The South China Sea Disputes and Law of the Sea.

Author:Baumert, Kevin A.
Position:Book review
 
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The South China Sea Disputes and Law of the Sea. Edited by S. Jayakumar, Tommy Koh, and Robert Beckman. Cheltenham UK, Northampton MA: Edward Elgar Publishing, 2014. Pp. xiv, 281. Index. $130.

It would be difficult to create a more complex set of maritime disputes than what history, law, and geography have combined to produce today in the South China Sea. Let's take a quick tour, guided by the map that follows. (1)

First, six states (plus Taiwan) with coastlines face into the semienclosed South China Sea: China, the Philippines, Brunei, Malaysia, Indonesia, and Vietnam. Each state appears to claim the full suite of maritime zones available under international law off its mainland shores, including a 12 nautical mile (nm) territorial sea, a 200 nm exclusive economic zone (EEZ), and a continental shelf extending at least 200 nm. Few maritime boundaries have been agreed by neighboring states to separate the inevitable overlaps in these zones. China makes an additional vague and dubious claim--its so-called nine-dash line--based on a map first published by the Republic of China in 1947. Its meaning remains unclear.

Second, within the South China Sea are three groups of islands, the sovereignty of which is disputed: the Paracel Islands (claimed by China and Vietnam); Scarborough Shoal (claimed by China and the Philippines); and the Spratly Islands (all or in part claimed by Brunei, China, Malaysia, the Philippines, and Vietnam). Taiwan's claims mirror those of China. The Paracel Islands, Spratly Islands, and Scarborough Shoal each include islands that generate their own maritime zones, which are also necessarily disputed due to the underlying disagreements over the sovereignty of the islands (i.e., whichever state is entitled to the island is entitled to the adjacent maritime zones). Additionally, the disputed maritime zones generated by the islands overlap the maritime zones generated by the mainland coasts.

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Third, considerable factual and legal uncertainty exists as to which features within the South China Sea are "islands," which the UN Convention on the Law of the Sea (UNCLOS) defines as a "naturally formed area of land, surrounded by water, which is above water at high tide." (2) This description matters since, according to UNCLOS, "islands" are entitled to a territorial sea, EEZ, and continental shelf of their own. (3) Even where it is clear that a feature meets the legal definition of an island (as opposed to a submerged reef or bank, or artificial island), it may be a mere "rock," which, according to UNCLOS, is not entitled to an EEZ or continental shelf. (4) In some cases, the claimants--especially China--have engaged in extensive land reclamation activities on the islands and submerged features of the South China Sea, creating evidentiary and legal problems with respect to ascertaining the true status of the features.

Finally, the obvious: the South China Sea is a sea, one with enormous commercial and military importance. In the South China Sea, all states enjoy freedom of the seas, including navigation and overflight rights and other lawful uses of the sea provided for under international law. Thus, while the disputes are regional, they have global implications.

For both experts and the uninitiated, The South China Sea Disputes and Law of the Sea sifts through the confusion and presents the applicable legal concepts necessary for understanding and evaluating maritime disputes in the South China Sea. In this volume, the National University of Singapore's Centre for International Law (CIL) continues its tradition of convening experts to examine matters of international law relevant to the Asia-Pacific region, in this instance the most important maritime disputes of our time. The volume's eight chapters are authored by many of the leading lights on the law of the sea, including former international judges and prominent scholars. Its Singapore-based editors are no less distinguished and include Tommy Koh, the president of the Third UN Conference on the Law of the Sea (1980- 82), which adopted UNCLOS, and S. Jayakumar, a member of Singapore's delegation to UNCLOS (1974-79) and later Singapore's deputy prime minister (2004-09).

The volume's subject matter is consequential, both for regional peace and security and for the rule of law in international affairs. The South China Sea has become almost synonymous with conflict, particularly as states undertake a range of maritime activities--such as fishing, oil and gas exploration, commercial shipping, and military exercises--in contested waters, often provoking responses from rival claimants. It remains an open question whether the principled application of international law will predominate in the resolution and management (where resolution is not possible) of South China Sea disputes. Referring to disputes that are the subject of this volume, Albert del Rosario, the secretary of foreign affairs of the Philippines, has stated that "[i]nternational law is the great equalizer among States. It allows small countries to stand on an equal footing with more powerful States." (5) The United States has frequently urged peaceful resolution of disputes and respect for international law in the South China Sea, including as reflected in UNCLOS. (6) Indeed, pursuant to UNCLOS, the Philippines initiated arbitration proceedings against China in 2013, challenging the legality of a range of China's maritime claims and actions in the South China Sea. (7) For its part, China has rejected the arbitration proceedings and repeatedly stated that it will neither accept nor participate in the arbitration. The response of China and the international community to the Tribunal's award, expected in mid-2016, will influence the degree to which law or merely power will govern this regional sea.

Each chapter of The South China Sea Disputes and Law of the Sea presents a detailed examination of one or more legal aspects of the maritime disputes in the South China Sea. Collectively, the chapters thoroughly treat the subject matter, with only one limitation and one...

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