The UN Convention on the Law of the Sea and the maritime disputes in the South China Sea.

Author:Beckman, Robert
Position:Agora: The South China Sea
 
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The UN Convention on the Law of the Sea (UNCLOS) (1) establishes a legal framework to govern all uses of the oceans. All of the states bordering the South China Sea--Brunei Darussalam, China, Indonesia, Malaysia, the Philippines, and Vietnam--are parties to UNCLOS. (2) Taiwan, which also borders the South China Sea, has taken steps to bring its legislation into conformity with UNCLOS. (3)

Brunei Darussalam, China, Malaysia, the Philippines, and Vietnam are the claimant states that have competing claims to territorial sovereignty over the islands in the South China Sea. UNCLOS does not address questions of sovereignty over land territory. Its provisions on coastal state jurisdiction assume such sovereignty.

The coastal states have also made overlapping, conflicting claims to jurisdiction over the South China Sea itself. These disputes are as important as those over territorial sovereignty and perhaps even more important. Under UNCLOS, entitlement to maritime zones is generated only by land territory, including islands. (4) The Convention contains rules on the coastal baselines from which maritime zones are to be measured. (5) It sets out the breadth of the maritime zones that can be claimed, (6) as well as the rights and obligations of coastal states and other states in each of those zones. The Convention also contains elaborate provisions on settling disputes between parties over the interpretation or application of its provisions. (7)

Therefore, although UNCLOS contains no express provisions to assist states in determining competing claims to sovereignty over land territory, it contains extensive provisions concerning the nature and extent of permissible maritime claims and the settlement of disputes regarding such claims.

It is the thesis of this article that if the states bordering the South China Sea comply in good faith with the applicable provisions of UNCLOS, then the maritime disputes will be clarified, and a framework will be established that will enable the claimants to set aside the sovereignty disputes over land territory and to cooperate in the areas of overlapping maritime claims. By contrast, if one or more states bordering the South China Sea assert maritime claims that are not in conformity with UNCLOS, other states may have no choice but to resort to the Convention's dispute settlement procedures in order to obtain a legally binding determination of the validity of those claims.

  1. OVERVIEW OF THE DISPUTE

    The South China Sea is a semi-enclosed sea bordered on the west by Vietnam, on the east by the Philippines, Malaysia, and Brunei Darussalam, on the south by Indonesia and Malaysia, and on the north by China and Taiwan. The width of the South China Sea is approximately 550-650 nautical miles (nm), and its length is more than 1200 nm.

    The South China Sea is located on the major international shipping route between the Indian Ocean and northeast Asia, including the ports of China, Japan, Korea, and Russia. (8) Ships from the Indian Ocean pass through either the Straits of Malacca and Singapore Strait (between Indonesia, Malaysia, and Singapore) or the Sunda Strait (between the Indonesian islands of Java and Sumatra) and traverse the South China Sea in the direction of either the Taiwan Strait (between the Chinese mainland and Taiwan) or the Luzon Strait (between Taiwan and the Philippines).

    Territorial Sovereignty Disputes in the South China Sea

    The Spratly Islands are located on the east side of the South China Sea, west of the island of Palawan in the Philippines and northwest of the northern part of the island of Borneo, which consists of Brunei Darussalam and the East Malaysian states of Sabah and Sarawak. The Spratly Islands consist of more than 140 islets, rocks, reefs, shoals, and sandbanks spread over an area of more than 410,000 square kilometers ([km.sup.2]). (9) Some are totally or occasionally submerged, whereas others are always dry. Less than forty of its features are islands under Article 121(1) of UNCLOS, which defines an island as "a naturally formed area of land, surrounded by water, which is above water at high tide." (10) The total land area of the thirteen largest islands is less than 1.7 [km.sup.2]. (11) (Byway of comparison, Central Park in Manhattan is 3.41 [km.sup.2].) The remainder of the features are either completely submerged or are above water only at low tide. Because of the number of submerged reefs and low-tide elevations, the Spratly Islands are marked as "dangerous ground" on navigation charts. (12) They lie east of the major international shipping routes.

    All of the Spratly Islands are claimed by China, Taiwan, and Vietnam. Many of the features of the Spratly Islands also fall within the Kalayaan Island Group, claimed by the Philippines. In addition, several features are claimed by Malaysia, and one reef lies within 200 nm of Brunei Darussalam.

