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AN ANALYSIS FROM TAIWAN, R.O.C.

Yann-huei Song , Academia Sinica, Taiwan

And Peter Kien-hong Yu, National Sun Yat-sen University

In January 1948, the Ministry of Interior (MOI) of the Republic of China (ROC) officially published a map-Nanhai zhudao weizhi tu (Map of Locations of South China Sea Islands)-on which a "U"-shaped line was drawn to enclose a large part of the waters of the South China Sea. 1 The four groups of South China Sea islands, namely, the Pratas (Dongsha), the Paracels (Xisha), the Macclesfield Bank (Zhongsha), and the Spratlys (Nansha), were enclosed by the line. Because no protests or opposition were expressed by the states concerned or the international community in general after the map was published, and the legal status of the enclosed waters has never been clarified by the ROC, questions concerning the nature of this "U"-shaped boundary line continue to be raised. Particularly since the naval skirmish between the People's Republic of China (PRC) and the Socialist Republic of Vietnam (SRV) in March 1988, questions regarding the legal status of the "U"-shaped line have been raised, with different opinions among scholars specializing in international law and politics in the ROC on Taiwan on what the line represents. 2 Recently scholars, and even government officials, from Indonesia, Malaysia, and the Philippines have began to raise questions about the "U"-shaped line. 3

Given the fact that the South China Sea territorial dispute has become one of the most important security problems in the region, and that the Chinese claim to a large part of the South China Sea as its "historic waters" will have a tremendous impact on the future delimitation of maritime boundaries in the area, deepening animosity among the six claimants-the PRC, the ROC, the SRV, the Philippines, Malaysia, and Brunei-there is an urgent need to explore the issue thoroughly.

This article will examine the legal question of Taipei's claim to the waters of the South China Sea enclosed by the "U"-shaped line as its "historic waters." After a discussion of the emergence and development of the ROC's claim, the concept and definition of historic waters will be examined. Thereafter, the nature of the "U"-shaped line and the legal status of the waters enclosed by the line will be considered. Finally, the potential impact of the ROC's claim on its relations with other Southeast Asian states will be evaluated.

After France reasserted claims to the Paracels in 1931 and the Spratly islands in 1933, it was generally agreed that China had to take actions to defend its sovereignty over the island groups in the South China Sea. 4 As a result, a Review Committee for Sea and Land Maps was established in June 1933. Four months later, a revised "Review Regulation for Sea and Land Maps" was issued by the Executive Yuan of the ROC. In December 1934, the Committee started to review the names of South China Sea islands in both Chinese and English. And in April 1935, the Zhongguo Nanhai gedao yu tu (Map of the Islands of the South China Sea), believed to lye the first official Chinese map of the South China Sea, was published by the governments. 5

Between 1946 and 1947, the MOI conducted a further study of the situation in the South China Sea and, based upon information collected by the Nationalist navy, published a "Cross Reference Table of the New and Old Names of the South China Sea Islands" in December 1947, listing 159 islands or islets. In January 1948, the "Map of Locations of South China Sea Islands" on which a "U"-shaped line was drawn to encircle the four larger groups of the South China Sea islands as well as their surrounding waters was officially Published and became available to the public. Since then, this "U"-shaped line has been used in Chinese maps for the purpose of showing the boundary limit of the Chinese maritime areas and the Chinese claim to the South China Sea islands. 6 The line was drawn "arbitrarily" and there was no precise delimitation of this line by coordinates. However, for over four decades, no protests were issued by neighboring countries, whose interests were involved in the area encircled by the line, or by the international community in general. Scholars, Chinese or foreign, specializing in ocean law and politics, did not examine the question either. Although occasionally mentioning that the line indicated China's claim to the islands and maritime areas in the South China Sea, no one, to our knowledge, ever raised a question concerning the line during that time. Neither the ROC nor PRC governments clarified the nature of the line or the legal status of the waters enclosed. In recent years, however, the question was raised both in Taiwan and mainland China, and by other concerned states.

