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(1)Spratly Islands and International Law1) Tomoko Kakee 1．Introduction 2．Background of the current dispute 2. 1．Location 2. 2．History 2. 2. 1．Before WWII 2. 2. 2．After WWII 2. 3．Current situation 3．Claims by states concerned 3. 1．Taiwan 3. 2．The Philippines 3. 3．Viet Nam 3. 4．Malaysia 3. 5．China 4．International rules applicable to the dispute 4. 1．Acquisition of title 4. 1. 1．Occupation 4. 1. 2．Effectivités 4. 2．Acquisition of territorial water 4. 3．Artificial islands, installations and structures 5．Observations 5. 1．Title 5. 2．The nine-dash line. 1．Introduction The territorial disputes over the West Philippine Sea/South China Sea seem as one of the biggest challenges for Asian regional security. The Peopleʼs Republic of China (China) has reclaimed over 2,000 acres of land in the Spratly Islands/Nansha Islands since 2013 (as of 2015).2) China is not the only . 1) This paper was first presented at the UST-YNU joint seminar, University of Santo Tomas in the Philippines, February 2015. Author would like to appreciate the valuable comments given from the floor. 2) Matthew Rosenberg, “China Deployed Artillery on Disputed Island, U.S. Says,” New York Times, May 29, 2015, at http://www.nytimes.com/2015/05/30/world/asia/chinese-artillery-spotted-on-spratly-island.html?_r=0 (As of Aug. 11, 2015)..

(2) 2. （154）. 横浜国際社会科学研究第 20 巻第 3 号（2015 年 9 月）. country to develop outposts in the South China Sea over the years. Viet Nam, for instance, has 48, and the Philippines has eight.3) There are political, historical as well as economic reasons for current situation. This paper aims to figure out among others international legal problems regarding the dispute. For that end, this paper first looks at the historical background about when and how each claimant has got engaged in the Islands. Secondly, citing the official statements and announcements of each claimant state, legal bases of the claims at present are set out. Lastly, applying international rules to the claims made by relevant states, legal questions are discussed. 2．Background of the current dispute 2. 1．Location The Spratly Islands are located on the east side of the South China Sea. The Spratly Islands consist of more than 140 islets, rocks, reefs, shoals, and sandbanks spread over an area of more than 410,000 km2. Some are totally or occasionally submerged, whereas others are always dry. Less than forty of them are islands under the definition of the United Nations Convention on the Law of the Sea (UNCLOS).4) All or some of the Spratly Islands are claimed by China, Republic of China (Taiwan), Viet Nam, the Philippines and Malaysia to be their territories, and one reef lies within 200 nautical miles(nm) of Brunei Darussalam.5) 2. 2．History 2. 2. 1．Before WWII At least since the 16th century, Spratly Islands have been recognized by Asian and European sailors and are found in different maps. China and Viet Nam have called them Wanli Shitang6) but Tsukamoto argued in his article that those maps were not precise enough to identify Wanli Shitang as Spratly Islands.7) Chinese study pointed out that there were records on the activities of Chinese nationals in parts of the South China Sea since the 15th century.8) In 1864, British naval ship visited the islands, and in 1877 Britain registered the islands as a property of its national. Around this time, the islands were named Spratly.9) In early 1920s, Japanese private company has commenced mineral resource development on some of the islands but . 3) Ibid. 4) Robert Beckman, “The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea,” The American Journal of International Law, vol. 107 (2013) p. 213. 5) Ibid., p. 214. 6) According to the Government of China, in the Tang and Song Dynasties, the Nansha and Xisha Islands were called by different names such as Jiuruluo Islands, Shitang, Changsha, Qianli Shitang, Qianli Changsha, Wanli Shitang, and Wanli Changsha among others. Embassy of the Peopleʼs Republic of China in the Republic of Indonesia, “Historical Evidence To Support Chinaʼs Sovereignty over Nansha Islands,” 2004/04/21, at http://www.fmprc.gov.cn/ce/ceindo/eng/ rdht/nhwt/t87272.htm (as of Aug 17, 2015) . 7) 塚本孝「スプラトリー諸島領有権紛争の経緯」『東海法学』第 48 巻（2014 年）pp. 94‒95. According to Tsukamoto, Wanli Shitang could be Paracel Islands, or could be neither of them. 8) Zhinguo Gao and Bing Bing Jia, “The South China Sea: The Nine-Dash Line in the South China Sea: History, Status, and Implications,” American Journal of International Law, vol. 107 (2013), pp. 100‒101. 9) 塚本，前掲注 7), p. 95. 10) Ibid., p. 90..

