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

Published online by Cambridge University Press:  29 November 2013

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

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

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

In cases involving territorial sovereignty and maritime delimitation disputes, maps are a form of evidence with which all states are very concerned, for maps can clearly and directly verify or refute the claims of relevant states, and thus play a significant part in the course of international maritime or land demarcation. The Chinese traditional maritime boundary lineFootnote 1 (U-line) in the South China Sea (SCS) and relevant maps are of great significance for China in its endeavour to safeguard its sovereignty, sovereign rights, and jurisdiction in the SCS.Footnote 2 However, China's maps with the U-line have been subject to frequent challenges by bordering states, as well as by some scholars. For example, Indonesia pointed out in its note verbale dated 8 July 2010:

Indonesia also follows closely the debate over the above mentioned map which has also been referred to as the so-called ‘nine-dotted-lines map.’ Thus far, there is no clear explanation as to the legal basis, the method of drawing, and the status of those separated dotted-lines.Footnote 3

In 2012, Erik Franckx and Marco Benatar published a paper in which they argue that China's claims in the SCS fall short of rationality and legitimacy and fail to consider the reasonable concerns of bordering states.Footnote 4 Their challenges are mainly focused on the validity of the U-line in the SCS, including the following five aspects:

  1. 1. that the U-line fails to clearly reflect the will of the Chinese state and that China has deliberately obscured its territorial claims in the SCS by employing terms absent from the United Nations Convention on the Law of the Sea (UNCLOS), namely “adjacent waters” and “relevant waters”;Footnote 5

  2. 2. the Chinese map lacks accuracy for its “excessively small scale” and “lack of a map legend” and, further, China, as a member state of the International Hydrographic Organization (IHO), has failed to observe the cartographic standards developed by the IHO for international maritime boundaries, such as territorial seas, contiguous zones, exclusive economic zones (EEZs), continental shelf, and fishing areas;

  3. 3. criticism of the “inconsistency” of China's U-line maps (released at different times), sometimes defined as eleven segments, nine dashes or even as ten sections, a defect which is compounded by the differences in specific positions of these segments in different maps;

  4. 4. the “patently evident” lack of neutrality in the U-line, which reflects only China's unilateral position and hardly takes into consideration the concerns and interests of other SCS bordering states; and

  5. 5. that China's SCS U-line maps have not been effectively recognized or acquiesced to by the bordering states or the international community.Footnote 6

Indeed, the Chinese claims are often criticized as lacking support from international law, inter alia, for their incompatibility with the provisions of the 1982 UNCLOS, which are considered to account for China's failure and inability to clarify the nature and contents of its historic right claims in the SCS.Footnote 7 It is contended that China, despite being a State Party to the UNCLOS, fails to observe the Convention as well as other relevant rules of international law. Second, China's claims are criticized as lacking historical and factual bases, and it is held that China is reluctant to submit the SCS disputes to arbitration by international judicial bodies for fear that its claims are unjustifiable.Footnote 8 Third, China's claims are regarded as excessive, lacking rationality and legitimacy, and they do not take into account the reasonable concerns of bordering states.Footnote 9 Fourth, China's advocacy for dispute resolution through bilateral negotiations, combined with its unwillingness to solve the SCS issues through multilateral consultations, are criticized as attempts to use its strength to bully the weak to ensure that the results of its negotiations are in its favour.Footnote 10 Fifth, China's development of its naval and maritime law enforcement is apprehended as posing a threat to the freedom of navigation in the SCS.Footnote 11 Such criticisms, partly arising from either intentionally or unintentionally misleading reports, have given rise to apprehensions in the international community that China is a bully, which does not pay due regard to international law as it contends for spheres of influence and seeks hegemony. Such misleading reports have bolstered the increasingly popular “China Threat Theory”, resulting in serious damage to China's national image.Footnote 12

It is true that various versions regarding the nature and validity of the SCS U-line map exist in academic discussions.Footnote 13 Vagueness can also be found, to some extent, in China's official position on the issue. Further studies focused on the validity of the map evidence, together with necessary clarification to address challenges, could reduce misunderstandings, enhance mutual trust, and safeguard regional peace and stability.

It is acknowledged that maps play an indispensable role in the process of determining the land and maritime boundary of a state. An accurately drawn map, which gives full definition to the state's will can play a significant role in resolving interstate disputes over boundary delimitation.Footnote 14 Therefore, almost without exception, states regard maps as important evidence to prove their territorial claims. However, as has been observed by the International Court of Justice (ICJ), in its Judgment of the Case Concerning the Frontier Dispute between Burkina Faso and the Republic of Mali in 1986, that:

except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that they cannot be given the character of a rebuttable or juris tantum presumption such as to effect a reversal of the onus of proof.Footnote 15

As a general rule, the probative force of a map alone is limited, as a state's will cannot be judged from the map itself. The authenticity, reliability, and relevance of a map have to be judged in conjunction with other evidence in the process of reconstructing facts, so as to determine the function and weight of the map. Generally speaking, the admissibility and probative force of map evidence in international law are subject to at least the following five considerations:

  1. 1. its physical expression of a state's will;

  2. 2. its accuracy;

  3. 3. its neutrality;

  4. 4. its consistency; and

  5. 5. its recognition and acquiescence by the international community (especially by states with a stake therein).

