INTRODUCTION
We want to find more evidence that can prove Chinese people went there and lived there, historical evidence that can help prove China is the sovereign owner of the South China Sea.
— Liu Shuguang, China’s Centre of Underwater Cultural HeritageFootnote 1
The South China Sea has long been a contested seascape, manifested today in disputed claims over islands, their resulting maritime zones, and the maritime boundaries between a range of Southeast Asian nations, including Vietnam, Malaysia, Taiwan, Brunei, and the Philippines, but principally China.Footnote 2 That these waters and islands are subject to conflicting claims reflects the long use of these waters as a meeting point between people of the region and a route for trade with people further afield. This history is evident in the underwater cultural heritage spread over the seabed of the South China Sea, whose discovery, study, and possible excavation will reveal this history and the mutual reliance these competing states might have had on one another. Such a cooperative and mutually beneficial maritime archaeology program is exactly what has been hoped for and promoted through the adoption of the 2001 Convention on the Protection of the Underwater Cultural Heritage (Convention on Underwater Heritage).Footnote 3 Unfortunately, it is these disputes that not only hamper the adoption of the convention by the South China Sea states but that also drives the use, or, rather, the misuse, of maritime archaeology and underwater cultural heritage, principally by China.
This article critically considers China’s maritime archaeological program in the context of the South China Sea territorial and maritime zone disputes and, more specifically, against the backdrop of the tribunal’s arbitral decision constituted under the United Nations Convention on the Law of the Sea (UNCLOS),Footnote 4 which was handed down in July 2016.Footnote 5 While China’s approach to maritime archaeology is consistent with China’s more general approach to heritage and its nation-building function, and consistent with the legal regime adopted to protect Chinese underwater cultural heritage, this article nevertheless concludes that the aim of the maritime archaeological program to produce evidence to support its South China Sea claims is misplaced. It is argued that, until such time as China clarifies its position in relation to its claims in the South China Sea, maritime archaeology and underwater cultural heritage will be used and abused and will never achieve the role hoped for when the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention on Underwater Heritage.
THE SOUTH CHINA SEA AND MARITIME ARCHAEOLOGY
The maritime history of the South China Sea goes back at least 2,000 years.Footnote 6 The Chinese were early participants in this trade. Although the Chinese civilization arose inland, far from the mouth of the River Huang Ho around 1523–1027 bc, it expanded to reach the South China Sea by 214 bc, and the Nanhai maritime trade route between China and Southeast Asia appears to have begun around this time. By the early fourth century ad, traders in the South China Sea were engaged with those from India and the Middle East.Footnote 7 The Chinese trade was not consolidated until the tenth century ad after the rise of Annam (Vietnam) and the Indianized states. These civilizations turned to the Chinese for their commercial, cultural, and political growth. The South China Sea became the second Silk Route of Asian east-west trade in commodities and ideas, where China had the maritime hegemony.Footnote 8 This early trade with China was facilitated by other nations, ranging from Southeast Asia to Arabia and India.
While this history is recorded in various historical texts, it is the archaeological evidence of shipwrecks and their cargoes that reveal much about these early maritime cultures. The South China Sea has a wealth of underwater cultural heritage since it hosted some of the busiest maritime routes of ancient times, several battlefields, and some of the oldest heritage on earth, representing the close interaction, activities, and accumulation of maritime history of various civilizations over generations. The Battle of Yamen in 1279, for example, is reported to have resulted in the sinking of over 2,000 warships.Footnote 9 It also provides information on the economic and cultural link between neighboring countries. The subsequent Western age of discovery and colonization has also left a rich legacy of shipwrecks from Portugal, Netherlands, Spain, and England in the South China Sea over a period of more than 450 years.Footnote 10
Due to this great concentration of valuable wrecks, early investigations of shipwrecks in the South China Sea were undertaken under the mantle of salvage law, with commercial rather than archaeological aims. The discovery and salvage of the Geldermalsen, however, initiated a review of these activities by many of the states bordering the South China Sea. The Geldermalsen, a Dutch East Indiaman, sank after striking a reef in the South China Sea in January 1752 on its return journey to Holland, having loaded a cargo of tea, spices, lacquerware, porcelain, and gold at Canton.Footnote 11 In 1985, salvor Michael Hatcher discovered the wreck in an undisclosed location, believed to be either within the exclusive economic zone of IndonesiaFootnote 12 or on the continental shelf of China.Footnote 13 Unfortunately, when the salvage operation was completed, the salvors used dynamite to destroy the last traces of the wreck in order to ensure that the location of the wreck could not be ascertained.Footnote 14 The salvors recovered 160,000 pieces of export-quality porcelain, 126 gold ingots, two bronze cannons, but few other artifacts. Accounts of the salvage describe the operation as “strip-mining,” where no account was taken of the archaeological value of the site, and artifacts of little economic value were ignored or destroyed.Footnote 15 The recovered porcelain was subsequently auctioned by Christie’s Amsterdam, raising approximately $10–15 million.Footnote 16 Controversially, purchasers of the artifacts at auction included many museums, including the British Museum. This was not the first wreck salvaged by Hatcher, who had previously found, for example, a 1640 Chinese junk, from which 23,000 pieces of porcelain were recovered.