About one year after the naval skirmish between the PRC and Vietnam in 1988, the ROC's MOI established an ad hoc committee to help determine the basepoints and baselines to be used for measuring the breadth of the ROC's territorial seas. At the same time, another ad hoc committee was set up to help draft the ROC's laws on the exclusive economic zone (EEZ) and the territorial seas.7 It was these two ad hoc committees that raised the question of "historic waters" and the legal nature of the "U"-shaped line, but committee members were divided over the issue.

One group argued that the waters encircled by the "U"-shaped line should be claimed as China's historic waters. The reasons given were twofold: First no protests or opposition were issued when the map became available to the Public in 1948; and second, the claim to the enclosed waters as historic waters did not violate Article 47 (1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS III), which provides:

An archipelagic State may draw 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.

A second group opposed this position, arguing that China's historic waters claim could hardly be justified: The "U"-shaped line was drawn arbitrarily and it was impossible to locate the line at sea because of the lack of coordinates, causing difficulties in determining the legal status of the claimed waters. Also, the concept of "historic waters" was outdated and can hardly be used to support Taipei's claim." However, when the committee drafted Article 3 of the Draft Law on the Territorial Sea and the Contiguous Zone of the ROC it adopted the view that the waters enclosed by the "U"-shaped line are China's "historic waters."" Moreover, in the preamble of the Guidelines for Nanhai (South China Sea) Policy, approved by the Executive Yuan in April 1993, the waters enclosed by the "U"-shaped line were claimed as Chinese territory, subject to the jurisdiction of the ROC." Furthermore, in September 1993, a two-day conference on the South China Sea was held in Taipei and both the Interior Minister and the Premier, during the opening ceremony, reiterated that the waters of the South China Sea have long been the ROC's historic waters. 13 Although the waters enclosed by the "U"-shaped line are claimed as China's historic waters, the legal status of the area remains to be clarified-are they "internal waters," "territorial sea," "archipelagic waters," or something else ?

The question regarding the legal status of the waters enclosed by the "U"-shaped line has not only been raised by ROC scholars, but also by scholars from the member states of the Association of the Southeast Asian Nations (ASEAN). For example, Dr. Hasjim Djalal, the former Director General of the Research and Development Agency and Indonesia's Ambassador to Germany, and Dr. B. A. Hamzah, Director General of the Malaysian Institute of Maritime Affairs (MIMA) both challenged Chinese claims at the Workshop on Managing Potential Conflicts in the South China Sea hosted by Indonesia." Hamzah argued:

There are parties which have claimed the entire South China Sea as their own on the basis of antiquity. Such claims cannot be serious nor treated with much respect . . . . By no stretch of imagination can the South China Sea be considered by any nations as its internal waters or historic lake as a basis to assert claim. Since such area claims are frivolous, unreasonable and illogical, I urge the Parties concerned to drop area claims and focus instead on their claim to islands and non-islands. I would also urge all parties to reject claims to the entire South China Sea (referring to area claims) as there is no basis in law or history.15

Given the developments outlined above, the legal status of the waters of the South China Sea encircled by the "U"shaped line and claimed by the ROC as its historic waters must be examined. Before considering the legal status of the claimed waters, it is useful to briefly introduce the legal regime of historic waters under international law.

The Concept and Definition of Historic Waters

According to the Yearbook of the Intentional Law Commission, the concept of "historic waters" :

has its root in the historic fact that States through ages claimed and maintained sovereignty over maritime areas which they considered vital to them without paying much attention to divergent and changing opinions about what general international law might prescribe with respect to the delimitation of the territorial sea. 16

Another study concluded that the doctrine of "historic waters" :

developed from that of historic bays which had emerged during the 19th century for the protection of certain large bays closely linked to the surrounding land area and traditionally considered by claiming States as part of their national territory. 17