International judicial institutions tend to determine the admissibility and weight of a map according to the specific circumstances of each case, and taking into account the above five considerations.Footnote 16

This paper thus seeks to analyze the admissibility and weight of China's SCS U-line map, in the light of these five considerations and the relevant international legal precedents, in response to the challenges posed by Franckx and Benatar.

I. WHETHER THE MAP IS A PHYSICAL EXPRESSION OF THE STATE'S WILL

Whether a map is a physical expression of the will of a state is critical to a court's final judgment as to the validity of the map. In the Case Concerning the Frontier Dispute between Burkina Faso and the Republic of Mali in 1986, the Court noted:

Maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part.Footnote 17

Franckx and Benatar take the position that:

In casu, the criterion of discernible intent on the part of the PRC [People's Republic of China] government is not adequately fulfilled. The variety of interpretations of the U-line offered by legal scholars as well as the PRC's ambiguous note verbale de dato 7 May 2009 bear witness to this conclusion. Besides confusing sentence structures, terms employed in the note verbale, namely “relevant waters” and “adjacent waters”, are particularly puzzling as they do not appear anywhere in UNCLOS. The ostensibly deliberate ambiguity is exacerbated, for the PRC has yet to pass legislation giving the U-line any effect in its domestic legal order … [and] … [e]ven if one could unearth the PRC's intention behind the map, the legal implications thereof should not be overestimated.Footnote 18

Franckx and Benatar further argue that the U-line in the SCS map attached to the PRC's Letter to the United Nations (UN) Secretary-General on 7 May 2009 (CML/17/2009) is ambiguous and with vague intent, whether as seen as a territorial or a maritime claim, as well as in clear want of precision, and as such is problematic if cited as part of China's official policy.Footnote 19

An objective analysis, however, will conclude that China has an unequivocal and consistent territorial claim to islands and other land features in the SCS, despite certain ambiguity in its maritime claim. As a matter of fact, its claim has been unequivocally stated in China's official documents: the 1947 Location Map of the South China Sea Islands published by the National Government in Nanjing, the 1958 Declaration of the Government of the People's Republic of China on the Territorial Sea issued by the PRC government, and the 1992 Law of the People's Republic of China on Territorial Sea and Contiguous Zone. These documents state that the Dongsha Islands (Pratas Islands), Xisha Islands (Paracel Islands), Zhongsha Islands (Macclesfield Bank), Nansha Islands (Spratly Islands), and other islands are within the sovereign territory of China.Footnote 20

Indeed, ambiguity exists in China's maritime claim to the SCS. This, however, had resulted from certain historical circumstances. First, the issue of historic rights was not properly addressed in the UNCLOS. Despite the reference to historic title in Articles 15 and 298(1)(a), the provision on historic bays in Article 15(6), and the recognition of traditional fishing rights in Article 51, no provision is dedicated to the definition of historic right or its specific connotation and denotation.Footnote 21 Second, no consistent understanding has been reached in international law on the issue of historic rights. For example, Blum has observed that:

the term “historic rights” denotes the possession by a State, over certain land or maritime areas, of rights that would not normally accrue to it under the general rules of international law, such rights having been acquired by that State through a process of historical consolidation … [H]istoric rights are a product of a lengthy process comprising a long series of acts, omissions and patterns of behavior which, in their entirety, and through their cumulative effect, bring such rights into being and consolidate them into rights valid in international law.Footnote 22

It has also been held that the concept of historic right is almost equivalent to that of historic water, because a state acquires historic rights through effective exercise of these rights over time, and that these practices are observed by other states.Footnote 23 In this vein, Bouchez concludes that the concept of “historic right” has evolved from the concepts of “historic water” and “historic bay”.Footnote 24 The development from “historic bay” to “historic water” and from “historic title” to “historic right” indicates the evolution of relevant legal concepts with the development of state practice, and that such concepts have not been finalized. Third, from the perspective of China, a country with one of the world's oldest civilizations, the SCS is part of the traditional Asian order, and it would be inappropriate to comprehend the U-line by simply attempting to rely solely on Western international law.Footnote 25 As Zou Keyuan has observed, the SCS U-line map officially released by the then Chinese Nationalist Government was half a century before the UNCLOS, and a decade before the 1958 Four Geneva Conventions on the Law of the Sea. Thus, the historic rights within the U-line cannot simply be ignored.Footnote 26

The ambiguity in China's SCS U-line map and its claim to the waters within the U-line has mainly stemmed from the imperfection of the UNCLOS. To some extent, international law on historic rights is defective in theory and doctrine and is without a unified standard. China, which is currently unable to identify a proper term for its claim despite its efforts, has had no choice but to summarily term its claim “historic rights”. It must be pointed out that China is striving to clarify its claim through its state practice.Footnote 27 However, such practice is also dependent on the joint efforts of the international community to complement and improve the UNCLOS by a new international convention or protocol, so as to clarify the understanding of historic rights.

