My thanks to Juita Ramli for her insightful contribution to this piece.
Recently, I was invited to Hong Kong to participate in a discussion with eminent scholars on the topic of fisheries management in the South China Sea.
In order to broaden our perspective, a dear friend and highly respected Chinese professor kindly talked us through Chinese claims in the South China Sea. Her summary of the salient issues accurately captured the thrust of the arguments put forcefully and frequently in the public domain by government officials and commentators of the People’s Republic of China.
It also helped to explain actions such as the lodging of a complaint by China this week with the United States over a surveillance aircraft that flew over parts of the disputed South China Sea. Chinese Foreign Ministry spokeswoman, Hua Chunying, was reported to have said on Monday, "Freedom of navigation and overflight by no means mean that foreign countries' warships and military aircraft can ignore the legitimate rights of other countries as well as the safety of aviation and navigation."[1]
However, in hearing these arguments yet again in Hong Kong, I was struck by the most telling obstacle to resolution of contending claims in the South China Sea; namely, that seemingly creative, convenient interpretations and distortions of international law are used to support these claims, sometimes in the context of ambiguous guidance from vague wording of the United Nations Convention on the Law of the Sea 1982 (LOSC).
In November 1967, Dr. Arvid Pardo of Malta made a speech in the General Assembly of the United Nations calling for demilitarization of the seabed and recognition of its resources as “the common heritage of mankind”.[2] This seminal speech began a process that led to the third UN Conference on the Law of the Sea (UNCLOS III) and eventually to the LOSC.[3] UNCLOS III involved over 150 States in negotiations that spanned a period of more than 14 years.[4] In the Preamble to the LOSC, these States declared, amongst other things, that they desired “to settle … all issues relating to the law of the sea” and wished to establish “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”[5] China and other South China Sea claimant States were active participants in UNCLOS III, often at the head of the Group of 77 developing countries.[6]
UNCLOS III was an ambitious endeavour; it was the first time that the community of nations had come together to establish a comprehensive global order of law for the seas and oceans. They succeeded in part by navigating around issues that threatened to sink the process with language in certain crucial areas that allows ambiguous interpretation or by remaining silent on some contentious topics. The use of voting was set aside in favour of achieving consensus. Nevertheless, the LOSC provides many unequivocal international rules that appear to be under challenge now through the arguments and conduct of States in the South China Sea.
For example, certain claimant States stubbornly cling to a misunderstanding or deliberate misrepresentation of the relationship between land and maritime sovereignty. Land sovereignty gives rise to maritime sovereignty and sovereign rights; it does not work the other way around. However, we frequently see language suggesting otherwise, e.g. "Brunei claims at least two islands which are situated in its exclusive economic zone."[7] If indeed the features are "islands" and not "rocks which cannot sustain human habitation or economic life of their own" (LOSC Art 121), and Brunei enjoys sovereignty over the islands, then by definition, they must lie within Brunei's EEZ because they give rise to that EEZ along with territorial sea, contiguous zone and continental shelf "determined in accordance with the provisions of [the LOSC] applicable to other land territory" (LOSC Art 121[2]).
Equally, we are frequently told that "China's and Taiwan's claims within the 'U-shaped dotted lines' in the South China Sea overlap to varying degrees with claims to EEZ and continental shelf areas made by (...other coastal States)".[8] For China or Taiwan to enjoy maritime sovereignty or sovereign rights in the South China Sea, they are required to demonstrate the legitimacy and effectiveness of sovereignty over land adjacent to, or situated in (i.e. at least as "islands") the South China Sea. There is no international legal principle that I know of to support a general claim of sovereignty or sovereign rights over an area of sea that in some way gives rise to entitlement over land. And yet, such discourse is repeated over and again as if it enjoys merit under international law.
Some academic papers also purport to make a case of ‘historic title’ and acquiescence to the ‘dotted line’ claim by South East Asian states, often newly emerging with weak institutions from colonialism and the ravages of war, with whom such maps and claims were not formally lodged. I am reminded in this regard of the comedy play by Douglas Adams, 'The Hitch-hiker's Guide to the Galaxy', where the Captain of a Vogon planet-demolition spacecraft that is about to destroy Earth says, "There's no point in acting all surprised about it. All the planning charts and demolition orders have been on display at your local planning department in Alpha Centauri for fifty of your Earth years so you've had plenty of time to lodge any formal complaints and it's far too late to start making a fuss about it now."