The fate of these wrecks, particularly the Geldermalsen, has been used extensively to illustrate the manner in which valuable archaeological and historical information is lost while the economic value of the wreck is maximized. Importantly, it also illustrates the difficulty faced by developing nations in preserving and regulating activities in their waters that are some distance from their shorelines. Together with a lack of state funding, this has meant that maritime archaeology in the South China Sea has remained underdeveloped for many years.Footnote 17 By 1999, apparently 2,000 ships had been discovered by Chinese archaeologists,Footnote 18 though this may be merely an extrapolation from the documentary evidence. Michael Flecker argues that while hundreds of shipwrecks have been found in the South China Sea, only 35 from earlier than the seventeenth century have been investigated and documented with sufficient rigor to provide a date and origin.Footnote 19 Nevertheless, these wrecks do illustrate the great variety of vessels that have sailed these seas. Of the 35, seven represent a type of ship used throughout Southeast Asia and span the thousand years from the fourth century ad until the thirteenth century, two are of Arab origin from the ninth century, while 15 are from the period between the fourteenth and sixteenth centuries and of a hybrid Southeast Asian and Chinese construction that then centered around Siam (today’s Thailand). Eleven are Chinese junks dating from the late twelfth or early thirteenth century onwards.Footnote 20 It is this type of vessel in particular in which the Chinese government has a specific interest.
THE SOUTH CHINA SEA AND THE LAW OF THE SEA
Throughout much of the South China Sea’s maritime history, the freedom of the seas prevailed and allowed for extensive trade between many different nations. This maritime activity further allowed waves of occupation from many of the numerous islands of the South China Sea as well as for subsequent conquest and changes to the territorial holdings and boundaries of the emerging South China Sea states. The period of colonization further complicated this geopolitical seascape, as did the subsequent process of decolonization.
In the evolving geopolitical reorganization following the cessation of hostilities in 1945, China produced a map in 1947 with 11 dotted lines, in a U shape, that essentially enclosed the South China Sea and the island groups in dispute.Footnote 21 This map was adopted by the People’s Republic of China, albeit with two of the lines erased. This nine-dash line is extensive and encircles, for example, both the Spratly and Parcel islands. However, it is not entirely clear what this nine-dotted line actually was intended to claim.
In 1958, the United Nations (UN) adopted four conventions that addressed a number of issues pertinent to the law of the sea: the Convention on the Territorial Sea and the Contiguous Zone;Footnote 22 the Convention on the Continental Shelf;Footnote 23 the Convention on the High Seas;Footnote 24 and the Convention on Fishing and Conservation of the Living Resources of the High Seas.Footnote 25 However, these conventions did not address specifically the claims that began to emerge. Nevertheless, China continued to reflect its position with reference to the nine-dash line. In 1976, the Peking Review declared:
More than 2,000 years ago, Chinese people were already sailing on the turbulent waves of the South China Sea, as recorded in ancient Chinese literature. By the time of the Western and Eastern Han dynasties (206 bc – ad 220) the South China Sea had become an important navigation route for China. As navigation steadily developed, long years of sailing the seas enabled the Chinese people to become the first discoverers and the masters of the South China Islands. Surveyed and named time and again and worked and administered without a break, theses valuable islands became an inalienable part of our beautiful motherland.Footnote 26
In 1994, the four 1958 UN conventions were effectively replaced when UNCLOS came into force in 1982.Footnote 27 To appreciate the difficulty in understanding China’s current position in relation to the South China Sea and, as a result thereof, its positions on maritime archaeology, a brief exposition on the UNCLOS regime is necessary.
UNCLOS
UNCLOS sets out the extent to which states can claim sovereignty and rights within a number of maritime zones as well as the rights that states have to use the oceans. As the “constitution of the oceans,” it is a detailed and complex treaty, comprising 320 articles divided into 17 parts, which, at its core, reflects the conflict between the freedom of the seas and the extent of coastal state sovereignty or control.Footnote 28 This is usually reflected in the balancing of the rights of coastal states, which decrease the further a zone is from the coastal state’s landmass, and the rights of “maritime” or “shipping” states to access ocean spaces that are usually for the purposes of navigation that most often facilitates international trade. The jurisdictional capacity of states is thus an important conceptual framework that underpins UNCLOS, and it addresses very specifically the rights and duties of coastal states in the various maritime zones that begin from the edge of each state’s landmass. The maritime zones are internal waters, territorial seas, contiguous zones,Footnote 29 archipelagic waters, exclusive economic zones, continental shelves, the high seas, and the deep seabed (the Area). Not all of these zones are directly relevant to this discussion, and, as such, only those that are relevant are discussed.
The division between internal waters and the territorial seas is determined by the baselines provided for in UNCLOS. The normal baseline is a line that follows the low water line along the coast as marked on large-scale charts officially recognized by the coastal state.Footnote 30 Where this baseline reaches the mouths of rivers, ports, or small bays, straight baselines are used so as to generally follow the direction of the shoreline, crossing these maritime spaces so as to include the rivers and water of the bays and so on as part of the internal waters of the coastal state. These “straight” baselines can also be used where the shoreline is deeply indented or where there are numerous small islands breaking up the general coastline.Footnote 31 Within these limitations, it is for each state to determine where exactly its baselines lie, including exactly which point constitutes the low water line.Footnote 32 The coastal state has full sovereignty in internal waters that lie landward of the baseline.Footnote 33 The territorial sea is measured from the baseline such that its outer limit is a line 12 nautical miles from the nearest point of the baseline.Footnote 34 The coastal state has sovereignty over the territorial sea, subject to some limitations, the most significant of which is the concept of innocent passage of vessels through this zone.Footnote 35 Not surprisingly, it is in the territorial waters of a state, including the surrounding islands, in which the great majority of shipwrecks, and other forms of underwater cultural heritage, are found.
UNCLOS also created a new maritime zone for archipelagic states such as the Philippines and Indonesia. Where the archipelagic state has islands some distance apart, it is permitted to draw straight baselines around the outer edges of those islands, enclosing the waters of the archipelago into a maritime zone—archipelagic waters—over which it has sovereignty.Footnote 36 In a similar way to the territorial sea, this sovereignty is subject to UNCLOS and other rules of international law, and, as such, it also provides for innocent passage through archipelagic waters.
