IBA International Bar Association : China’s contribution to the evolution of ‘historic waters’ under public international law

Tuesday 6 September 2016

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Pablo Ferrara
Estudio O'Farrell Abogados, Buenos Aires
[e-mail]

On 12 July 2016, in the case of The Republic of the Philippines v The People's Republic of China on the matter of the 'Nine-dash line' - a demarcation of a contested area in the South China Sea to which China lays claim - the tribunal of the Permanent Court of Arbitration (PCA) ruled that China has no legal basis or historic claim on. China rejected the ruling.

The concept of 'historic waters' seems to have largely eluded legal commentators. But in the light of this contentious decision, and as tension and the potential for conflict increase over the sovereignty of contested areas - including the South China Sea - the need to consider the issue more seriously is clear.

This article aims to analyse the legal institution of historic waters, and reviews China's legal discourse and its limitations so as to better understand the Chinese contribution to this doctrine. It is based on existing works by both Chinese and European authors, and presents contrasting positions and interpretations.

What are 'historic waters'?

Among the best definitions of the concept of 'historic waters' is that of Bouchez:

'Waters over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of State.'

Gidel's definition, though it refers to the narrower concept of 'historic bays' -is also useful, and more concise:

'Those areas of water the legal status of which differs - with the consent of other States - from what it ought to have been according to the generally recognized rules.'

Both statements refer to the generally 'recognised' or 'applicable' rules of international law, which we will explore later. The phrase 'historic waters' originates from the title and content of the influential UN study, 'The UN Juridical Regime of Historic waters including historic bays' (the 'UN Juridical Regime'), prepared in 1962 at the request of the International Law Commission (ILC). An earlier memorandum on 'historic bays', prepared by the UN Secretariat, had pointed out that historic rights could be claimed with respect to areas other than bays.

The 1962 UN study confirmed that the terms 'historic bays' and 'historic waters' were not synonymous, and that the latter term has 'wider scope' - though the legal status of historic bays may be different from that of historic waters. In the Salvador/Honduras case, the International Court of Justice (ICJ) synthesised the title and regime of historic bays versus that of 'historic waters'. US courts have not to date defined 'historic waters' generally, but they have defined 'historic bays' as those bays 'over which a coastal nation has traditionally assent and maintained domination with the acquiescence of foreign nations.' The US Supreme Court has also stated that, in its opinion, 'the term 'historic bay' [was] used interchangeably with the term 'historic inland waters''.

There are many other definitions of 'historic waters'. In one of the most authoritative definitions, given by the ICJ in the fisheries case and more recently endorsed by the same court in the El Salvador/Honduras Case reference to the Gulf of Fonseca, 'historic waters' were understood to mean 'waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title'.

According to the UN Juridical Regime, three factors must be taken into account to determine whether a given state can claim sovereignty over certain maritime areas as its historic waters: '(i) The authority exercised over the area by the State claiming it as 'historic waters'; (ii) The continuity of such exercise of authority; and (iii) The attitude of foreign States.'

Difference between 'historic waters' and 'historic rights'

In the law of the sea, 'historic rights' originate from an understanding of 'historic waters' that is rooted in the fact that states throughout the ages claimed and maintained sovereignty over maritime areas they considered vital to them, with little or no regard for divergent and changing opinions in international law with respect to the delimitation of the territorial sea.

In this sense, a state may acquire historic rights, but this has no implications as to sovereignty in the locale - for instance, historic fishing rights, as discussed in the Fisheries Jurisdiction case and the Tunisia/Libya case.In fact, this matter is related to the more specific issue of 'effective jurisdiction', which is of relevance to any claim in the traditional historic waters context where such a title is dependent on the 'scope of the claim itself' and 'commensurate with the actual activity of the State [claimant]'.For example, the arbitral tribunal in the Eritrea/Yemen Arbitration Award (2001) found the analogous 'traditional fishery regime' in the area of dispute relating to 'artisanal fishing' operated not only in territorial waters, but beyond them.

The term historic rights is broader than that of historic waters; it implies, in the widest sense, a state claiming to exercise certain jurisdictional rights - particularly fishing rights - in what are usually international waters. Such rights must, however, satisfy the same, or at least similar, requirements for establishing historic waters claims, particularly in the case of continued and long use with the agreement of the other relevant states.For example, in the Tunisian pleadings in Tunisia/Libya, it was argued that historic rights were established by exercise of peaceable and continued sovereignty, with prolonged toleration on the part of other states.

Quad hunc, not erga omnes

Despite some similarity in their rules, claims to historic rights differ substantively from claims to historic waters. First, these claimed rights only apply on a quad hunc basis, not erga omnes as do (arguably) claims to historic waters. Indeed, they may not even have the word 'historic' attached to them: for example, in the Fisheries Jurisdiction, the ICJ referred to the 'established rights' rather than historic rights of the two applicants, though individual judicial opinions in the case do use the term 'historic rights'.

It should be noted, however, that the ICJ's plenary judgment (eg, regarding Germany) does refer to Iceland having 'admitted the existence of the Applicant's historic and special interest in the fishing in the disputed waters', and the Memorial (on the merits of Germany) stated that the problem of fishing rights in the high seas: 'Ha[d] been mostly referred to as a case of recognition of 'historic' rights', but that:

'Such styling… ha[d] rather confused the issue, because the recognition of continued foreign fishing in extended zones of jurisdiction is not so much founded on a special legal position acquired by previous uninterrupted use in deviation from an existing rule of law, but rather on the recognition of the special interest of other States in the zone which is now brought under the coastal State's jurisdiction.'

Such vestigial 'high seas' rights have, of course, continuing international recognition now in Article 62(3) of the United Nations Convention on the Law of the Sea (UNCLOS), relative to giving access to fish stocks by other states in an exclusive economic zone (EEZ) (ie, 'States whose nationals have habitually fished in the zone').

Jurisdiction and sovereignty

Secondly, unlike historic waters, historic rights do not amount to zonal claims of jurisdiction or sovereignty. As De Castro J stated in the Fisheries Jurisdictioncases, historic rights of states concerned with 'high seas fishing' do not grant them 'acquisitionover the sea by prescription', merely 'respected' rights by 'long usage'. Similarly, for example, in Qatar/Bahrain, the ICJ held, in relation to Bahrain's alleged historic rights over pearling banks in an area of seabed in dispute, that these had never led to the recognition of a quasi-territorial right to the fishing grounds or the superjacent waters.