In addition, principles of historic title that apply to sovereignty over land appear to be extended without qualification to areas of ocean space, with LOSC Article 15 distorted to discount a requirement first to establish that a claimant State in a territorial sea boundary delineation process actually has sovereignty over land giving rise to a territorial sea at all.[9] Spheres of influence, whether at land or sea sit more comfortably with principles of 'suzerainty' than with the modern legal principle of 'sovereignty'.
China and the other claimant States of the South China Sea have ratified the LOSC. Article 309 of the LOSC states, “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.” In other words, the LOSC is a “package deal”, it’s all or nothing. States cannot ‘cherry pick’ the rights and obligations of the LOSC that they find convenient or advantageous. This is reinforced by Art 310 that provides, “Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State” (emphasis added).
If indeed China is confident of arguments under the principle of ‘historic title’ – and we must allow that a comprehensive case on South China Sea sovereignty has neither been put nor decided upon by any international juridical body – why would it not agree to allow a ruling on the question of sovereignty over claimed islands in the South China Sea by the International Court of Justice (ICJ)? With such questions resolved, the delineation of maritime boundaries in the South China Sea could proceed with greater clarity through the processes and rules provided in the LOSC.
Also, discussion of the Spratly and Paracel group of islands, reefs and cays is often coined in terms of them being "archipelagos" (which of course they certainly are called in Mandarin, ie. 'qundao' - [群岛 pronounced 'choondow']). Technically, an argument based on historical usage of the term 'archipelago' might perhaps be attempted, especially with reference to the Chinese names of Xisha Qundao (西沙群岛 pronounced “c-sha choondow”, ie, western archipelago) and Nansha Qundao (南沙群岛 southern archipelago).
Setting aside the contentious issue of which features in these areas actually satisfy the criteria of being an island, the LOSC Art 46(b) stipulates that an archipelago means "a group of islands, including parts of islands, inter-connecting waters and other natural features which are so closely inter-related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such."
However, the concern in accepting a description of the two groups as "archipelagos" is the possible confusion that arises when connecting baselines are claimed between such features that resemble "archipelagic baselines", e.g. those claimed by China in its Territorial Sea Law (May 1996) for the Paracel Islands (Xisha Qundao). These land and reef features do not satisfy the ratio of water to land area required for the application of archipelagic baselines by LOSC Art 47(1). Moreover, such groups are clearly not "a fringe of islands along the coast in its immediate vicinity" as they would need to be to allow the use of "straight baselines" (LOSC Art 7). Therefore, we are left unclear as to the claimed status under international law of the Paracel Islands' connecting baselines, and thus also the waters contained within them. A legitimate concern might be that usage of the term "archipelago" subtly conditions opinion in a manner that paves the way for application to the Spratly Group of connecting baselines similar to those already claimed for the Paracel group. The potential consequences for the maritime sovereignty and sovereign rights of other littoral States to the South China Sea of any such future claim by China would be significant and worrying indeed.
Often, in general reporting and even academic discussions, satisfaction of three criteria is said to be necessary for a Spratly feature to be accepted as an island, i.e. "size, human habitation and economic life".[10] The LOSC Art 121 does not directly stipulate a criterion of size, but certainly supports the latter requirements of an ability to sustain human habitation and economic life of their own for an island to generate an EEZ or continental shelf. However, the LOSC also states explicitly that an island is "a naturally formed area of land, surrounded by water, which is above water at high tide" (emphasis added). Certain drying reefs and other shallow-water features of the Spratly Group have been built up by claimant States in such a way that they now remain above water at high tide and are inhabited. Natural materials such as rock and coral pieces have been used to raise the 'islands'; thus, should we consider whether they are "naturally formed"? The extent to which such features might in the future give rise to claimed maritime sovereign rights remains to be seen.
Finally in this all too brief review of such a complex and comprehensive issue, I note the frequent assertion by China that "direct bilateral consultation and negotiation" appears to be preferred by South China Sea claimant States, and especially China, to resolve disputes. Indeed, China has steadfastly rejected third-party involvement, including judicial settlement, good office, mediation, conciliation, or multilateral negotiation.
From a realpolitik perspective, such a policy is eminently sensible for China, which is much stronger by any measurable criteria than any of the other claimant States. However, noting the important international legal principle of pacta tertiis nec nocent nec prosunt, (essentially meaning that a treaty or agreement cannot be binding, impose obligations or affect the rights of non-parties to that treaty), and the express prohibition in the LOSC of bilateral agreements that affect “the enjoyment by other States Parties of their rights or the performance of their obligations” (Art 311[3]), one is left wondering to what extent bilaterally negotiated agreements can resolve disputes that involve the interests, claims and rights of multiple parties.
