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

2012; Taylor & Francis; Volume: 43; Issue: 1 Linguagem: Inglês

10.1080/00908320.2012.647490

1521-0642

Thang Nguyen-Dang, Nguyễn Hồng Thảo,

Coastal and Marine Management

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 Cloma, a Filipino businessman, took the opportunity of Taiwanese withdrawal from the region to “discover” some features in the Spratly Islands and called them Kalayaan, which originally included Spratly Island. The Philippine government showed considerable hesitancy in approving Cloma's discovery. It changed its attitude in 1971 only after Taiwan reportedly fired on one of its boats. The Philippines’ diplomatic note in protest of this incident is considered the first official notice of the claim made by the Philippines to the Spratly Islands. In the note, the Philippines demanded that Taiwan withdraw from Itu Aba Island and declared ownership of 53 islands, cays, shoals, and reefs. See Samuels, supra note 21, at 81–86, 89–91; and Gerardo M. C. Valero, “Spratly Archipelago Dispute: Is the Question of Sovereignty Still Relevant?” Marine Policy, 18 (1994): 314–344, 341–343. 41. It is reported that the Philippine forces first occupied three Spratly Islands in 1970–1971. See Dzurek, supra note 21, at 21. The Philippines continued its occupation until 1978. See Valencia, Van Dyke, and Ludwig, supra note 21, at 34–35. 42. “Declaring Certain Area Part of the Philippine Territory and Providing for Their Government and Administration,” Section 1, Presidential Decree No. 1596 of 11 June 1978. The text is reproduced in Raphael Perpetuo M. Lotilla, ed., The Philippine National Territory: A Collection of Related Documents (Diliman, Quezon City: Institute of International Legal Studies, University of the Philippines Law Center; Foreign Service Institute, Department of Foreign Affairs, 1995), 465. It is arguable that a claim to the Spratly Islands can be inferred from the oblique phrase “… all other territories belong to the Philippines by historic right or legal title” in Article 1 on The National Territory of the 1973 Philippine Constitution. See Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (Manila: Rex Book Store, 2009), 16. 43. Section 1, Presidential Decree No. 1596 of 11 June 1978, ibid. 44. LOS Convention, supra note 3, art. 48. 45. See Donald R Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart, 2010), 175–181. 46. Philippines’ Republic Act No. 9522: An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purpose[s], Law of the Sea Bulletin 70 (2009): 32. 47. See, for example, Bill No. HB03216 proposed by Antonio V. Cuenco, which proposed 135 basepoints with 4 long baselines enclosing the main archipelago, the Scarborough Shoal and the Kalayaan Island Group; Bill No. HB04834 proposed by Rufus B. Rodriguez, which sought to define the Philippine territory in accordance with international laws and to include the Kalayaan Island Group and Sabah; and Bill No. HB05206 proposed by Teodoro L. Locsin Jr., which sought to define the archipelagic baselines of the Philippines by simply enumerating the geographic coordinates for the Scarborough Shoal. Information retrieved from the Philippine House of Representatives Legislative Information System. 48. See J. R. V. Prescott, Limits of National Claims in the South China Sea (London: ASEAN 1999), 30–3, for a careful examination of how the Philippines could draw archipelagic baselines incorporating features in the Spratly Islands while still being in conformity with the LOS Convention. See also Victor Prescott, “Sharpening the Geographical and Legal Focus on the Potential Regional Conflict in the Spratly Islands,” in Workshop on the Spratly Islands: A Potential Regional Conflict (Singapore: Institute of Southeast Asian Studies, 1993), summarized in Valencia, Van Dyke, and Ludwig, supra note 21, at 46–47. 