Although the development of the concept of "historic waters" is closely related to the legal regime of historic bays, the terms "historic waters" and "historic bays" are not synonymous, "Historic waters" has a wider scope than "historic bays." Historic title can not only be applied to waters such as bays, but also to territorial seas, straits, archipelagos, and to all those waters which can generally be included in the maritime area of a coastal state .18

Although both concepts can be traced back to the 19th century, no generally accepted definitions exist for the two terms and the legal regimes of "historic bays" and "historic waters" have never been spelled out in any international conventions. In 1958, when the First UN Conference on the Law of the Sea (UNCLOS 1) was held in Geneva, the question concerning the meaning of the terms "historic bays" and "historic waters" was raised by the delegations from Japan, Panama, and India, as well as others. However, mainly because the participants generally believed that the Conference had neither sufficient material nor time to deal with the problem properly, the UNCLOS I ended by adopting a resolution requesting the UN to arrange for the study of the legal regime of "historic waters," including "historic bays." Although the UNCLOS I decided not to address the question concerning the definition of the two terms, it inserted safeguard provisions in the Convention on the Territorial Sea and the Contiguous Zone adopted in the Conference, thereby recognizing the legitimacy of both "historic waters" and "historic bays."

In 1962, the UN Secretariat published a study, entitled "Juridical Regime of Historic Waters, Including Historic Bays" in Yearbook of the International Law Commission. 19 The study cited the Fisheries Case between the United Kingdom and Norway to support the theory that "historic waters" are not limited to bays. The study suggested that title to "historic waters" should be considered independently on its own merits and when the theory of "historic waters" is considered, "one should avoid . . . bas[ing] any proposed principles or rules on the alleged exceptional character of such waters." 'the study also examined the elements of title to "historic waters," the issues of burden of proof, the legal status of waters regarded as "historic waters," and the settlement of disputes. However, it points out that, although the discussion of the principles and rules of international law relating to the legal regime seems to justify a number of conclusions, some of the conclusions are "highly tentative and more in the nature of bases of discussion than results of an exhaustive investigation of the matter. 1121, Regrettably, the International Law Commission (ILC) did not pursue the question of the legal regime of "historic waters" or "historic bays."

During the Third United Nations Convention on the Law of the Sea (UNCLOS 111) from 1973 to 1982, a "draft article concerning territorial sea: bays, the coasts of which belong to a single state, historic bays or other historic waters" was proposed by Colombia .21 However, the legal regimes of "historic waters" and "historic bays" were not considered during the Conference. There are two possible reasons for this. First, the twelve-mile territorial sea limit had generally been accepted by most coastal states, which made it possible to place the waters concerned under a state's sovereignty and jurisdiction. Second, the development of the legal regimes of the continental shelf, EEZ, and archipelagic waters may bring about a gradual phasing out and eventual elimination of the phenomenon of "historic" claims.22 As a consequence, the UNCLOS III merely reproduced the relevant articles of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone without defining the term "historic waters." Thus, no authoritative definition of "historic waters" can be found in any convention.

One scholar defined the term "historic waters" in his study of the legal regime of bays in international law, published in 1964, as:

waters over which the Coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercise sovereign rights with the acquiescence of the community of States.23

Another scholar classified claims to "historic waters" into three categories: 1) bays claimed by States which are greater in extent, or less in configuration, than standard bays; 2) areas of claimed waters linked to a coast by offshore features but which are not enclosed under the standard rules; and 3) areas of claimed seas which would, but for the claim, be high seas because they are not covered by any rules specially concerned with bays or delimitation of coastal waters (maria clausa). 24. Examples of the first category of "historic waters" claim include Libya's claim to the Gulf of Sidra as its "historic bay" in 1974. The closing line of the Gulf of Sidra is 296 miles in length, but the generally accepted length of the closing of a bay is 24 miles. Another example is the Russian claim to Peter the Great Bay as its "historic bay." The length of the closing line is 108 miles. Libya's claim has been challenged by countries including the United States, the United Kingdom, and the former Soviet Union. The Russian claim has been challenged by the United Kingdom, France, Japan, the United States, Sweden, and the Federal Republic of Germany. Examples of the second category of "historic waters" claim include Canada's claim to the waters of its Arctic archipelago. Tonga's claim to a rectangle of sea that the several groups of its islands frame as its "historic waters" is the best example of the third category of "historic waters". 25 In 1960, it was proposed that the ILC invite all the member states of the UN to send to the Secretariat documentation relating to "historic waters," including "historic bays," under each state's jurisdiction, and indicate the legal regime that supported the claims. However, the proposal was rejected out of fear that:

if Governments were invited to specify their claims to historic waters they might be tempted, as a matter of prudence, to protect their position by advancing all their claims, including possibly some new ones. They might also thereby commit themselves to a rigid attitude which could make a solution of the problem more difficult in the future. Furthermore, possibly exaggerated claims would not be a suitable basis for the formulation of principles on the matter. 26

In the study prepared by the UN Secretariat, the idea of including a list of "historic waters" was also considered, but, again, due to the concern that "such a list might induce States to overstate both their claims and their opposition to the claims of other States, and so give rise to unnecessary disputes," the idea was rejected." Therefore, it is difficult to tell precisely how many "historic waters" claims there are. Moreover, it is also difficult to examine the claimant states' justification of their claims or the basis for opposition to the claims by other states.

The 1962 study of the juridical regime of historic waters concluded that the legal status of waters regarded as historic waters "would in principle depend on whether the sovereignty exercised in the particular case over the area by the claiming state and forming a basis for the claim, was sovereignty over internal waters or sovereignty over the territorial sea."" In other words, depending on the sovereignty exercised over the claimed waters by the claimant state, the waters could be considered either internal waters or territorial sea. In 1982, in the Tunisia-Libya Continental Shelf Case, the International Court of Justice concluded that "general international law ... does not provide for a single 'regime' for 'historic waters' or 'historic bays,' but only for a particular regime for each of the concrete, recognized cases of 'historic waters' or 'historic bays" 29 However, it must be pointed out that the exercise of sovereignty over the claimed waters by a claimant state is only one of the elements in determining whether the historic title had been established. Other requirements also must be met to establish the historic title to the claimed waters.

During the UNCLOS 1, Japan proposed that "historic bays" be defined as "those bays over which coastal State or States have effectively exercised sovereign rights continuously for a period of long standing with explicit or implicit recognition of such practice by foreign States." The 1962 UN Study also suggested that at least three factors must be taken into consideration in determining whether a state has acquired a historic title to a maritime area. These factors are: 1) the exercise of authority over the area by the state claiming the historic right; 2) the continuity of this exercise of authority; and 3) the attitude of foreign states." In 1976, Colombia proposed a draft article to the Second Committee of the UNCLOS III, in which paragraph 1 reads:

A bay shall be regarded as historic only if it satisfies all of the following requirements: (a) that the State or States which claim it to be such shall have clearly stated that claim and shall be able to demonstrate that they have had sole possession of the waters of that bay continuously, peaceably and for a long time, by mean of acts of sovereignty or jurisdiction in the form of repeated and continuous official regulations on the passage of ships, fishing and other activities of the nationals or ships of other states; (b) that such practice is expressly or tacitly accepted by third States, particularly neighboring States. 32

Based upon the above arguments, it can be concluded that the general requirements for establishing historic title to a specific maritime area include: 1) exercise of authority over the area claimed; 2) continuity of the exercise of authority; and 3) the attitude of foreign states. In addition to these requirements, the burden of proof rests on the state which claims historic title to the questioned waters.

As already mentioned, Taipei claims the waters enclosed by the "U"-shaped line are China's historic waters but the legal status of the claimed waters has yet to be clarified by the ROC government. If the waters are claimed as internal waters, Taipei must prove that it has been continuously exercising sovereignty over the waters encircled by the "U"-shaped line for a considerable period of time in the same way it exercises sovereignty over other internal waters. If the waters are claimed as territorial sea, it must show that it has been continuously exercising sovereignty over the encircled waters for a long period of time in the same way it exercises sovereignty over other territorial seas. The same principles apply if the encircled waters are claimed as historic archipelagic waters.

