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Unresolvable Conflicts in Deep Water

Conflicting sovereignty claims between member states of the Association of Southeast Asian Nations (ASEAN) and the People’s Republic of China (PRC), in the South China Sea, has led to greater scrutiny over the application of laws governing the division and use of maritime territories. The prolonged territorial dispute in the South China Sea was recently foregrounded when Filipino and Chinese vessels engaged in a standoff over fishing access to the Scarborough Shoal. The United Nations Convention on the Law of the Sea (UNCLOS) is the primary international legal device which regulates states in their use of the seas and oceans. This article will seek to identify UNCLOS’s role in the settlement and resolution of the South China Sea dilemma.

The UN Convention on the Law of the Sea was established in 1982 to facilitate cooperation among states – with regard to maritime conservation, and to promote the efficient and equitable use of living and non-living resources. There has been broad international acceptance of the provisions within UNCLOS, with many states implementing some of these elements into domestic legislation. This widespread recognition and state practice has led to some provisions forming customary international law.

The establishment of the UN Convention on the Law of the Sea revolutionised maritime governance, and is based upon the principles of cooperation and mutual understanding as a means to settle disagreements. Former United Nations (UN) Secretary General Boutros Boutros Ghali stated:

The Convention on the Law of the Sea must also be seen, and appreciated, in a wider context. For the first time in fifty years, there is now a genuine opportunity for international cooperation to make respect for the principles of international law a meaningful reality.

The South China Sea is one of the most contested bodies of water, with Brunei, Malaysia, the Philippines, the PRC and Vietnam making claims to some or all of the island and archipelagic features. The dispute centres on the territorial sovereignty over the Paracel and Spratly Island groups. The Paracel Islands are situated in the northwest of the South China Sea – with the PRC and Vietnam claiming ownership. The most contested territory is the Spratly chain – located in the southern section of the South China Sea – with Brunei, Malaysia, the Philippines, the PRC and Vietnam all claiming ownership.

Territorial control of the Paracel and Spratly chains is geopolitically important. More than 50% of the world’s commercial shipping fleet travels through the South China Sea annually, with the Malacca Strait the second most used maritime laneway. Particularly for the PRC – being a large resource importer – foreign control over the Malacca Strait, the Paracel and Spratly Island chains and surrounding territorial waters could jeopardise flow of raw materials. With the possibility of armed conflict in the South China Sea, the geopolitical importance of these vital shipping laneways and island chains could spread beyond the South East Asia region. Potential conflict could lead to a closure of vitally important routes used for international navigation, adversely affecting resource exporters such as Australia, Brazil, Canada, the United States and South Africa, and countries dependant on goods produced in manufacturing hubs such as China, Japan and Vietnam.

Further supplementing the geopolitical importance of the Paracel and Spratly islands, is the natural resource value attributed to their ownership. The contested island chains are also strategically valuable as they are seen as an untapped source of fishing and possible hydrocarbon resources. “The economic growth in the region [South East Asia] depends to a large extent on the exploitation of both living (e.g., fish) and nonliving (e.g., oil and gas) resources from sea areas.” (Thao & Amer, 2009) The high demand for raw materials from continually developing countries such as Malaysia, China and the Philippines has led to many of the claimants to territory in the South China Sea conducting seismic surveys in order to source potential deposits of natural resources. According to a 1989 report conducted by the PRC, the Spratly Islands “contained 25 billion cubic meters of natural gas, 105 billion barrels of oil, and 370 000 tons of phosphor.” (Swanstrom & Amer, 1996)

Complicating the territorial disputes is the geographical status of the Paracel and Spratly chains, and whether they qualify as islands under UNCLOS. Article 121(1) of the UN Convention on the Law of the Sea defines islands as a “naturally formed area of land, surrounded by water, which is above water at high tide.” Islands are entitled to a 12 nautical mile territorial sea and 200 nautical mile exclusive economic zone – the same as coastal states. Therefore, if a state were to exercise sovereignty over genuine islands within the Paracel or Spratly chain, then by extension they would gain sovereignty and jurisdiction over the waters and seabed, and any natural resources within their exclusive economic zone. However, submerged land formations at high tide do not qualify for a territorial sea, and cannot be subject to sovereignty claims. With relation to the Spratly Islands, of the approximate 90 land features, 25-35 qualify as islands – and thus are entitled to a territorial sea. Of these, seven islands are larger than 0.1 square kilometres. While these land features are considered islands, they do not possess the capability to sustain human and economic life, and as such do not qualify for exclusive economic zones.