49. Senator Santiago, in introducing the bill finally adopted as the Philippine Archipelagic Baselines Act, is reported as stating: “The very core of this bill is that it rejects moves to include the contested islands in drawing up our modern baselines. Otherwise, the bill would not only be useless but also harmful, because we would incur the unnecessary ire and possible retribution of our neighbour states, who are also claimants.” See Editorial, “Baselines,” Philippine Daily Inquirer, 19 February 2009. This view appears congruent with the Philippine objection to China's drawing baselines around the Paracel Islands because this group of islands is in dispute. See “Philippines: Statement of the Department of Foreign Affairs on the Ratification by China of the United Nations Convention on the Law of the Sea,” Law of the Sea Bulletin 32 (1996): 88. 50. Philippine Archipelagic Baselines Act, supra note 46, sec. 2(a). 51. See further discussion below. 52. Philippines, Note Verbale No. 000819, 4 August 2009; and Note Verbale No. 000818, 4 August 2009, available at the CLCS Web site, supra note 3. 53. Ibid. 54. McDorman, supra note 5, at 520. 55. See Zou Keyuan, “Scarborough Reef: A New Flashpoint in Sino-Philippine Relations?” Boundary and Security Bulletin 7 (1999): 71–81, 71, for a brief geographical description. 56. Ibid., at 71–72. The Chinese official name of this reef is now Huang Yan Island. See ibid., at 71. See also China, “Spokesperson on the Claim that the Huang Yan Island Is a Part of the Philippine Territory,” 22 March 2001 available at www.fmprc.gov.cn/eng/topics/3754/t19236.htm# (accessed 7 May 2011). 57. “Spokesperson on the Claim that the Huang Yan Island Is a Part of the Philippine Territory,” supra note 56. China's claim to Scarborough Reef can also be considered within its larger claim of the islands in the SCS. 58. Keyuan, supra note 55, at 74–76. 59. See ibid., at 71, 73, stating that the dispute over the Scarborough Reef between China and the Philippines surfaced in 1997. But see Selig S. Harrison, China, Oil and Asia (New York: Columbia University Press, 1977), 191, for the view that the potential dispute over this feature had already been acknowledged in a study in 1977. 60. See Philippines’ 2011 Note Verbale, supra note 18, paragraph 2, quoting China's 2009 Notes Verbale, supra note 8. 61. The Philippines’ 2011 Note Verbale, supra note 18, para. 2. 62. Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, 5 April 1933, P.C.I.J., Series A/B, No. 53, 45, 48, states that jurisdiction is “one of the most obvious forms of the exercise of sovereign power.” 63. Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2008), 106. 64. Philippine Archipelagic Baselines Act, supra note 46. 65. The present Constitution of the Republic of the Philippines was adopted in 1987, Article 1 of which is based on the formulation of the 1973 constitution. See Jay L. Batongbacal, “The Maritime Territories and Jurisdiction of the Philippines and the United Nations Convention on the Law of the Sea,” Philippine Law Journal 76 (2001): 123–168, 154. For a succinct summary of major modifications in Article 1 of the 1987 Philippine constitution, see Bernas, supra note 42, at 28–32. The text of the relevant articles of the 1973 and 1987 Philippine constitutions are reproduced in Lotilla, supra note 42, at 411 and 554, respectively; and also in Batongbacal, at 138 and 153, respectively. 66. 1987 Philippine constitution, supra note 65, art.1. This term is interpreted in an authoritative commentary of the Philippine constitution to denote, inter alia, “the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea […].” Bernas, supra note 42, at 28. 67. The conjunction “or” is deliberately inserted to accommodate the view of Conception, who was fully aware of the difference between sovereignty and jurisdiction and objected to a draft of Article 1 for the reasons, inter alia, that the draft the phrase “sovereignty or jurisdiction” was deleted while the insertion of the phrase “sovereign jurisdiction” implied that sovereignty was only an adjective qualifying jurisdiction. See Deliberations of 10 July 1986 in “Committee Report No. 3 on Proposed Resolution No. 263 on National Territory,” reproduced Lotilla, supra note 42, 555 at 589. For the intervention of Conception, see Deliberations of 9 July 1986, ibid., at 584. 68. LOS Convention, supra note 3, Article 121(1) defines an island as being “a naturally formed area of land, surrounded by water, which is above water at high tide.” This definition is also applicable to rock. The distinction between islands and rock is not geographically based. 