In the pleadings in Tunisia/Libya, there was some discussion as to the relationship between historic rights and historic waters. For example, in oral pleading, Tunisia stated that when it affirmed historic titles in a certain zone (the 45 degree line one) it did not claim that this zone was basically composed of 'eaux historiques', but simply 'historic fishery rights'. A claim by Lybiastated that there were, in that case, no fewer than three separate 'historic claims' by Tunisia, which therefore had to be 'sharply distinguished'. These were, firstly, the Gulf of Gabes - a historic bay; secondly, an area, not necessarily coincident with the Gulf, over which Tunisia had asserted historic rights; and, thirdly, a maritime boundary between Tunisia and Libya, also based on historic rights.

The adjacency requirement

A third possible difference between the concepts of historic waters and historic rights is that claimed historic waters must be adjacent to the claimant state. Bouchez, for example, has maintained that it is 'impossible for a non-coastal State to be entitled over a [historic] sea area situated near the coast of other States'. This adjacency requirement follows the general international legal requirement of states being allowed only to claim territorial waters immediately off and adjacent to their coastlines.It appears that past confusion over the more limited notion of historic rights has had a knock-on effect that has led some states to claim sovereignty over historic bays on this basis alone - eg, resulting from sedentary fishery rights outside territorial limits. Thus, for example, in its reply to the 1929 questionnaire of The Hague Codification Conference, Australia seemingly recognised the historic bay concept 'without sufficiently distinguishing it from the more limited 'historic right to sedentary fishing''.

Origins of the doctrine of historic waters

Some commentators have suggested that such historic title was first claimed by theUS in the North Atlantic Fisheries Arbitration of 1910. More generally, the UN Juridical Regime summarises 'historic waters' as having:

'Its roots in the historic fact that States through the ages claimed and maintained sovereignty over maritime areas which they are considered vital to them without paying much attention to divergent and changing opinions about what general international law might prescribe with respect to the delimitation of the territorial sea.'

Strolh states that the term 'historic bay appears to be a 'comparatively recent one in the lexicon of international law', and that it most likely dates back no further than Drago's dissent in the 1910 North Atlantic Fisheries Arbitration. The Norwegian Counter-Memorial in the Fisheries case alleged that the theory of historic bays was 'invented' by jurist in the 19th century and this then led to the broader doctrine of 'historic waters'. Similarly, there was a British claim in that case that it was only at the end of the 19th century that a distinct category of 'historic bays' came to be clearly contrasted with ordinary bays.

Historic waters and the law

First, and most importantly, UNCLOS is not the only source law to the international law of the sea.Even in UNCLOS there are only three oblique references to historic titles issues (arguably four if one takes Article 298 (1) into account, which allows exclusion of 'disputes' involving 'historic bays or titles' from compulsory dispute settlement procedures). Goldie suggests that the reason for this lack of codification is the inability of the ILC and the two law of the sea conferences to strike a balance between those states with 'authentic' historic waters claims and those states opposing particular claims or opposed to the facilitation of enclosure of 'ocean regions' as a matter of principle.

State practice concerning historic waters

Instead, because of the lack of treaty law on the doctrine of historic waters, these sources must be found within international customary law. Thus, the formal source of this aspect of the law of the sea is in the limited state practice concerning historic waters, and supplemented by discussion in UN documents, US case law and in the works of legal commentators.

It is perhaps surprising that, despite past judicial decisions - both municipal and international (including the ICJ) - approving the concept of historic bays, and despite the vast body of literature on the issue of historic waters, neither the Convention on the Territorial Sea and Contiguous Zone 1958 (TSC) nor UNCLOS 1982 codified this area of law. As the Special Master commented in the latest relevant US litigation, Alaska v US (2005), the TSC 'recognizes the existence of historic inland waters [sic], but does not specify the criteria for identifying them'. The US Supreme Court has previously commented on this casus omissus in treaty law,statingthat historic bays are not defined in the TSC (Article 7) and 'therefore [the concept] derives its content from general principles of international law'.

Because the doctrine relies upon customary international law alone, and in the absence of any other international authority, arguably (and perhaps ironically) domestic courts' decisions on historic waters issues have 'a prospective utility as persuasive arguments for the future evolution of international law on the subject'. This article draws extensively on US case law with regards to US domestic 'historic' maritime claims, and the latest, most important US case thereon to date - Alaska v US (2005) - is used throughout a case study.

Repetition and reiteration

The lack of treaty law means that the reliance on UN Juridical Regime is evident in international case law, as in, for example, the pleadings of Libya in Tunisia/ Libya. Similarly, in regard to the international legal requirement in the tidelands litigation cases (ie, US federal component-state litigation over maritime boundaries inter se), it is notable that various ad hoc first instance judges of the US Supreme Court and the plenary Supreme Court itself, have also relied on it heavily. In the Special Master's Report XX in Alaska v US (2005) both the (Alaskan) state and federal sides relied heavily on this UN study, as did the Special Master in the case.

As important as the opinions of legal commentators have been regarding the rules on historic waters, Strohl aptly notes that many have done 'little more than quote or cite others'. As McDougal and Burke state:

'Writers have been influential in the sense that much of what is said about the processes of claim and decision [on historic bays] comes from the speculations of writers, subsequently elevated to the status of 'law', and not from concrete claims and counter-claims by interested States'.

One might also make the same comment of the relevant UN documents on the topic to date that have been so influential with US courts and elsewhere but which also tend to repeat opinions of such commentators.

Reliance on commentary, not legal precedence

The problem of repetition and reiteration - including, in some cases, erroneous assessments of claims - also exists in listings of supposed historic bays and waters in various publications, as successive writers have attempted to cite specific examples, 'notwithstanding that the states concerned [may] have never made [such] specifics assertions of title'. These lists now include not only these bays claimed by states 'but also others asserted to be historic because [commentators] have so regarded them'.As such, past lists - even when drawn up by a UN body - tend to be unreliable with regard to historic claims, even when, as in the 1962 UN Juridical Regime, such a lists are said to be exhaustive ('a comprehensive enumeration').

