China's Nine Dotted Lines in the South China Sea: The 2011 Exchange of Diplomatic Notes Between the Philippines and China

Abstract Important events relating to the sovereignty dispute over the Spratly Islands have arisen by fits and starts since 2009, marking the start of a new phase in the legal battle over territorial and maritime claims in the South China Sea. While the exchange of legal arguments between the parties has gradually laid bare their maritime claims, much still remains shrouded in uncertainty. Among the obscure claims wanting clarification is China's infamous nine-dotted-line map, which in 2011 elicited a response and counterresponse between the Philippines and China. This article examines the maritime and territorial claims of the Philippines and China as revealed in the recent discord over the nine-dotted-line map. Keywords: Chinathe PhilippinesSouth China Sea Acknowledgments This article benefits extensively from an online discussion organized by the Centre for South China Sea Studies, Diplomatic Academy of Vietnam. Special thanks go to Duong Danh Huy, Nguyen Thi Thanh Ha, Tran Truong Thuy, Tran Van Thuy, and Vu Hai Dang, whose comments and interventions made the authors alter some of their original views. Nguyen-Dang Thang would also like to thank Barbara Miltner and Zhen Sun for valuable materials and linguistic counsel. The usual disclaimer applies. Notes 1. Since the People's Republic of China (China) and the Republic of China (Taiwan) maintain broadly similar claims on the South China Sea (SCS) issues, the discussion in this article focuses on the positions of the former and highlight, where necessary, the views of the latter. For comparison of the claims, see Yann-Huei Song and Zou Keyuan, “Maritime Legislation of Mainland China and Taiwan: Developments, Comparison, Implications, and Potential Challenges for the United States,” Ocean Development and International Law 31 (2000): 303–345. For a recent study on the Taiwanese claim, see Kuan-Hsiung Wang, “The ROC's Maritime Claims and Practices with Special Reference to the South China Sea,” Ocean Development and International Law 41 (2010): 237–252. 2. See Clive Schofield, “Dangerous Ground: A Geopolitical Overview of the South China Sea,” in Security and International Politics in the South China Sea: Towards a Co-operative Management Regime, eds. S. Bateman and R. Emmers (London: Routledge, 2009), 7–25, 12–18. He comments that the features of the Spratly Islands do not have much intrinsic value in themselves with the issue being the potential to generate large maritime zones and hence entitle claimant states to exploit marine natural resources there, particularly oil and gas. 3. The Commission on the Limits of the Continental Shelf (CLCS) was established pursuant to the United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 U.N.T.S. 396 (LOS Convention), see the CLCS Web site at www.un.org/Depts/los/clcs_new/clcs_home.htm.Annex II, Article 4, provides that a coastal state is to make its submission with respect to the outer limit of its continental shelf beyond 200 nautical miles to the CLCS no later than 10 years after the entry into force of the Convention in relation to that state. Given the difficulty that developing countries face in meeting this original timeline, the states parties to the LOS Convention set 13 May 1999, the date of the CLCS's adoption of the Scientific and Technical Guidelines, as the starting date for the calculation of the 10-year time limit. 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,” SPLOS/72, 29 May 2001, paragraph a, available at the Web site of the UN Division for Ocean Affairs and the Law of the Sea (DOALOS), www.un.org/Depts/los/index.htm. For background on the issue, see “Issues with respect to article 4 of Annex II to the Convention (ten-year time limit for submissions),” at the DOALOS Web site. 4. Malaysia-Vietnam, “Executive Summary: Joint Submission to the Commission,” 6 May 2009; and Vietnam, “Executive Summary: Submission to the Commission Concerning the North Area,” 7 May 2009, available at the CLCS Web site, supra note 3. 5. For a comprehensive assessment of the situation in the SCS after 2009, see Ted L. McDorman, “The South China Sea After 2009: Clarity of Claims and Enhanced Prospects for Regional Cooperation?” Ocean Yearbook (2010): 507–535. 6. Clive Schofield, and Ian Townsend-Gault, “Brokering Cooperation Amidst Competing Maritime Claims: Preventative Diplomacy in the Gulf of Thailand and South China Sea,” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M Johnston, eds. A. E. Chircop, T. L. McDorman, and S. Rolston (Leiden: Martinus Nijhoff, 2009), 643–670, 652. 7. See, generally, Li Jinming, and Li Dexia. “The Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Development and International Law 34 (2003): 287–95. 