    More than sixty of the geographic features in the Spratlys are reportedly occupied by the claimants. (13) Itu Aba, the largest island and the only one with a natural water source, is occupied by Taiwan. The other twelve largest islands are occupied by either Vietnam or the Philippines. Another report indicates that a total of forty-four features are occupied with installations and structures as follows: twenty-five by Vietnam, eight by the Philippines, seven by China, three by Malaysia, and one by Taiwan. (14)

    The Paracels are the second island group whose sovereignty is in dispute. They are located in the northeast corner of the South China Sea, approximately equidistant from the coast of Vietnam and the Chinese island of Hainan. They are claimed by China, Taiwan, and Vietnam. China forcibly ejected South Vietnamese troops from the Paracels in 1974, (15) and since then they have been occupied exclusively by China, which denies the existence of a territorial sovereignty dispute over the Paracels. (16) Nevertheless, the islands are a continuing source of tension between China and Vietnam, especially with regard to the arrest of Vietnamese fishing vessels. (17)

    The Paracels consist of about thirty-five islets, shoals, sandbanks, and reefs with approximately 15,000 [km.sup.2] of ocean surface. (18) Woody Island, the largest island in the Paracels, is 2.1 [km.sup.2], which is about the same as the total area of the thirteen largest islands in the Spratly Islands. (19) Woody Island is the location of Sansha City, a prefecture-level city that China established in June 2012 as the administrative center for its claims in the South China Sea. (20)

    Scarborough Shoal is another disputed feature in the South China Sea. It is located approximately 124 nm from Zambales Province in the Philippines (21) and is claimed by China, the Philippines, and Taiwan. Scarborough Shoal is a large atoll with a lagoon of about 150 [km.sup.2] surrounded by reef. (22) Most of the reef is either completely submerged or above water only at low tide, but it contains several small rocks which are above water at high tide. (23) Scarborough Shoal was the scene of incidents between Chinese and Philippine vessels for several months in 2012.

    Two geographic features in the northern part of the South China Sea are claimed by China and Taiwan, but not by any of the other states, all members of the Association of Southeast Asian Nations (ASEAN): the Pratas Islands, which are located in the northern part of the South China Sea, just over 200 nm southwest of Hong Kong, and occupied by Taiwan; and Macclesfield Bank, a large atoll that is totally submerged even at low tide (24) and located in the northern part of the South China Sea, south of the Pratas Islands, east of the Paracels, and west of Scarborough Shoal.

    MaritimeZones Under UNCLOS

    Coastal states have sovereignty over their land territory as well as over a 12 nm belt of sea adjacent to their coasts called the territorial sea. (25) Coastal states are also entitled to other maritime zones beyond their territorial seas, including a contiguous zone, an exclusive economic zone (EEZ), and a continental shelf. (26)

    Baselines of States Bordering the South China Sea

    All of the states bordering the South China Sea, as well as Taiwan, claim a territorial sea, an EEZ, and a continental shelf measured from the baselines along their mainland coasts or, in the case of Indonesia and the Philippines, from their archipelagic baselines. (27)

    There is a question, however, of whether the straight baselines employed by some of the states bordering the South China Sea are consistent with the relevant provisions in UNCLOS. Article 6 of the Convention provides that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast. Article 7 provides that in particular circumstances states may employ straight baselines. The baselines employed by China, Malaysia, the Philippines, Taiwan, and Vietnam have been, on various occasions, questioned by third parties such as the United States. (28) Malaysia enacted a new Baselines Law in 2006 (29) purporting to revise its baselines but has yet to give official notice of revised baselines as required by Article 16 of UNCLOS. The legality of some of its "inferred baselines"-based on a map it published in 1979 depicting its territorial sea and continental shelf-has been questioned. (30) In 2012, Vietnam enacted a new law entitled the Law of the Sea of Vietnam, (31) but that law did not bring its straight baselines into conformity with the provisions of UNCLOS. The baselines of the Philippines had been questioned in the past, but it enacted a new law to "Define the Archipelagic Baselines of the Philippines" in 2009, (32) which establishes archipelagic baselines around its main archipelago; these baselines appear to be in conformity with the provisions in Part IV of UNCLOS. The archipelagic baselines employed by Indonesia are also in conformity with the provisions in Part IV of the Convention. (33)

    Interestingly, although the straight...

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