The continental shelf is essentially a continuation of the landmass, such that it makes up a relatively shallow zone before dropping off rather steeply in what is called the continental slope, before leveling off as the continental rise before meeting the deep seabed. Because of its relative shallowness, it not only supports economically important seafloor fisheries such as pearl oysters but also makes access to its mineral, oil, and gas resources relatively easy. UNCLOS provides that the coastal state has a sovereign right to explore and exploit the natural resources of its continental shelf.Footnote 37 As an extension of the landmass, the physical size of the continental shelf could differ dramatically, with some states having a prolonged shelf, while others have little area where the shelf drops very quickly to meet the deep seabed. The UNCLOS regime therefore provides for both a legal continental shelf and a geographical continental shelf. The legal continental shelf, which is granted to every state, measures 200 nautical miles from the territorial sea baseline, irrespective of the actual geographical continental shelf.Footnote 38 States that have a geographical continental shelf that is longer than 200 nautical miles may claim that geographical continental shelf out to a maximum of 350 nautical miles.Footnote 39 The convention provides a mechanism for determining where the continental shelf ends, and states claiming a geographical continental shelf are required to submit their delimitation to an international technical body established by UNCLOS—the Commission on the Limits of the Continental Shelf (CLCS)—for verification.Footnote 40 Given the ability of individuals to reach and extract resources from various continental shelves, this commission is now of great significance to states. And with this increasing activity, underwater cultural heritage is now being discovered at depths that have been previously inaccessible to maritime archaeologists.
UNCLOS established the exclusive economic zone (EEZ), at 200 nautical miles from the baseline, in which the coastal state has “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the water superjacent to the sea-bed and of the sea-bed and subsoil” of this zone. To this was added sovereign rights with respect to “other activities for the economic exploitation and exploration of the zone, such as the production of energy from water, currents and winds.” These rights are clearly sovereign rights and thus reserved exclusively for the coastal state. In the EEZ, the coastal state is also granted jurisdiction to regulate certain activities, such as the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment.Footnote 41 Like the contiguous zone, the EEZ must be specifically claimed by a coastal state. If it is not claimed, then those waters remain the high seas.
Importantly, UNCLOS does not address title to land, including islands. It does provide, however, that an island gives rise to all applicable maritime zones provided for in UNCLOS. For this purpose, UNCLOS defines an island as “a naturally formed area of land, surrounded by water which is above water at high tide.”Footnote 42 A circular island of say one kilometer in diameter would therefore give rise to a surrounding territorial sea of 12 nautical miles, an EEZ of 200 nautical miles, and a continental shelf of up to 350 nautical miles in diameter—significant maritime rights with respect to the humble island itself. In an attempt to avoid overzealous claims to islands, UNCLOS also provides that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf,” though it will give rise to a territorial sea.Footnote 43 These provisions were intentionally vague since the negotiating states could not agree on anything more specific, leaving a great deal to interpretation.Footnote 44 This issue was raised before the International Court of Justice (ICJ) in the Maritime Delimitation in the Black Sea case between Romania and Ukraine,Footnote 45 although the court did not have to make a decision on whether the feature in question was a rock or an island, and, as such, no definitive definition exists.Footnote 46 More recently, in the South China Sea arbitration, much attention was given to these definitions. UNCLOS does address artificial islands, installations, and structures, such as oil rigs. These are not islands and do not give rise to any maritime zones, and they are only addressed to the extent that coastal states are granted the right to construct these on their continental shelves.Footnote 47
THE SOUTH CHINA SEA CONFLICT
The geographical nature of the South China Sea is complex, with numerous islands, reefs, drying shoals, and landmasses that are significantly indented and irregular. It is bordered by a number of states, all of which have claims to some of the islands and maritime zones of the South China Sea. The broader South China Sea disputes arise from a complex historical, economic, and geopolitical matrix.Footnote 48 It is beyond the remit of this article to address the disputed claims in any detail, but an overview is necessary to position the current Chinese approach to maritime archaeology and underwater cultural heritage. While difficult to categorize, the disputes can be generally grouped into disputes over island territory and disputes over maritime territory, though these are intrinsically connected as islands give rise to rights over the waters that surround the islands. These claims to islands and waters can only be understood against the backdrop of UNCLOS.
Not surprisingly, it is the islands of the South China Sea that are at the heart of the disputes—four groups of islands in particular. The Spratly Islands (Nansha) consist of more than 140 islets, reefs, shoals, and sandbanks spread over 410,000 square kilometers, though arguably less than 40 comply with UNCLOS’s definition of an island.Footnote 49 All of the Spratly Islands are claimed by China, Taiwan, and Vietnam, with some parts claimed by the Philippines as part of its Kalayaan Island Group. Since one reef lies within 220 nautical miles of Brunei Darussalam, it also has a potential claim.Footnote 50 The Parcel Islands (Xisa) consist of 35 islets, reefs, shoals, and sandbanks over 15,000 square kilometers and are also claimed by China, Taiwan, and Vietnam. Scarborough Shoal (Huangyan), a large atoll with a lagoon of 150 square kilometers, is claimed by China, the Philippines, and Taiwan. The Pratas Islands (Dongsha) are disputed between China and Taiwan, as is Macclesfield Bank (Zongsha), though this is a large atoll that is submerged even at low tide.Footnote 51 The claim to the islands of the South China Sea are thus less to do with the islands themselves and more to do with the maritime zones that these islands then generate in accordance with UNCLOS.Footnote 52 However, while UNCLOS addresses a state’s sovereignty, rights, and duties over maritime spaces, including those in relation to islands, it does not address issues of territorial sovereignty nor does it address how disputes over claims of sovereignty are to be resolved.Footnote 53 Disputing states must access other rules of international law to determine issues of territorial sovereignty and the resolution of disputes in that regard.