For example, the listing under 'Historic Bays' in the 1957 UN Memorandum is misleading as it includes many bays with modest distances as to their mouths, which accordingly may now be viewed by their owners as juridical bays. There is also the danger that repeated citation as to a historic claim in successive such listings may short-circuit objective satisfaction of the traditional international legal requirements for historic waters. An expert witness report in the Tunisia/ Libya pleadings rightly warned that:

'After a sufficient number of repetitions, the danger exists that historic status may be accepted although there Is little or no evidence to substantiate the claim to fully sovereignty'

citing the example of the shadowy 'historic' origins of Exmouth, Van Diemen, Shark and Moreron Bays in Australia.

Despite such failings, academic discussion and categorisation in support of supposed historic claims has been used as evidence of historic title in international litigation. For example, Tunisia in Tunisia/Libya listed the authors who had (allegedly) accepted the existence of international acquiescence to Tunisian sovereignty in the zone of sedentary fisheries. The listing of a particular bay - the Gulf of Gabes - as historic was in fact a cause of complaint by Libya in its pleadings.

Similarly, El Salvador in its pleadings set out all the international commentators, who had supposedly supported the 1917 judgment on the condominium status of the Gulf of Fonseca, as a 'valid and authoritative precedent'. In this case, the ICJ, while saying that the historic status of the Gulf of Fonseca had been 'generally accepted by the commentators', seems to have assumed the existence of continuing universal acquiescence of the historic nature of the Gulf from somewhat scanty evidence. This evidence included, misguidedly, approval by the US of the Gulf of Fonseca being historic waters, where the attitude of other states to the Gulf's status was unknown. In particular, the ICJ itself cited as evidence of acquiescence two text book writers. Based on these precedents, it seems that a State laying claim to historic waters relies on what commentators have said on the status of the waters in questions, almost as if it were a substitute for state practice.

Historic waters and China

Geography and overlapping claims

The South China Sea covers an area of sea of some 3.5 million km, partially bordered by Brunei, China,Indonesia, Malaysia, the Philippines and Vietnam.It is dotted with numerous islands, islets, shoals, cays, reefs and rocks that, in the area surrounded by China's 'nine-dash line', are conveniently gathered into island groups. Four island groups, including more than 200 islands, islets, reefs, shoals and rocks, are pertinent to the present context, known to both Chinese and foreign sources as: (i) the Xisha or Paracel Islands; (ii) Dongsha or Pratas Islands; (iii) Zhongsha Islands, including Macclesfield Bank and certain reefs, sandbanks and shoals; and (iv) Nansha or Spratly Islands.These four groups fall within the coordinates 3° 57' to 21° N and 109° 30' to 117° 50' E, and span approximately 1,800 km north to the south, and 900 km east to west.By virtue of its geographic position, the South China Sea forms part of the vital route of maritime trade and transport for East Asian and Southeast Asian states and their trading partners in Asia, Africa and beyond.]There are rich fisheries in the South China Sea,along with expanding prospects for oil and natural gas in the seabed and subsoil.

While their location provides the coastal states of the South China Sea with the opportunity to become seafaring nations, their proximity to one another surrounding a semi-enclosed seaalso fuels disputes over regional control and influence.The South China Sea's strategic and economic significance is by no means recent, but can be traced back two millennia. The developments in the South China Sea and the major disputes now festering among the region's littoral states have a long history indeed, upon which a long shadow has been cast by a heavy Chinese influence.

Chinese sovereignty over the South China Sea pre-1958

The early history of Chinese use of the South China Sea and its islands includes accounts of tributes made to the Imperial Court of various dynasties before the third century AD by 'barbarians' from the southern seas.The term 'Nan Hai'(meaning 'Southern Sea') appeared in the classic poetry book Shi Jing (The Classic of Poetry, 475-221 BC),and has remained the standard appellation in Chinese for the South China Sea ever since. In later Chinese dynasties, from the fifth century AD onwards, as knowledge of the seas was increasingly corroborated by travellers and other seafarers, references to the southern seas and islands became more frequent in geographical and literary works.

Clarifications of the location and environs of the South China Sea and beyond, together with advances in shipbuilding and the use of the compass, enabled regular journeys to other states in the regionand inspired, among others, the famed 'Seven Voyages' by the 'Three-Jewel Eunuch', Zheng He, in the Ming dynasty of the early 15th century.

The so-called Silk Road on the Sea was first used in the Qin and Han dynasties (221 BC-220 AD) and flourished in popularity in the Tang and Song dynasties (618-1279 AD). This maritime route of trade and commerce not only preceded its counterpart on land but also extended farther to reach the northern shores of the Mediterranean.It may well be the most enduring maritime trade route in history. It did not decline in use until the late Ming and early Qing emperors issued a ban on maritime trade between 1474 and 1551. After the (first) Opium War between China and Great Britain in 1840, the Silk Road on the Sea fell into disuse. The South China Sea lay at the centre of this famous route. Chinese ships, loaded with silk, porcelain, tea and other commodities, set sail from southeast China and navigated along the coasts of the Philippines, Vietnam, Malaysia, and Thailand and through the Malacca Strait to India and the Mediterranean.

Early in the 20th century, the geographical scope of China's dominion came to the attention of both cartographers and the government itself.In 1914, a continuous boundary line enclosing part of the South China Sea, along with two island groups, appeared in a Chinese national atlas compiled by two private cartographers.No later than 1935, the boundary line was extended (again, by private cartographers) to include the four island groups in the South China Sea.In January 1935, a government-appointed commission, which was established to examine maps and atlases produced by private sources in China, published its list of 132 names, in both English and Chinese, for islands and other insular features in the South China Sea.In April 1935, the commission's gazette published an atlas of the islands in the South China Sea.

In 1946, pursuant to the Cairo Declaration and the Potsdam Proclamation, China recovered the Xisha and Nansha Islands from Japan.There was no reaction from Vietnam or any other state, and the Chinese naval contingent sent to the islands erected stone markers on Yong Xing, or Woody, Island, of the Xisha Islands, and Tai Ping, or Itu Aba, Island of the Nansha Islands. Following further inspections and surveys, the Chinese government internally circulated an atlas in 1947, drawing an 11-dash line to indicate the geographical scope of its authority over the South China Sea, down to the Zengmu Ansha, or James Shoal, at 3° 58' N, 112° 17' E.In that same year, the Ministry of the Interior published a list of 172 geographical names, in both Chinese and English, for the islands in the South China Sea.