(3) Spratly Islands and International Law（Tomoko Kakee）. （155）. 3. withdrawn by the end of 1920s. In 1933 France declared occupation of the islands. Japan has objected this declaration and the conflict has continued intermittently until 1939 when Japan incorporated the islands under jurisdiction of Governor-General of Taiwan.10) China also objected the French occupation but a study doubted if it was an official objection as a government claiming its title.11) During WWII, Japan has used the islands as naval bases. 2. 2. 2．After WWII The San Francisco Peace Treaty of 1951 is a treaty of peace between Japan and 45 states. 12). after the World. War II. In this treaty, Article 2, paragraph (f) provides that Japan renounces all right, title and claim to the Spratly Islands and to the Paracel. From this paragraph, it is clear that Japan has lost its title for those islands by this treaty. It may be said that the present dispute was caused from the questions about to which state the title was transferred and what the legal bases of the claims are. In 1988, there was a confrontation between China and Viet Nam at Johnson Reef, where Chinese troops opened fire from a ship on a contingent of Vietnamese soldiers, dozens of Vietnamese being cut down in the water under a hail of machine-gun fire.13) 2. 3．Current situation The current dispute was evoked in relation to the expansion of the continental shelf. Although all of the states bordering the South China Sea have claimed a territorial sea, an EEZ, and a continental shelf from their baselines, the precise locations of the outer limits of their EEZ and continental shelf have remained unclear. But then on May 6, 2009, Malaysia and Viet Nam made a joint submission to the Commission on the Limits of the Continental Shelf (CLCS)14) with respect to the continental shelf in the southern part of the South China Sea.15) The submissions by Malaysia and Viet Nam were significant because they attached maps that clarified for the first time the outer limits of the EEZ claims of Malaysia and Viet Nam.16) Also, in objecting the submission, China attached a famous map with nine-dash lines. China and the Philippines both submitted notes verbales to the United Nations objecting to these submissions and asking CLCS not to consider their submission due to the . 11) Ibid. 12) China and Taiwan are not included. 13) Howard W French, “ Whatʼs behind Beijingʼs drive to control the South China Sea? ” The Guardian, July 28, 2015, at http://www.theguardian.com/world/2015/jul/28/whats-behind-beijings-drive-control-south-china-sea-hainan (as of Aug. 23, 2015). 14) According to Article 3 of the Annex II of UCLOS, the missions of the CLCS are that “ (a) to considers the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nm, and to make recommendations in accordance with Article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea”; “(b) to provide scientific and technical advice, if requested by the coastal State concerned during preparation of such data”. 15) Receipt of the joint submission made by Malaysia and the Socialist Republic of Viet Nam to the Commission on the Limits of the Continental Shelf, CLCS. 33. 2009. LOS (7 May 2009) at http://www.un.org/depts/los/clcs_new/ submissions_files/mysvnm33_09/mysvnm_clcs33_2009e.pdf (as of Aug 6, 2015). 16) Beckman, supra note 4, p.148..

(4) 4. （156）. 横浜国際社会科学研究第 20 巻第 3 号（2015 年 9 月）. The map attached to the note verbale No. CML/17/2009. 18). existence of a maritime dispute in these areas.17) According to the Chinaʼs note verbales, China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and . 17) Note verbale No. CML/17/2009 from the Permanent Mission of the Peopleʼs Republic of China to the UN Secretary-General (May 7, 2009), at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/ chn_2009re_mys_vnm_e.pdf; See Note verbale No. 000819 from the Permanent Mission of the Republic of the Philippines to the UN Secretary-General (August 4, 2009), at http://www.un.org/depts/los/clcs_new/submissions_files/ mysvnm33_09/clcs_33_2009_los_phl.pdf (As of Aug.15, 2015). According to Article 2 of the AnnexⅡof UNCLOS, “ the.