While these disputes, for the most part, involve claims to the islands themselves as land territory, China has a more ambitious claim, it is argued, that is reflected in what is now described as its nine-dash-line claim. This claim is extensive and, for example, encircles both the Spratly and Parcel islands. Moreover, it overlaps with the EEZ claims of a number of states. It is not entirely clear, however, what this nine-dotted line actually is intended to claim. The narrowest claim is to the islands enclosed within the nine-dotted lines, while the broadest claim is to all of the waters enclosed therein as territorial seas on the basis that these waters, historically, have been Chinese waters. This claim would render the South China Sea a “Chinese Lake.”Footnote 54 Were China to assert this claim, it would have a significant effect on all of the states bordering the South China Sea. In an attempt, in part, to clarify the Chinese claim, the Philippines initiated an arbitration in accordance with Annex VII of UNCLOS in 2013. China refused, however, to recognize the jurisdiction of the tribunal and took no part in the arbitration.Footnote 55 China, therefore, did not clarify its claim with respect to the nine-dash line, and, as such, the tribunal formulated China’s claim, beyond those claims relating to sovereignty to the islands themselves, as a claim to “relevant rights in the South China Sea, formed in the long historical course.”Footnote 56
Overlaying the possible position of China with respect to its nine-dash line, there are a number of other UNCLOS-related issues. The manner of deployment of baselines from which all maritime zones are measured is set out in UNCLOS, with some degree of discretion given to the coastal states. However, disagreement has arisen in relation to some of these deployments, including those of Vietnam, China, and Taiwan.Footnote 57 Furthermore, a number of the states bordering the South China Sea have not resolved their maritime delimitations provided for in UNCLOS. These are delimitations that indicate where neighboring states’ respective territorial seas, EEZs, and continental shelves start and end or, for the Philippines and Indonesia, where their archipelagic waters start and end. Four of the principal coastal claimants (Cambodia, Indonesia, Malaysia, and Thailand) rely on the median-line principle for offshore boundary delineation provided for in UNCLOS, but China and Vietnam, given these ongoing disputes, have not specified the extent of their claims.Footnote 58 The extent of a number of states’ continental shelves is also disputed.Footnote 59 The status of the islands in the South China Sea naturally impacts greatly on these claims, but these are claims that have been made consistently with UNCLOS, and it is the status of the islands, and, possibly, the greater claims implicated by the nine-dotted-line claim, that underpins these maritime disputes.
The Claim to the Islands
It is in relation to the claim of sovereignty over the islands as land territory that historic issues, and underwater cultural heritage, play a part.Footnote 60 Title to territory may be acquired by a state either by prescription or occupation. Occupation is a method of acquiring territory that does not belong to anyone, which is said to be terra nullius.Footnote 61 It most often arises in the context of islands that have no population. Occupation requires that the state prove that it has the intention and will to act as sovereign and have a continuous and peaceful display of such sovereignty. Prescription is a mode of establishing title to territory that was not terra nullius and that was obtained in circumstances where it was either unlawful at the time or where the legality cannot be demonstrated.Footnote 62 In other words, it is a mode of acquiring title by adverse possession, which is in circumstances where there is the exercise of de facto sovereignty for a very long period over territory subject to the sovereignty of another,Footnote 63 or by immemorial possession, being “a long continued possession, where no original source of proprietary right can be shown to exist, or where possession in the first instance being wrongful, the legitimate proprietor has neglected to assert his right, or has been unable to do so.”Footnote 64
Prescription or occupation requires an element variously described as a “peaceful and continuous display of authority,”Footnote 65 “continuous exercise of authority,” “continuous display of sovereignty,”Footnote 66 “effective control,”Footnote 67 “effective possession,”Footnote 68 or “effectivités.” In the Legal Status of Eastern Greenland Case, the ICJ declared that “a claim to sovereignty based not upon some particular act or title such as treaty of cessation but merely upon continued display of authority, which involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.”Footnote 69 Such effective authority can be manifested by a state’s political, military, legislation, or administrative control over the territory.Footnote 70 In the Yemen/Eritrea Arbitration, the tribunal observed that effective authority consists of “intentional display of power and authority over the territory, by the exercise of jurisdiction and State functions on a continuous and peaceful basis.”Footnote 71
Importantly, effective authority must be exercised by the state itself. The state cannot be represented by private citizens undertaking acts of a private nature. In the Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan, Indonesia claimed that the waters around Ligitan and Sipadan Islands had been traditionally used by Indonesian fishermen.Footnote 72 The court concluded that, in itself, the acts of Indonesian fishermen do not constitute acts reflecting the intention and will to act in a sovereign capacity.Footnote 73 However, were these acts to have been undertaken under license of, or acted under some other authority received from, their governments it may be that the state has asserted sovereignty through them.Footnote 74 In the Island of Palmas Case, the arbitral tribunal found that “peaceful and continuous display of sovereignty” by the Netherlands provided stronger evidence of sovereignty and outweighed the mere discovery by the United States.Footnote 75 This effective control would include the right to exclude other states from interfering or trespassing on the territory.Footnote 76 In the Pedra Branca Case between Malaysia and Singapore, the ICJ did not examine whether the historical requirements of occupation or prescription had been satisfied, but rather examined the acts undertaken by the two parties to the dispute which evidenced their belief that they had sovereignty over the features, and the reaction of these competing States to such displays of sovereignty.Footnote 77
The reaction of other states is an important component to the continuous exercise of authority. Acquiescence of other states, whether direct or indirect, may validate the claim. Acquiescence may be said to be equivalent to tacit recognition, manifested by unilateral conduct that the other party may interpret as consent.Footnote 78 It may be inferred from a failure to react or protest by other states.Footnote 79 In the Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan, the court considered the failure of Indonesia or its predecessor, the Netherlands, to protest the construction of lighthouses and other administrative activities on the territory claimed to be Indonesian as unusual behavior that must be construed as an act of acquiescence.Footnote 80