In February 1948, China published an atlas of national administrative districts through the Commerce Press, Beijing, reflecting the 1947 atlas that was internally circulated.In May 1949, the four island groups in the South China Sea and other attached islands were placed under the authority of the Hainan District of Guang Dong Province. The underlying reason for the 11-dash line was presumably to reaffirm and reiterate China's sovereignty over the island groups in the South China Sea at the beginning of a new, post-war era. Earlier that year, news reports indicated that the Philippines, which gained independence in July 1946, began to show interest in the Nansha Islands. In response to an inquiry by China that referred to 'China's Tai Ping Island', the Philippines explained that it was concerned only with protecting its fishermen in the adjacent waters. On 29 May 1956, seven years after the founding of the People's Republic of China, China issued a statement in response to a suggestion by the Philippines that some islands of the Nansha Islands 'should' belong to the Philippines because of their proximity.

This statement reiterated comments made in 1951 by the Chinese foreign minister, Zhou Enlai, that:

'The Xisha Islands and Nanwei Dao [Spratly Islands] are inherently Chinese territory, just like the whole of the Nansha Islands, Zhongsha Islands and Dongsha Islands. They fell during the war of aggression waged by Japanese imperialists, but were fully recovered by the then Chinese Government upon Japan's surrender.'

In 1953, two dashes were removed from the eleven-dash line, leaving nine segments and, in that same year, the new line made its first appearance in atlases produced on the mainland of China.

China and the South China Sea post-1958

China's Declaration on the Territorial Sea

On 4 September 1958, China promulgated its Declaration on the Territorial Sea, which has since become the foundation for China's maritime order.Article 1 of this Declaration not only provided for a 12-nautical-mile territorial sea for China, but applied that breadth both to the mainland and the coastal islands, and to the off-lying islands of Dongsha, Nansha, Penghu, Taiwan, Xisha and Zhongsha, among others.

In 1959, the Hainan District established an administrative office on Yong Xing Island to administer the affairs of the Xisha, Zhongsha and Nansha Islands. The office was transferred to Guang Dong Province in 1969.In 1984, the National People's Congress included within the territorial scope of the newly established Hainan Administrative Region 'the islets, reefs and sea areas of Xisha, Nansha, and Zhongsha islands.'

Law on the Territorial Sea and the Contiguous Zone

In anticipation of the ratification of UNCLOS, China promulgated its Law on the Territorial Sea and the Contiguous Zone on 25 February 1992.Article 2 of the Law includes within China's land territory the four island groups in the South China Sea, as well as other islands,to which China's 12-mile territorial sea attaches. Article 3 authorises the use of straight baselines for measuring the breadth of the territorial sea.

China's ratification of UNCLOS

On 7 June 1996, as it deposited its instrument of ratification of UNCLOS, China stated:

'The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.'

On 15 May 1996, China promulgated base points for measuring its territorial sea, which included those on the Xisha Islands.Two years later, in June 1998, it promulgated its Law on the Exclusive Economic Zone (EEZ) and the Continental Shelf.Article 14 of Chinese Territorial Sea Act provides that the provisions of this law do not prejudice 'historic rights' enjoyed by China.

China's argumentative standpoint

Legal purpose and status of the geographical delineation

The nine-dash line is known by many other names.[71]What is of interest to lawyers and governments alike is its purpose and status; does it indicate ownership, sphere of influence, a short-hand for maritime zones established under international law, or something else?[72] The reasonable proposition is that the nine-dash line, after 60 years of evolution, has become synonymous with a claim of sovereignty over the island groups that always belonged to China and with an additional Chinese claim of historical rights of fishing, navigation, and other marine activities (including the exploration and exploitation of resources, mineral or otherwise) on the islands and in the adjacent waters. The lines may also have a residual function as potential maritime delimitation boundaries. This is based on the consideration of several factors.

First, the consistent line of Chinese legislation adopted since 1958 has shown convincingly that China enjoys sovereignty over the Dongsha, Nansha, Xisha and Zhongsha Islands, as well as over other islands in the South China Sea. The nine-dash line, in the light of this body of national law, is not intended to assert a historic title of sovereignty over the sea areas, as enclosed by the lines, beyond what is allowed under international law.

Second, the disputes with other states in this area have always concerned sovereignty over islands or insular features in the South China Sea. This may be why the concerns with the dashed lines, unlike with the ownership of the islands, were raised only recently in the notes verbales of the relevant states.

Third, while the precise meaning of the reference in Chinese Note I to 'adjacent waters' over which it has sovereignty and 'relevant waters as well as the seabed and subsoil thereof ' over which it enjoys sovereign rights and jurisdiction has never been defined by China, its claim over such waters - in view of China's ratification of UNCLOS - is necessarily conditioned by the Convention's relevant provisions. There has also been no evidence that China has enforced its domestic law in those waters as if they were part of internal waters.

Fourth, while it is certainly not the case today, it may be that at some time in the past, the nine-dash line and its predecessors had embraced the idea of historic waters. Support for this view may be found in the resolution adopted at the 1947 inter-ministry meeting: the expression 'limit of territory in the South China Sea' was employed in the resolution, which extended that limit to Zengmu Ansha, or James Shoal. It may also be the case, however, that the expression simply implied that the land territory of the state extended to that shoal - which is an entirely possible interpretation of the original Chinese.

Finally, there is evidence that the dashed lines were designed at a time with the nascent notion of the continental shelf in mind. They might be dictated by the geographical reality of the South China Sea in that the 200-meter isobaths runs close to the shores of the coastal states except for China and, to a lesser extent, Vietnam. Thus, it has been suggested that the dashed lines were drawn in the 1948 atlas as if they were median lines between the islands and the opposite coasts of the neighbouring states, thus serving a potential delimitation purpose. The selection of these lines is also said to reflect a reasonable and mild approach by the then Chinese government to the growing clamour among states for the continental shelf following the Truman Proclamation.[73]

China could assert historic rights within the nine-dash line, under Article 14 of its 1998 law on the EEZ and the continental shelf, with respect to fishing, navigation, and the exploration and exploitation of resources.

