Thayer Consultancy Background Brief

ABN # 65 648 097 123

South China Sea: China’s ‘New’
1951 Map Has No Basis in
International Law
April 24, 2018

We are trying to understand the implications of reports that Chinese scientists have
discovered an historical map that demarcates China’s national and administrative
boundaries in the South China Sea.
http://engine.scichina.com/publisher/scp/journal/CSB/63/9/10.1360/N972017-
00440?slug=full%20text
We request your assessment of the following: If China is amassing the evidence for a
solid-line claim in the South China Sea, what would that mean insofar as its territorial
rights (economic, military and otherwise) there? What sort of reaction would such a
move likely prompt among the littoral states?
ANSWER: In international law a map cannot be used to assert sovereignty over
territory unless it is appended to a treaty. China’s 1951 map has no legal standing; it
was not issued by the Chinese government but the Guanghua and Geosciences Club.
Discovery does not confer the right to sovereignty. Under international law
territorial sovereignty claims must be based on occupation and continual
administration. There is no evidence that the international community accepted this
map. Quite simply, the features that Chinese scientists are now claiming were either
occupied by colonial powers or were unoccupied (and likely uninhabitable) at that
time
Under international law ‘the land dominates the sea’ and the Philippines, Vietnam
and Malaysia are entitled to a 200 nautical Exclusive Economic Zone (EEZ) drawn
from coastal baselines. This confers on them the right of sovereign jurisdiction (not
to be confused with sovereignty) over the resources in the water column and seabed
within their EEZ.
If China formally adopted this map it would be claiming waters and resources over
which the littoral states have sovereign jurisdiction. This would aggravate the current
situation because the Arbitral Tribunal that heard the claims by the Philippines
against China has already decided on these matters.
If the Chinese government adopted this map it would lead to physical confrontations
between the Chinese Navy, Coast Guard and Chinese fishermen and regional states
over access to these resources. It would be an incendiary and retrograde step.
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If China issued a new contiguous u-shaped line it would bring itself into conflict with
the major maritime powers who regularly sail and fly over the area. China may reject
the Award (or ruling) by the Arbitral Tribunal, and regional states may be cowed into
silence, but the Award of the Arbitral Tribunal is now part of international case law
and has global applicability.
We know from historical research that the 1947 map drawn up by the Republic of
China (ROC), before it was forced to move to Taiwan, basically plagiarized the
contemporary British Admiralty charts of this period because the ROC had no means
of conducting surveys. ROC cartographers copied the features on the Admiralty
maps, including errors that were later corrected by the Admiralty, and attempted to
transliterate English names into Chinese.
ROC officials were unfamiliar with nautical terms and had difficulty translating
English terms into Chinese. For example, James Shoal was initially translated as a
sandbar and is commonly referred to as a reef. It is on this basis that China claims
that James Shoal is its farthest land feature in the South China Sea. In fact, James
shoal is more than 20 metres under water. In sum, it is likely that a map drawn up in
1951 would carry over the same mistakes.
A map has no particular standing in international law to back up a claim of
sovereignty. China would need to provide evidence of occupation and continual
administration over land features (islands and rocks). The assertion that the
international community accepted this map is just not true. France continued to
occupy features in the Paracels up until 1954. Present day Vietnam and Malaysia
were not independent at that time.
The ROC’s original eleven dash lines were reduced to nine by the People’s Republic
of China (PRC) and then expanded in recent years to ten to include Taiwan. In other
words, the dashes can be changed to suit Beijing’s political purposes.
The suggestion that a newly discovered map from 1951 can serve as a basis of
precise demarcation of China’s historic claims to sovereignty flies in the face of both
history and international law. Chinese scientists appear to be attempting to push a
claim to historic rights that were ruled invalid by the Arbitral Tribunal that heard the
case brought by the Philippines against China. Historical rights are narrowly defined
in international law to cover adjacent maritime areas traditionally shared by two or
more countries; it does not include an ambit claim to an entire body of water such as
the South China Sea.
The current initiative by Chinese scientists to give GPS precision to China’s nine dash
line by linking the dashes and defining their width and thus claiming all the resources
in the water column and sea bed enclosed by this new demarcation is an example of
Chinese hyper-nationalism if not Great Han Chauvinism. China’s claim completely
disregards the rights of indigenous peoples of the presentday states of the
Philippines, Vietnam, Malaysia and Indonesia who plied these waters long before
Chinese fishermen and explorers made their appearance.
As noted above, the Arbitral Tribunal found that China’s nine-dash line claim had no
basis in international law. The Arbitral Tribunal also ruled that China could not
encircle the Spratlys with one base line. Claims to maritime zones originate from the
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land. The Arbitral Tribunal ruled that there were no islands in the legal sense in the
Spratlys. Thus, none of China’s artificial islands or rocks can claim a 200 nm EEZ. This
legal principle negates the claim by Chinese scientists to all the resources enclosed in
their continuous line. But coastal states may claim a 12 nautical mile (nm) territorial
sea and a 200 nautical mile Exclusive Economic Zone from their land.
The attempt by Chinese scientists to demarcate an illegitimate historical claim could
seriously derail on-going negotiations between China and the ASEAN member states
to reach a legally binding Code of Conduct. It is disingenuous of Chinese scientists to
offer freedom of navigation to Southeast Asian claimant states and access to
resources to which they are legally entitled.

Suggested citation: Carlyle A. Thayer, “South China Sea: China’s ‘New’ 1951 Map Has
No Basis in International Law,” Thayer Consultancy Background Brief, April 24, 2018.
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.