UNCLOS and Ocean Dispute Settlement

Law and Politics in the South China Sea

Nong Hong

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136277849
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The United Nations Convention on the Law of the Sea (UNCLOS) offers a legal framework for the sustainable development of the oceans and their natural resources. However, recently there have been calls to amend the Convention due to some ambiguous provisions which are unable to address a variety of contemporary maritime issues.

This book evaluates the applicability and effectiveness of UNCLOS as a settlement mechanism for addressing ocean disputes. The book's central focus is on the South China Sea (SCS) dispute, one of the most complex and challenging ocean-related conflicts in the world. The book examines the ways in which an emphasis on sovereignty, threats to maritime security and overlapping maritime claims caused by the newly established maritime regimes authorized by UNCLOS are all contributing factors to the SCS dispute. The book considers the internal coherence of the Law of the Sea Convention regime and its dispute settlement procedures. It looks at participation in the UNCLOS negotiations, maritime legislation, and the dispute settlement practice of relevant States party to the SCS dispute. The author goes on to explore the relationship between UNCLOS and the regimes and institutions in the SCS, particularly in regard to issues of maritime security, marine environment protection, joint development of oil and gas and general political interaction. The author proposes practical mechanisms to resolve the dispute whilst also offering a final judgement on the effectiveness of UNCLOS for settling disputes. UNCLOS and Ocean Dispute Settlement will be of particular interest to academics, students and policy makers of international, shipping and maritime law as well as being of interest to academics and students in the field of international relations.

1
Introduction

The South China Sea (SCS) dispute is regarded as the most complex and challenging ocean-related regional conflict in East Asia. The security in the SCS is a concern both for the regional countries, e.g., China, Vietnam, the Philippines, Malaysia, and the extra-regional countries, e.g., the United States, Russia, India, and Japan due to their strategic and economic interests in this region. Historical context on sovereignty, contention on energy, significance of the geographic location, threat to maritime security, overlapping maritime claims caused by the newly established maritime regimes authorized by the United Nations Convention for the Law of the Sea (UNCLOS) are all sources of the SCS dispute. The multilateral overlapping maritime claims particularly make the situation even more intricate than other regions due to the fact that it involves the most disputants among all the maritime disputes in the world, including China mainland, Vietnam, the Philippines, Malaysia, Indonesia, Brunei, and China’s Taiwan (Taiwan). Any conflict in the SCS will pose a threat to regional and international security. Seeking a peaceful solution to this dispute thus becomes an important agenda for these countries’ foreign policy makers.

The SCS dispute has lasted for decades but seemed to stay quiet from 2002 to 2009. In 2009 several major developments stirred up controversy in the SCS all over again, and highlighted the difficulties of maintaining stability in the region including the national legislation by the Philippines on the baseline bill, and the submission to the Commission of Limits of Continental Shelf (CLCS) by some claimant states. The SCS issues have become even more complicated in 2010. The highlight of the SCS dispute seems to be the spat between China and the US on the so-called “core interest” statement by China and the following counterpart statement on “national interest” by US Secretary of State Hillary Clinton. The tension in the SCS has continued to escalate in 2011 with a series of events between the claimants. All of a sudden, the SCS dispute has once again become a flashpoint in this region, drawing attention and raising concerns in the international community.

Many SCS scholars have made tremendous efforts in seeking resolution of the SCS dispute. In the 1980s and 1990s, Valencia and Van Dyke presented a series of alternative proposals on how the SCS could be delimited into zones of national jurisdiction.¹ The proposals were based on the presumption that the conflict would be resolved diplomatically, through arbitration or a court ruling, rather than militarily. Indonesian scholar Hasjim Djalal’s so-called “doughnut formula” argued that there would be an area of High Seas left in the middle of the SCS (more than 200 nm (nautical miles) from all shores) and that this area could form the basis for a Joint Development Zones (JDZs) regime.² Cooperative schemes less ambitious than outright JDZs or Joint Management Zones (JMZs) have also been discussed, the purpose of which would then be to carry out oceanographic research and research on biological diversity, to protect the natural environment and to manage fish stocks. Besides, more traditional kinds of proposals for dispute resolution have aimed at resolving the sovereignty dispute to the Paracel and Spratly Islands on the basis of international law. Several scholars have assumed that the sovereignty disputes concerning the islands must be resolved before one can get on with delimitating maritime zones.³ Other scholars, such as Valencia and Van Dyke, have pointed to the fact that it may actually be dangerous to start by resolving the sovereignty disputes.⁴ Valencia, Ludwig, and Van Dyke have included among their several models on how to divide the SCS, one where the islands as such have no influence on the delimitation. Instead the zones are delineated on the basis of distance from the coasts of the surrounding countries, with a system of moderate compensation for geographically disadvantaged states. This has inspired a third kind of proposal which suggests that the conflict could be resolved diplomatically by the regional countries themselves, on the basis of UNCLOS, but without resolving the tortuous question of sovereignty to the Spratlys. Kivimäki brought forward three approaches, namely direct containment of violence, dispute resolution, and conflict transformation.⁵ Despite the above-mentioned efforts made at both the political and academic levels, e.g., diplomatic negotiation and mutual development, the settlement of the decades-old maritime dispute in the SCS seems to be politically deadlocked.