II. ACCURACY OF THE MAP

Franckx and Benatar challenge that:

the lack of a map legend, and cryptic wording contained in the PRC's letter to the UN Secretary-General is readily made. The perplexity is all the greater because the depiction of the 9-dotted-line deviates from international cartographic standards developed by the International Hydrographic Organization precisely for the purpose of clarity. China, it should be remembered, is a member of this international organization.Footnote 28

They add that “[a]n additional element contributing to the inaccuracy of the Chinese map is its excessively small scale”.Footnote 29 They further contend that “[t]he dashes used to draw the Chinese U-line do not match chart specifications developed by the International Hydrographic Organization for indicating international maritime boundaries, the territorial sea, the contiguous zone, the EEZ, the continental shelf, fishery zones, etc”.Footnote 30

Accuracy is an important consideration for judging the value of map evidence. As Brownlie has observed, the technical accuracy of a map is relevant to its probative force.Footnote 31 In the Case Concerning the Frontier Dispute between Burkina Faso and the Republic of Mali, the ICJ also concluded that:

The actual weight to be attributed to maps as evidence depends on a range of considerations. Some of these relate to the technical reliability of the maps. This has considerably increased, owing particularly to the progress achieved by aerial and satellite photography since the 1950s.Footnote 32

On 1 January 2002, the Eritrea-Ethiopia Boundary Commission mentioned in its boundary delimitation decision (the Decision) that “much of the map evidence is on so small a scale, or so devoid of detail, that it can only be treated as ambiguous in this respect”.Footnote 33 Earlier in the Decision, it is noted that “[a] map that … is on so small a scale that its import becomes a matter for speculation rather than precise observation, is unlikely to have great legal or evidentiary value”.Footnote 34 It is difficult for a map, which is too small in scale, to demonstrate clearly the ownership of a specific disputed area, while a larger map is able to show greater details of such an area. In the El Salvador/Honduras border dispute case, the ICJ again complained about the small scale of the map concerned, stating: “The scale of this map is however insufficient to make it possible to determine whether the course of the last section of the river Goascoran is that asserted by El Salvador, or that asserted by Honduras.”Footnote 35 Additionally, it is true that with the development of modern cartographic technology, higher requirements have been set for map accuracy, and judges can also examine the accuracy of a map by employing new technological measures.Footnote 36

China's SCS U-line is an undetermined maritime boundary line, which was officially drawn by the Chinese government in 1947, and made available to the public in early 1948.Footnote 37 Generally speaking, the more accurate a map is, the greater its evidentiary value becomes. As it is an undetermined boundary, the line drawn by China is approximately located on the median line between bordering states and SCS islands, but has yet to be finalized through bilateral negotiations with the bordering states. For example, while the Sino-Vietnamese maritime boundary within the mouth of the Beibu Gulf (Gulf of Tonkin) has been determined through the Sino-Vietnamese delimitation negotiations over the Beibu Gulf, the maritime boundaries in other locations have yet to be settled by further negotiations with relevant states. Second, although it is an undetermined boundary line, the Location Map of the South China Sea Islands released in 1948 is marked with geographical co-ordinates, which reflect China's position and the scope of its claim, and thus should be deemed to have adequate accuracy.Footnote 38 Third, though delivered to the UN as an annex to its notes verbales (CML/17/2009 and CML/18/2009) on 7 May 2009, the map is based on the Location Map of the South China Sea Islands, which was drawn by the Chinese government in 1947.Footnote 39 The maritime boundary of relevant UNCLOS Member States should follow the relevant provisions in A Manual on Technical Aspects of the UN Convention on the Law of the Sea (TALOS Manual),Footnote 40 compiled by the Advisory Board on the Technical Aspects of the Law of the Sea, and the Regulations for International (INT) Charts and the Chart Specifications of the International Hydrographic Organization (IHO Chart Specifications).Footnote 41 However, the TALOS Manual was not initiated until the first Technical Aspects of the Law of the Sea (TALOS) Working Group in 1985, while the B-440 international boundary and national limits involving maritime boundary issues in the IHO Chart Specifications were not promulgated until June 1987.Footnote 42 These documents were drafted far later than the time the Chinese government released the U-line map. Franckx and Benatar's challenge of earlier actions by an ex post facto law has gone against the legal principle of non-retroactivity. Second, at the very least, so far as the map annexed to China's note verbale (CML/17/2009) is concerned,Footnote 43 China is not claiming the waters within the U-line as territorial waters, simple fishing grounds, an exclusive economic zone, or a continental shelf. Instead, it is claiming a form of special historic rights, but neither the TALOS Manual nor the IHO Chart Specifications includes any regulations on the method of drawing a boundary for historic rights. Third, it has been specified in paragraph B-440.3 of the IHO Chart Specifications that N41 (namely charting boundary by alternating crosses and dashes, “+ - + - + - + -”, in magenta) must not be used for disputed maritime boundaries.Footnote 44 Thus, it would be inappropriate to apply the relevant IHO regulations to such an unsettled maritime boundary.

Generally, the more accurate a map is for boundary delimitation, the better. As the purpose of a map is to reflect the position of a state and to determine the scope of its claims, the U-line map should be deemed as being adequately accurate.