(5) Spratly Islands and International Law（Tomoko Kakee）. （157）. 5. jurisdiction over the relevant waters.19) At present, as is well known, the China National Offshore Oil Corporation (CNOOC) and other national companies have constructed new oil concession blocks just inside the nine-dash line. 20) It is reported that China has reclaimed on some islands and reefs in the area to build facilities that would serve military and civilian purposes.21) In response to Chinaʼs activities, on January 22, 2013, the Philippines instituted arbitral proceedings against the Peopleʼs Republic of China under Annex VII to UNCLOS, with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea. The Philippines requested among others to declare Chinaʼs maritime claims in the South China Sea based on its so-called ninedash line are contrary to UNCLOS and invalid, as well as to desist from activities that violate the rights of the Philippines in its maritime domain in the South China Sea.22) On February 19, 2013, China presented a note 23) verbale to the Philippines in which it rejected and returned the Philippinesʼ Notification. 3．Claims for title 3. 1．Taiwan The Taiwanese Ministry of Foreign Affairs claims on its website as follows:. 24). The South China Sea islands were first discovered, named, and used, as well as incorporated into national territory by the Chinese. In 1938 and 1939, Japan illegally occupied the Tungsha (Pratas), Shisha (Paracel), and Nansha (Spratly) Islands. On March 30, 1939, Japan integrated what it called “Shinnan Gunto”(comprising some of the Nansha/Spratly Islands) into Takao Prefecture (today known as Kaohsiung City) through Announcement No. 122 of the Taiwan Governor-Generalʼs Office. In 1946, following World War II, the ROC government reclaimed the Tungsha (Pratas), Shisha (Paracel), and Nansha (Spratly) Islands, erecting stone markers on major islands and garrisoning some. In December 1947 it issued the revised names of the South China Sea Islands and the Location Map of the South China Sea Islands, which delineate the scope of ROC territory and waters in the region.. . Commission shall consist of 21 members who shall be experts in the field of geology, geophysics or hydrography. ” Thus the members of the Commission are there for scientific analysis but not for political or historical judgments. In this regard, Article 9 stipulates that “ The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts. ” 18) Ibid. 19) Ibid. 20) U.S. Energy Information Administration, South China Sea (Feb. 7, 2013), at http://www.eia.gov/beta/ international/analysis_includes/regions_of_interest/South_China_Sea/south_china_sea.pdf (as of Aug. 8, 2015). 21) Chun Han Wong , “China to Build Military Facilities on South China Sea Islets,” The Wall Street Journal, June 16, 2015, at http://www.wsj.com/articles/china-to-build-military-facilities-on-south-china-sea-islets-1434436700 (as of Aug. 8, 2015). 22) West Philippine Sea Arbitration Updates, Issue May 2013 (2013) p. 1, at http://www.dfa.gov.ph/images/ PDF/2013%20WPS%20Update%201%20-%20May%202013.pdf (as of Aug. 07, 2015). 23) The Republic of the Philippines v. The People’s Republic of China, Permanent Court of Arbitration, at http:// www.pca-cpa.org/showpage65f2.html?pag_id=1529 (as of Aug. 8, 2015). 24) Statement on the South China Sea, 2015/07/07, No.001, Ministry of Foreign Affairs, Republic of China (Taiwan), at http://www.mofa.gov.tw/en/News_Content.aspx?n=1EADDCFD4C6EC567&sms=5B9044CF1188EE23&s=EDEBC A08C7F51C98 (as of Aug. 07, 2015)..

(6) 6. （158）. 横浜国際社会科学研究第 20 巻第 3 号（2015 年 9 月）. Furthermore, the San Francisco Peace Treaty, which entered into effect on April 28, 1952, as well as the Treaty of Peace between the ROC and Japan, which was signed that same day, together with other international legal instruments, reconfirmed that the islands and reefs in the South China Sea occupied by Japan should be returned to the ROC. In the several decades since, the fact that the ROC owns and exercises effective control over these islands has been recognized by foreign governments and international organizations.. In this, Taiwan has referred to Article 2 of the Treaty of Peace between Japan and the Republic of China, which stipulates that “It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951..., Japan has renounced all right, title and claim to Taiwan(Formosa) and Penghu(the Pescadores) as well as the Spratly Islands and the Paracel Islands.” Among those four groups of islands, the former two (Taiwan and Penghu) were actually returned to Taiwan. However, natural reading of this wording would imply that it has only recognized an article of the San Francisco Peace Treaty, not that it gave Taiwan the title to the Spratly Islands and the Paracel Islands. 3. 2．The Philippines After the San Francisco Peace Treaty, the Philippines took the position that Spratly Islands should be returned from Japan to a member of the United Nations, but attribution of those islands were yet to be decided.25) In 1947 when Tomas Cloma, a Filipino adventurer and a fishing magnate, discovered a group of several uninhabited and unoccupied islands/islets, and in 1956 when he took formal possession of the islands, lying some 380 miles west of the southern end of Palawan and named it “Free Territory of Freedomland.” 