In that occupation (or prescription) requires that the state prove not only that it has the intention and will to act as sovereign, and has in fact done so continuously and peacefully, historical evidence is significant. Indeed, the longer the duration of possession or occupation, the more substantial the justification for a continuous display of authority.Footnote 81 Herein possibly lies the use of underwater cultural heritage to support such territorial claims. It appears that the essential assertion is that China was the first to discover, name, explore, and exploit the islands of the South China Sea and thus have sovereignty over these islands that then gives rise to the maritime territories. The claim of sovereignty to the islands in the South China Sea—that gives rise to significant maritime claims—is complicated by the fact that great disagreement exists as to whether many of the geographical features in question meet UNCLOS’s definition of an island. These uncertainties have led to a scramble for possession of the islands of the South China SeaFootnote 82 as well as to the construction of numerous artificial islands and the extension of low tide elevations on drying rocks to appear as islands.Footnote 83
It is unlikely that any of these will give rise to claims to the continental shelf or EEZ around that feature and at best, might give rise to a territorial sea. The Spratly Islands, for example, were historically regarded as “labyrinth of detached shoals” that were such a hazard to navigation as to be avoided if at all possible.Footnote 84 The largest island in the group, Itu Aba, is a mere 1.4 kilometers long and 370 meters wide. As such, whether this is capable of sustaining human habitation and thus meeting the definition of Article 121 of UNCLOS was addressed in the South China Sea arbitration, as were other features within this group.Footnote 85 Importantly, in concluding that Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay are not capable of sustaining an economic life of their own within the meaning of Article 121(3), the tribunal did have recourse to the historical record, especially in relation to the fisherman that had used the feature at least since the 1860s and other extractive industries that had used the features’ resources.Footnote 86 As such, historical and archaeological evidence certainly can play a role in these claims.Footnote 87
The South China Sea arbitration, though without Chinese participation, did settle on what a number of geographical features were in the context of UNCLOS. It concluded, for example, that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, and McKennan Reef are all “high-tide” featuresFootnote 88 and that Hughes Reef and Gaven Reef (South), Subi Reef, Mischief Reef, and Second Thomas Shoal are low-tide elevations.Footnote 89 This may not accord with China’s position and does not address ownership and sovereignty to these features.
Historic Title and Rights and the Law of the Sea
The notion of historic title or historic rights has also arisen in relation to maritime claims governed by the law of the sea. Importantly, though, it is conceptually distinct to the “historical” evidence that might support a territorial claim to islands, as discussed above, though the same evidence might serve both purposes. Historic title or historic rights in the law of the seas addresses issues that might be said to arise from China’s nine-dotted-line claim to its maritime domain distinct from that which arises from its sovereignty over any island.Footnote 90
Historic title was addressed in the law of the sea prior to the adoption of UNCLOS. In the Island of Palmas Case in 1928, the ICJ justified the Norwegian method of straight baselines “on the ground of an historical consolidation which would make it enforceable as against all States.”Footnote 91 UNCLOS recognizes historic title in certain respects, providing for the recognition of historic bays when delimiting the territorial sea baseline and historic title when considering the delimitation of the territorial sea between states with adjacent or opposite coasts.Footnote 92 It also recognizes historic title in the context of archipelagic states.Footnote 93 However, it does not define the terms or give any indication as to how it is to be determined and applied. It is further complicated by the fact that claims to waters as historic are often those close to shore and used in conjunction with straight baselines to extend maritime territory. It is then not always clear whether the claim is based merely on an interpretation of UNCLOS’s provisions on baselines or merely on some historic right. For example, both Cambodia and Vietnam have claimed historic waters, and both of these lie within their disputed straight baselines.Footnote 94 The Philippines also has historic claims based on earlier treaty provisions.
China’s nine-dotted-line claim may appear to be a claim for some form of historic title to the South China Sea as historic territorial waters or perhaps as if it were a historic bay. While it is not clear that this is what China is claiming, its many assertions of its rights are consistent with such a claim. Footnote 95 These assertions include, for example, expelling foreign archaeological expeditions and foreign fishing vessels as well as designating specific oil exploration blocks within these waters.Footnote 96 In many cases, the rights asserted are merely described by China as being “undisputed,” which they clearly are not.Footnote 97 This continued ambiguity makes it difficult to ascertain exactly what the basis of the claims is. It is arguably in these vague claims of some undisputed right that China has sought to rely on historic title. Alternatively, the 2016 arbitral tribunal considered that China’s claims appeared to refer to some form of historic right to exploit the living and non-living resources of the waters within the non-dash line.Footnote 98
Through a comprehensive consideration of UNCLOS (and its travaux préparatoires) and the pre-existing international law of the sea, the 2016 arbitral tribunal concluded that states, on becoming a party to UNCLOS, agreed on the constitutional structure for the oceans provided for in the convention. This includes the delimitation of their territorial sea, from the baselines drafted in accordance with the conventions, out to 12 nautical miles. By entering into this mutually beneficial bargain, states have abandoned any pre-existing rights—including historic rights—except where the convention has provided for these to continue to persist or where the convention simply does not deal with the issues, as is the case for the territorial sovereignty of islands.Footnote 99 As such, China’s claim to historic rights in the areas of the South China Sea within the nine-dash line
is incompatible with the Convention to the extent that it exceeds the limits of China’s maritime zones as provided for by the Convention. This is apparent in the text of the Convention which comprehensively addresses the rights of other States within the areas of the exclusive economic zone and continental shelf and leaves no space for an assertion of historic rights.Footnote 100
Furthermore, the tribunal ruled that,
upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the “nine-dash line” were superseded, as a matter of law. The Convention was a package that did not, and could not, fully reflect any State’s prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention’s limits.Footnote 101
With this decision, the tribunal nullified any reliance on historic rights, and the evidence that might go to that, at least with respect to maritime rights in the waters of the South China Sea. China appears not to accept this decision though, and, in its quest to convince the world of its “undisputed” and “irrefutable” claim (whatever that claim might actually be), maritime archaeology and underwater cultural heritage are being harnessed as primary evidentiary weapons.