III. CONSISTENCY OF THE MAP

A map should be consistent, as otherwise the true intention of the state cannot be identified from it. The inconsistency of maps released at different times is likely to affect their reliability, and at the same time go against the principle of “estoppel”. It has been pointed out by the ICJ in the Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) that “in the light of the uncertainty and inconsistency of the cartographic material submitted to it, the Court considers itself unable to draw conclusions from the map evidence produced in this case”.Footnote 45 This Judgment has, to some extent, illustrated the position of international judicial institutions. On this point, Franckx and Benatar argue:

Additionally, portrayals of the U-line are not consistent. As mentioned above, the U-line in PRC cartography prior to 1953 normally consists of eleven dashes, whereas later versions of the dotted line consist only of nine segments. A recent electronic map posted online by the Chinese State Bureau of Surveying and Mapping on 21 October 2010 again adds one more segment to the North between Taiwan and the Ryukyu group.Footnote 46

They add that “[n]o reasons have been given for the mysterious removal of two dashes in the past or the new tenth segment added recently”.Footnote 47

There are doubts as to whether absolute consistency should be maintained for maps made by a state at different times. The crux of the issue lies in whether “inconsistency” between maps produced at different times may prevent a court from drawing a reasonable conclusion from the maps concerned. As a matter of fact, the requirement of map consistency is not absolute. Except in cases of simple reproduction, maps produced by different cartographers under different cartographical conditions may differ to some extent from one another. When the publisher, cartographer, or cartographical standard for a map changes (especially in cases of state power shifts), map production may be affected. As Ahmed Abou-el-Wafa has observed, the requirement on map consistency is not absolute, but basic consistency should be maintained.Footnote 48

The eleven-dash line was adjusted to a nine-dash line after 1953 because two dashes in the Beibu Gulf were deleted after China's cession of the Bailongwei Island (Bech Long Vi) to Vietnam. This was replaced by a formal maritime boundary line after the completion of maritime delimitation between China and Vietnam upon their signing of the Sino-Vietnamese Agreement on the Delimitation of the Territorial Seas, Exclusive Economic Zones and Continental Shelves in the Beibu Gulf in December 2000.Footnote 49 The dash between Taiwan and the Ryukyu group in the electronic map is the boundary between China and Japan, which is outside the SCS and irrelevant to China's SCS claims. It is, therefore, evident that the map annexed to China's note verbale (CML/17/2009) is generally consistent with China's 1947 map (11-dash line), 1951 map (11-dash line), 1953 map (9-dash line), and 2010 map (10-dash line). No change has taken place in the basic position of the Chinese government, and no disadvantages have been caused to opposing states.Footnote 50 The dotted lines are all approximately on the equidistant median lines between China's SCS islands and the coastlines of the bordering states. Based on these maps, one can objectively and accurately identify the maritime and political boundaries of states bordering the SCS.

IV. NEUTRALITY OF THE MAP

To some extent, the probative force of a map depends on the neutrality and authoritativeness of the map-maker, as well as the circumstances when the map was being drawn. Generally, the probative force of a map is enhanced if it is made by a neutral expert, whereas a map made under the authorization of a party to the dispute may, to some extent, be deemed doubtful. Judge Shigeru Oda pointed out in the Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia):

A map produced by a relevant government body may sometimes indicate the government's position concerning the territoriality or sovereignty of a particular area or island. However, that fact alone is not determinative of the legal status of the area or island in question. The boundary line on such maps may be interpreted as representing the maximum claim of the country concerned, but does not necessarily justify that claim.Footnote 51

Clearly, the probative force of a map is directly related to its neutrality.Footnote 52 Franckx and Benatar, in view of this point, argue:

The lack of neutrality is patently evident with respect to the 9-dotted-line … the history of the U-line can be traced back to an internal commission established by the ROC government to update the Chinese map and reassert its position. Such a unilaterally appointed and staffed governmental body can hardly be deemed impartial vis-à-vis other interested States in the South China Sea region. It should not be forgotten that conscientious map-makers can be used for deceitful purposes.Footnote 53

They then substantiate their argument by quoting A.O. Cukwurah:

the portrayal depicts the scope of a claim rather than the position of an accepted boundary. Through subsequent copying and reproduction by unsuspecting cartographers not only are these erroneous accounts perpetuated but the very fact of repetition tends to endow them with legal sanction by producing a large number of maps unanimous in their testimony.Footnote 54

It should be noted that the neutrality consideration of a map is bound up with the recognition consideration—the two should be considered together in making a judgment on the probative force of the map. Typically, a map is made by a specific state, expressing the state's claim and position. If the map, however, is recognized by interested states at the same time, it generally indicates that the map-maker has considered the concerns of the international community, especially that of neighbouring states, and thus the map undoubtedly gains considerable objectivity. It would therefore not be advisable to summarily deny a map made by a concerned state party by dismissing it for lack of neutrality. In the Beagle Channel Arbitration, the arbitrator pointed out:

While maps coming from sources other than those of the Parties are not on that account to be regarded as necessarily more correct or more objective, they have, prima facie, an independent status which can give them great value unless they are mere reproductions of—or based on originals derived from—maps produced by one of the Parties, or else are being published in the country concerned by, or on behalf, or at the request of a Party, or are obviously politically motivated. But where their independent status is not open to doubt on one or other of these grounds, they are significant relative to a given territorial settlement where they reveal the existence of a general understanding in a certain sense, as to what that settlement is, or, where they conflict, the lack of any such general understanding.Footnote 55