26) Cloma was met with violent and unfriendly reactions from several neighboring countries especially Taiwan. Unable to surmount the difficulties and pressure, he ceded his claim to the Philippines for one peso.27) In June 1978, by Presidential Decree No. 1596, the Government of the Philippines officially announced to incorporate some islands to its territory.28) In this document, the government of the Philippines clearly delineated the extent of Kalayaan Island group29) and explained that; (1) much of the above area is part of the continental margin of the Philippine archipelago; (2) these areas do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control established in accordance with international law, such areas must now be deemed to belong and subject to the sovereignty of the Philippines; (3) . 25) 塚本，前掲注 7), p. 84. 26) Historical Background, Municipal Government of Kalayaan, at http://www.kalayaanpalawan.gov.ph/about_the_ municipality/historical_background.html (as of Aug. 10, 2015). 27) Ibid. 28) Presidential Decree No. 1596, s. 1978, at http://www.gov.ph/1978/06/11/presidential-decree-no-1596-s-1978/ (as of Aug. 22, 2015). 29) According to the Decree, Kalayaan Island group is delineated as following; from a point [on the Philippine Treaty Limits] at latitude 7° 40ʼ North and longitude 116° 00ʼ East of Greenwich, thence due West along the parallel of 7° 40ʼ N to its intersection with the meridian of longitude 112° 10ʼ E, thence due north along the meridian of 112° 10ʼ E to its intersection with the parallel of 9° 00ʼ N, thence northeastward to the intersection of the parallel of 12° 00ʼ N with the meridian of longitude 114° 30ʼ E, thence, due East along the parallel of 12° 00ʼ N to its intersection with the meridian of 118° 00ʼ E, thence, due South along the meridian of longitude 118° 00ʼ E to its intersection with the parallel of 10° 00ʼ N, thence Southwestwards to the point of beginning at 7° 40ʼ N, latitude and 116° 00ʼ E longitude..

(7) Spratly Islands and International Law（Tomoko Kakee）. （159）. 7. while other states have laid claims to some of these areas, their claims have lapsed by abandonment and can not prevail over that of the Philippines on legal, historical, and equitable grounds.30) Precise description of the area made the governmentʼs claim of scope very clear. This kind of clear delineation cannot be found in claims by China or Taiwan. However, each of three points mentioned above provides several questions. First, can the fact that “the area is part of the continental margin of the Philippine archipelago” be a decisive element to obtain title of islands in that area? Second, assuming “these areas do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control,” why such areas must be deemed to belong and subject to the sovereignty of the Philippines? Third, there is no clear explanation why the Pilipino claim can prevail other claims. Responding to Philippinesʼ claim, China complained that since 1970s, the Philippines started to invade and occupy some islands and reefs of Chinaʼs Nansha Islands and made relevant territorial claims.31) 3. 3．Viet Nam Viet Namʼs position can be seen at the website of its Ministry of Foreign Affairs as follows: 32) Viet Nam has full legal foundations and historical evidence asserting its possession of Truong Sa and Hoang. Sa33) archipelagoes from at least the 17th century, before which they did not belong to the sovereignty of any country. From the 17th to 19th centuries, Viet Namʼs feudal states conducted a series of activities to exercise their sovereignty over the two archipelagoes, such as sending flotillas to survey and draw them on maps, planting steles, building temples and managing and organising fishing activities in Hoang Sa islands. The official documents of the Nguyen Dynasty were the original and most important materials made by the State during their reign. In those documents, people were sent to Hoang Sa and what they did there are detailed in the reports, which also feature decisions made by the Kings, and these documents serve as the highest legal and historical evidence of the State asserting its exercise of sovereignty. During the period of French colonisation of Viet Nam (from the late 19th century to the first half of the 20th century), France, in the name of Viet Nam, continued to exercise the management of the two archipelagoes of Hoang Sa and Truong Sa. From the 1930s, France integrated the two archipelagoes into Viet Namʼs mainland provinces and stationed troops there. Later, under the Geneva Accords of 1954, France handed them over to the Saigon administration – the government of the Republic of Viet Nam. Since 1975 when the south of Viet Nam was completely liberated, the two archipelagoes have been put under the management of the Socialist Republic of Viet Nam.. Thus, Viet Namʼs exercise of territorial sovereignty over Hoang Sa and Truong Sa archipelagoes has been . 30) Ibid. 31) Note verbale No. CML/8/2011 from the Permanent Mission of the Peopleʼs Republic of China to the UN Secretary-General (April 14, 2011) at http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/ chn_2011_re_phl_e.pdf (as of Aug. 11, 2015). 32) Spratly Islands. 33) Paracel Islands..

