la détermination du tracé d'une frontière maritime délimitée” in Rafael CASADO RAIGON and Giuseppe CATALDI, eds., L’évolution et l’état actuel du droit international de la mer. Mélanges de droit de la mer offerts à Daniel Vignes (Brussels: Bruylant, 2009), 481 at 493496, who gives a detailed account of the serious difficulties later encountered by Cameroon and Nigeria because of the fact that the ICJ had relied in its judgment on a British Admiralty Chart which did not contain any indication of the datum used.

114. Beagle Channel, supra note 100 at 164, para. 137. See also MERRILLS, John G., “The International Court of Justice and the Adjudication of Territorial and Boundary Disputes” (2000) 13 Leiden Journal of International Law 873 at 875, stating: “[o]n boundary and territorial issues maps are capable of providing evidence of both the situation on the ground and the attitude of the States concerned towards it”; DARWIN, Henry, “Judicial Settlement” in Evan LUARD, ed., The International Regulation of Frontier Disputes (London: Thames & Hudson, 1970), 198 at 207208.

115. Temple of Preah Vihear (Cambodia v. Thailand), [1962] I.C.J. Reports 6 at 23.

116. Delimitation Between Eritrea and Ethiopia, supra note 88 at 1075–6, para. 3.22. The Commission similarly observes (at 1076, para. 3.21):

But a map produced by an official government agency of a party, on a scale sufficient to enable its portrayal of the disputed boundary area to be identifiable, which is generally available for purchase or examination, whether in the country of origin or elsewhere, and acted upon, or not reacted to, by the adversely affected party, can be expected to have significant legal consequences.

117. Nicaragua v. Honduras, supra note 58 at 735, para. 253.

118. Strupp, supra note 63 at 17.

119. Ibid., at 17, note 98.

120. BLUM, Yehuda Z., Historic Titles in International Law (The Hague: Nijhoff, 1965) at 150.

121. Li and Li, supra note 4 at 290. See also “Carps Among the Spratlys” The Economist (10 March 2011), online: The Economist 〈http://www.economist.com/node/18332702?story_id=18332702〉, stating: “China points to a map in use since the Republic of China published it during the Chinese civil war in the 1940s and says that, until quite recently, nobody minded.”

122. Zhao, supra note 33 at 22, translated in Li and Li, supra note 4 at 292.

123. As argued in the paper present by Nyuyen Hong Thao at the Second International Workshop, entitled “The South China Sea: Cooperation for Regional Security and Development”, held on 10–12 November 2010 in Ho Chi Minh City, Vietnam: “South China Sea—Three Stages, Four Challenges, Two Regional Approaches and One Confidence” at 12–13. On file with the authors.

124. UN, “Vietnam: Dispute Regarding the Law on the Exclusive Economic Zone and the Continental Shelf of the People's Republic of China which was Passed on 26 June 1998” (1998) 38 Law of the Sea Bulletin 54 at 55.

125. Vietnam, “Letter to the Secretary-General of the United Nations—86/HC-2009” (8 May 2009), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm_re_chn_2009re_vnm.pdf.

126. Vietnam, “Viet Nam Request the Chinese Side to Remove from SBSM Map Service All Data and Information that Violate Viet Nam's Sovereignty” (5 November 2010), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.vn〉; Vietnam, “Viet Nam Asks China to Remove Wrongful Data in Its SBSM Map Service” (26 January 2011), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.vn.

127. Vietnam, “Foreign Ministry Spokesperson Nguyen Phuong Nga Answers Question from the Media at the Press Conference on June 9th 2011 Concerning the Viking II Incident” (9 June 2011), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.vn〉, stating “[t]hese systematic acts by the Chinese side aim at disputing an undisputed area with a goal to materialize its ‘the nine dotted line’ [sic] claim, a goal unacceptable to Viet Nam”; Vietnam, “Press Conference on Chinese Maritime Surveillance Vessel's cutting exploration cable of PetroViet Nam Seismic Vessel” (1 June 2011), online: Ministry of Foreign Affairs 〈http://www.mofa.gov.vn〉, stating “China's nine-dash line in the East Sea, aka ‘Bull tongue-shaped line’, is completely legally groundless and is contrary to the 1982 UN Convention on the Law of the Sea to which China is a party. The claim encroaches the exclusive economic zones and the continental shelves of many regional countries, including Viet Nam, and thus is rejected by many countries. China's attempt to realize this claim is in fact escalating tensions in the region.”

128. Meeting of States Parties to the 1982 United Nations Convention on the Law of the Sea, “Twenty-First Meeting” (13–17 June 2011), online: UN Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea 〈http://www.un.org/Depts/los/meeting_states_parties/twentyfirstmeetingstatesparties.htm〉 (as further substantiated by participants in that meeting).

