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Legal Effect of Maps in Maritime Boundary Delimitation: A Response to Erik Franckx and Marco Benatar

Published online by Cambridge University Press:  29 November 2013

Zhihua ZHENG
Zhihua ZHENG*
Affiliation:
International Shipping Law School, East China University of Political Science and Law, People's Republic of Chinaseerecht@gmail.com
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Abstract

The Chinese traditional maritime boundary line (U-line) in the South China Sea (SCS) and its validity under international law have been challenged by bordering states and some scholars. In 2012, Franckx and Benatar questioned the validity of the U-line in view of factors such as the intent of the state reflected by the map, the cartographer's neutrality, technical accuracy, consistency of the cartographic material, and recognition and acquiescence by the international community. This paper points out that the SCS U-line drawn by the Chinese government in 1947, at the median position between China's SCS islands and reefs, and the coastlines of bordering states, reflects the scope of China's claims and intent. The consistency of the claims has been maintained by the PRC after 1949, and the claims have been recognised or acquiesced to by bordering states over quite a long period. Therefore, the U-line has probative force under international law.

Type
Articles
Information
Asian Journal of International Law , Volume 4 , Issue 2 , July 2014 , pp. 261 - 279
Copyright
Copyright © Asian Journal of International Law 2013 

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Footnotes

*

Post-doctoral Fellow, International Shipping Law School, East China University of Political Science and Law, Shanghai, People's Republic of China. The author wishes to thank FU Kuenchen, CHEN Xiaoshuang, ZOU Keyuan, and ZHANG Haiwen for their valuable comments and suggestions on an earlier draft. The views expressed in this paper are the author's own.

References

1. The Chinese traditional maritime boundary line in the South China Sea is often referred to by different names, such as the nine-dotted line, U-shaped line, nine-dash map, nine-sectioned line, national boundary line, the cow-tongue line, and so forth. The U-line is the name the author uses in this paper in order to ensure consistency with the term used by Erik Franckx and Marco Benatar.

2. On 7 May 2009, the Chinese government pointed out in its notes verbales, in addressing the Malaysia-Vietnam submission on the outer limits of the continental shelf, as well as Vietnam's submission, that:

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16. It should be noted that many factors affect the evidentiary weight of a map. The factors determining the admissibility and probative force of map evidence include, but are not limited to, these five considerations. For example, the judgment as to whether map evidence is admissible cannot be made without an examination of the objective truthfulness of the map per se, and its relevance to the boundary dispute concerned. Furthermore, the probative force of map evidence is subject to the accuracy and neutrality of the map, and whether it objectively reflects the will of the state as well as geographical conditions. In the international judicial process, however, it is the responsibility of the states concerned to collect and provide evidence, and these states tend to submit to the court information favourable to their claims. It is no doubt a huge challenge to the court, confronted with such voluminous evidentiary materials, to interpret and acquire information in a proper manner, and to judge the admissibility and probative force of the evidentiary materials, so as to get the closest approximation to the truth of the matter. See the ICJ Judgments listed supra note 15. In the Frontier Dispute (Burkina Faso/Republic of Mali), in particular, the ICJ has clearly noted that the probative force of a map rests on many considerations. See Frontier Dispute (Burkina Faso/Republic of Mali), supra note 15 at 582, para. 55.

17. Frontier Dispute (Burkina Faso/Republic of Mali), supra note 15 at 582, para. 54.

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The territory of the People's Republic of China is extended to 12 nm. This principle shall equally apply to all territory of the People's Republic of China, including Mainland China and its coastal islands, Taiwan and its surrounding islands separated from the Mainland and its coastal islands by high seas, the Penghu Islands, Dongsha Islands, Xisha Islands, Zhongsha Islands, Nansha Islands and all other islands belonging to the People's Republic of China.

21. UNCLOS, supra note 5.

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[T]he Chinese approach to world order was thus vastly different from the system that took hold in the west. The modern western conception of international relations emerged in the 16th and 17th centuries, when the medieval structure of Europe dissolved into a group of States of approximately equal strength … China, by contrast, was never engaged in sustained contact with another country on the basis of equality for the simple reason that it never encountered societies of comparable culture or magnitude. Like the United States, China thought of itself as playing a special role. But it never espoused the American notion of universalism to spread its values around the world. It confined itself to controlling the barbarians immediately at its doorstep … China did not export its ideas but let others come to seek them.