The Chinese argument and the doctrine of historic waters

In the public international law system, the role of recognition and acquiescence in the acquisition of territory has proved to be significant for the perfection of a title - occupational or historic - through peaceful, effective and continuous exercise of sovereignty. Likewise, when a claim to title concerns the possession of parts of a res communis, such as maritime spaces, agreement or recognition by other states must also be demonstrated. For instance, recognition by the French and Vietnamese of China's claim of sovereignty over the islands in the South China Sea between 1887 and 1959, and in particular, by the 1887 Sino-French boundary treaty and the Vietnamese recognition of the 1958 Chinese Declaration on the Territorial Sea.[74]Either of the two acts - recognition and acquiescence - may have the legal effect of estopping a state from denying its prior statement or action (one that recognises or acquiesces in some fact or acts) on which other states rely for their action. In territorial dispute, estoppel was, in that context, considered of central importance. The constituent elements of estoppel include: (i) a clear and unambiguous statement of fact, which must be voluntary, unconditional and legal; and (ii) reliance in good faith upon the statement either to the detriment of the party relying on the statement or to the advantage of the party making the statement. It is a rule that excludes a denial that a particular assertion might be correct and true. That is, the party concerned may not have accepted the relevant undertaking or obligation, or it may be uncertain whether it has done so, but in view of the party's actual conduct, denial of that undertaking or obligation is not permitted.

In the search for solutions that may commend themselves to the littoral states of the South China Sea, China makes a basic underlying point that calls for respect: that the Chinese people have, without challenge, enjoyed and exercised certain rights in the South China Sea throughout recorded history. Those rights do not derive from UNCLOS. The nine-dash line reflects this long-standing attachment of the Chinese nation to the South China Sea. According to China, it has title over the islands. The same historic title provides the foundation for an additional claim - namely, to the amenities of the sea in the area - on behalf of Chinese citizens who have, generation after generation, earned a living from the waters of the South China Sea.

The model that the tribunal embraced in the Eritrea/Yemen arbitration has much to recommend itself:

'[T]he conditions that prevailed during many centuries with regard to the traditional openness of southern Red Sea marine resources for fishing, its role as means for unrestricted traffic from one side to the other, together with the common use of the islands by the populations of both coasts, are all important elements capable of creating certain 'historic rights' which accrued in favour of both Parties through a process of historical consolidation as a sort of 'servitude internationale' falling short of territorial sovereignty.'[75]

Chinese commentators' insistence on the long-standing existence of the map demonstrates the historical value Chinese scholars attribute to it and suggests that for them it plays a substantial role in China's South China Sea claims. The map would thus not only have probative value but would also play a key role in establishing China's legal title over the claimed territorial and maritime areas.[76]

Limitations of the Chinese discourse

In light of the Chinese literature discussed, three possible interpretations of the historic rights claim should be considered in assessing the merits of China's position:

1. On the first interpretation, China would claim the entire maritime area within the nine- dash line as its historic waters.
2. On the second, China would claim to have a historic title over the insular features of the South China Sea.
3. On the third, the reference to 'historic rights' would simply be taken as indicating that the Chinese claim is based on historical evidence.

(Of course, other interpretations - for instance, that the claimed historic rights are limited to rights of fisheries in the area delimited by the nine-dash line - are available but should be dismissed in the circumstances of China's assertive conduct.)

The maritime zones within the nine-dash line are part of China's historic waters. Although some commentators have argued that the only possible interpretation of the nine-dash-line is that it represents China's claim to its historic waters, a careful analysis of this position reveals various difficulties. First, the understanding that China bases its maritime claim on historic rights is equivalent to the assumption that the principles of UNCLOS should not apply. As noted, UNCLOS does not recognise historic rights as a basis for claiming sovereignty over waters. This difficulty is a serious one, as China has now been a party to UNCLOS for more than 15 years. China would therefore have to justify the non-applicability of UNCLOS to defining the limits of its sovereignty over the South China Sea.

Part of China's maritime claim directly derives from its territorial claim: by applying the principles of UNCLOS to the claimed islands (primarily the Paracels and Spratlys), China has made clear that it claims not only the territorial waters and contiguous zones around the islands but also, for each island, its EEZ and continental shelf.[77] This raises a problem: China does not distinguish between those insular features that qualify as 'islands' under UNCLOS (and which would thereby generate rights to a full EEZ and continental shelf) and those that qualify as 'rocks' (which would generate rights only to internal and territorial waters).

The introduction of the nine-dash-line map and with occasional references to 'historic waters', among other things, mean that a great deal of uncertainty remains. It is yet unclear whether the function of the nine-dash line is to delimit the waters claimed by China and, if it does, what this line's precise geographical coordinates are. The nine-dash line would even seem to suggest that, at least in certain areas, China's EEZ should prevail over the EEZs of other countries.

China's position with respect to its sovereignty over the vast majority of the South China Sea rests on the notion that it must enjoy some sort of entitlement based on history. This interpretation takes into account China's official statements and practice, as well as, more directly, the numerous publications in which Chinese scholars have sought to provide legal support for China's claims. In this, what is notable is the recurrence of phrases making reference to history, such as 'historic rights',[78] 'historical rights',[79] 'historic title',[80] and 'historic waters'.[81]

This use of language raises two key questions: in China's view, what is the legal relevance of historical factors? And more generally, does China, by using such ambiguous and changing terminology, intend to articulate territorial claims, maritime claims, or both? A review of China's official discourse could suggest the Chinese position is unclear: for some commentators, while the recurring references to 'historic rights' or 'historical rights' aim to emphasise China's long-standing claim to the area as the determining factor in establishing its sovereignty, the meaning and legal relevance that China attributes to this language remain obscure.

For instance, although claims invoking 'fishing rights' could be analysed in terms of the fishing zones traditionally granted to Chinese fishermen, claims invoking 'historical rights', while seemingly referring to long-established legal titles to the islands in question, provide no clear indication as to their origin, form and geographical scope. On the other hand, commentators affirm that although the nine-dash-line map is said (according to Chinese sources) to have been published in 1947 or 1948 by the Chinese Ministry of Interior (that is, prior to the creation of the People's Republic of China), China first officially relied on the map in its 2009 notes verbales. Moreover, said commentators have stated:

'To this day, the purpose behind the recent production of the map remains uncertain, as China has not clarified whether the map is to be understood as evidence supporting its claim or merely as a graphical depiction of it. More generally, it is uncertain whether the map has any legal relevance to the delimitation of China's boundaries in the South China Sea.'