The question of sovereignty, sovereign rights and jurisdiction in the South China Sea is a difficult topic. The overall impression left by reflection on the issues at hand is the importance of clarity in international law and discipline in application of that law. To this end, progress may depend as much on decisions made by bodies such as multilateral treaty Conferences of Parties (COPs) (or States Parties to LOSC), ICJ and the International Tribunal of the Law of the Sea (ITLOS) as it will upon the immediate outcome of negotiations between the claimant States.
To the extent that State practice in the South China Sea by virtue of precedent holds the potential to undermine the delicately crafted rule of international law over the seas and oceans of the world, the international community has a right to participate in this debate.
The choice is stark. Either we respect and preserve the international legal regime of the LOSC that was negotiated over many years and that established a codified law for the first time in human history over the seas; or we abandon this law in favour of the rule of power and assertion. Indeed, the choice threatens to become one of ‘law of the sea’ or ‘law of the jungle’.
In that context, we would do well to remember one final article from the LOSC; Article 301 stipulates, “In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”
[1] ‘China lodges complaint with U.S. over spy plane flight’ (Beijing: Reuters, 25 May 2015) See: http://www.reuters.com/article/2015/05/25/us-southchinasea-china-usa-complaint-idUSKBN0OA0DY20150525
[2] UN Doc. A/C.1/PV.1515(1967)
[3] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 I.L.M. 1261 (hereafter cited as LOSC). The text is reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea, with Annexes and Index (New York: United Nations, 1983), 1-157.
[4] B. Zuleta, ‘Introduction’ in Law of the Sea. ixx.
[5] LOSC, Preamble
[6] “The Group of 77 (G-77) was established on 15 June 1964 by seventy-seven developing countries signatories of the “Joint Declaration of the Seventy-Seven Developing Countries” issued at the end of the first session of the United Nations Conference on Trade and Development (UNCTAD) in Geneva.” See: http://www.g77.org/doc/. Accessed 27 May 2015.
[7] Jianwei Li and Ramses Amer, ‘Recent Practice in Dispute Management in the South China Sea’. Paper discussed at Maritime Energy Resources In Asia conference, August 5-7, 2010, Ho Chi Minh City.
[8] Loc. cit.
[9] Li Jinming & Li Dexia (2003) ‘The Dotted Line on the Chinese Map of the South China Sea: A Note’, Ocean Development & International Law, 34:3-4, 287-295
[10] Loc. cit.
Recently, I was invited to Hong Kong to participate in a discussion with eminent scholars on the topic of fisheries management in the South China Sea.
In order to broaden our perspective, a dear friend and highly respected Chinese professor kindly talked us through Chinese claims in the South China Sea. Her summary of the salient issues accurately captured the thrust of the arguments put forcefully and frequently in the public domain by government officials and commentators of the People’s Republic of China.
It also helped to explain actions such as the lodging of a complaint by China this week with the United States over a surveillance aircraft that flew over parts of the disputed South China Sea. Chinese Foreign Ministry spokeswoman, Hua Chunying, was reported to have said on Monday, "Freedom of navigation and overflight by no means mean that foreign countries' warships and military aircraft can ignore the legitimate rights of other countries as well as the safety of aviation and navigation."[1]
However, in hearing these arguments yet again in Hong Kong, I was struck by the most telling obstacle to resolution of contending claims in the South China Sea; namely, that seemingly creative, convenient interpretations and distortions of international law are used to support these claims, sometimes in the context of ambiguous guidance from vague wording of the United Nations Convention on the Law of the Sea 1982 (LOSC).
In November 1967, Dr. Arvid Pardo of Malta made a speech in the General Assembly of the United Nations calling for demilitarization of the seabed and recognition of its resources as “the common heritage of mankind”.[2] This seminal speech began a process that led to the third UN Conference on the Law of the Sea (UNCLOS III) and eventually to the LOSC.[3] UNCLOS III involved over 150 States in negotiations that spanned a period of more than 14 years.[4] In the Preamble to the LOSC, these States declared, amongst other things, that they desired “to settle … all issues relating to the law of the sea” and wished to establish “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”[5] China and other South China Sea claimant States were active participants in UNCLOS III, often at the head of the Group of 77 developing countries.[6]
UNCLOS III was an ambitious endeavour; it was the first time that the community of nations had come together to establish a comprehensive global order of law for the seas and oceans. They succeeded in part by navigating around issues that threatened to sink the process with language in certain crucial areas that allows ambiguous interpretation or by remaining silent on some contentious topics. The use of voting was set aside in favour of achieving consensus. Nevertheless, the LOSC provides many unequivocal international rules that appear to be under challenge now through the arguments and conduct of States in the South China Sea.