V. RECOGNITION OR ACQUIESCENCE OF THE MAP BY THE INTERNATIONAL COMMUNITY, INTER ALIA INTERESTED BORDERING STATES

If a state, with respect to a map published by another state, which is not consistent with the former state's own claim, does not lodge any diplomatic protest or refer the matter to a competent international organization or international judicial body within a reasonable period of time, the international judicial authorities may deem the state to have acquiesced to the political and geographical boundary. As noted by the Eritrea-Ethiopia Boundary Commission, “a map per se may have little legal weight: but if the map is cartographically satisfactory in relevant respects, it may, as the material basis for, e.g., acquiescent behaviour, be of great legal significance”. The Commission further pointed out:

But a map produced by an official government agency of a party, on a scale sufficient to enable its portrayal of the disputed boundary area to be identifiable, which is generally available for purchase or examination, whether in the country of origin or elsewhere, and acted upon, or not reacted to, by the adversely affected party, can be expected to have significant legal consequences.Footnote 56

Franckx and Benatar hold that for other states in the region, China's SCS map with the U-line did not sustain opposition before 7 May 2009. The first reason they furnished for this assertion is:

[T]his strange U-shape claim was so abnormal and so exorbitantly outside reality during the decades [19]30 to [19]60 that it is not conceivable that by way of “acquiescence with regard to map claims” a (tacit) recognition by the foreign States community of those “extremely irregular” pretensions.Footnote 57

The second reason, they argued, is “the enigmatic character of the 9-dotted-line and the repercussions of ambiguous intent on the Chinese side”, and that “it is only possible to object to visible and comprehensible Chinese U-line assertions in the rare instances that they occur (e.g., the 2009 PRC letter to the UN Secretary-General)”.Footnote 58 In addition, Franckx and Benatar enumerate various Vietnamese protests against China's claim since 1998, in an attempt to illustrate the absence of recognition of or acquiescence to China's SCS map with the U-line on the part of Vietnam. They opine that:

The requirement of clear intent has also been fulfilled in that the Vietnamese declarations are unequivocally aimed at preventing the coming into being of new Chinese legal entitlements. Also, the criterion that protest must be consistent and uninterrupted can be said to have been complied with, as illustrated by the content of the above-mentioned notes of protest.Footnote 59

Franckx and Benatar, however, failed to mention any Vietnamese maps, official declarations, and notes made in the 1950s and 1960s.Footnote 60 Nor did they take any notice of the large number of relevant maps prevalent in the international community. For example, the 1960 World Atlas, published with the verification of the Headquarters of the General Staff of the People's Army of Vietnam, is marked with “Nansha Islands (China)” in Vietnamese.Footnote 61 Also, in the “Map of Vietnam and Southeast Asia”, the fifth map in the Atlases of Vietnam published by the Vietnamese National Administration of Surveying and Mapping (North Vietnam) in 1964, the Dongsha, Xisha, and Nansha Islands are written in both Chinese and Vietnamese. Furthermore, in the “Vietnamese Map”, the sixteenth map of the collection, the colour of the Nansha Islands is the same as that used for China on the map, but is different from the colour used for Vietnam.Footnote 62 Neither The World Atlases, published by the Vietnamese National Administration of Surveying and Mapping in 1972, the Vietnamese Communications Map, nor the Vietnamese Territory published by the Republic of Vietnam (South Vietnam) in the 1950s, amongst others, have included the Nansha Islands within the territory of Vietnam. Instead, the Nansha Islands are marked in Chinese pinyin, which, to some extent, has been deemed as acquiescence to China's sovereignty over the Nansha Islands.Footnote 63 Similarly, in the 1940 Volumes Census Atlas of the Philippines published by the Philippine Survey and Statistical Commission, the 1950 Map of the Philippines, and the Atlases published by the Manila Surveying Commission and the Coastal and Land Surveying Bureau in 1969, the Nansha Islands were not drawn into the Philippine's territory.Footnote 64

Also worth mentioning is that during World War II, from 1942 to 1945, the SCS, to some extent, was reduced to the internal waters of the Japanese empire because Japan controlled southern China, the Philippines, northern Borneo, the coastal land of Malaysia, and all islands to its south, and directly controlled French Indochina and the Kingdom of Siam.Footnote 65 Therefore, Japan's attitude to the ownership of the SCS islands after the World War II has particular implications in international law, and can, to a large measure, reflect the original ownership of these islands.Footnote 66 At the 1951 San Francisco Conference on the Treaty of Peace with Japan, it was stipulated that Japan would renounce all rights, titles, and claims to the Spratly Islands (Xisha Islands) and the Paracel Islands (Nansha Islands). In the Map of Southeast Asia, the fifteenth map of A Collection of Standard World AtlasesFootnote 67 issued the following year, which was recommended and signed by then Japanese foreign minister Okazaki Kzuo, the Xisha and Nansha Islands, and the Dongsha and Zhongsha Islands, to which Japan had abandoned all claims, were marked as belonging to China, and their appellations are written in Chinese.Footnote 68 The nineteenth map of the New World Atlases, published upon the recommendation of then Japanese foreign minister Masayoshi Ohira in 1964, is also marked “Nansha (China)”.Footnote 69 According to the records in the World Almanac published by the Kyodo News Service in 1972, the territory of China “includes, besides its landmass territory, Hainan Island, Taiwan, the Penghu Islands and the Dongsha, Xisha, Zhongsha and Nansha Islands in the South China Sea”.Footnote 70 It is also specified in the Modern Encyclopedia of Japan that the Chinese territory “extends south to the Nansha Islands near the equator”.Footnote 71 In the Sino-Japanese Joint Statement published in September 1972, Japan indicated that it would adhere to the provision in Article 8 of the Potsdam Declaration that Japan would restore to China all Chinese territories it had encroached upon, which in fact implied the Japanese position that the Nansha Islands belong to China.Footnote 72