69. See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), [2001] I.C.J. Reports 40, para. 206: “[i]t has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition . …” 70. LOS Convention, supra note 3, art.13(1). 71. Qatar/Bahrain Case, supra note 69, paras. 205–206; reaffirmed in Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment of 8 October 2007, [2007] I.C.J. Reports, para. 141; and Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment of 23 May 2008, [2008] I.C.J. Reports, para. 296. These dicta put an end to the disagreement between states as to whether islands include low-tide elevations. 72. With the inception of the doctrine of the continental shelf, the seabed, and its subsoil are considered as subject to sovereign rights of the coastal states. Though the term “sovereign rights” may be considered as no less than sovereignty at the time of the 1958 Geneva Convention on the Continental Shelf, 499 U.N.T.S. 311, such an understanding has now fallen into disrepute. For the history of the concept of sovereign rights, see D. P. O’Connell, The International Law of the Sea, vol. 1 (Oxford: Clarendon Press, 1982), 477 ff. The Arbitral Court in the Guinea/Guinea-Bissau Maritime Delimitation Case, 77 International Law Reports (1985): 635, para. 124, declared the continental shelf (and the EEZ) not to be a zone of sovereignty. 73. LOS Convention, supra note 3, art. 2(1). For low-tide elevations, see Qatar/Bahrain Case, supra note 69, para. 204 cited in Malaysia/Singapore Case, supra note 71, para. 295. The submerged elevations can be considered as part of the seabed to which the coastal state sovereignty in the territorial sea extends. See also LOS Convention, Article 2(2). 74. LOS Convention, supra note 3, arts. 76(1) and 77(1). It is not difficult to agree that sovereignty rights necessarily include jurisdiction. See “Articles Concerning the Law of the Sea with cCommentaries,” Yearbook of the International Law Commission 2 (1956): 265–301, 297, (commentary on Article 68). 75. Though this may be a stretched interpretation of the concepts of the continental shelf and sovereign rights, which under the contemporary law of the sea are only functional rights limited to the “the exploration and exploitation of natural resources,” such an interpretation is plausible in light of the definition of national territory provided by the Philippine constitution. 76. See supra notes 42–43 and accompanying text. 77. Philippine Archipelagic Baselines Act, supra note 46. 78. This is somewhat of a tautology. It is not self-evident why the French phrase needs to go with a translation while the Latin maxim does not. 79. Philippine Archipelagic Baselines Act, supra note 46. 80. See, generally, Barbara Kwiatkowska and Alfred H. A Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own,” Netherlands Yearbook of International Law 21 (1990): 139–181. 81. See Philippines’ 2011 Note Verbale, supra note 18, sec. 2, para. 2. 82. Ibid., the term “nine-dash map” is used. 83. Ibid., sec. 3, sentence 2. 84. Spratly Island proper is occupied by Vietnam. Features in the region larger than Spratly Island are, in the order of size, Itu Aba (occupied by Taiwan), Thi Tu (occupied by the Philippines), and West York Island (occupied by the Philippines). The last feature is, according to some sources, not bigger than Spratly Island. For a useful compilation of geographical information relating to the Spratly Islands, see Valencia, Van Dyke, and Ludwig, supra note 21, Appendix 1, at 227–235. 85. For the view that Amboyna Cay, which also lies outside the KIG and is smaller than Spratly Island, can also be classified as an island capable of generating an EEZ and continental shelf, see Lan-Anh Thi Nguyen, “The South China Sea Dispute: A Reappraisal in the Light of International Law,” PhD thesis, 2008, School of Law, University of Bristol, Bristol, 60–61, 179. 86. The Philippines is at pains to explain that the Reed Bank, over which there was a dispute with China in March 2011, lies within its continental shelf though outside the KIG. See the Philippines, “Press Release by the Office of the Presidential Spokesperson on 23 May 2011,” available at www.gov.ph/2011/05/23/the-presidential-spokesperson-makes-clarifications-on-reed-bank-and-kalayaan-islands-issue/ (accessed 25 May 2011). 