The final problem is the lack of a generally accepted definition of 'historic waters'. The legal regimes of 'historic bays' and 'historic waters' have never been articulated in an international convention - UNCLOS or any other (it is significant that neither Article 7 on straight baselines nor Article 10 on bays contains any definition of these concepts). According to the study on historic rights by the ILC secretariat in 1962, three factors must be taken into account to determine whether a given state can claim sovereignty over certain maritime areas as its 'historic waters':

'(i) The authority exercised over the area by the State claiming it as 'historic waters'; (ii) The continuity of such exercise of authority; (iii) The attitude of foreign States.'

Conclusions

China avows to enjoy sovereignty over the vast majority of the South China Sea, as established through China's long-standing historical presence and display of authority in the region. China's milestone support is the discontinued nine-dash map. In this sense, as Max Huber stated in 1928: 'Only with the greatest caution can account be taken of maps in deciding a question of sovereignty.' (Island of Palmas Award). Notwithstanding these words, the law in relation to 'historic waters' has now been evolving for a century, and even if it has done so rather slowly, it has shown more continuity than international boundary law jurisprudence, which has shown to be a back and forth. Historic waters law is being consolidated, a case-by-case, a fact which is very sensitive, given the importance of what is at stake. And therefore nothing prevents China's contribution to this evolving consolidation.

Notes

[1]The Republic of Philippines v The People's Republic of China, PCA Case No 2013-19.

[2 ]Primarily the works of Zhiguo Gao and Bing Bing Jia, Florian Dupuy and Pierre-Marie Dupuy, and Clive R Symmons.

[ 3]L J Bouchez, The regime of Bays in International Law(1964)pp 281.

[4]G Gidel, Le droit international public de la mer (Paris, 1932-1934), vil. III, pp 623.

[5]ILC, 'Juridical Regime of Historic waters including historic bays: Study prepared by the Secretariat' extract from the Yearbook of the International Law Commission, Vol II (1962)UN Doc A/CN. 4/143, pp 2-3.

[6]Memorandum by the Secretariat of the UN, 'Historic Bays' (Preparatory Document No 1) A/CONF.3.1, 30September1957, p 23, para 168, as cited by M Whiteman,Digest of International Law, Vol 4, pp 233-242 (hereafter the 'UN Memorandum 1957').

[7]UN Memorandum 1957, p 24, para174.

[8]Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) [1990] ICJ Reports92, p 588, para 383.

[9]Ibid, para384, Cf Judge Torres Bernardez in the same case: 'the concept of 'historic waters' and the concept of 'historic bay' are not synonymous inasmuch as 'historic waters' may exist without the waters concerned belonging to a 'historic bay''; but he still sees such a bay as being 'historic waters' on the basis of the UN report.

[10]Ibid.

[11][1951] ICJ Reports 116 p 130.

[12]Respectively [1973] ICJ reports 3; and [1982] ICJ Reports 18, pp 32,63 and 71, referring to the Tunisian claim that it possessed well-established historic rights, including 'fixed and sedentary fisheries' in certain sea areas (historic rights from 'long-established fishing activities'). The ICJnoted the 'antiquity' and 'continuous exercise' of this exploitation over 'fixed fisheries'), and that Tunisia claimed that these rights had been 'recognized for centuries by other States'. The ICJ concluded that such rights continued to be 'governed by general international law'. Bouchez (op cit, pp 248) appropriately labels these rights as 'non-exclusive historic rights' in the high seas.

[13]UN Juridical Regime, p 13, paras 85-86.

[14]Y Blum,'Historic Rights' in Encyclopaedia of Public International Law, Vol 2 (Amsterdam, Elseview), 710-715.

[15]'Les Droits historiques de la Tunisie' in its Memorials (Pleadings, Vol 1,para 4.05); and J M Spinnato, 'Historic and Vital Bays; An Analysis of Libya's Claim to the Gulf of Sidra' (1983-1984)13 ODIL 65, p72.

[16][1974] ICJ Report3, p 29, para 67.

[17]The plenary Court decided that Iceland's extension of its exclusive fishery jurisdiction beyond 12 miles was 'not opposable' to the UK (or Germany) rather than being invalid erga omnes: but see the reference to 'historic rights' of the UK as such by Judge Ignacio-Pinto (p35); Judge Gros (Dissenting Opinion, ibid p 144, para 29); also Dissenting Opinion of Judge Petren (p 135); Declaration of Judge Nagengra Singh (p 39); Joint Separate Opinions of Judges Forster, Bengzon, Jininez de Arechaga, Nagendra Singh and Ruda (p 47); Separate Opinion of Judge Dillard, (p 55); and of Judge Waldock (p 120, para 33).

[18]ICJ Report3, p 197.

[19]Pleadings, Vol II, p 252, para 127.

[20]In this respect there is a broader analogy with a developing new custom in the law of the sea, the validity of application against another state there depending on whether that state has 'accepted or acquiesced in it' (Judge Waldock, Separate Opinion, p 120, para 34, citing Gidel(note 6), p 133-134. See also Pleadings, p 121, para 35).

[21][1974] ICJ Report3, p 99.

[22]Depuy, Pleadings, Vol 4, p 471.

[23]Reply of Libya, Pleadings, Vol 4, p 113, para 29.

[24]Tunisia/Libya, Reply of Libya, Pleadings, Vol 4,p 114, para 31 (areas 'adjacent to the coastal State').

[25]D W Nixon, 'A Comparative Analysis of Historic Bay Claims', attached as a Technical Annex (II-3) to the Reply of Libya, Pleadings, Vol 4, p 321,322.

[26]T Scovazzi in D Pharand and U Leanza, The Continental Shelf and Economic Zone Delimitation and Legal Regime (1993), p322.

[27]North Atlantic Fisheries Arbitration (1910) S Doc No 370, 61st Cong, 3rd Sess, VolXX, Award of the Tribunal.