Under the legal regime of "internal waters," a coastal state exercises full sovereignty over those waters which lie on the landward side of the baseline from which the breadth of its territorial sea is measured and foreign ships enjoy no right of innocent passage through a state's internal waters, unless granted by the state as a privilege. A state's lakes, canals, rivers, ports, and harbors have exactly the same status as "inland waters."33

Should the waters of the South China Sea encircled by the "U"-shaped line and claimed as China's historic waters have the legal status of "internal waters"? First, the ROC government has never claimed the waters of the South China Sea enclosed by the "U'-shaped line are "internal waters." Moreover, foreign vessels, including warships, have continuously and freely navigated the waters of the South China Sea enclosed by the line since the map was published by the ROC in 1948. No action by the ROC has ever been taken to protest foreign vessels' passage through the enclosed waters. Considering these two reasons, it seems safe to conclude that the answer to the question is "no."

Article 3 of the 1982 UN Convention on the Law of the Sea provides that "every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention." Every state exercises sovereignty over its territorial sea and the only right which foreign ships enjoy in a state's territorial sea, apart from any specific treaty provisions which may exist, is the right of innocent passage. Foreign aircraft enjoy no right of innocent passage through the air space above the territorial sea. Can the waters of the South China Sea encircled by the "U"-shaped line be considered China's "territorial sea"?

First, foreign aircraft have been overlying the encircled waters since 1948 when the map was published. And foreign ships also have been enjoying freedom of navigation in the waters encircled by the "U"-shaped line, perhaps except in those waters measured 12 nautical miles from the baselines of those islands occupied by Taiwan.

Second, the Presidential Decree concerning the Territorial Sea and the EEZ, issued on October 8, 1979 defines the extent of the ROC's territorial sea as twelve nautical miles from its baselines. Although the islands and waters enclosed by the "U"-shaped line were not mentioned in the Decree, as a corollary, it can be surmised that the ROC's territorial sea in the South China Sea is measured 12 nautical miles from the baselines of the claimed islands.

On October 7, 1992, the ROC's Ministry of Defense declared that foreign aircraft and ships are prohibited from entering into the waters and airspace above the waters measured 6,000 meters from the shorelines of the Pratas (Dongsha) and Taiping (Itu Aba) Island .34 These points demonstrate that the legal status of the waters enclosed by the "U"-shaped line, except those within 12 nautical miles from the baselines around the occupied islands, are not territorial sea. The concept of "archipelagic waters" is a new one in international law of the sea, created in the UNCLOS Ill. The waters enclosed by straight archipelagic baselines are archipelagic waters, which are neither internal waters nor territorial sea. An archipelagic state exercises sovereignty over its archipelagic waters. The sovereignty "extends to the air space over the archipelagic waters, as well as to their bed and subsoil and the resources contained therein." 35 However, foreign ships and aircraft enjoy the right of innocent passage through archipelagic sealanes and air routes over archipelagic waters. 36 Due to the fact that the legal regime of "archipelagic waters" was developed during the UNCLOS III and that the Chinese map enclosing the South China Sea with a "U"shaped line was published in 1948, it can hardly be argued that the area has the legal status of archipelagic waters. As it stands, the ROC has never had complete sovereignty over all the resources contained in the waters enclosed by the line, including the sea bed and subsoil. Furthermore, foreign ships and aircraft have enjoyed freedom of navigation and overflight, instead of the right of innocent passage or the right of archipelagic sea lanes or air route passage.

Since the ROC has never continuously exercised sovereignty over the waters of the South China Sea as internal waters, territorial sea, or archipelagic waters, it is safe to conclude that a historic title has not been established. The ROC has failed to meet the requirements that determine whether a historic title to a maritime area has been established. Moreover, the ROC government never asserted an official claim to the enclosed waters as historic waters prior to 1990. Therefore, the states whose interests would be affected by the claim need not respond nor take action to invalidate the ROC's claims.

