Resolving the complex South China Sea dispute

Iffat Ara Jasmin                                                                                                                Dispute regarding the South China Sea is one of the complex and contemporary issues in the International Law of the Sea because this problem started many years ago but still doesn’t meet any solution. The south china sea area comprises over 200 islands, reefs and rocks. In 1887 china and France, colonial powers in Indochina signed a boundary agreement that specified islands situated east of the designated line to China and left the south china sea to China. In 1933 France claimed control of the south china sea islands and included then into French Indochina. In 1939 Japan occupied some of the islands in the Spratlys but when France returned after the war the Nationalist government in China continued to protest France possession. In 1947 nationalist gov’t. of China issued a declaration that Paracels and Spratlys were part of Guangdong province. Before the San Francisco conference, Chinese foreign minister in 1951 again declared Chinese claim but the allied powers wouldn’t permit the islands to communist China, in which case serious separation occurred between Chinese historic rights and actual possession of the south china sea.
The South China Sea is very important for both for strategic and economic reasons. It has sea lanes through which oil and many other commercial resources can flow from the Middle East and Southeast Asia to Japan, Korea and China. Safety of navigation, overflight and freedom of sea lanes of communication are strategic interests for the USA and can use South China Sea as a transit point for operating U.S Navy and Airforce between military bases in Asia, Indian Ocean and the Persian Gulf areas. Chinese media referred the sea “the second Persian Gulf” and some Chinese experts argue that the sea contains 130 billion barrels of oil and natural gas. The sea consists of four groups of islands and claims are overlapping with each other. Pratas islands are located over 200 miles of southwest of Hongkong and claimed by China and Taiwan. China expelled Vietnam troops from Paracel islands in 1974 and occupied it but it is claimed by China, Vietnam and Taiwan. Scarborough reef and Macclesfield bank are claimed by China, Philippines and Taiwan. Spratly islands are a source of most anxiety because it is claimed in their entirety by China, Taiwan, Vietnam and some islands & features are claimed by Malaysia and the Philippines. Taiwan occupies the largest islands- Itu Aba and it was reported in 2009 that Vietnam occupies 21 features, the Philippines 9, China 7 and Malaysia 5. There are many problems in the South China Sea regarding baselines. Taiwan’s straight baseline and Vietnam’s baselines are criticized by the USA as inconsistent with UNCLOS. Continental states like China can’t draw straight baseline around mid-ocean archipelagoes under UNCLOS but it announced straight baseline around Paracel islands. It isn’t clear how many islands in the Spratly islands would be allowed to an EEZ and continental shelf because they are capable of sustaining human habitation or economic life of their own. Besides this, how many geographic feature and islands are in the sea isn’t clear and I think that these factors are increasing potential instability in those regions.
China is not a culprit state and it is undeniable that China has a historic claim to sovereignty over all of the islands, reefs and banks in the south china sea and China has claimed the geographic feature in these areas since ancient times. Chinese nine-dashed lines 1st appeared in a Chinese map in 1914 by Chinese cartographer Hu Jin Jie. In 1990 question arose regarding China’s nine-dashed line and some argued that China was using the line to claim all the waters as historic waters so that they could gain historic right. Chinese judge in ITLOS also said that China has the claim on islands, not maritime boundary. I think that China actually has “historic rights” because Chinese fishermen have traditionally fished in South China Sea waters that are now claimed as EEZ by other claimants. So, China’s claim on historic rights is not illegal in my opinion. In 2009 Malaysia and Vietnam prepared a joint submission to the commission to extend their continental shelves beyond 200 nm into the south china sea. Vietnam also made a separate submission but china quickly objected these submissions through a note verbale to the UN secretary general in response to the joint submission of Malaysia and Vietnam to the CLCS. The Philippines also objected to the joint submission of Malaysia and Vietnam through its note verbale. I think Malaysia and Vietnam’s claims are illegal because it is a disputed area and until it is resolved they can’t make such claims and the commission shouldn’t consider their claims. Recently suspicions are growing between ASEAN claimants and China because China hasn’t designated baselines around officially claimed maritime zones from any of the islands and it isn’t possible to identify the areas of overlapping claims between China and ASEAN claimants. I think that ASEAN countries will not accept any claim of China regarding the maritime areas inside the nine-dashed lines on China’s map.