129. Pensions of Officials of the Saar Territory (Germany, Governing Commission of the Saar Territory), Award of 4 September 1934, [2006] III Reports of International Arbitral Awards 1553 at 1567, stating: “[t]he right of that Government to protest was acquired only at the moment when it knew of the facts”; Fisheries Case, supra note 66 at 139; Nuno Sérgio MARQUES ANTUNES, “Acquiescence” in Wolfrum, ed., supra note 34, 4, para. 21; D.JOHNSON, H.N., “Acquisitive Prescription in International Law” (1950) 27 British Yearbook of International Law 332 at 347, stating: “without knowledge there can be no acquiescence at all”; BARALE, Jean, “L'acquiescement dans la jurisprudence internationale” (1965) 11 Annuaire français de droit international 389 at 400: “l'acquiscement ne peut porter que sur une situation connue de l'Etat qui acquiesce”, and 401–4; MACGIBBON, I.C., “The Scope of Acquiescence in International Law” (1954) 31 British Yearbook of International Law 143 at 173, stating: “[t]he proposition that the possession on which title by prescription rests must fulfil the requirement of notoriety is scarcely in doubt”, and 174–6.

130. Barale, supra note 129 at 404–6.

131. KOSKENNIEMI, Martti, “L'affaire du passage par le Grand-Belt” (1992) 38 Annuaire français de droit international 905 at 931; Fisheries Case, supra note 66 at 138; Right of Passage over Indian Territory (Portugal v. India), [1960] I.C.J. Rep. 6 at 40. See also Land, Island and Maritime Frontier Dispute, supra note 111 at 577, para. 364.

132. Fisheries Case, supra note 66 at 138; Chamizal Case (Mexico v. United States), Award of 15 June 1911, [2006] XI Reports of International Arbitral Awards 309 at 329.

133. E.g. LEE, Hyung K., “Mapping the Law of Legalizing Maps: The Implications of the Emerging Rule on Map Evidence in International Law” (2005) 14 Pacific Rim Law and Policy Journal 159 at 159175, 188; Abou-el-Wafa, supra note 37 at 438–9.

134. Abou-el-Wafa, supra note 37 at 128–9.

135. See generally BATEMAN, Sam and EMMERS, Ralf, eds., Security and International Politics in the South China Sea: Towards a Cooperative Management Regime (Abingdon: Routledge, 2009).

136. For a brief overview of the workshop method and its successes, see SONG Yann-Huei, “The South China Sea Workshop Process and Taiwan's Participation” (2010) 41 Ocean Development and International Law 253 at 256260.

137. See e.g. CHIRCOP, Aldo, “Regional Cooperation in Marine Environmental Protection in the South China Sea: A Reflection on New Directions for Marine Conservation” (2010) 41 Ocean Development and International Law 334; MCMANUS, John W., SHAO Kwang-Tsao, and LIN Szu-Yin, “Toward Establishing a Spratly Islands International Marine Peace Park: Ecological Importance and Supportive Collaborative Activities with an Emphasis on the Role of Taiwan” (2010) 41 Ocean Development and International Law 270; TUAN Vo Si and John PERNETTA, “The UNEP/GEF South China Sea Project: Lessons Learnt in Regional Cooperation” (2010) 53 Ocean and Coastal Management 589; SONG Yann-Huei, “A Marine Biodiversity Project in the South China Sea: Joint Efforts Made in the SCS Workshop Process” (2011) 26 International Journal of Marine and Coastal Law 119.

138. BECKMAN, Robert C., “Joint Development of Hydrocarbon Resources in the South China Sea: International Legal Framework” (16–17 June 2011), online: National University of Singapore—Centre for International Law 〈http://cil.nus.edu.sg/wp/wp-content/uploads/2011/06/Session-2-Beckman-Session-2-CIL-JD-SCS-pdf.pdf. See e.g. Memorandum of Understanding between Malaysia and the Socialist Republic of Vietnam for the Exploration and Exploitation of Petroleum in a Defined Area of the Continental Shelf Involving the Two Countries, 5 June 1992 (entered into force 4 June 1993), online: NUS-CIL 〈http://cil.nus.edu.sg/1992/1992-memorandum-of-understanding-between-malaysia-and-the-socialist-republic-of-vietnam-for-the-exploration-and-exploitation-of-petroleum-in-a-defined-area-of-the-continental-shelf-involving-the-two-c/〉.

* Research Professor, President of the Department of International and European Law and Director of the Centre for International Law, Vrije Universiteit Brussel; Member of the Permanent Court of Arbitration. The substance of this article was prepared for the Second International Workshop organized by the Diplomatic Academy of Vietnam and the Vietnam Lawyers Association, entitled “The South China Sea: Cooperation for Regional Security and Development”, 10–12 November 2010, Ho Chi Minh, Vietnam. This article is a revised version of the paper—“Dotted Lines in the South China Sea: Fishing for (Legal) Clarity”—presented at the Workshop.

** Doctoral Fellow, Research Foundation—Flanders (FWO). Member of the Department of International and European Law and the Centre for International Law, Vrije Universiteit Brussel.

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Asian Journal of International Law
  • ISSN: 2044-2513
  • EISSN: 2044-2521
  • URL: /core/journals/asian-journal-of-international-law
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