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It is fair to say that the regime of historic rights is favorable for those states which have long histories and relatively unfavorable for the newly independent states founded after World War II … In comparison with other countries bordering the South China Sea, China's history is the longest. It is understandable why other claimants to the islands in the South China Sea are averse to China's historic claim.

27. For example, on 14 April 2011, China stated in its note verbale addressing the Philippines’ protest note (see United Nations, “Permanent Mission of the People's Republic of China to the United Nations” (14 April 2011), online: UN 〈http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl.pdf〉):

China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. China's sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence. The contents of the Note Verbale No. 000228 of the Republic of Philippines are totally unacceptable to the Chinese Government.

On 29 February 2012, PRC Foreign Ministry Spokesperson HONG Lei pointed out at his regular press conference (see online: Ministry of Foreign Affairs of PRC, 〈http://www.fmprc.gov.cn/ce/cgct/chn/fyrth/t909551.htm〉 (in Chinese)):

The essence of the South China Sea disputes lies in the disputes over territorial sovereignty of some islands and reefs in the Nansha Islands and maritime boundary disputes in some parts of the South China Sea. It should be noted that no State, including China, has ever raised a sovereignty claim over the whole South China Sea. We do not know why some people make carping comments on this issue. Are they ignorant of facts or do they have ulterior motives? We think it necessary to clarify this point.

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30. Franckx and Benatar believe that the U-line “so far has never been precisely demarcated, thus lacking accurate geographical co-ordinates”. In fact, however, the U-shaped line has accurate co-ordinates, but has not been officially published because the boundary delimitation in the SCS has not been finally settled. See ibid., at 109−10.

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32. In this case, the ICJ further noted (Frontier Dispute (Burkina Faso/Republic of Mali), supra note 15 at 582, para. 55):

But the only result is a more faithful rendering of nature by the map, and an increasingly accurate match between the two. Information derived from human intervention, such as the names of places and of geographical features (the toponymy) and the depiction of frontiers and other political boundaries, does not thereby become more reliable. Of course, the reliability of the toponymic information has also increased, although to a lesser degree, owing to verification on the ground; but in the opinion of cartographers, errors are still common in the representation of frontiers, especially when these are shown in border areas to which access is difficult.

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

34. 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, International Legal Materials, Vol. 41, 2002, at 1069, para. 3.21.

35. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) [1992] I.C.J. Rep. 351 at 550, para. 315.

36. A striking example is the advisory opinion given by the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] I.C.J. Rep. 136 at 168, para. 80. The opinion referred to the completed and planned sections of the “Israeli Wall” in the occupied Palestinian territory, as shown by a map posted on the Israeli Ministry of Defence website.

37. Kuenchen, FU, Study of Legal Status of the South China Sea (Taipei: 123 Information Co., Ltd., 1995) at 4−5 Google Scholar

38. See note 20.

39. See note 2; ibid.

40. International Hydrographic Organization, “A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea - 1982” (March 2006)Google Scholar

41. International Hydrographic Organization, “Regulations for International (INT) Charts and Chart Specifications of the IHO” (August 2012)Google Scholar

42. Ibid.

43. See note 2.

44. IHO Chart Specifications, supra note 41.

45. Botswana v. Namibia, supra note 16 at 1100, para. 87.

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Although the Chinese interrupted line generally follows the 200-metre isobath, it has so far never been precisely demarcated, thus lacking accurate geographical co-ordinates. (See for instance 1951 Chinese Map … 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) … Moreover, because it concerns lines at sea, satellite imagery will not be very helpful either.

48. ABOU-EL-WAFA, Ahmed, “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 432−434 Google Scholar

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50. Such minute adjustment resulting from regime change should not be regarded as having violated the principle of estoppel, because estoppel means that the official position of the government of one state must not be self-contradictory, or have any inconsistency which will disadvantage another state. The slight adjustment made by the Chinese government has not caused inconsistency, nor has it caused any damage to any bordering state.

51. Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), Separate Opinion of Judge Oda, [1999] I.C.J. Rep. 1045 at 1133−4, para. 40.

52. In the Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), the ICJ pointed out that the evidential effect of a map also depends on its neutrality in relation to the dispute. See Frontier Dispute (Burkina Faso/Republic of Mali), supra note 15 at 583, para. 56.

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57. 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 Google Scholar

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59. Ibid.

60. For instance, on 14 September 1958, North Vietnam Premier Pham Van Dong delivered a diplomatic note to the Premier of the People's Republic of China Zhou Enlai, sincerely indicating that: “The government of the Democratic Republic of Vietnam gave diplomatic recognition to and approved the statement of the People's Republic of China on the decision on territorial waters”, and that “the Democratic Republic of Vietnam respects this decision”. See Appendix IV to China's Sovereignty over the Xisha Islands and Nansha Islands Indisputable: on the White Paper of the Vietnamese Ministry of Foreign Affairs on the Vietnamese-Chinese Foreign Relations. At the same time, the government of Southern Vietnam (the Saigon regime of the Republic of Vietnam) did not react to China's reiteration of its sovereignty over the Xisha Islands and Nansha Islands in this declaration.

61. Cuibai, YANG and Lei, TANG, “The Role of Maps in Solving Border Disputes and China's Sovereignty over the Nansha Islands” (2001) China's Borderland History and Geography Studies at 73−79Google Scholar

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64. The Philippine Survey and Statistical Commission, ed., Volumes Census Atlas of the Philippines, Manila, 1940; Map of the Philippines (in English), Manila, 1950; Manila Surveying Commission and the Coastal and Land Surveying Bureau, eds., Atlases, Manila, 1969. These were cited in Han, supra note 20 at 668−9.

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68. China's Sovereignty over the Xisha Islands and Nansha Islands, supra note 63.

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70. World Almanac (Tokyo: Kyodo News Service, 1972) at 193, Yang, supra note 66.

71. Modern Encyclopedia of Japan, 1973, at 388, Yang, supra note 66.

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73. China's Sovereignty over the Xisha Islands and Nansha Islands, supra note 63; “Historical Basis of China's Sovereignty over Nansha Islands”, online: china.com.cn 〈http://www.china.com.cn/guoqing/2012-04/11/content_25116084_2.htm〉 (in Chinese).

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79. Surveying and Mapping Law of the People's Republic of China, Adopted at the 29th Meeting of the Standing Committee of the Seventh National People's Congress on 28 December 1992; revised at the 29th Meeting of the Standing Committee of the Ninth National People's Congress on 29 August 2002; and promulgated by Order No. 75 of the President of the People's Republic of China on 29 August 2002), online: Ching.org.cn 〈http://www.china.org.cn/china/LegislationsForm2001-2010/2011-02/14/content_21916711.htm〉 art. 2, para. 2.

80. For example, it is pointed out in para. 2.1 of Chapter 2 of the IHO International Hydrographic Survey Standards (International Hydrographic Organization, “IHO Standards for Hydrographic Surveys” (5th ed.), online: IHO, 〈http://www.iho.int/iho_pubs/standard/S-44_5E.pdf〉):

The uncertainty of a position is affected by many different parameters; the contributions of all such parameters to the total horizontal uncertainty (THU) should be accounted for. A statistical method, combining all uncertainty sources, for determining positioning uncertainty should be adopted. The position uncertainty at the 95% confidence level should be recorded together with the survey data (see also 5.3). The capability of the survey system should be demonstrated by the THU calculation.

81. Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen), Decision of 9 October 1998, [2001] XXII Reports of International Arbitral Awards 209 at 296, para. 388. It is clearly indicated in the Judgment that all maps shall be examined “with great delicacy”. See also Botswana v. Namibia; Qatar v. Bahrain; Indonesia v. Malaysia; Benin v. Niger; Nicaragua v. Honduras, supra note 15.

82. The Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (India v. Pakistan), Award of 19 February 1968, Proposal of Mr Nasrollah Entezam, [1980] XVII Reports of International Arbitral Awards 1 at 505.

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