If no historic title has ever been established, what is the purpose of the "U"-shaped line? It could simply be a boundary reference line, indicating that the islands of the South China Sea enclosed within the line belong to China. This is the conclusion of Steven K.T. Yu who argues that the purpose of drawing the "U"-shaped line was to show the public that the four large groups of islands in the South China Sea belong to China. 37 Likewise, Hungdah Chin uses the same argument and concludes that China can hardly establish a historic title to the waters enclosed by the line, given the fact that the ROC government has never made such claims and the ROC delegation to the UNCLOS I was silent on the matter .38

If the ROC's claim to the waters enclosed by the "U"shaped line as historic waters is ill-founded, what about the PRC's claim? Has the PRC ever claimed the waters of the South China Sea as China's "historic waters"? The answer to this appears to be "no." Although the "U"-shaped line is also used on maps published in the PRC, Beijing has never claimed the waters enclosed in the line as historic waters, even during the UNCLOS III. In practice, the PRC has never protested the exercise of the right of innocent passage and overflight of foreign ships and aircraft through the area, However, it must be pointed out that the PRC has continuously claimed ownership over the South China Sea islands since 1951. 39 Ownership of these islands will entitle Beijing to claim a variety of maritime zones in the South China Sea, which include internal waters, territorial seas, contiguous zones, continental shelf, and EEZs.

ROC's current position on the waters of the South China Sea enclosed by the "U"-shaped line is not acceptable to the other states involved in the South China Sea islands disputes, or to other states that make no claim to the South China Sea islands but whose interests are affected. The ROC would have difficulty proving that it has continuously exercised sovereignty over the enclosed waters since 1948 when the line was drawn and published. Or in other words, it will be very difficult for the ROC to establish a historic title to the waters enclosed by the "U"-shaped line, unless different criteria than those discussed above can be cited by the ROC in support of the claim.

The key issue in the dispute is not claims to "historic waters," but rather ownership of South China Sea Islands. In September 1958, the PRC declared that the breath of its territorial sea is twelve nautical miles and that this applies to the Dongsha, Xisha, Zhongsha, and Nansha Islands as well. 40 On February 25, 1992, the National People's Congress adopted the Law on the Territorial Sea and the Contiguous Zone of the PRC, in which the PRC's baseline for designating the territorial sea is determined with the method of straight baselines, formed by joining the various base points with straight lines. 41 The method is also applied to the South China Sea islands claimed by the PRC. According to the 1982 UN Convention on the Law of the Sea, waters on the landward side of the baseline are part of the internal waters of the state. Accordingly, a large part of the waters of the South China Sea will become China's internal waters, subject to its sovereignty if Beijing chooses to enforce the law. Other countries will enjoy no rights at all, except the right of innocent passage. Moreover, areas 24 miles and 200 miles measured from the baselines will respectively become the PRC's contiguous zone and EEZ. If this becomes the case, the maritime areas subject to the PRC's sovereignty and jurisdiction will be enlarged to a point, even larger perhaps than the waters enclosed by the "U"-shaped line.

This could be one reason why Beijing has been silent on the question of "historic waters." Strategically speaking, there is no need for the PRC to play the role of "bad guy" when the ROC has already assumed the role. In Taiwan, among the Chinese scholars specializing in ocean law and politics, there is no consensus regarding the policy of claiming the enclosed waters as the ROC's historic waters. Moreover, diplomatically, it is quite likely that the ROC's claim will serve as an obstacle to Taiwan's "southward policy," of developing closer economic relations with Southeast Asian nations. 42 Due to the fact that no Southeast Asian nations formally recognize the ROC, and the real concern of the states in the region is the PRC, it is not likely that the ROC's claim that the South China Sea enclosed by the "U"-shaped line is China's "historical waters" will have much impact on the future development of the South China Sea islands dispute. But such a claim will hamper relations between Taipei and other Southeast Asian capitals. The real stumbling block to a peaceful solution of the territorial disputes in the South China Sea is the question of ownership, in whole or in part, of the South China Sea islands. In short, the question of China's claim to "historic waters" only complicates the effort to settle the dispute.