8. See China, Note Verbale No. CML/17/2009, 7 May 2009 relating to the Malaysia-Vietnam Joint Submission to the Commission; and Note Verbale No. CML/18/2009, 7 May 2009, relating to the Vietnam Submission to the Commission concerning the Northern Area (China's 2009 Notes Verbale), available at the CLCS Web site, supra note 3. 9. Malaysia, though stating that its submission to the Commission constituted a legitimate undertaking under the LOS Convention, refrained from addressing directly China's nine-dotted-line claim and stated only that the submission was without prejudice to, inter alia, “the position [sic] of States which are parties to a land or maritime dispute in consonance with Paragraph (5) of Annex I to the [CLCS's] Rules of Procedure.” Malaysia, Note Verbale No. HA 24/09, 20 May 2009, available at the CLCS Web site, supra note 3.For Vietnam's reaction, see Note Verbale No. 86/HC-2009, 8 May 2009, available at the CLCS Web site, supra note 3. 10. Indonesia, Note Verbale No. 480/POL-703/VII/10, 8 July 2010, available at the CLCS Web site, supra note 3. See also “Remarks by Secretary Hilary Clinton at the 17th ARF Meeting in Hanoi on 23 July 2010,” where she stated that “consistent with customary international law, legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features,” available at www.state.gov/secretary/rm/2010/07/145095.htm (accessed 27 May 2011). 11. No official position has been revealed as to the meaning and legal basis of the lines. Reportedly Taiwan is of the view that the nine dotted lines delineate historic waters. See Nien-Tsu Alfred Hu, “South China Sea: Troubled Waters or a Sea of Opportunity?” Ocean Development and International Law 41 (2010): 203–213, 207. Chinese scholars have been active in their discussion of the lines, but their arguments are deeply divided on both the validity and meaning of the lines. Even among those who think that the lines are defensible under international law, opinions differ and change over time. See, for example, Gao Zhiguo, “The South China Sea: From Conflict to Cooperation,” Ocean Development and International Law 25 (1994): 345–359, and Kuan-Hsiung Wang, supra note 1 (for the view that the dotted lines serve to allocate island sovereignty rather than to delimit maritime boundary); 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,” International Journal of Marine and Coastal Law 14 (1999): 27–55 (for the view that the nine dotted lines define islands under China's sovereignty and their adjacent waters that are not yet defined); Zou Keyuan, “Historic Rights in International Law and in China's Practice,” Ocean Development and International Law 32 (2001): 149–168 (for the view that the maps depict the scope of Chinese historic rights, which do not amount to full sovereignty but only “tempered sovereignty” in the SCS); Ji Guoxing, “Outer Continental Shelf Claims in the South China Sea: A New Challenge to China's U-Shaped Line,” in International Workshop on Non-traditional Security Cooperation in the South China Sea (Haikou, 2010) (supporting the “tempered sovereignty” view); Peter Kien-Hong Yu, “The Chinese (Broken) U-shaped Line in the South China Sea: Points, Lines, and Zones,” Contemporary Southeast Asia: A Journal of International and Strategic Affairs 25 (2003): 405–430 (for the view that the line delimit China's historic waters); and Li Jinming and Li Dexia, supra note 7 (for the view that the lines are a traditional maritime boundary with dual functions to define China's sovereignty over the Paracel and Spratly Islands and to delimit according to the median line principle the maritime zones of China and the coastal states concerned). See also 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,” International Journal of Marine and Coastal Law 14 (1999): 27–55, and Zou Keyuan, “South China Sea Studies in China: Achievements, Constraints and Prospects,” Singapore Year Book of International Law 11 (2007): 88–92 (for a useful summary of conflicting views in the Chinese literature on this issue). 12. See Vietnam's 2009 Note Verbale, supra note 9. Vietnam, like Malaysia, also states that its submissions constituted legitimate undertakings in implementation of the obligations of the states parties to the LOS Convention. 13. Besides the Spratly Islands dispute, there is a bilateral sovereignty dispute over the Paracel Islands that lie to the north of the SCS. For an account of island disputes in bilateral relations between China and Vietnam, see Monique Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands (The Hague: Kluwer Law International, 2000). 14. Vietnam's 2009 Note Verbale, supra note 9. 15. Indonesia's 2010 Note Verbale, supra note 10, para. 2. In acknowledging that “there is no clear explanation as to the legal basis, the method of drawing, and the status of those separated dotted-lines,” Indonesia formulated its proposition in a tentative manner, using “it seems that” as the introductory phrase. Such prudence is necessary because Indonesia, a third party in the SCS island disputes, could not challenge the nine dotted lines were they only to denote China's sovereignty over islands, a view long held by Indonesia. See H. Djalal, “South China Sea Island Disputes,” Raffles Bulletin of Zoology Supplement 8 (2000): 9–21. 