CHINA’S APPROACH TO CULTURAL HERITAGE
China’s approach to maritime archaeology and underwater cultural heritage, however, is not driven entirely by its South China Sea claims. Indeed, consideration of China’s broader conceptualization of its cultural heritage, and, particularly, its underwater cultural heritage, reveals a broad nation-building that might, in part, explain its current policy and that might be misunderstood by others to be solely driven by its South China Sea claims—a misunderstanding that China has done little to correct. Indeed, the statement by Liu Shuguang, quoted at the beginning of this article, has served merely to exacerbate this issue.Footnote 102
China’s Broader Cultural Heritage Policy
China is a country with a 5,000-year-long history, and, as a consequence, it possesses a wealth of cultural heritage.Footnote 103 The Communist government has realized that cultural heritage is a political tool, telling stories about the past and present, subject to interpretation and negotiation. As China began its nation-building task, it started to stress the constructive aspects of nationalism through cultural heritage. As Lothar von Falkenhausen notes, “a nationalist interpretive framework, emphasizing the antiquity, uniqueness, purity, and importance of Chinese civilization is basic to the pursuit of history and archaeology in China.”Footnote 104 More recently, China’s concern with its cultural heritage has included that which has left China through war and during periods of foreign domination, which is particularly the case, for example, with respect to Chinese cultural heritage in institutions such as the British Museum.Footnote 105 When the British Prime Minister David Cameron visited China in December 2013, he was inundated with demands for the restitution of cultural objects taken from China.Footnote 106 China has also asserted its right to heritage in private hands, most notably when it unsuccessfully tried to stop the auction of two bronze statues taken from Beijing’s Summer Palace by Anglo-French troops during the First Opium War (1856–60).Footnote 107 China has recently been described as being in a “cultural heritage preservation fever,” which extends beyond the Chinese government to its citizens, who are engaging in art and antiquities collecting in greater numbers.Footnote 108
Heritage is a constructive factor in unifying the Chinese nation. This use of cultural heritage to support claims of sovereignty is naturally linked with ideas of nationality, identity, and place in the international family of nations. The theory that “national identity” can be shaped through a few selected points of heritage and supporting mythologies has been largely studied; when deciding what to preserve, efforts are made to shape public memory through the form of memorials, sites, references, and public rituals.Footnote 109 As a consequence, cultural heritage is intrinsically political and symbolic; heritage can be manipulated by rulers to remember history in a different way. According to Susan Pitchford, governments, museums, and other attractions and the law are political and powerful resources for the construction of national identities—it is the mobilization of the past in the interest of national pride, unity, and reform.Footnote 110 China is in a process of nation building, making an immense effort to use heritage as a tool, including underwater cultural heritage. Indeed, China’s underwater cultural heritage evokes its primacy of place in the ancient maritime trade, which supports its re-emergence as a major world-trading power.
CHINA’S REGULATORY REGIME FOR UNDERWATER CULTURAL HERITAGE
This nation-building perspective underpins China’s maritime archaeology program and is particularly evident in the legislative regime adopted to protect underwater cultural heritage in China and, more particularly, Chinese underwater cultural heritage.
The Chinese Protective Regime
Against this backdrop of UNCLOS, and within the context of its claims to various maritime zones in the South China Sea, China adopted in 1989 the Regulations Concerning the Management and Protection of Underwater Cultural Relics (PCR Regulations).Footnote 111 This legal regime applies to all cultural relics of any origin of historic, artistic, and scientific value underwater, but it does not cover “objects that have remained underwater since 1911 and have nothing to do with important historical events, revolutionary movements or renowned personages.” Moreover, “ownership” of all underwater cultural heritage within the Chinese internal waters and territorial sea is vested in the State.Footnote 112 While the right to manage archaeological sites within the territorial seas is international practice, it is unusual for a state to claim ownership over foreign relics. In the contiguous zone, while state ownership of foreign vessels is not claimed, the regulation of activities directed at such heritage is subject to this legal regime.Footnote 113 Beyond the contiguous zone, the legal regime does not provide the right to exercise jurisdiction with respect to underwater cultural heritage.Footnote 114 However, it is reflected in the fact that the Chinese regime claims jurisdiction over that which lies on a foreign state’s continental shelf (and EEZ) if the vessel is “originating from China.”Footnote 115 What this term means is not defined. According to Kuen-chen Fu, it could mean one of two things: if it means “having the nationality of China, it would be more acceptable by the coastal States; however, if it means “sailing to or from China” or “historically or culturally connected to China,” it would be difficult to be accepted by a coastal state.Footnote 116 This is extended to underwater cultural heritage in the Area, such that China claims such heritage “only if” it originated from China.