UNCLOS has had a profound effect on settling the disputes over the Paracel and Spratly Island groups, achieved through codifying the behaviour of states in enclosed or semi-enclosed bodies of water. Article 122 of the convention is the source for defining the South China Sea as enclosed or semi-enclosed. “ ‘Enclosed or semi-enclosed sea’ means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet […]”. As the South China Sea qualifies as enclosed or semi-enclosed, Article 123 of the convention stipulates the obligations that bordering coastal states must adhere to in order to facilitate stability and cooperation in their exercise of maritime rights. These obligations include: cooperation over the due management; exploration and exploitation of living resources; the safeguarding and conservation of the marine environment; and the coordination of marine scientific research policies.

Article 123 further expresses that states should be held to these obligations by an appropriate regional organisation. This has promoted ASEAN as a conflict resolution mechanism. Through UNCLOS mandate, ASEAN has acted as mediator between aggrieved parties. ASEAN has established the Zone of Peace, Freedom and Neutrality (ZOPFAN) in order to promote regional security and a cooperative approach to resolving tensions in the South China Sea.

ZOPFAN has worked as a basic declaration without binding clauses, with the purpose to use confidence building measures by showing the defensive and peaceful intent by the ASEAN states in the South China Sea.

Through ZOPFAN, ASEAN has been able to engage the PRC in negotiations with regard to sovereignty over the Paracel and Spratly Islands – a past obstacle to dispute resolution in the South China Sea. Further, ASEAN has developed the ASEAN-China Declaration on the Conduct of Parties in the South China Sea – seeking to diffuse territorial disputes, which has promoted and reinforced the PRC’s accession to the ASEAN Treaty of Amity and Cooperation.

Since its establishment, and entry into force in 1994, the UN Convention on the Law of the Sea has brought stability and cooperation to the oceans. The convention comprises a unique, innovative and complex dispute resolution system – recognised as the most advanced in international law. This dispute resolution system employs a universal framework for jurisdiction in coastal states, thus eliminating some of the root causes for maritime disputes. UNCLOS’s conflict resolution capacity was the product of nine years of negotiations between signatory parties. From these negotiations it was determined that states, which became signatories to UNCLOS, would be subject to the compulsory jurisdiction of dispute resolution mechanisms highlighted in the convention. Parallels can be drawn between the compulsory dispute resolution mechanisms in UNCLOS and those in the UN Charter – signatories to the UN Charter submit to the jurisdiction of the ICJ. As stipulated in article 287 of the convention, signatory states have the choice between the International Tribunal for the Law of the Sea, International Court of Justice, arbitral tribunal and special arbitral tribunal as dispute resolution methods.

From analysing the United Nations Convention on the Law of the Sea, and its involvement in territorial disputes over the Paracel and Spratly Islands, it can be determined that the institution of international law brings balance to tensions in the South China Sea. This can be seen through the promotion of regional institutions as conflict mediators, evident in Article 123 of UNCLOS, and the dispute resolution role of the ICJ and ITLOS as part of the conflict resolution mechanisms that UNCLOS promotes under Article 287. While UNCLOS is successful in promoting conflict resolution in the South China Sea, a permanent resolution regarding the sovereignty of the Paracel and Spratly Islands is unlikely due to the lack of mutual understanding over access to resources within the island groups. “Therefore, the only solution in the near term seems to be to accept the position advocated by the late Deng Xiaoping of China of ‘shelving the disputes and pursuing joint development’.”

 

Matt Jones is in his second year at Bond University studying International Relations. Matt recently represented Bond University on the ASEAN committee at the Asia-Pacific Model United Nations Conference in Melbourne.

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