This book aims at, on one hand, exploring the most practical mechanism to settle the SCS disputes under the new development tendency, and on the other hand, assessing the effectiveness and implementation of UNCLOS as an international regime to settle maritime disputes. The adoption of UNCLOS in 1982 has led to a period of relative stability in global ocean affairs by providing a legal framework for the sustainable development of the oceans and their natural resources. However, especially in recent times, there have been calls to amend the Convention because of some shortcomings. Renegotiation of the Convention in all probability would be a time-consuming process, the outcome of which is highly uncertain. Such a process would certainly have a negative impact on international cooperation in the management of ocean space as it is bound to lead to uncertainty and conflict over the applicable legal regimes. The rationale of this book is intended to contribute to the discussion on the significance of UNCLOS as the basis for the legal order of the ocean. The disputes and conflicts contained in the SCS cover almost every aspect of UNCLOS, e.g., maritime delimitation, historic title, territorial sovereignty, use of force, military activities, fishing, marine scientific research, freedom of navigation, marine environment protection, and deep seabed mining. The SCS dispute involves rising maritime powers like China, archipelago states like Indonesia and the Philippines, strait states like Malaysia and Indonesia, and user states like the US, Japan, and others, all of which reflect the many dimensions of the users of UNCLOS.

To evaluate the effectiveness of UNCLOS, we should seek to answer a series of questions. (1) Does UNCLOS create a constitution for the ocean? (Is UNCLOS effective? Can UNCLOS adapt to changing circumstances?) (2) Is UNCLOS successful in preventing or managing conflicts pertaining to marine resources? (Is UNCLOS playing a positive role in addressing the SCS dispute? To what extent do the states involved in the SCS recognize the connection and relevance of UNCLOS and the settlement of the disputes in this region?) (3) How does the SCS dispute settlement bridge the gap of international relations and international law? How should we judge the performance of UNLCOS? How successful has this regime been in addressing the major problems of ocean governance, and how would human uses of ocean resources have evolved in the absence of UNCLOS?

To answer the above questions, the book approaches UNCLOS as an international regime. The varying definitions of regime allow for a wide range of topics or fields of international law to be investigated under regime theory. These include, inter alia, the GATT, the United Nations, and any number of environmental agreements. Within UNCLOS, regimes such as the “continental shelf regime” and the “dispute settlement regime,” can be analysed within the framework of regime theory. Whilst the focus on the internal coherence of UNCLOS as a regime is important and may help us to understand its significance and contribution to international order, I wonder whether this focus may not be subsidiary to questions concerning the external coherence of the UNCLOS regime. In this context I refer to the relationship between UNCLOS and more general institutions of international law and with other substantive fields. If we embrace such a variety of regimes, which concern themselves with different subject matter and which operate at different levels, then we should seek to understand the inter-relationship between such regimes because any single regime will invariably impact upon others. It seems that the external relationship between UNCLOS and other “regimes” is a matter of fundamental importance, and until such relationships are better understood and defined with greater certainty, then any analysis of the internal coherence of UNCLOS would appear to remain incomplete or vulnerable. To summarize, it is necessary to look both at the internal regimes of UNCLOS and at the relationship of UNCLOS and other regimes and institutions in the SCS in order to evaluate the role of UNCLOS in addressing the SCS dispute, and various ocean-related disputes in general.

Chapter 1 introduces the subject, explains the purpose and scope of the book, and provides an overview of the main findings of the study. Chapter 2 provides a background of the SCS dispute from several dimensions, including history, economy, military, and security, the claims of each state involved in the disputes and the nature of their claims, and the most recent developments since 2009 in the SCS. Chapters 3 to 5 then assess the effectiveness of UNCLOS as an international regime in addressing ocean disputes. Chapter 3 explains the legal regimes of UNCLOS and its applicability in the SCS. It analyzes “dispute settlement regime” and its applicability in addressing differences or disputes among coastal states in the areas of Territorial Sea Regime, EEZ, and Continental Shelf Regime, and in other issues (fishing, freedom of navigation, marine environment, military activity, marine research, and deep seabed mining, etc.). Chapter 4 analyzes state practices in the SCS with regards to the legal regimes of UNCLOS discussed in Chapter 3 and both the legal and political impact of state practice. The concept of international law, participation in UNCLOS negotiation, maritime legislation, and dispute settlement practice of relevant states will be considered in turn in the practice of relevant states. Chapter 5 explores the relationship between UNCLOS and other regimes and institutions in general in the SCS. This chapter reviews four fields respectively, namely maritime security, marine environment protection, oil and gas joint development, and political interaction (ASEAN+1 Model). The discussion on “UNCLOS–other regimes’” relationships will be developed in the framework of these four fields. Chapter 6 explores a pragmatic settlement regime for the SCS and proposes a few recommendations for policy makers and academics. The concluding chapter brings in discussion on interdisciplinary collaboration between IR and IL in the field of ocean dispute settlement.