It may seem that the PCR Regulations have been drafted toward protecting Chinese underwater cultural heritage in every possible zone even if under those premises it relinquishes ownership or jurisdiction over foreign vessels located in China’s contiguous zone, continental shelf, and EEZ. China prefers to protect its own cultural heritage than claim jurisdiction over others. This approach follows China’s current nationalistic approach to the preservation of cultural heritage. Yet it is not consistent with the approach taken by many other states and is inconsistent with the 2001 Convention on Underwater Heritage in a great many respects.Footnote 117 It is also arguably in breach of Article 303 of UNCLOS in that Article 303(1) provides that “States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose.” While this is a vague and very general provision, it does require state cooperation as an imperative. China’s claims on the irrefutable ownership over its cultural heritage in a foreign country’s maritime zones outside its territorial sea and in the Area do not invite, or are open to, the possibility of state cooperation.
This approach by the Chinese to underwater cultural heritage concentrates exclusively on Chinese heritage to the exclusion, and detriment, of other heritage in the South China Sea. More importantly, this exclusive focus naturally favors the search for, and investigation of, Chinese heritage, constituting evidence for its South China Sea claims, while excluding that which might favor other states’ claims. However, these claims have been specified in the context of the maritime zones as set out in UNCLOS, and the jurisdictional regime appears to be generated solely by UNCLOS. In the context of the claims that have arisen in the South China Sea dispute, this is of some import.
China’s Maritime Archaeology Policy and Practice
Following the concerns caused by the salvage of the Geldermalsen, maritime archaeology in China is said to have begun in 1987 with the establishment of the Centre for Underwater Archaeology, in what is now the National Museum of China.Footnote 118 In the same year, the Nanhai-01 wreck was discovered off the coast of Guangdong province. Importantly, evincing a significant commitment to underwater cultural heritage, the Nanhai-01 wreck was raised in 2007 and placed in a specially constructed museum—a significant undertaking that equaled and arguably surpassed the recoveries of the Vasa and Mary Rose.
The following years evinced considerable development in state support for maritime archaeology and a continuing revision of the state’s policies on underwater cultural heritage. In 2009, the State Administration of Cultural Heritage established the China Centre of Underwater Cultural Heritage Protection, which has worked with other departments such as the Ministry of Foreign Affairs and the Ministry of Transport and State Oceanic Administration to develop a national policy and “protection team” to implement it. More recently, the National Underwater Cultural Heritage Protection South China Sea Base was established to centralize all South China Sea cultural heritage investigations, training, and research under one national-level organization.Footnote 119
Active maritime archaeological activity has therefore been directed at these disputed areas. In 2007, for example, excavations were undertaken in Huaguangjao (discovery reef) in the Paracel Islands, an area subject to dispute between China and Vietnam. Since at least 2013, China has also been conducting investigations in the disputed Spratly Islands. In 2014, China launched a state-of-the-art maritime archaeology vessel, Kaogu-01.Footnote 120 Its first deployment was to investigate the Dongkengtuo wreck 48 kilometers off the coast. Importantly, it was deployed in disputed waters. The second deployment of Kaogu-01 was to Shanhu (Prattle) Island in the Paracel group to investigate the site of the naval battle between China and South Vietnam in 1974 over the sovereignty of those islands. Vietnam still contests China’s claim of these islands.Footnote 121 Controversially, a workstation is planned for construction on Yongxing (Woody) Island, an island within the Paracel Islands.
While China clearly wants to protect its heritage, this commitment to maritime archaeology is open to interpretation and has been subject to some criticism. One of the reasons is that this Chinese commitment to the protection of underwater cultural heritage is not matched by its commitment to the Convention on Underwater Heritage, a legal instrument ratified by more than 50 states.Footnote 122 This instrument encourages states parties to undertake underwater archaeological cooperation, technology transfer, and information sharing, precepts that do not seem suitable to China’s interest. China is quite explicitly seeking to reinforce its maritime claims in the South China Sea by demonstrating an ancient Chinese presence that reinforces the idea of maritime supremacy through finds of porcelain, coins, and underwater remains. Underwater archaeology is the tool to bolster claims of historical occupation and control in the South China Sea.Footnote 123
Rejection of Other State’s Maritime Archaeology
While China has undertaken these activities in the disputed zones, it has exerted superior might to prevent others from doing so, considering all excavations other than official Chinese investigations as unauthorized and illegal. As the Chinese vice minister of culture recognized, “marine archaeology is an exercise that demonstrates national sovereignty.”Footnote 124 In 2013, for example, a joint expedition between noted maritime archaeologist Franck Goddio and the National Museum of the Philippines in Scarborough Shoal, off the coast of the Philippines, was expelled from the area by force.Footnote 125 Of concern, was the view of the head of the China Centre of Underwater Cultural Heritage, Liu Shuguang, who argued that the intent of the “foreign” expedition was “[t]o drag away this shipwreck. Because this was material evidence that Chinese people first found the Scarborough Shoal, they wanted to destroy evidence that was beneficial to China.”Footnote 126 Under the Chinese regime, any archaeological exploration or excavation in waters under Chinese jurisdiction has to be authorized. Using its significant maritime forces, China has enforced these laws within these zones. As such, all excavations other than official Chinese investigations are “unauthorized” and “illegal.”