16. Indonesia's 2010 Note Verbale, supra note 10, para. 4. 17. Ibid., para. 3. 18. Philippines, Note Verbale No. 000228, 5 April 2011, available at the CLCS Web site, supra note 3. The Philippine Note Verbale is reproduced in Appendix 1 of this article. 19. China, Note Verbale No. CML/8/2011, 14 April 2011, available at the CLCS Web site, supra note 3. The Chinese Note Verbale is reproduced in Appendix 2 of this article. The text used for the discussion is the English translation. Where necessary, the corresponding Chinese terms will be highlighted. 20. The classic historical work is Marwyn S. Samuels, Contest for the South China Sea (New York: Methuen, 1982). 21. A useful summary and review of claims to the Spratly Islands is in Daniel J. Dzurek, “The Spratlys Island Dispute: Who's on First?” Maritime Briefings 2 (1996): 1; Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff, 1997), chap. 3; Ralf Emmers, Geopolitics and Maritime Territorial Disputes in East Asia (London: Routledge, 2009), chap. 4; and McDorman, supra note 5, at 512–521. 22. Other islands claimed by China include the Paracel Islands (also claimed by Taiwan and Vietnam), the Pratas Islands (controlled by Taiwan), and Scaborough Reef (also claimed by the Philippines). See Jeanette Greenfield, China's Practice in the Law of the Sea (Oxford: Clarendon Press, 1992), 149–59. Regarding the Scarborough Reef, see infra note 55 and accompanying text. 23. The official position is stated in China, “Historical Evidence to Support China's Sovereignty over Nansha Islands,” 17 November 2000, available at www.fmprc.gov.cn/eng/topics/3754/t19231.htm (accessed 14 February 2009). 24. See ibid.; and Li Jinming and Li Dexia, supra note 7, at 289. 25. For an account of the history of the nine dotted lines, see Zou Keyuan, “The Chinese Traditional Maritime Boundary,” supra note 11, 32–34; and Li Jinming and Li Dexia, supra note 7. The early maps depicted eleven lines, but the two lines in the Gulf of Tonkin have been removed since 1953. 26. The distance between Hainan Island, China's southernmost mainland area, and the nearest feature of the Spratly Islands is more than 500 nautical miles. 27. LOS Convention, supra note 3, Article 121 makes a distinction between an island and a rock. The former is entitled to an EEZ and continental shelf while the latter is not. 28. China, Exclusive Economic Zone and Continental Shelf Act of 26 June 1998, available at the DOALOS Web site, supra note 3. 29. China, Law on the Territorial Sea and the Contiguous Zone of 25 February 1992, available at the DOALOS Web site, supra note 3. 30. EEZ and Continental Shelf Act, supra note 28. 31. The dominant view among Chinese scholars is that the geographic scope of China's historic rights in the SCS is defined by the nine dotted lines. Many scholars also argue that the lines are the median line between China's islands on the one hand and the relevant coasts of the other states on the other. See Li Jinming and Li Dexia, supra note 7, at 294; and Kuan-Hsiung Wang, supra note 1. But see infra note 107 and accompanying text. 32. Zou Keyuan, “Historic Rights,” supra note 11, suggests that the contents of the historic rights are first “sovereign rights to the water column.” But he does not explain how these rights have crystallized. It is improbable that such historic fishing rights were claimed in 1947 when China adhered to the view that the territorial sea could not extend beyond 3 nautical miles, leaving much of the SCS open to fishing. On the other hand, it is unreasonable to think that China reduced its sovereignty-like historic rights to something less than sovereignty. 33. China's 2009 Notes Verbale, supra note 8. 34. McDorman, supra note 5, at 514. This interpretation appears to treat the phrase “see attached map” bracketed at the end of the sentence to complement the immediate preceding phrase where China claims that it “enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.” China's 2009 Notes Verbale, supra note 8. An alternative interpretation is that the map depicts the scope of China's claims stated in the entire sentence; that is, to include “sovereignty over the islands in the SCS and the adjacent waters.” 35. This was expressed in China's reaction to Japan's 2008 submission to the CLCS. Japan, “Executive Summary: Submission to the Commission,” 12 November 2008, available at the CLCS Web site, supra note 3. China, Note Verbale No. CML/2/2009, 6 February 2009, available at the CLCS Web site, supra note 3. See also McDorman, supra note 5, at 514–515, for a discussion. Indonesia's 2010 Note Verbale, supra note 10, also mentioned two statements by Chinese representatives at Law of the Sea Conferences where the same position was stated. 