(8) 8. （160）. 横浜国際社会科学研究第 20 巻第 3 号（2015 年 9 月）. conducted in an actual, peaceful and continuous manner in accordance with international law and is recognised by the global community. At the San Francisco Peace Conference in 1951, a representative of the then Vietnamese government affirmed Viet Namʼs sovereignty over Hoang Sa and Truong Sa archipelagoes without meeting any opposition from the participating countries. This shows that Chinaʼs claim for sovereignty over the two archipelagoes was rejected by the international community, while Viet Namʼs sovereignty over them was recognised. This is a powerful truth.34). There are several ambiguities in this statement. First, between two archipelagoes, explanation about Hoang Sa (Paracel islands) is much clearer and more detailed than Truong Sa (Spratly islands). Actually there are no historical descriptions specifically about Spratly Islands. Second, in the Geneva Accords of 1954, there is no specific wording about handing over those archipelagoes from France to the Republic of Viet Nam.35) Third, even if Viet Nam did not meet any opposition at the San Francisco Peace Conference in 1951, it does not mean that no country opposed Viet Namʼs sovereignty over those islands because China and Taiwan did not participate in the conference. The question here is whether the lack of oppositions at the conference can give a solid basis for Vietnamese title. 3. 4．Malaysia Within the South China Sea, Malaysia claims 11 maritime features in the Spratly Islands and occupies eight of them, with the other three being occupied by Viet Nam or the Philippines.36) There is no official public documentation on the current Malaysian governmentʼs South China Sea policy. One term often heard is “quiet diplomacy”.37) However, it is clear that Malaysia rejected the validity of historic title. In the note verbale from the Permanent Mission of Malaysia to the United Nations to the Secretary-General of the United Nation no. HA 41/09, the mission cited to the Separate Opinion of Judge Franck in the Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan and the Application by the Philippines for permission to Intervene as follows: Modern international law does not recognize the survival of a right of sovereignty based solely on historic title: not in any event, after an exercise of self-determination conducted in accordance with the requisites of. . 34) Undeniable history: Hoang Sa, Truong Sa have always been sacred territories of Viet Nam, Vietnam Ministry of Foreign Affairs, at http://www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns140623034655/view (as of Aug. 11, 2015). 35) Agreement on the Cessation of Hostilities in Vietnam, Geneva, 20 July 1954, at https://history.state.gov/ historicaldocuments/frus1952-54v16/d1044 (as of Aug. 15, 2015); see also the Office of the Geographer, Department of State, United States of America, International Boundary Study No. 19―September 10, 1962, Vietnam―“Demarcation Line,” at http://archive.law.fsu.edu/library/collection/LimitsinSeas/IBS019.pdf (as of Aug. 15, 2015). 36) Prashanth Parameswaran, Playing It Safe: Malaysia’s Approach to the South China Sea and Implications for the United States (Center for a New American Security, 2015) at http://www.cnas.org/sites/default/files/publications-pdf/ CNAS%20Maritime%206_Parameswaran_Final.pdf (as of Aug. 11, 2015). 37) Prashanth Parameswaran, “Malaysiaʼs South China Sea Policy: Playing It Safe,” The Diplomat, March 06, 2015, at http://thediplomat.com/2015/03/malaysias-south-china-sea-policy-playing-it-safe/(as of Aug. 11, 2015)..

(9) Spratly Islands and International Law（Tomoko Kakee）. （161）. 9. international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”38). 3. 5．China China has presented its position several times. For instance, in the Note verbale No. CML/17/2009 from the Permanent Mission of the Peopleʼs Republic of China to the UN Secretary-General, China claimed as follows: 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. Chinaʼs sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence.39) In addition, China is of the view that under the relevant provisions of UNCLOS as well as Chinese Laws, Chinaʼs Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone and Continental Shelf.40). As to the nine-dash line, which was presented in the map attached to the above-mentioned note verbale, its function is not clear. Gao & Jia explain that “the nine-dash line has become synonymous with a claim of sovereignty over the island groups that always belonged to China and with an additional Chinese claim of historical rights of fishing, navigation, and other marine activities”, and that “the lines may also have a residual function as potential maritime delimitation boundaries.” 41) According to them, because the states concerned have tolerated or acquiesced in the situation in the South China Sea, that led to a historical consolidation of the nine-dash line at the location.”42) Further, “the Chinese claim to historic title to the islands of the South China Sea and other historic rights within the dashed lines is further strengthened through the doctrine of historical consolidation.”43) China has referred to “historic rights” in Chinaʼs Exclusive Economic Zone and Continental Shelf Act of June 26, 1998. Article 14 of the Act provides that the “provisions of this Act shall not affect the historical rights of the Peopleʼs Republic of China.”44) According to the report by United States Department of State, the dashed-line map distributed by China to . 38) Note verbale from the Permanent Mission of Malaysia to the United Nations to the Secretary-General of the United Nation no. HA 41/09, Aug. 21, 2009, at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/ mys_re_phl_2009re_mys_vnm_e.pdf (as of Aug. 26, 2015). 39) Note verbale No. CML/8/2011 from the Permanent Mission of the Peopleʼs Republic of China to the UN Secretary-General (April 14, 2011). 40) Ibid. 41) Zhiguo Gao and Bing Bing Jia, “ The South China Sea: the nine-dash line in the South China Sea: history, status, and implications, ” American Journal of International Law, vol. 107 (2013) p. 108. 42) Ibid., p. 116. 43) Ibid., p.114. 44) Chinaʼs Exclusive Economic Zone and Continental Shelf Act of June 26, 1998, at http://www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/chn_1998_eez_act.pdf (as of Aug. 15, 2015)..