If ASEAN claimants claim an EEZ from the baselines along their mainland coast or from their archipelagic baselines, there is a “kite-shaped” area outside the 200 nm EEZ limits. In agreeing on the extent of the disputed areas, we can see at least four scenarios. 1st, the claimants don’t recognize extended shelf claims and can treat all islands as rocks. If none of the claimants can claim an extended continental shelf in the area and none of the islands is entitled to an EEZ and continental shelf of their own then the entire kite-shaped area will be governed by the high seas and deep seabed regimes, except to the extent islands within the area with a 12 nm territorial sea. 2nd, the claimants can treat all islands as rocks but can recognize extended continental shelf claims. If the areas becomes extended continental shelf of those states then they will have the exclusive right to the resources of the seabed and subsoil. 3rd, if claimants agree that some of the islands in the Spratlys and the Paracels can sustain human habitation or economic life of their own then islands can be entitled to an EEZ of their own. If the EEZ from those islands extends into most of the areas beyond 200 nm EEZ claims from the mainland coast or archipelagic baselines of Philippines then southern two-thirds of the kite-shaped area will become the EEZ of islands though sovereignty over islands is in dispute and in this circumstances the extended shelf claims will be treated as invalid. 4th, China, Taiwan, Vietnam, the Philippines can say that because of common interest, they agree that the EEZ from disputed islands extends to the entire kite-shaped area then this area can be subjected to joint development managements between claimants for both fishing and hydrocarbons resources.
The UNCLOS in 1982 contains no provision on how to determine sovereignty over offshore islands but the provision of UNCLOS on baselines, the regime of islands, low-tide elevation, EEZ, continental shelf, maritime boundary delimitation and dispute settlement are applicable to the South China Sea. Under article 298, China has exercised its right to opt out of the compulsory binding dispute settlement regime in section 2 of part 15 for disputes referred to in paragraph 1(a),(b), and(c) of article 298 of the convention. 1st, the declaration excludes disputes relating interpretation or application of article 15,74 and 83 on maritime boundary delimitation. Therefore, No states will be able to invoke the compulsory dispute settlement system in UNCLOS if Vietnam and China can’t agree to their EEZ boundary near the Paracel islands. 2nd, the declaration excludes disputes concerning the interpretation of the provisions of UNCLOS involving historic bays and titles. 3rd, the declaration excludes disputes relating to military activities. Therefore any dispute on whether a state under article 58 of UNCLOS can exercise military activities such as military surveys or military exercises in the EEZ of China will exclude from the compulsory binding dispute settlement system in UNCLOS. But article 288(4) makes clear that in the event of dispute whether a court or tribunal has jurisdiction, the matter shall be settled by court or tribunal. The LOSC stipulates that in areas where EEZs overlap, the dispute should be settled through peaceful negotiation among the parties concerned or the parties might voluntarily agree to third-party mediation or to judicial consideration by the ICJ. It is also possible for the ASEAN countries to seek an advisory opinion from the international tribunal for the law of the sea on legal’ questions relating to the south china sea. According to my opinion the best way to resolve the dispute is that every claimant should make a compromise or should negotiate with each other to maintain stability in these regions and China should give up their some claim if they agree on negotiate. China will be able to establish most of their claims if they agree to solve the dispute through UNCLOS. Besides this, they can talk informal talks, create an eminent persons’ group, create joint research development authority, can multilateral talks between ASEAN and the PRC to solve the dispute regarding south china sea.
(Iffat Ara Jasmin is currently working at International Food Policy Research Institute as a Consultant and had previously worked at The World Bank, Dhaka. Views expressed in this article are solely of the author)