The general situation in the South China Sea (SCS) was relatively peaceful and tranquil before July 2010. At that point, then-US Secretary of State Hillary Clinton for the first time tried to “upgrade” the SCS into a (global) maritime commons. Leaders on both sides of the Taiwan Strait may well have to face her if she is elected as the next American President in November.
In January 2013, the Republic of the Philippines (ROP) instituted arbitral proceedings at the Permanent Court of Arbitration (PCA) against the People’s Republic of China (PRC), pursuant to Articles 286 and 287 of the December 1982 United Nations Convention on the Law of the Sea (UNCLOS) and in accordance with Article 1 of Annex VII to the Convention. In May 2016, Antonio T. Carpio, who is an incumbent Senior Associate Justice of the Supreme Court of the ROP, revealed that the PCA will not announce its verdict, until either June or July of this year. The PCA assists temporary tribunals to resolve disputes among States (and similar entities), intergovernmental organizations, or even private parties, arising out of international agreements. The cases span a range of legal issues involving territorial and maritime boundaries, and related sovereignty. It is expected that Manila can score some propaganda points but not many. After that, the Chinese nation1 will still have to tackle some thorny, unresolved issues, just two of which I will now turn to.
The first issue concerns the nature of the Chinese U-shaped line. To be sure, the original boundary marker on the map was borrowed from the land territory, when the Republic of China (ROC) government was still ruling the Chinese mainland. Up to this day, both Taipei and Beijing have not yet officially spelled out the nature of this line. This marker is different from the official maps published in both Taiwan and the Chinese mainland. In most publications, they only mention the 11-dash or 9-dash line. Unofficially, we see the following interpretations: 1. boundary line; 2. historic waters, which is a common definition including historic bays, pools, sounds, straits, or even the sea; 3. historic rights of line; and 4. Chinese possession, for example, of the Nan Sha Qun Dao / Spratlys or the line of attribution of the islands therein. The fifth one is put forward by me: Everything within the U-shaped line is a double-insurance package of historic waters and non-historic waters, the latter of which refers to the sum of internal waters, territorial waters, contiguous zone, exclusive economic zone, continental shelf, and other sea areas — “Qi Ta Hai Yu” as mentioned in the December 1999 Marine Environment Protection Law of the PRC.
We can certainly emphasize that the U-shaped line has its international regimes (ir) dimension. The term “ir” is abstract. Another term, “maritime commons” is even more abstract than the term, “ir”. A commons also has its “ir” and non-“ir” dimensions. Regimes only exist in our minds and hearts. Regimes come and go. To many, if not most people in the West, they can readily grasp that abstract term, “ir”. If international regimes are formed, maintained, and sustained in certain area, the outcome of each regime can bring about 100 percent common good to all the parties using the SCS, plus airspace, outer space above this body of waters, and cyber space. To shore up each regime at sea, both Taipei and Beijing should first publicize the mechanisms involved in such cases, such as which vessel is 100 percent responsible for countering terrorism at sea, and measures such as training captains and crew members to strictly comply with legally binding normative instruments such as code of conduct.
Hugo Grotius promoted the freedom of the sea doctrine, and the Chinese nation, thanks to him, definitely can enclose portions of the SCS as their national or private property.
The second issue is that the U-shaped line has been criticized for its excessiveness. Some academics and experts have referred to that body of water as internal waters with no innocent passage nor freedom of navigation allowed, while others have treated it as historic waters. Regarding the former, what the Chinese nation should emphasize is that the line is exceptional, in accordance with the March 1962 seminal study, Juridical Regime of Historic Waters, Including Historic Bay (United Nations Document A/CN.4/143).
What should both Taipei and Beijing do with the SCS? First, in August 2006, Beijing at the UN said for the first time it will handle the SCS issues politically. Both sides of the Taiwan Strait should cooperate politically and coordinate with each other.
Second, in the 21st century, a community of countries still possesses historic waters. In May 2016, Beijing said more than 40 countries support its SCS position, and, in the following month, the number increased, reaching close to 60. Both sides of the Taiwan Strait should try to garner support from all those countries which have historic waters. J. Ashley Roach and Robert W. Smith, while acknowledging that what they have written does not necessarily reflect the views and opinions of the US Naval War College, the Department of Navy, or the Department of Defense, have identified the following 19 countries that have historic waters: Argentina, Australia, Cambodia, Canada, Dominican Republic, Egypt, El Salvador, Honduras, India, Italy, Kenya, Libya, Panama, Russia, Sri Lanka, Thailand, Uruguay, Vietnam, and the United States. We can also add Nicaragua, Norway, Tonga, and the ROP. If Manila can have historic waters, why can’t the Chinese nation?
Third, both ROC and PRC under the one China principle must remind the world that Hugo Grotius promoted the freedom of the sea doctrine, and the Chinese nation, thanks to him, definitely can enclose portions of the SCS as their national or private property. To be sure, a state property rights regime has continuing relevance in contemporary (general) international law.
Finally, in line with the fifth interpretation mentioned above, Taipei and Beijing should designate a maritime commons area within the U-shaped line, which is equivalent to “other sea area,” so as to pacify an assertive Washington and other maritime powers. I would propose that Taipei and Beijing should jointly create a corporation to govern that privatized commons.
In sum, the U-shaped line is not infamous because historic waters, as acknowledged in the March 1962 UN document, simply cannot be properly defined in the first place.
1. Other terms are: two-halves China, Bicoastal China, both Republic of China (ROC) and PRC under the one China principle, Taiwan Authority of China and Mainland Authority of China.