The Maritime Silk Route
China’s strategy to exert its influence in the South China Sea through the use of heritage is also reflected in its desire to reinvigorate its past power in the region to support its re-emergence as the power in the South China Sea. In 2014, UNESCO designated a new world heritage site: “the Silk Road: the Routes Network of Chang’an-Tianshan Corridor.” This world heritage site is a 5,000-kilometer section of the extensive Silk Road network through China, Kyrgyzstan, and Kazakhstan.Footnote 127 China also wants to develop a “Silk Road on the Sea,” but the difficulty with this is that the route would go through disputed waters and around the Paracel and Spratly islands. With this aim, China is excavating archaeological sites around these islands that would justify China’s sovereign claims to these features, which would then both assist, and be bolstered by, a world heritage listing. Article 11(3) of the International Convention Concerning the Protection of the World Cultural and Natural Heritage stipulates that
[t]he inclusion of a property in the World Heritage List requires the consent of the State concerned. The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute.Footnote 128
In order for the maritime Silk Route to be listed as a world heritage site, some certainty as to the sovereignty over both the islands and the maritime zones would be required or agreement would have to be reached with other states, such as Vietnam and the Philippines. While unlikely, the issue serves to raise China’s claims and to give it a veneer of legitimacy.
THE CHINESE POSITION IN LIGHT OF THE 2016 ARBITRATION
While China did not participate in the 2016 arbitral decision, the decision is of some import from an international perspective, and it has great persuasive value for international jurists. The judgment is considered to be a primary exposition on the meaning of UNCLOS’s provisions, and, as much as China might argue that its claim is “indisputable” or “irrefutable,” it clearly is not in light of this decision. As such, China has little prospect of convincing other states—especially its South China Sea neighbors—that it has some historical claim to the entire South China Sea, or to the land contained in its nine-dotted line, or to some other claim, whatever that may be. In part, it is this uncertainty that is at issues as China has still failed to clearly articulate exactly what its “irrefutable” claim actually is. In this light, any policy and practice that seeks to utilize maritime archaeology and underwater cultural heritage as an evidentiary premise in this argument is hard to clearly understand. Moreover, it undermines the fundamental object underpinning the Convention on Underwater Heritage.
CONVENTION ON UNDERWATER HERITAGE
Fundamentally, the Convention on Underwater Heritage is a cooperative mechanism enabling states to protect underwater cultural heritage both within their own territorial waters as well as beyond that limited jurisdiction. It requires, and, indeed, compels, cooperation particularly among neighboring statesFootnote 129 and can only function effectively if all regional states are a party to the convention.Footnote 130 This cooperative system is built upon the jurisdiction regime established in UNCLOS, and, without full acceptance of that constitutional framework, the cooperative mechanism underpinning the convention cannot function. For example, without a clearly delimitated continental shelf, it is hard to implement the regime that establishes the coastal state as the coordinating state for the implementation of the protective regime with the other states playing supporting and cooperating roles.Footnote 131 Not surprisingly then, only one of the 11 states in the Southeast Asian region is a party to the convention: Cambodia. Those implicated in the main South China Sea disputes have failed to ratify the convention. Thus, the Convention on Underwater Heritage has no role to play in maritime archaeology in the South China Sea.Footnote 132
CONCLUSION
Historically, the South China Sea has been one of the busiest trading routes in the world, and, as a result, it has a wealth of underwater cultural heritage. China is clearly using this heritage, and the conduct of maritime archaeology, to bolster its territorial and maritime claims. While linked, these are being used differently. The search for, investigation of, and possible recovery of underwater cultural heritage is taking place in waters over which there are sovereignty and control disputes. The very act of undertaking these activities appears to be used in support of the claims of sovereignty and control. Thus, the fact that the particular wreck being investigated might not be a “Chinese” wreck is beside the point. The fact that it is being conducted by Chinese government entities is used to support China’s right to undertake any activities in those waters as if they were Chinese waters. Should the wreck being investigated be a “Chinese wreck,” then the wreck, as underwater cultural heritage (including all that was on or in the wreck), would be used to support a broader claim to those waters—one apparently based on some form of historical title. These activities are clearly part of the broader South China Sea strategy, and the relevant government officials have made this quite explicit.Footnote 133 This is juxtaposed with the limited maritime archaeology that has been undertaken prior to China’s invigorated maritime archaeology program, and the historical evidence that exists from sources other than maritime archaeology. This then is used as a basis for controlling maritime archaeology in this maritime territory and from these maritime archaeological activities, revealing underwater cultural heritage that supports the very claim to the maritime territory that is presumed to exist in the first place. These complexities are exacerbated by China’s more general approach to all Chinese cultural heritage and its role in modern China as a catalyst of nation building.
China rejected the 2016 arbitral decision on the basis that “China does not accept any means of third-party dispute settlement or any solution imposed on China.”Footnote 134 China has not sought to resolve its South China Sea territorial or maritime zone disputes in an international forum. Indeed, it appears to actively avoid this. Rather, by using its greater economic and military might, China has effectively occupied a number of islands in the South China Sea, or created new “islands” through land reclamation of new structures, and defends any challenge to these activities by citing its “undisputed” or “irrefutable” right to be there and to do so and bases this on the historic right it seeks to buttress with its maritime archaeology program. As such, China’s approach to the South China Sea, and, particularly, its maritime archaeological activity and its attitude to the underwater cultural heritage, will continue to color its disputed claims in these waters, at least as these are articulated as legal claims. That this is merely part of a much broader geopolitical strategy for influence and power does not detract from the position taken by China as to its proposed use. Indeed, it might be argued that China’s maritime archaeology policy is nothing more than an attempt to deflect attention away from its broad geopolitical positioning. However, as long as China invests considerable resources in its maritime archaeology policy with the declared intent to use these to “help prove China is the sovereign owner of the South China Sea,”Footnote 135 this assertion is to be addressed and resisted on its own terms.