Notes

1 Mark J. Valencia and Jon M. Van Dyke, “Comprehensive Solutions to the SCS Disputes: Some Options,” in Gerald Blake, Martin Pratt, Clive Schofield, and Janet Allison (eds.), Boundaries and Energy: Problems and Prospects (London: Kluwer Law International, 1998), pp. 85–117; Mark J. Valencia, John Van Dyke, and Noel Ludwig, Sharing the Resources of the SCS (The Hague: Kluwer Law International, 1997).

2 Hasjim Djalal, “Indonesia and the SCS Initiative,” Ocean Development and International Law, vol. 32, no. 2 (2001), pp. 97–105.

3 Yann-huei Song’s Response to Jon Van Dyke, at the Maureen and Mike Mansfield Foundation Law of the Sea in Asia Conference, May 9, 2011, Hong Kong.

4 Valencia and Van Dyke, 1998.

5 Timo Kivimäki (ed.) War or Peace in the South China Sea (Copenhagen: NIAS Press, 2002), pp. 131–165.

2
The origin and development of the South China Sea dispute

This chapter provides a background to the SCS dispute and its development from several dimensions, namely geopolitics, history, military, and security, the claim of each disputant, the interests of the external players involved in the dispute, and the recent developments since 2009.

Geopolitics

The SCS is usually defined as encompassing a proportion of the Pacific Ocean stretching roughly from Singapore and the Straits of Malacca in the southwest to the strait of Taiwan in the northeast.¹ The area includes more than 200 small islands, rocks, and reefs that are used to bolster claims to the surrounding sea and its resources.² The SCS is of vital importance to the surrounding countries because of its rich natural resources such as oil, gas, and fish. It is an integrated ecosystem, one of the richest seas in the world in terms of marine flora and fauna, coral reefs, mangroves, sea grass beds, fish, and plants.³ In addition to marine living resources, mineral reserves including oil and gas have a huge potential. The SCS is sometimes called a “second Persian Gulf.”⁴

In addition to the economic potential, the importance of the SCS as a strategic passageway is also unquestioned. It contains critical sea lanes through which oil and many other commercial resources flow from the Middle East and Southeast Asia to Japan, Korea, and China. More than 80 percent of the crude oil supplies for Japan, South Korea, and Taiwan flow through the SCS from the Middle East, Africa, and SCS nations such as Indonesia and Malaysia. Besides, more than half of the world’s merchant fleet tonnage passes annually through the Straits of Malacca, Sunda, and Lombok, with the majority continuing into the SCS. Liquefied Natural Gas (LNG) is also shipped through this route. About two-thirds of South Korean energy supplies and almost 60 percent of Japan’s and Taiwan’s energy supplies flow through the SCS.⁵ Almost all shipping that passes through the Malacca and Sunda Straits must pass near the contested Spratly Islands.⁶ Therefore, stabilized transportation through these waters is a prerequisite for a continuation of world trade of present proportions.

At stake is also the strategic control over the free passage of foreign warships and military aircraft. Safety of navigation and overflight and the freedom of sea lanes of communication (SLOC) are critical strategic interests of the United States, which uses the SCS as a transit point and operating area for the US Navy and Air Force between military bases in Asia and the Indian Ocean and Persian Gulf areas.⁷ Any military conflict in the SCS that threatens the strategic interests of the United States or the security and economic interests of Japan might be seen as sufficiently destabilizing to invite US involvement to preserve navigational freedom in these critical sea lanes.

History

Although history does not need to be as important for the legal resolution of the dispute as is often imagined, it st...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of maps, figures, and tables
• Acknowledgments
• Abbreviations
• 1 Introduction
• 2 The origin and development of the South China Sea dispute
• 3 UNCLOS and its relevance to the SCS
• 4 State practice of UNCLOS in the SCS
• 5 UNCLOS and other international mechanisms in the SCS
• 6 A pragmatic settlement regime for the SCS dispute
• 7 Conclusion
• Index