In addition, maps published by many other countries worldwide also indicate that the Nansha Islands are an integral part of Chinese territory. These include the Welt-Atlas published by the Federal Republic of Germany in 1954, the World Atlas published by the Soviet Union in 1954 and 1967, the World Geographical Maps published by Romania in 1957, the Haack Welt Atlas published by the German Democratic Republic in 1968 (Appendix V), the World Map Ordinary published by the Institut Geographique National (IGN) of France in 1968, the Atlas International Larousse published by France in 1969 (Appendix VI), and the Gran Atlas Aguilar published by Spain in 1970, amongst others.Footnote 73 Of these maps, the Haack Welt Atlas and the Atlas International Larousse mark the scope of the maritime boundary of China with dotted lines, albeit with some deviation from the standard method of drawing in China.

In fact, states are generally cognizant of maps published by other states, and attach great importance to collecting relevant information released by other states. For this reason, it is hardly convincing to simply make justifications on the ground of ignorance. As observed by Blum:

[R]ecent instances of protests lodged against “map claims” seem to indicate that States do, in fact, “keep a vigilant watch over the maps published by the civilized nations” … On the whole, it seems to emerge that States will be imputed with knowledge of each other's domestic legislative activities and other acts done under their authority, and that the plea of ignorance will be accepted only in the most exceptional circumstances. States desirous of reserving their rights will therefore be well advised to follow with a substantial amount of self-interested awareness the official acts of other States and to raise an objection to them—through the legitimate means recognized by international law—should they feel that their rights have been affected, or are likely to be affected, by such acts.Footnote 74

In the Temple of Preah Vihear case, the ICJ gave a clear interpretation of the unfavourable consequences that may result from a state's silence and lack of reaction, by pointing out:

In fact, as will be seen presently, an acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were otherwise, it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset.Footnote 75

As mentioned above, the international community, and in particular interested bordering states, did not raise any objection against China's long-standing claim. Franckx and Benatar argue that it is questionable whether the “acquiescence” principle applies to China's U-line claim, because the U-line was so unusual and at variance with general state practice during the 1930s to 1960s, it is hard to imagine that the international community could accept such a claim.Footnote 76 Nevertheless, this argument is hardly logically tenable. First, judgment on the presence or absence of “acquiescence” should be based on facts rather than speculation, and therefore one cannot rush to deny a view simply on the ground that it is not conceivable. Second, this point is contrary to common sense on the basis that what is normal and in line with the common expectations of the community is unlikely to spark protests and/or opposition, whereas only what is abnormal and against general expectations will give rise to protests and/or opposition. It is abnormal to remonstrate with China's claims as being extremely unreasonable and non-compliant on the one hand, but to then calmly accept it and be comfortable with it on the other.

Indeed, “acquiescence” in international law occurs when an interested state knows or should know the occurrence of an event or fact, for which the state can dissent but has remained silent for a long period of time, during which no significant change has taken place in the circumstances, nature, or implications of the event itself.Footnote 77 Accordingly, acquiescence is qualified only when the requirement of “notoriety” is fulfilled. In this vein, Franckx and Benatar advance that prior to China's 2009 note verbale, which they argued was “one of visible and comprehensible Chinese U-line assertions in the rare instances that they occur”, the U-line did not meet the criterion of “notoriety” and that China's “ambiguous intent” had made it impossible for other states to protest.Footnote 78 Such an argument is self-contradictory, as China's assertions before and after 7 May 2009 have been entirely consistent, and if its later assertions are “visible and comprehensible”, its earlier assertions must have also been the same. Why did the bordering states not protest against the SCS U-line, which had remained consistent at all times, until after 7 May 2009? This author does not attempt to deny the presence of some vagueness regarding the U-line. As mentioned above, however, such ambiguity had, in large measure, resulted from the imperfection of international law. Also, Franckx and Benatar enumerate many Vietnamese protests after 1998, which had also occurred frequently before that. This indicates that such ambiguity has not affected the subjective judgment of bordering states as to whether their rights have been infringed upon. It is therefore not tenable or convincing to deny, on the ground that China's claim has been “enigmatic” and “ambiguous”, the recognition or acquiescence of SCS bordering states with regard to China's U-line in the period from the 1930s to the 1960s.