(10) 10. （162）. 横浜国際社会科学研究第 20 巻第 3 号（2015 年 9 月）. the international community in 2009 is also cartographically inconsistent with other published Chinese maps. The dashes from the 2009 map do not appear to be in the identical geographic locations as the dashes from the 2013‒2014 maps published by Sinomaps and those of its predecessor, Cartographic Publishing House (Ditu Chubanshe), dating back to at least 1984.45) 4．International rules applicable to the dispute 4. 1．Acquisition of title In international legal theory, there are four modes of acquiring territory: occupation, accretion, cession, conquest.46) Among those four, this paper looks at occupation as the most relevant mode for this case. Other than modes of acquisition, it should be noted that the Court couldnʼt take into consideration acts having taken place after the date on which the dispute between the Parties crystallized.47) This date is called “critical date.” Also, there is a concept called “inter-temporal law” that a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.48) 4. 1. 1．Occupation According to the rules of international law, occupation needs to meet two criteria. First, the territory must be discovered as no manʼs land (terra nullius), i.e. new land, for example a volcanic island, territory abandoned by the former sovereign, or territory not possessed by a community having a social and political organization.49) 50) Secondly, occupation must be effective and accompanied by the intent to appropriate the territory. In. history, some scholar argued that discovery was recognized as a fully valid title for the acquisition of territory, and the question was always controversial. In the 19th century international arbitral tribunals were several times confronted with having to examine the legal validity of the title of discovery in the 16th and 17th centuries such as the American-Dutch dispute over sovereignty over the Island of Palmas in 1929.51) In this case, an arbitrator said that “discovery alone, without any subsequent act, cannot, at the present time suffice to prove sovereignty over Island of Palmas,”52) and “what is essential in such a case is the continuous and peaceful display of actual power in the contested region.”53) Thus, discovery, though much employed, is less than satisfactory for the purpose of legal analysis.54) . 45) Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State, Limits in the Seas, No. 143 China: Maritime Claims in the South China Sea, December 5, 2014, at http://www.state.gov/ documents/organization/234936. pdf (as of Aug. 11, 2015). 46) Ian Brownlie, Principles of Public International Law, Seventh Edition, (Oxford University Press, 2008) p. 133. 47) Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 682, para. 135. 48) Island of Palmas case (Netherlands/ USA), Reports of International Arbitral Awards, vol. 2, p. 845. 49) Sovereignty over Pulau Ligitan and Pulau Sipadan, supra note 47, pp. 133‒4. 50) Antonio Cassese, International Law, second edition, (Oxford University Press, 2005) p. 83. 51) Wilhelm G. Grewe, The Epochs of International Law, (Walter de Gruyter, 2000) pp. 251‒2. 52) Island of Palmas case, supra note 48, p. 846. 53) Ibid., p. 857. 54) Brownlie, supra note 46, p. 139..