[28]Pleadings, 31 July 1950, p 532.

[29]Regarding Applicable Law, UNCLOS Article 293 clearly states: 'A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.'

[30]Namely, in the Anglo-Norwegian Fisheries Case (hereafter, the 'Fisheries Case') 1951, the Tunisia/Libya Continental Shelf Case [1982] ICJ Reports, 18, and most recently, the Land, Island and Frontier Case (hereafter, the 'El Salvador/Honduras Case'), 1990.

[31]No 128 Original: Report of the Special Master on Six Motions for Partial Summary Judgment and One Motion for Confirmation of a Disclaimer of Title, March 2004, p 13-14.

[32]US v Louisiana394 US 11(1969), p 75.

[33]For convenience of reference the date of the plenary Supreme Court decision in this case is used throughout (reported in 545 US 75 (2005)).

[34]Reply of Libya citing the UN Juridical Regime of 1962, Pleadings, Vol 4, p115, para33) relating to the allegation that Tunisia had to show exclusive fishing in the Gulf; and that the limited Tunisian claim to surveillance and control over the fixed and sedentary fisheries (the sponge fisheries) was not adequate for a claim to internal waters as jurisdiction must be 'commensurate'.

[35]Reed, p 324. He defines such 'tidelands' cases (p 392) as that 'body of litigation between the federal government and the coastal states that has determinate ownership over submerged lands and resources seaward of the coastline and defined that coastline through the application of international law.'

[36]Alaska's Exceptions,in Alaska v US (2005), p 29,to prove that discriminatory enforcement of fishing regulations against foreigners is an 'assertion of authority to exclude foreign vessels which gives rise to historic waters status', citing the UN study, p 13-14.

[37]Special Master's XX Report, in Alaska v US (2005), p 137,(at least 'one influential source' - ie, the Juridical Regime, p 20-21) suggested that two nations in some instances jointly may form historical waters.

[38]W T Burke, The Public Orderof the Oceans(1962), p 259.

[39]Pharand, for example, describes the UN documents as 'a very helpful source of information' on same see 'Historic Waters in International Law, with Special Reference to the Arctic' (1971) XXI Toronto Law Journal 1, p 6.

[40]Ibid, p 361.

[41]This expressly stated that the previous Secretariat's Memorandum 'contain[ed] a comprehensive enumeration [of historic bays]', and that 'it would be difficult to make useful additions thereto without consulting the Governments'.

[42]See note 30, p 34.

[43]These allegedly first appear as 'historic' bays in a letter of 1936 (to Professor Charteris from the Australian navy office), which was later reproduced merely in a footnote in his textbook on international law 'and ha[d] been reluctantly cited as an authority ever since' (ibid, p332).

[44]Dupuy, Pleadings, Vol4, p 466; and see Libyan Memorial, Pleadings, Vol 1,p 505, para 139 (academic writers had treated the regime of the Gulf of Gabes with caution apart from Francois in his ILC Report).

[45]Reply of El Salvador, Pleadings, VolIV, p 190-192.

[46]Ibid, 190.

[47]See note 6,p 626-627,and 'Oppenheim', ed Lauteroacht, Vol 1, International Law, p 593-594. Cf. the Dissenting opinion of Judge Oda on this, p 747, para 28 (statements carrying 'little cumulative value').

[48]International Hydrographic Organization, Limits of Oceans and Seas 30-31 (3rd edn,1953), available at www.iho.int/ihopubs/standard/S-23/S23_1953.pdf; China Institute of Marine Affairs, State Oceanic Administration; Zhong Guo,Hair Yang Fa Zhan Bao Gao [translation: China's Ocean Development Report] (2011) 19-20. 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 Hasjim Djalal, 'Indonesia and the South China Sea Initiative'32 Ocean Dev & Int'l L (2001), 97, 98.

[49]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, [translation: Collection of materials regarding the geographical names of the islands in Southern China Sea] (1987)164-168. 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 (1982) 183-194.

[50]Nguyen Hong Thao andRamses Amer, 'A New Legal Arrangement for the South China Sea?'40 Ocean Dev. & Int'l L. (2012) 333, 334.

[51]Zhao Lihai, Guan Yu ¨Nan Hai Zhu Dao De Ruo Gan Fa Lu ¨Wen Ti[translation: Certain Legal Questions Concerning Islands in the South China Sea)],4 FA ZHI YU ¨ SHE HUI FA ZHAN [RULE L. & SOCIETAL DEV.] 50, 51-52 (1995); Tao Cheng, 'The Dispute over the South China Sea Islands', 10 Tex. Int'l L.J. (1975) 265, 266-267.

[52]Article 122 of UNCLOS 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 a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.'

[53]John O'Callaghan, 'Southeast Asia Splashes Out on Defense, Mostly Maritime' (Reuters, 7 October2012)www.reuters.com/article/2012/ 10/07/us-defence-southeastasia-idUSBRE8960JY20121007(between 2002 and 2011, defence spending by Southeast Asian countries grew by 42per cent in real terms).

[54]Wo Gui Nan Hai Zhu Dai Shi Liao Hui Bian [translation: Collection Of Historical Materials Concerning Our Country's Islands In The South China Sea] (1988) Han Zhenhua, Lin Jinzhi andWu Fengqi eds, (hereinafter 'Collection Of Historical Materials'); Nan Hai Wen Ti Wen Xian Hui Bian [translation: Collection Of Documents On The Issue Of The South China Sea] (2001) Wu Shicun, Li Xiuling, Zhong Tianxiang, Wu Yan andFu Yu (hereinafter 'Collection Of Documents On The Issue Of The South China Sea'].

[55]Ministry of Foreign Affairs of the People's Republic of China, Nan Hai Zhuan Ti,[The Issue of the South China Sea], pt II (22 November2000), at www.fmprc.gov.cn/chn/pds/ziliao/zt/ywzt/wzzt/2305.

[56]Brice Swanson, Eighth Voyage of the Dragon: A History of China's Quest for Seapower (1982) 37-38, p121-122.

