The Chinese Historic Waters as an Exceptional Regime in Ocean Development
In January 2014, a US official for the first time challenged the Chinese U-shaped line in the South China Sea (SCS). In the following month, Washington asked Taipei to define it. One of the reasons could be that the term, historic waters, is not mentioned in the December 1982 United Nations Convention on the Law of the Sea (UNCLOS), yet the Preamble of which has the following words: Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.
In March 1962, the United Nations (UN) Secretariat of the International Law Commission (ILC) published the following seminal study, Juridical Regime of Historic Waters, Including Historic Bay (document A/CN.4/143). On page 6, we were told that it is not possible to define the term, historic waters. However, in another source, we found International Court of Justice (ICJ)’s definition of historic waters in the December 1951 Anglo-Norwegian Fisheries Case as “waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title” (cited in Bautista 2011, p. 36.). On pages 7, 10, and 12 of the March 1962 document, readers are advised that they can regard historic waters as an exceptional regime in international law or an exception to the general rules of international law or customary law (See also Symmons 2008).
This chapter mainly relies on what has been said in the first paragraph to argue that it is possible to dialectically and collectively treat the Chinese historic waters in general and the U-shaped line in particular in much of the SCS as something embracing all of the following maritime zones by applying my one-dot theory: (exceptional) internal waters, (exceptional) territorial sea, (exceptional) contiguous zone, and (exceptional) exclusive economic zone (EEZ), which have become part of the United Nations Convention on the Law of the Sea (UNCLOS). We can also, for example, describe and explain the remaining pockets or other sea areas/QiTaHaiYu of historic waters, treating them as maritime commons governed and managed by one of its multinational or transnational corporations. Arguably, this legal rationale or regime can deflect critics and detractors’ comments and remarks.
Just as there are many flaws, loopholes, as well as ambiguities and deficiencies in the UNCLOS, it is suggested that all the fellow or multiple (dormant) claimants of the SCS, such as the Republic of Philippines (ROP), should first dissolve contradictions between their domestic legislation and international legal obligations regarding their historic waters as well as territorial waters and archipelagic waters, (See, for example, Bautista, 2011) before ShuoSanDaoSi/having an ax to grind, that is, challenging the Chinese historic waters and the U-shaped line.
KeywordsLaw of the Sea Historic waters South China Sea Dialectics One-dot theory
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