(11) Spratly Islands and International Law（Tomoko Kakee）. （163）. 11. 55) The requirement of an intention to appropriate the territory has a necessary function in three contexts.. First, the activity must be à titre de souverain in the sense that the agency must be that of the state and not of unauthorized natural or legal persons. Secondly, if the activity is by the consent of another state or that other is otherwise recognized as the rightful sovereign then no amount of state activity is capable of maturing into sovereignty. Thirdly, the dominant nature of the activity taken as a whole must be explicable only on the basis that the existence of sovereignty is assumed. Thus the facts that the territory was on the ancient map or that fishermen were there to fish are not enough as evidences for the title. In this regard, in the Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ said that maps merely constitute information which varies in accuracy from case to case, and by virtue solely of their existence, maps cannot constitute a territorial title.56) 4. 1. 2．Effectivités In recent cases, there appeared a new concept called “effectivité.” This concept was defined in the case between Burkina Faso and Mali as “the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period”.57) In its judgment, the concept was defined as “colonial effectivités” in relation to the principle of uti possidetis. But in later cases, this concept has been applied in wider contexts. The function of effectivité is unique because it overlaps with the idea of “continuous and peaceful display of territorial sovereignty” in Palmas case, but functions in a different way. Effectivité itself is not a title. The legal relationship between effectivité and the titles was drawn among several eventualities by the ICJ as follows: (1) Where the act corresponds exactly to law, where effective administration is additional to the uti possidetis juris, the only role of effectivité is to confirm the exercise of the right derived from a legal title; (2) where the act does not correspond to the law, where the territory, which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title; (3) in the event that the effectivité does not coexist with any legal title, it must invariably be taken into consideration; (4) there are cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. The effectivité can then play an essential role in showing how the title is interpreted in practice.58) For example, in the case Concerning The Frontier Dispute (Benin/Niger), the Chamber of the ICJ concluded that neither of the Parties has succeeded in providing evidence of title on the basis of regulative or administrative acts during the colonial period, and therefore, the Chamber then considered whether the evidence furnished by the Parties with respect to effectivités could provide the basis for it to determine the course of the frontier.59) Contents of the effectivités are considered in several cases at ICJ. For example, in case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ recognized Malaysiaʼs such policies as the 1917 Turtle Preservation Ordinance and the 1930 Land Ordinance, in which Sipadan was declared to be “a reserve for the . 55) Ibid., p. 135. 56) Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 582, para. 54. 57) Ibid., p. 586. 58) Ibid., pp. 586‒7. 59) Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 127, paras. 75‒6..

(12) 12. （164）. 横浜国際社会科学研究第 20 巻第 3 号（2015 年 9 月）. purpose of bird sanctuaries,” as effectivités.60) Activities by private persons like fishermen cannot be seen as 61) effectivités if they do not take place on the basis of official regulations or under governmental authority. ICJ referred to “critical date” in relation to effectivité. It said that in “the context of a maritime delimitation dispute or of a dispute related to sovereignty over land, the significance of a critical date lies in distinguishing between those acts performed à titre de souverain which are in principle relevant for the purpose of assessing and validating effectivités, and those acts occurring after such critical date, which are in general meaningless for that purpose.”62) 4. 2．Attribution of territorial waters Under UNCLOS, every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nm, measured from baselines determined in accordance with this Convention.63) The baseline is normally drawn along the low-water line of the coast.64) From these rules it is obvious that territorial water is usually attached to the land. An archipelagic State is an exception for this rule. But of course this exception has its limits. In case of archipelagic baselines, an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1; and the length of such baselines shall not exceed 100 nm, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nm; the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago; such baselines shall not be drawn to and from low-tide elevations,65) unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island.66) 4. 3．Artificial islands, installations and structures In UNCLOS, rules about artificial islands, installations and structures exist only those in the exclusive economic zone. There are no rules about structures on high sea. Article 60 provides that the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures for the economic purposes; (c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone, and that due notice must be given of the construction of . 60) Sovereignty over Pulau Ligitan and Pulau Sipadan (IndonesialMalaysia), Judgment, I.C.J. Reports 2002, p. 683, pp. 143‒4. 61) Ibid., para. 140. 62) Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 697, p. 117. 63) Article 3 of UNCLOS. 64) Article 5 of UNCLOS. 65) Article13 of UNCLOS provides that a low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 66) Article 47 of UNCLOS..