VI. CONCLUSION

Without doubt, maps will continue to play a significant role in maritime delimitation disputes. However, mapping relies on a large quantity of basic information, such as “the data, information, and results acquired in the course of determining and collecting the shapes, sizes, spatial locations and characteristics of natural geographical features or surface artificial installations”.Footnote 79 Therefore, uncertain source information of a map, questionable accuracy and reliability of source information, lack of substantiation and support by other evidential materials, or failure to accurately and unambiguously reflect the intent of the state may all undermine the probative force of the map.Footnote 80 For this reason, international judicial institutions tend to be very prudent in dealing with map evidence,Footnote 81 and in most cases maps are treated as derivative and circumstantial evidence, with relatively weak probative force, and only reinforcing, illustrating, and verifying other evidence.Footnote 82

Accordingly, it is right and necessary for scholars to be cautious about map evidence. However, all scholarly analyses and arguments must be developed from a fair and neutral position, rather than from a biased or partial one. With respect to China's SCS map, some problems indeed exist, such as vagueness, lack of accuracy in certain aspects, slight inconsistency between maps of different times, and the lack of necessary explanations. However, taken together, the U-line drawn by the Chinese government in 1947, at approximately the median position between China's SCS islands and reefs and the coastlines of bordering states, reflects the scope of China's claims and intent. The consistency of the claims has been maintained by the People's Republic of China founded after the Chinese Communist Party assumed power in 1949, and the claims have been recognized or acquiesced to by bordering states over a long period of time. Therefore, the map with the U-line has probative force and weight under international law. As for China, its clarification and interpretation of the U-line of the SCS should keep a balance between freedom of the sea for inclusive use and the closure of the sea for exclusive purpose. China should also understand and respect the concerns of other states by preserving the openness and inclusivity of the SCS to maintain and promote the security, stability, and prosperity of the region.

Footnotes

*

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

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

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

United Nations, “People's Republic of China, Letter to the Secretary-General of the United Nations-CML/17/2009 (Translation)” (7 May 2009)

United Nations, “People's Republic of China, Letter to the Secretary-General of the United Nations-CML/18/2009 (Translation)” (7 May 2009)

3. United Nations, “Permanent Mission of the Republic of Indonesia Note No. 480/POL-703/VII/10 (Unofficial Translation)” (8 July 2010)

4. FRANCKX, Erik and BENATAR, Marco, “Dots and Lines in the South China Sea: Insights from the Law of Map Evidence” (2012) 1 Asian Journal of International Law 89

5. See United Nations Convention on the Law of the Sea, 10 December 1982, online: UN 〈http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf〉 [UNCLOS].

6. United Nations, “Permanent Mission of the Socialist Republic of Vietnam, Letter to the Secretary-General of the United Nations-No. 86/HC-2009” (8 May 2009)

7. GALLAGHER, Michael G., “China's Illusory Threat to the South China Sea” (1994) 19 International Security 169

8. Ian STOREY, “China's Bilateral and Multilateral Diplomacy in the South China Sea” in Patrick M. CRONIN, ed., Cooperation from Strength: The United States, China and the South China Sea (Washington, DC: Center for a New American Security, 2012)

9. Hasjim DJALAL, “The South China Sea: The Long Road Towards Peace and Cooperation” in Sam BATEMAN and Ralf EMMERS, eds., Security and International Politics in the South China Sea: Towards a Cooperative Management Regime (London: Routledge, 2009), 175 at 177

10. Storey, supra note 8

11. GLASER, Bonnie S., “Armed Clash in the South China Sea”, Council on Foreign Relations, Contingency Planning Memorandum, April 2012

12. Satoshi, MACHIDA, “U.S. Soft Power and the ‘China Threat’: Multilevel Analyses” (2010) 2 Asian Politics & Policy 351

JEFFERY, Renée, “Evaluating the ‘China Threat’: Power Transition Theory, the Successor-state Image and the Dangers of Historical Analogies” (2009) 63 Australian Journal of International Affairs at 309

13. Jianqiang, GUAN, “Research on the Legal Status of the Nine-Dashed Line in the South China Sea” (2012) 4 International Review 15

Yu, JIA, “On the Law Status of the Dotted Line of the South China Sea”, China's Borderland History and Geography Studies, No. 2, 2005, at 112−120

14. HIGHET, Keith, “Evidence, the Court, and the Nicaragua Case” (1987) 81 American Journal of International Law 1 at 18−19

John William STRONG, Kenneth S. BROUN, Edward J. IMWINKELRIED, Robert P. MOSTELLER, George E. DIX, D. H. KAYE, and E. F. RORBERTS, eds., McCormick on Evidence, trans. TANG Weijian, FU Songjiang, LU Zhengming, ZHANG ping, CHANG tingbing, XIANG Tai, and WEI Jie (Beijing: China University of Political Science and Law Press, 2004) (in Chinese) at 342

15. Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali) [1986] I.C.J. Rep. 554 at 583, para. 56 [Frontier Dispute (Burkina Faso/Republic of Mali)]. It should be noted that this obiter dictum of the ICJ in this case has become an authority cited by many subsequent judgments as the basis for judging the probative force of maps. For example, this principle has been reiterated and used as a guideline for deciding the evidentiary value of maps in various cases, such as Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) [1999] I.C.J. Rep. 1045 at 1098, para. 84 [Botswana v. Namibia]; Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain) [2001] I.C.J. Rep. 40 [Qatar v. Bahrain]; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) [2002] I.C.J. Rep. 625 at 667, para. 88 [Indonesia v. Malaysia]; Frontier Dispute (Benin v. Niger) [2005] I.C.J. Rep. 90 at 119−20, para. 44 [Benin v. Niger]; and Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) [2007] I.C.J. Rep. 659 at 723, para. 215 [Nicaragua v. Honduras]. See also Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Separate Opinion of Judge Kooijmans, [2001] I.C.J. Rep. 40 at 242, para. 68.