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Yann-huei Song (LL.M., University of California Law School, Ph.D., Kent State University) teaches at the Institute of the Law of the Sea, National Taiwan Ocean University and is a research fellow at the Academia Sinica in Taipei. His research interests are the law of the sea and national ocean policy.

Peter Kien-hong Yu (Ph.D., New York University) teaches political science at National Sun Yat-sen University in Kaohsiung, Taiwan. He has published more than 30 articles and is the editor of Chinese Regionalism (Westview Press, 1994).

1 See Tzoh-zhou Yang, Nanhai fonyun [The South China Sea Imbroglio] (Taipei: Zhenzhong Publishers, 1993), 910. The "U"-shaped line is also shown on the maps included in the following publications: Ministry of Foreign Affairs, Republic of Vietnam, White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands (Saigon, 1975), 90; Marwyn S. Samuels, Contest for the South China Sea (New York and London, Methuen, 1982), 195; David G. Muller, Jr., China as a Maritime Power (Boulder, Colorado: Westview Press, 1983), 79; Jon M. Van Dyke and Dale L. Bennett, "Islands and the Delimitation of Ocean Space in the South China Sea." in Ocean Yearbook 10, ed. Elizabeth Mann Borgese, et al. (Chicago: the University of Chicago Press, 1993), 55. See also Peter Kien-hong Yu, "Issues on the South China Sea," Chinese Yearbook on International Law and Affairs (1991-1992), 138-200.

2 Hurng-yu Chen, "The Boundary of the South China Sea Should be Drawn by Coordinates," Central Daily News (Taipei) (July 26, 1992):2.

3 See Kuan-chen Fu, "Nanhai "U"-shaped Boundary Line and the Unique Nature of the Waters within the Line," United Daily News (Taipei) (June 2, 1993):11.

4 See Choon-ho Park, "The South China Sea Disputes: Who Owns the Islands and the Natural Resources," Ocean Development and International Law Journal 5, no. I (1 978):33 and Kuen-chen Fu, A Study of the Legal Status of the ROC's Historical Waters (Taipei: The Evaluation Commission, May 1993), 1.

5 See Han Jen Hua, ed., A Compilation of Historic Documents and Materials Relating to the South China Sea Islands (Beijing: Dong Fang Publishers, 1985), 172-179; Fu, A Study of the Legal Status of the ROC's Historical Waters.

6 The question of the exact purpose of the "U"-shape is unknown. The person who helped draw the line is reported to still be living in Nanjing, China. If the person is found, the question of why the line was drawn in such a way may be answered. See also Fu, A Study of the Legal Status of the ROC's Historical Waters.

7 See Nien-Tsu Alfred Hu, "The 1982 UN Law of the Sea Convention: Current Problems and Issues to the Republic of China," paper presented at "The Law of the Sea Convention: Issues and Prospects" sponsored by Southeast Asian Program on Ocean Law, Policy and Management (SEAPOL), Chiang Mai, Thailand, May 1991, 8.

8 See Kuan-chen Fu's statement in Wenti yu yanjiu [issues and Studies] 32, no. 8 (August 1993):6.

9 See International Legal Materials 21 (1982):1261-1354.

10 Chen, "The Boundary of the South China Sea Should be Drawn by Coordinates".

11 Hurng-yu Chen, "A Comparative Study of the South China Sea Policy and Thinking of the Two Sides of the Taiwan Strait," paper presented at the symposium on Asian-Pacific Strategic Situation and Prospective, the Graduate Institute of International Affairs and Strategic Studies, Tamkang University, Taipei, Taiwan, May 18-19,1993, 11.