For example, certain claimant States stubbornly cling to a misunderstanding or deliberate misrepresentation of the relationship between land and maritime sovereignty. Land sovereignty gives rise to maritime sovereignty and sovereign rights; it does not work the other way around. However, we frequently see language suggesting otherwise, e.g. "Brunei claims at least two islands which are situated in its exclusive economic zone."[7] If indeed the features are "islands" and not "rocks which cannot sustain human habitation or economic life of their own" (LOSC Art 121), and Brunei enjoys sovereignty over the islands, then by definition, they must lie within Brunei's EEZ because they give rise to that EEZ along with territorial sea, contiguous zone and continental shelf "determined in accordance with the provisions of [the LOSC] applicable to other land territory" (LOSC Art 121[2]).
Equally, we are frequently told that "China's and Taiwan's claims within the 'U-shaped dotted lines' in the South China Sea overlap to varying degrees with claims to EEZ and continental shelf areas made by (...other coastal States)".[8] For China or Taiwan to enjoy maritime sovereignty or sovereign rights in the South China Sea, they are required to demonstrate the legitimacy and effectiveness of sovereignty over land adjacent to, or situated in (i.e. at least as "islands") the South China Sea. There is no international legal principle that I know of to support a general claim of sovereignty or sovereign rights over an area of sea that in some way gives rise to entitlement over land. And yet, such discourse is repeated over and again as if it enjoys merit under international law.
Some academic papers also purport to make a case of ‘historic title’ and acquiescence to the ‘dotted line’ claim by South East Asian states, often newly emerging with weak institutions from colonialism and the ravages of war, with whom such maps and claims were not formally lodged. I am reminded in this regard of the comedy play by Douglas Adams, 'The Hitch-hiker's Guide to the Galaxy', where the Captain of a Vogon planet-demolition spacecraft that is about to destroy Earth says, "There's no point in acting all surprised about it. All the planning charts and demolition orders have been on display at your local planning department in Alpha Centauri for fifty of your Earth years so you've had plenty of time to lodge any formal complaints and it's far too late to start making a fuss about it now."
In addition, principles of historic title that apply to sovereignty over land appear to be extended without qualification to areas of ocean space, with LOSC Article 15 distorted to discount a requirement first to establish that a claimant State in a territorial sea boundary delineation process actually has sovereignty over land giving rise to a territorial sea at all.[9] Spheres of influence, whether at land or sea sit more comfortably with principles of 'suzerainty' than with the modern legal principle of 'sovereignty'.
China and the other claimant States of the South China Sea have ratified the LOSC. Article 309 of the LOSC states, “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.” In other words, the LOSC is a “package deal”, it’s all or nothing. States cannot ‘cherry pick’ the rights and obligations of the LOSC that they find convenient or advantageous. This is reinforced by Art 310 that provides, “Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State” (emphasis added).
If indeed China is confident of arguments under the principle of ‘historic title’ – and we must allow that a comprehensive case on South China Sea sovereignty has neither been put nor decided upon by any international juridical body – why would it not agree to allow a ruling on the question of sovereignty over claimed islands in the South China Sea by the International Court of Justice (ICJ)? With such questions resolved, the delineation of maritime boundaries in the South China Sea could proceed with greater clarity through the processes and rules provided in the LOSC.
Also, discussion of the Spratly and Paracel group of islands, reefs and cays is often coined in terms of them being "archipelagos" (which of course they certainly are called in Mandarin, ie. 'qundao' - [群岛 pronounced 'choondow']). Technically, an argument based on historical usage of the term 'archipelago' might perhaps be attempted, especially with reference to the Chinese names of Xisha Qundao (西沙群岛 pronounced “c-sha choondow”, ie, western archipelago) and Nansha Qundao (南沙群岛 southern archipelago).
Setting aside the contentious issue of which features in these areas actually satisfy the criteria of being an island, the LOSC Art 46(b) stipulates that an archipelago means "a group of islands, including parts of islands, inter-connecting waters and other natural features which are so closely inter-related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such."
However, the concern in accepting a description of the two groups as "archipelagos" is the possible confusion that arises when connecting baselines are claimed between such features that resemble "archipelagic baselines", e.g. those claimed by China in its Territorial Sea Law (May 1996) for the Paracel Islands (Xisha Qundao). These land and reef features do not satisfy the ratio of water to land area required for the application of archipelagic baselines by LOSC Art 47(1). Moreover, such groups are clearly not "a fringe of islands along the coast in its immediate vicinity" as they would need to be to allow the use of "straight baselines" (LOSC Art 7). Therefore, we are left unclear as to the claimed status under international law of the Paracel Islands' connecting baselines, and thus also the waters contained within them. A legitimate concern might be that usage of the term "archipelago" subtly conditions opinion in a manner that paves the way for application to the Spratly Group of connecting baselines similar to those already claimed for the Paracel group. The potential consequences for the maritime sovereignty and sovereign rights of other littoral States to the South China Sea of any such future claim by China would be significant and worrying indeed.
