The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea
The American Journal of International Law, Vol. 107, No. 1 (January 2013)
The UN Convention on the Law of the Sea (UNCLOS) establishes a legal framework to govern all uses of the oceans. All of the states bordering the South China Sea—Brunei Dar-ussalam, China, Indonesia, Malaysia, the Philippines, and Vietnam—are parties to UNCLOS. Taiwan, which also borders the South China Sea, has taken steps to bring its legislation into conformity with UNCLOS.
Brunei Darussalam, China, Malaysia, the Philippines, and Vietnam are the claimant states that have competing claims to territorial sovereignty over the islands in the South China Sea. UNCLOS does not address questions of sovereignty over land territory. Its provisions on coastal state jurisdiction assume such sovereignty.
The coastal states have also made overlapping, conflicting claims to jurisdiction over the South China Sea itself. These disputes are as important as those over territorial sovereignty and perhaps even more important. Under UNCLOS, entitlement to maritime zones is generated only by land territory, including islands. The Convention contains rules on the coastal base-lines from which maritime zones are to be measured.
It sets out the breadth of the maritime zones that can be claimed, as well as the rights and obligations of coastal states and other states in each of those zones. The Convention also contains elaborate provisions on settling disputes between parties over the interpretation or application of its provisions.
Therefore, although UNCLOS contains no express provisions to assist states in determining competing claims to sovereignty over land territory, it contains extensive provisions concerning the nature and extent of permissible maritime claims and the settlement of disputes regarding such claims.
It is the thesis of this article that if the states bordering the South China Sea comply in good faith with the applicable provisions of UNCLOS, then the maritime disputes will be clarified, and a framework will be established that will enable the claimants to set aside the sovereignty disputes over land territory and to cooperate in the areas of overlapping maritime claims. By contrast, if one or more states bordering the South China Sea assert maritime claims that are not in conformity with UNCLOS, other states may have no choice but to resort to the Convention’s dispute settlement procedures in order to obtain a legally binding determination of the validity of those claims.
Read the full text at The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea (PDF)