[57]Chen Yan, 'Lun Hai Shang Xi Chou Zhi Lu Yu Zhong Wai Wen Hua Jiao Liu'[translation: 'The Maritime Silk Roadand Sino-Foreign Cultural Relations'], in Zhong Guo Yu Hai Shang Si Chou Zhi Lu [translation: China And The Maritime Silk Route: Proceedings Of The Unesco Quanzhou International Seminar On China And The Maritime Routes Of The Silk Roads] 1 (1991) 1-4. 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'[translation: 'Great Achievement of Zheng He in Seafaring by His Voyages'], in China And The Maritime Silk Route, 266, 270.

[58]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, 86, 87, 89, 91-92.

[59]CollectionOf Documents On The Issue Of The South China Sea, 13-19 (reproducing the commission's bulletin, especially the pages on which the list of names was set forth).

[60]Hungdah Chiu andChoon-Ho Park, 'Legal Status of the Paracel and Spratly Islands', 32 Ocean Dev. & Int'l L. 1 (1975) 12-13. Deciding to protest, China immediately notified the French ambassador, on 4 August 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 islets. See Collection of Historical Materials, 261 (reporting the statement by the spokesperson of the Chinese Foreign Ministry); Collection Of Documents On The Issue Of The South China Sea, 8 (the original Chinese note verbale).

[61]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 US Department of State, The Axis In Defeat: A Collection of Documents on American Policy Toward Germany and Japan(1946) 4 -5, 27-28.

[62]Collection of Materials Regarding the Geographical Names of the Islands in Southern China Sea, 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, 181-182 (reproducing a resolution 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).

[63]Daniel J Dzurek, The Spratly Islands Dispute: Who's On First? (1996) 12, 14, 46-47, 49, suggesting that the dashed lines roughly followed the 200-metre 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.

[64]Collectionof Documents on the Foreign Relations of the People's Republic of China (1956-1957) (1961) 61-62.

36 Collectionof Documents on the Foreign Relations of the People's Republic of China (1951-1953),(1961)30.

[65]Jia Yu, 'Nan Hai 'Duan Xu Xian' De Fa Lu ¨ 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] (2005) 112, 113. 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. Ibid, 115, 120.

[66]Ibid,112, 113. 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.

[67]Legislative Affairs Commission of the Standing Committeeof the National People's Congress of the People's Republic of China, The Laws of the People's Republic of China (1983-1986), (1987)146. 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), (1990) 249.

[68]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 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.

[69]United Nations, Division for Ocean Affairs and Law of the Sea, Declarations and Statements, at www.un.org/Depts/los/convention_agreements/convention_declarations.htm.

[70]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] (1998) 8.

[71]Zou Keyuan, 'China's U-Shaped Line in the South China Sea Revisited', 43 Ocean Dev. & Int'l L. (2012) 18, including 'dotted-line', 'tongue-shaped line', 'U-shaped line', and 'nine interrupted-lines').

[72]Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), 2008 ICJ Rep12, para 222, deeming 'ownership'equivalent to sovereignty.

[73]Kuen-Chen Fu, Nan (Zhong Guo) Hai Fa Lu ¨ Di Wei Zhi Yan Jiu [Legal Status of the South (China) Sea](1995) 3- 44.

[74]As stated in the discussion of discovery, occupation, and prescription, the initial state act of taking possession of a territory is not sufficient to settle the matter of ownership. The right to possess the territory depends, in modern times, on the reaction of other states; the possession must be continuous, peaceful, and unopposed - the common requirements for claims by occupation, prescription and historic title. The two notions, recognition and acquiescence, do not create title, but they perpetuate actual control of territory and acts of state authority, so that the latter become the basis of a title erga omnes. Recognition may take the form of a unilateral, express declaration or may occur in treaty provisions that one state was ceding to the other its control or authority over the territory. Thus, in Legal Status of Eastern Greenland, the Permanent Court of International Justice considered that Denmark could rely on other states' recognition of its title to Greenland in the form of treaties concluded between them. Those treaties showed a willingness on the part of those other states to admit Denmark's right to Greenland. Even Norway was a party to some of those treaties. The Court then considered that Norway was, by its conduct, debarred or estopped from challenging Danish sovereignty over the disputed territory.

[75]Eritrea v Yemen, First Stage, Territorial Sovereignty and Scope of the Dispute, note 114, para 126.

[76]For example, Li Jinming andLi Dexia observe: 'Upon the declaration of the nine-dotted line, the international community at no time expressed dissent. None of the adjacent states presented a diplomatic protest. This silence in the face of a public declaration may be said to amount to acquiescence, and it can be asserted that the dotted line has been recognized for half a century.' Li Jinming andLi Dexia, 'The Dotted Line on the Chinese Map of the South China Sea: A Note, 34 Ocean Dev. & Int'l L. (2003) 287.

[77]China declared in Note Verbale No CML/8/2011, that 'China's Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.'Note that the statement is limited to the Spratly (Nansha) Islands because it is a response to a note by the Philippines, which does not have any claim in respect of other islands. Presumably, however, China would make the same claim in relation to the Paracel Islands.

[78]Zou Keyuan, 'Historic Rights in International Law and in China's Practice', 32 Ocean Dev. & Int'l L. (2001) 149, 160.

[79]SuHao, China'sPositions and Interests in the South China Sea: A Rational Choices [sic] in its Cooperative Policies(2011), available at http://csis.org/publication/chinas-positions-and-interests-south-china-sea-rational-choices-its-cooperative-policies; Nozomu Hayashi, 'Official Says Beijing Has 'Historical Rights'over South China Sea', (Asahi Shimbun, 26 January 2012), available at http://ajw.asahi.com/article/asia/china/AJ201201260061.

[80]Li Guoqiang, 'Claim over Islands Legitimate'(China Daily, 22July 2011), at www.chinadaily.com.cn/cndy/2011-07/22/content_12956340.htm; Jianming Shen, 'International Law Rules and Historical Evidences Supporting China's Title to the South China Sea Islands', 21 Hastings Int'l & Comp. L. Rev. 1 (1997); Pan Shiying, South China Sea and the International Practice of the Historic Title (1994).

[81]Yann-HueiSong and Peter Kien-hong Yu, 'China's 'Historic Waters' in the South China Sea', Am.Asian Rev.,Winter 1994, 83, available at http://paracelspratlyislands.blogspot.com.au/2008/01/chinas-historic-waters-in-south-china.html.