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

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

18. Franckx and Benatar, supra note 4 at 107

19. Ibid., at 93 and 115.

20. Zhenhua, HANed., Collection of Historical Materials on South China Sea Islands (Beijing: Oriental Press, 1988)

Liang, XU Zhi, “The Development of the Maritime Territory of the Republic of China and the Formation of the Dotted Boundary Line in the South China Sea” (2010) Pacific Journal 92 at 92−97

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

21. UNCLOS, supra note 5.

22. BLUM, Yehuda Zvi, “Historic Rights” in Rudolf BERNHARDT, ed., Encyclopaedia of Public International Law, Vol. 7 (Amsterdam: North-Holland Publishing Co., 1984), at 120

23. Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. Rep. 116 at 132.

24. BOUCHEZ, Leo J.ed., The Regime of Bays in International Law (Leyden: A.W. Sythoff, 1964) at 199

25. KISSINGER, Henry, On China (New York: The Penguin Press, 2011) at 24−25

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

26. Keyuan, ZOU, “Historic Rights in International Law and in China's Practice” (2001) 32 Ocean Development & International Law 149

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

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

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

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

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

28. Franckx and Benatar, supra note 4 at 110

29. Ibid., at 111.

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

31. BROWNLIE, Ianed., African Boundaries: A Legal and Diplomatic Encyclopaedia (London: Royal Institute of International Affairs, 1979) at 5

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

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

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

34. Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia (Eritrea-Ethiopia Boundary Commission), Decision of 1 January 2002, International Legal Materials, Vol. 41, 2002, at 1069, para. 3.21.

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

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

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

38. See note 20.

39. See note 2; ibid.

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

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

42. Ibid.

43. See note 2.

44. IHO Chart Specifications, supra note 41.

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

46. Franckx and Benatar, supra note 5 at 106

47. Franckx and Benatar, ibid. The authors also argue (at 109−10):

Although the Chinese interrupted line generally follows the 200-metre isobath, it has so far never been precisely demarcated, thus lacking accurate geographical co-ordinates. (See for instance 1951 Chinese Map … are clearly at variance with those to be found in Annex I: the first three segments are clearly discernable, but the first is located more in a north-western, the second in a south-western, and the third in a northern direction when compared to the Annex I map) … Moreover, because it concerns lines at sea, satellite imagery will not be very helpful either.

48. ABOU-EL-WAFA, Ahmed, “Les différends internationaux concernant les frontières terrestres dans la jurisprudence de la Cour internationale de Justice” (2010) 343 Collected Courses of the Hague Academy of International Law 9 at 432−434

49. Keyuan, ZOU, “The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin” (2005) 36 Ocean Development & International Law 13

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

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

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

53. Franckx and Benatar, supra note 4 at 108

54. CUKWURAH, A.O., The Settlement of Boundary Disputes in International Law (Manchester: Manchester University Press, 1967) at 224

55. Case Concerning a Dispute Between Argentina and Chile Concerning the Beagle Channel (Argentina v. Chile), Decision of 18 February 1977, [1997] XXI Reports of International Arbitral Awards 53 at 167, para. 142.

56. Eritrea-Ethiopia Boundary Commission (EEBC): Decision Regarding Delimitation of the Border Between the State of Eritrea and the Federal Democratic Republic of Ethiopia, Decision of 1 January 2002, (2002) 41 International Legal Materials 1057 at 1075−6, para. 3.21.

57. STRUPP, Michael, “Maritime and Insular Claims of the PRC in the South China Sea under International Law” (2004) 11 Zeitschrift für Chinesisches Recht 1 at 16

Franckx and Benatar, supra note 4 at 111

58. Franckx and Benatar, supra note 4 at 112

59. Ibid.

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

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

62. Jinzhi, LIN, “The Historical Basis for the Fact that the Dongsha Islands Belong to China” (1979) Southeast Asian Affairs, No. 6 at 67−90

63. “China's Sovereignty over the Xisha Islands and Nansha Islands Indisputable” (1980) 1 Bulletin of the State Council of the People's Republic of China (in Chinese) [China's Sovereignty over the Xisha Islands and Nansha Islands].

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

65. Gungwu, WANG, “China and the Map of Nine Dotted Lines” The Straits Times (11 July 2012)

66. Cuibai, YANG, “ ‘Acquiescence’ and China's Indisputable Sovereignty over the Nansha Islands” (2005)

67. A Collection of Standard World Atlases (Tokyo: National Education Book Company, 1952), cited in ibid. This map is reproduced in Appendix IV.

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

69. New World Atlases (Tokyo: Tokyo Press, 1964), cited in Yang, supra note 66.

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

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

72. Ministry of Foreign Affairs of Japan, “Joint Communique of the Government of Japan and the Government of the People's Republic of China” (September 1972), online: Ministry of Foreign Affairs of Japan 〈http://www.mofa.go.jp/region/asia-paci/china/joint72.html〉.

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

74. BLUM, Yehuda Zvied., Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965) at 150

75. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), [1962] I.C.J. Rep. 6 at 23.

76. Strupp, supra note 57 at 112

77. Nuno Sérgio MARQUES ANTUNES, “Acquiescence” in Rüdiger WOLFRUM, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008)

MACGIBBON, I.C., “Customary International Law and Acquiescence” (1957) 33 British Yearbook of International Law 115

78. Franckx and Benatar, supra note 5 at 112

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

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

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

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

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

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

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