87. Brownlie, supra note 63, at 106. 88. See Clive Schofield and I Made Andi Arsana, “Beyond the Limits? Outer Continental Shelf Opportunities and Challenges in East and Southeast Asia,” Contemporary Southeast Asia: A Journal of International and Strategic Affairs 31 (2009): 28–63, 50. 89. China's 2011 Note Verbale, supra note 19. 90. China's 2009 Notes Verbale, supra note 8. 91. China's 2011 Note Verbale, supra note 19. 92. Ibid., para. 1, sentence 2 (emphasis added). 93. The terms sovereign rights and related rights are and respectively in Chinese text. 94. The view of the majority of commentators is that historic rights are an exceptional institution that permits derogation from the rules of general international law. See Clive Ralph Symmons, Historic Waters in the Law of the Sea: A Modern Re-appraisal (Leiden: Martinus Nijhoff, 2008), 49; and Andrea Gioia, “Historic Titles,” in Max Planck Encyclopedia of Public International Law, ed. R. Wolfrum (Oxford University Press, 2008, online edition), para. 8. 95. “Spokesperson on the Claim that the Huang Yan Island Is a Part of the Philippine Territory,” supra note 56. 96. This maxim is translated literally into in the original text. 97. The translation of this principle is in the original text. 98. China, “Jurisprudential Evidence to Support China's Sovereignty over the Nansha Islands,” 17 November 2000, available at www.fmprc.gov.cn/eng/topics/3754/t19234.htm (accessed 14 February 2009), last paragraph. 99. See Li Jinming and Li Dexia, supra note 7, at 289. 100. See Zou Keyuan, “The Chinese Traditional Boundary,” supra note 11, at 32–34. 101. China's 2011 Note Verbale, supra note 19. 102. China's position may have been inferred from a close and combined reading of Articles 2 of the 1992 and 1998 laws. The 1992 Law on the Territorial Sea, supra note 29, defines China's “territorial land” to include the Nansha Islands. The 1998 EEZ and Continental Shelf Act, supra note 28, defines the continental shelf of China as comprising “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory […]” (emphasis added). 103. McDorman, supra note 5, at 522. 104. Indonesia's 2010 Note Verbale, supra note 10. 105. China, Declaration of the Government of the People's Republic of China on the Baselines of the Territorial Sea, 15 May 1996, Law of the Sea Bulletin 32 (1996): 37–40, 39–40. 106. See Li Jinming and Li Dexia, supra note 7, at 294; and Kuan-Hsiung Wang, supra note 1. 107. See Valencia, Van Dyke, and Ludwig, supra note 21, at 254, for maps depicting as distinct both China's nine dotted lines and the equidistance line. 108. 1998 EEZ and Continental Shelf Act, supra note 28, art. 2. 109. See Kien-Hong Yu, supra note 11, 405–430, at note 8, where it is reported that Bai Manchu who drew the lines did not remember the reasons for his actions. 110. 1998 EEZ and Continental Shelf Act, supra note 28, art. 14. 111. For the argument that the nine dotted lines define China's historical rights in the SCS, see Zou Keyuan, “Historic Rights,” supra note 7. 112. See, for example, Jon Van Dyke, “Disputes over Islands and Maritime Boundaries in East Asia,” in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, eds. S.-Y. Hong and J. M. Van Dyke (Leiden: Martinus Nijhoff, 2009), 39–75, 73; and Clive Schofield and Ian Townsend-Gault, supra note 6, at 659, 666. 113. On unilateral acts of state, see generally International Law Commission, “Unilateral Acts of States: Report of the Working Group—Conclusions of the International Law Commission relating to Unilateral Acts of States,” A/CN.4/L.703, 20 July 2006. 114. See Henry Rhoel R. Aguda and Jesusa Loreto A. Arellano-Aguda, “The Philippine Claim over the Spratly Group of Islands: An Application of Article 76 of the UNCLOS,” Philippine Law Journal 83 (2009): 573–608, for the argument that the Philippines’ extended continental shelf covers the whole KIG's seabed and subsoil. See also Schofield and Arsana, supra note 88, at 49–50, for the report that the Philippines determined that it may claim a continental shelf beyond 200 nautical miles in the vicinity of the KIG area. 115. See Malaysia/Singapore Case, supra note 71, paragraph 45, and the jurisprudence cited therein. 116. China's 2009 Notes Verbale, supra note 8.