12 United Daily News (Taipei) (April 12, 1993): 1.

13 United Daily News (Taipei) (September 7, 1993):l.

14 Fu, A Study of the Legal Status of the ROC's Historical Waters, 3-4.

15 B.A. Hamzah, "Conflicting Jurisdiction Problems in the Spratlys: Scope for Conflict Resolution," paper presented to the Second Workshop on Managing Potential Conflicts in the South China Sea, Bandung, Indonesia, 15-18 July 1991, 199-200.

16 See "Juridical Regime of Historic Waters, Including Historic Bays," Yearbook of the International Law Commission Vol. 11 1962, 6-7.

17 Donat Pharand, Canada's Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988), 91.

18 See "Juridical Regime of Historic Waters, Including Historic Bays," Yearbook of the International Law Commission Vol. 11 1962, 6. See also D.P. O'Connell, The International Law of the Sea Vol. 1, ed. I.A. Shearer (Oxford: Clarendon Press, 1989), 419.

19 R.R. Churchill and A. V. Lowe, The Law of the Sea 2nd ed., (Manchester: Manchester University Press, 1988), 36.

20 "Juridical Regime of Historic Waters, Including Historic Bays," Yearbook of the Intentional Law Commission Vol. 11, 1962, 6 and 25.

21 See Third United Nations Conference on the Law of the Sea, Official Records, Vol. V, 202-203.

22 Yehuda Z. Blum, "Current Developments: the Gulf of Sidra Incident," The American Journal of International Law 80 (1986):677.

23 L.H. Bouchez, The Regime of Bays in international Law (the Hague: Martinus Nijhoff, 1964), 281.

24 D.P. O'Connell, The Intentional Law of the Sea Vol. 1, 417-418.

25 See Churchill and Lowe, The Law of the Sea. 37-38; O'Connel, International Law of the Sea, Vol. 1, 410, 418; Pharand, Canada's Arctic Waters in International Law, 107, 113-32.

26 "Juridical Regime of Historic Waters," 5.

27 "The Juridical Regime of Historic Waters," 26.

28 "Juridical Regime of Historic Waters," 25.

29 Churchill and Lowe, The Law of the Sea, 36.

30 "Juridical Regime of Historic Waters," 3.

31 "Juridical Regime of Historic Waters," 13.

32 The Third United Nations Conference on the Law of the Sea, Official Records, Vol. V, 203.

33 For provisions relating to "internal waters" see Article 5(l) of the Convention on the Territorial Sea and Contiguous Zone and Articles 8, 9, 10, 11, and 50 of the 1982 UN Convention on the Law of the Sea.

34 United Daily News (Taipei) (October 14, 1992):l.

35 See Article 49 of the 1982 UN Convention on the Law of the Sea.

36 See Article 53 of the 1982 UN Convention on the Law of the Sea.

37 Steven K.T. Yu, "on the Legal Status of ROC's Nanhai U-shaped Line: Based Upon the Regime of 'Historic Waters'," Lilun yu zhengee Theory and Policy] 8, no. 1 (November 1993): 96.

38 Hungdah Chiu, "The Legal Regime of our Nanhai Historic Waters," Wenti yu Yanjiu [Issues & Studies] 32, no. 8 (August 1993):23.

39 In 1951, Foreign Minister Zhou Enlai pointed out that the South China Sea Islands have always been China's territory. See Lou Yuru and Zeng Chengkui, eds., Dangdai Zhonqquo De Haiyang Shiye [contemporary China's Marine Undertakings] (Beijing: Chinese Social Science Press, 1985), 446.

40 See Myron H. Nordquist and Choon-ho Park, North America and Asia-Pacific and the Development of the Law of the Sea: The People's Republic of China (New York: Oceana Publications, Inc., 1981), 6.

41 Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, the UN, The Law of the Sea Bulletin, no. 21 (August 1992), 24-27.42 United Daily News (Taipei) (November 13, 1993):l and (November 24, 1993):2.

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American Asian Review Vol. 12, N.. 4, Winter, 1994 (pp. 83-101)