36. McDorman, supra note 5, at 514. 37. Ibid., at 515. 38. The most significant feature not claimed by the Philippines is the Spratly Island. See Valencia, Van Dyke, and Ludwig, supra note 21, at 33. 39. This name was considered a tactic by the Philippines to distinguish its claim from other claims to the Spratly Islands. This distinction is no longer maintained by the Philippines. See Dzurek, supra note 21, at 21. The name Kalayaan, which means Freedomland, is however believed to have been coined by Thomas Cloma. See infra note 40. 40. In 1956, Thomas a the of Taiwanese from the to some features in the Spratly Islands and Kalayaan, which Spratly Island. The Philippine in It its in only after Taiwan on one of its The note in of this is considered the first official of the claim made by the Philippines to the Spratly Islands. In the the Philippines that Taiwan from Island and of islands, and See Samuels, supra note 21, at and M. Dispute: the of Sovereignty Marine (1994): It is that the Philippine first Spratly Islands in See Dzurek, supra note 21, at 21. The Philippines its See Valencia, Van Dyke, and Ludwig, supra note 21, at Area of the Philippine and for and No. of 11 June The text is reproduced in M. The Philippine A of of International Legal Studies, of the Philippines Law of It is that a claim to the Spratly Islands be from the phrase other to the Philippines by historic or legal in Article 1 on The of the Philippine See The of the Republic of the A Book 2009), 16. No. of 11 June LOS Convention, supra note 3, See and The International Law of the Sea (Oxford: Republic Act No. An Act to of Republic Act No. as by Republic Act No. to the of the Philippines, and for Other Law of the Sea Bulletin 32. See, for example, No. by which with 4 long the the Scarborough and the Island No. by which to define the Philippine in with international and to include the Island and and No. by L. which to define the of the Philippines by the geographic for the Scarborough from the Philippine of See J. R. Limits of Claims in the South China Sea (London: for a of how the Philippines could features in the Spratly Islands while still being in with the LOS Convention. See also the and Legal on the Potential Regional Conflict in the Spratly Islands,” in Workshop on the Spratly A Potential Regional Conflict of Southeast Studies, in Valencia, Van Dyke, and Ludwig, supra note 21, at in the as the Philippine Act, is as “The of this is that it to include the islands in the would not only be but also because would the and of who are also See Philippine February This view appears with the Philippine to China's the Paracel Islands because this of islands is in See of the of Affairs on the by China of the United Nations Convention on the Law of the Sea,” Law of the Sea Bulletin 32 (1996): Philippine Act, supra note See discussion Philippines, Note Verbale No. 4 2009; and Note Verbale No. 4 2009, available at the CLCS Web site, supra note 3. McDorman, supra note 5, at See Zou Keyuan, A New in Boundary and Security Bulletin 7 (1999): for a Ibid., at The Chinese official name of this is Island. See at See also China, on the that the Island a of the Philippine available at (accessed 7 May 2011). on the that the Island a of the Philippine supra note China's claim to Scarborough Reef also be considered its claim of the islands in the SCS. Keyuan, supra note at See at stating that the dispute over the Scarborough Reef between China and the Philippines in But see S. China, and Asia (New York: Press, for the view that the potential dispute over this feature been in a study in See 2011 Note Verbale, supra note paragraph China's 2009 Notes Verbale, supra note 8. The 2011 Note Verbale, supra note para. 2. Legal of 5 April No. states that jurisdiction is of the most of the of sovereign Ian of International Law (Oxford: Press, Philippine Act, supra note The of the Republic of the Philippines was in Article 1 of which is on the of the See L. “The Maritime and of the Philippines and the United Nations Convention on the Law of the Sea,” Philippine Law Journal (2001): For a summary of in Article 1 of the Philippine see supra note at The text of the relevant of the and Philippine are reproduced in supra note at and and also in at and Philippine supra note This is in an of the Philippine to inter alia, “the seabed and subsoil of the adjacent to the coastal state but the territorial sea supra note at 28. The is to the view of who was of the between sovereignty and jurisdiction and to a of Article 1 for the inter alia, that the the phrase “sovereignty or was while the of the phrase “sovereign that sovereignty was only an See of 10 July in No. 3 on Resolution No. on reproduced supra note at For the of see of July at LOS Convention, supra note 3, Article an island as being of by which is water at This is also to rock. The distinction between islands and is not See Maritime and Territorial and para. has been that islands and are to the and