(13) Spratly Islands and International Law（Tomoko Kakee）. （165）. 13. such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. Also, it provides that the coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures and the breadth of the safety zones shall be determined and designed by the coastal State, to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 meters around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization, and artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. 5．Observation 5. 1．Title As far as has been hitherto observed, none of the claims introduced above are set out in clear legal terms and seem to be strong enough to compete other Statesʼ claims. As shown above, in the event that the effectivité does not coexist with any legal title, it must invariably be taken into consideration and this could be the case where the legal title is not capable of showing exactly the territorial expanse to which it relates. Thus effectivités might be the ones to be considered. Even then, many points raised by claimants such as ancient maps and uses by fishermen seem to be irrelevant as effectivités. The question whether Chinese reclamation can be effectivités depends on the setting of critical date for the dispute and depends on judgement if the activity is legal. 5. 2．The nine-dash line Under this possible interpretation, the nine-dashed line that appears on Chinese maps is intended to indicate a national boundary between China and neighboring States. China claims that area enclosed by the nine-dash line is the historic water or historic rights.67) While it is beyond doubt that the recurring references to “historic rights” or “historical rights” are aimed at emphasizing Chinaʼs long-standing claim to the area as the determining factor in establishing its sovereignty, the meaning and legal relevance that China attributes to such language remain obscure.68) Indeed, the basis for Chinaʼs claim in the South China Sea has never been officially set out in clear legal terms. Dupuy & Dupuy argued that it appeared highly unlikely that any international court or tribunal charged with assessing the Chinese claim would attribute any substantial value to the map, let alone rely on it as the main basis for Chinaʼs title.69) A research by the United States Department of State pointed out several problems with the nine-dash line: first, if the dashes on Chinese maps are intended to indicate only the islands over which China claims sovereignty then, to be consistent with the law of the sea, Chinaʼs maritime claims within the dashed line would include a territorial sea, contiguous zone, EEZ, and continental shelf, drawn in accordance with UNCLOS from Chinaʼs mainland coast and land features that meet the definition of an “island” under Article 121 of the Convention; second, even if China . 67) Permanent Mission of the Peopleʼs Republic of China, Note verbale CML/8/2011, April 14, 2011. 68) Florian Dupuy and Pierre-Marie Dupuy, “The South China Sea: A Legal Analysis of China's Historic Rights Claim in The South China Sea,” American Journal of International Law, vol. 107 (2013), p. 131. 69) Ibid., p. 134..

(14) 14. （166）. 横浜国際社会科学研究第 20 巻第 3 号（2015 年 9 月）. possessed sovereignty of the islands, any maritime zones generated by those islands in accordance with Article 121 would be subject to maritime boundary delimitation with neighboring States―if the dashes on Chinese maps are intended to indicate national boundary lines, then those lines would not have a proper legal basis under the law of the sea, since under international law, maritime boundaries are created by agreement between neighboring States and one country may not unilaterally establish a maritime boundary with another country; thirdly, such a boundary would not be consistent with State practice and international jurisprudence, which have not accorded very small isolated islands like those in the South China Sea more weight in determining the position of a maritime boundary than opposing coastlines that are long and continuous; finally, if the dashes on Chinese maps are intended to indicate the area in which China claims so-called “historic waters” or “historic rights” to waters that are exclusive to China, such claims are not within the narrow category of historic claims recognized in Articles 10 and 15 of UNCLOS. The South China Sea is a large semi-enclosed sea in which numerous coastal States have entitlements to EEZ and continental shelf, consistent with UNCLOS; the law of the sea does not permit those entitlements to be overridden by another Stateʼs maritime claims that are based on “history.” To the contrary, a major purpose and accomplishment of the Convention is to bring clarity and uniformity to the maritime zones to which coastal States are entitled.70) The points raised by the report seem to represent general understanding of international lawyers. The conclusion of this article should wait for upcoming award by the PCA, but what this author will say is that the nine-dash line is hardly an outer border of Chinaʼs territorial sea according to UNCLOS. Historic rights to waters in UNCLOS cannot be applied in this case. Thus the line itself has nothing to do with Chinaʼs title to certain islands. As to the acquisition of the title in this case, effectivités of each island surrounded by the line must be shown. Reclaimed lands and structures on them cannot include territorial water. Only in cases where the reclaimed lands and structures are recognized as within Chinaʼs EEZ, safety zones less than 500 meters around them can be established. China rejects the jurisdiction of the court by reason that the framework of UNCLOS is not applicable to issues such as territorial disputes over islands, which are not covered by the Convention, and that under UNCLOS, in case of disputes over territory, maritime delineation and historic title or rights, a signatory to the Convention may refuse to accept the jurisdiction of any international justice or arbitration.71) In this regard, Professor Sands replied to the Tribunal question in the hearing, on behalf of the Philippines, that the question of which state has sovereignty over a particular insular feature is, firstly, not being raised by the Philippines in these proceedings; and, secondly, is entirely irrelevant to the characterization of the feature or the entitlements it may have.72) ［かけえともこ横浜国立大学大学院国際社会科学研究院特任准教授］. . 70) Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State, supra note 45. 71）China’s Position on the Territorial Disputes in the South China Sea between China and the Philippines, 2014/04/04, Embassy of The Peopleʼs Republic of China in Canada, at http://ca.chineseembassy.org/eng/zt/cpot/ t1144139.htm (as of Sept. 9, 2015). 72）In the matter of an arbitration under Annex VII to the United Nations Convention on the Law of the Sea PCA Case No. 2013‒19, Permanent Court of Arbitration, “Final Transcript Day 2, Jurisdiction Hearing, 08-07-2015”, p. 3, at http://www.pcacases.com/web/sendAttach/1400 (as of Sept. 9, 2015)..

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