Often, in general reporting and even academic discussions, satisfaction of three criteria is said to be necessary for a Spratly feature to be accepted as an island, i.e. "size, human habitation and economic life".[10] The LOSC Art 121 does not directly stipulate a criterion of size, but certainly supports the latter requirements of an ability to sustain human habitation and economic life of their own for an island to generate an EEZ or continental shelf. However, the LOSC also states explicitly that an island is "a naturally formed area of land, surrounded by water, which is above water at high tide" (emphasis added). Certain drying reefs and other shallow-water features of the Spratly Group have been built up by claimant States in such a way that they now remain above water at high tide and are inhabited. Natural materials such as rock and coral pieces have been used to raise the 'islands'; thus, should we consider whether they are "naturally formed"? The extent to which such features might in the future give rise to claimed maritime sovereign rights remains to be seen.
Finally in this all too brief review of such a complex and comprehensive issue, I note the frequent assertion by China that "direct bilateral consultation and negotiation" appears to be preferred by South China Sea claimant States, and especially China, to resolve disputes. Indeed, China has steadfastly rejected third-party involvement, including judicial settlement, good office, mediation, conciliation, or multilateral negotiation.
From a realpolitik perspective, such a policy is eminently sensible for China, which is much stronger by any measurable criteria than any of the other claimant States. However, noting the important international legal principle of pacta tertiis nec nocent nec prosunt, (essentially meaning that a treaty or agreement cannot be binding, impose obligations or affect the rights of non-parties to that treaty), and the express prohibition in the LOSC of bilateral agreements that affect “the enjoyment by other States Parties of their rights or the performance of their obligations” (Art 311[3]), one is left wondering to what extent bilaterally negotiated agreements can resolve disputes that involve the interests, claims and rights of multiple parties.
The question of sovereignty, sovereign rights and jurisdiction in the South China Sea is a difficult topic. The overall impression left by reflection on the issues at hand is the importance of clarity in international law and discipline in application of that law. To this end, progress may depend as much on decisions made by bodies such as multilateral treaty Conferences of Parties (COPs) (or States Parties to LOSC), ICJ and the International Tribunal of the Law of the Sea (ITLOS) as it will upon the immediate outcome of negotiations between the claimant States.
To the extent that State practice in the South China Sea by virtue of precedent holds the potential to undermine the delicately crafted rule of international law over the seas and oceans of the world, the international community has a right to participate in this debate.
The choice is stark. Either we respect and preserve the international legal regime of the LOSC that was negotiated over many years and that established a codified law for the first time in human history over the seas; or we abandon this law in favour of the rule of power and assertion. Indeed, the choice threatens to become one of ‘law of the sea’ or ‘law of the jungle’.
In that context, we would do well to remember one final article from the LOSC; Article 301 stipulates, “In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”
[1] ‘China lodges complaint with U.S. over spy plane flight’ (Beijing: Reuters, 25 May 2015) See: http://www.reuters.com/article/2015/05/25/us-southchinasea-china-usa-complaint-idUSKBN0OA0DY20150525
[2] UN Doc. A/C.1/PV.1515(1967)
[3] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 I.L.M. 1261 (hereafter cited as LOSC). The text is reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea, with Annexes and Index (New York: United Nations, 1983), 1-157.
[4] B. Zuleta, ‘Introduction’ in Law of the Sea. ixx.
[5] LOSC, Preamble
[6] “The Group of 77 (G-77) was established on 15 June 1964 by seventy-seven developing countries signatories of the “Joint Declaration of the Seventy-Seven Developing Countries” issued at the end of the first session of the United Nations Conference on Trade and Development (UNCTAD) in Geneva.” See: http://www.g77.org/doc/. Accessed 27 May 2015.
[7] Jianwei Li and Ramses Amer, ‘Recent Practice in Dispute Management in the South China Sea’. Paper discussed at Maritime Energy Resources In Asia conference, August 5-7, 2010, Ho Chi Minh City.
[8] Loc. cit.
[9] Li Jinming & Li Dexia (2003) ‘The Dotted Line on the Chinese Map of the South China Sea: A Note’, Ocean Development & International Law, 34:3-4, 287-295
[10] Loc. cit.