of territorial LOS Convention, supra note 3, supra note in Concerning Territorial and Maritime Dispute and in the Sea of 8 para. and Sovereignty over and South of 23 May 2008, para. an end to the between states as to islands include the of the of the continental the and its subsoil are considered as to sovereign rights of the coastal the “sovereign be considered as no less than sovereignty at the time of the Convention on the Continental U.N.T.S. such an has into For the history of the of sovereign rights, see The International Law of the Sea, 1 (Oxford: Clarendon Press, The in the Maritime International Law para. the continental shelf the not to be a of sovereignty. LOS Convention, supra note 3, For see supra note para. in supra note para. The be considered as of the seabed to which the coastal state sovereignty in the territorial sea See also LOS Convention, Article LOS Convention, supra note 3, and It is not to that sovereignty rights include See Concerning the Law of the Sea with Yearbook of the International Law Commission 2 on Article this be a interpretation of the of the continental shelf and sovereign rights, which under the of the sea are only rights to the “the and of natural such an interpretation is in of the of by the Philippine See supra and accompanying text. Philippine Act, supra note This is of a It is not the phrase to go with a while the does not. Philippine Act, supra note See, generally, Barbara and Alfred H. A to Maritime of or Economic of Yearbook of International Law See 2011 Note Verbale, supra note para. 2. Ibid., the map” is Ibid., 3, sentence 2. Spratly Island is by Vietnam. in the than Spratly Island in the of by Taiwan), Thi by the and Island by the Philippines). The feature is, according to some not than Spratly Island. For a useful of relating to the Spratly see Valencia, Van Dyke, and Ludwig, supra note 21, Appendix at For the view that which also the and is than Spratly Island, also be as an island of an EEZ and continental see Thi “The South China Sea Dispute: A in the of International 2008, of of The Philippines is at to explain that the over which there was a dispute with China in 2011, its continental shelf though the See the Philippines, by the of the on 23 May available at (accessed 25 May 2011). supra note at See Clive and I the Continental Shelf and Challenges in East and Southeast Contemporary Southeast Asia: A Journal of International and Strategic Affairs 31 China's 2011 Note Verbale, supra note 19. China's 2009 Notes Verbale, supra note 8. China's 2011 Note Verbale, supra note 19. Ibid., para. sentence 2 The terms sovereign rights and rights are and in Chinese text. The view of the of is that historic rights are an that from the of international See Clive Waters in the Law of the Sea: A (Leiden: Martinus Nijhoff, and “Historic in of International R. Press, 2008, online para. 8. on the that the Island a of the Philippine supra note This is into in the original text. The of this principle is in the original text. China, Evidence to Support China's Sovereignty over the Nansha Islands,” 17 November 2000, available at (accessed 14 February 2009), See Li Jinming and Li Dexia, supra note 7, at 289. See Zou Keyuan, “The Chinese Traditional Boundary,” supra note 11, at China's 2011 Note Verbale, supra note 19. China's position have been from a and of 2 of the and The Law on the Territorial Sea, supra note China's to include the Nansha Islands. The EEZ and Continental Shelf Act, supra note the continental shelf of China as “the seabed and subsoil of the that extend beyond its territorial sea the natural of its land McDorman, supra note 5, at Indonesia's 2010 Note Verbale, supra note 10. China, of the of the People's Republic of China on the of the Territorial Sea, May Law of the Sea Bulletin 32 (1996): See Li Jinming and Li Dexia, supra note 7, at 294; and Kuan-Hsiung Wang, supra note 1. See Valencia, Van Dyke, and Ludwig, supra note 21, at for maps as both China's nine dotted lines and the EEZ and Continental Shelf Act, supra note 2. See Kien-Hong Yu, supra note 11, at note where it is that who the lines not the for EEZ and Continental Shelf Act, supra note 14. For the that the nine dotted lines define China's historical rights in the see Zou Keyuan, “Historic Rights,” supra note 7. See, for example, Jon Van Dyke, over Islands and Maritime in East in Maritime Boundary and the Law of the Sea, eds. and J. M. Van (Leiden: Martinus Nijhoff, 2009), and Clive and Ian Townsend-Gault, supra note at On of see International Law of of the of the International Law Commission relating to of States,” 20 July See R. and A. “The Philippine over the Spratly of An of Article of the Philippine Law Journal for the that the continental shelf the seabed and See also and supra note at for the that the Philippines that it claim a continental shelf beyond 200 nautical miles in the of the See supra note paragraph and the China's 2009 Notes Verbale, supra note 8.