On 22 January 2013, the Philippines officially notified China that it had instituted arbitral proceedings against China under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This paper will examine the role of UNCLOS and international law in the South China Sea disputes and will focus in particular on the significance of the case instituted by the Philippines. It will explain the legal issues raised by the Philippines’ Statement of Claim. It will analyse the possible impact of the case on the disputes concerning maritime claims in the South China Sea, including China’s claim to rights and jurisdiction in the maritime space inside the infamous nine-dash line on the Chinese map of the South China Sea.
By Robert Beckman, Director, Centre for International Law, National University of Singapore
At Asia Society / LKY SPP Conference: South China Sea: Central to Asia-Pacific Peace and Security. New York, March 13-15, 2013
I. LEGAL DISPUTES IN THE SOUTH CHINA SEA
A. Disputes on Sovereignty over Off-Shore Islands
The fundamental dispute in the South China Sea concerns sovereignty over off-shore islands. China, Brunei Darussalam, Malaysia, the Philippines and Vietnam claim some or all of the islands in the Spratly Islands. China and the Philippines claim the islands in Scarborough Shoal, and China and Vietnam claim the Paracel Islands. In addition, Taiwan claims the same islands as China.
The international law on the acquisition and loss of territory (including islands) is set out in the principles and rules of customary international law. There are no provisions in the 1982 United Nations Convention on the Law of Sea (UNCLOS) on how to determine which State has the better claim to sovereignty over a disputed territory. UNCLOS only sets out what maritime zones can be claimed from land territory (including islands), as well as the rights and jurisdiction of States in such maritime zones.
The fundamental principle of international law governing the settlement of disputes is that a dispute between two States on an issue of international law cannot be referred to an international court or tribunal without the consent of both parties to the dispute. Therefore, the disputes on which State has the better claim to sovereignty over the disputed islands in the South China Sea cannot be referred to any form of third party dispute settlement without the consent of all parties to the dispute.
B. Disputes concerning the 1982 UN Convention on the Law of the Sea
All of the States bordering the South China Sea and claiming sovereignty over the islands in the South China Sea are parties to UNCLOS. Therefore, UNCLOS is critically important when analysing the legal disputes in the South China Sea.
UNCLOS assumes that it is known who has sovereignty over land territory, including off-shore islands. It sets out what maritime zones can be claimed by States from their land territory and islands, and the rights and duties of coastal States and other States in the various maritime zones.
When a State becomes a party to UNCLOS, it consents in advance to the dispute settlement provisions in Part XV of UNCLOS. The general principle in Part XV is that if a dispute arises between two parties on the interpretation or application of a provision in UNCLOS, and the dispute cannot be resolved by consultation and negotiation, either party to the dispute may unilaterally bring the dispute before an international court or arbitral tribunal, and the decision of the court or tribunal is legally binding on both parties to the dispute.