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United Nations Convention On The Law Of Sea And The South China Sea Dispute – Analysis

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The United Nations Convention on the Law of the Sea (UNCLOS) also known as the law of the sea treaty that is an international legal forum that highlights the territorial sea limits as well as oversee the sea boundaries where the states could enjoy the rights of natural reserves. Furthermore UNCLOS formulates the rules and regulations for the international navigational rights and the discuses the rights for the maritime protection among the nations. This convention concluded in 1982 and came into being after twenty years of its entry into force in November 16, 1994. This convention was recognized by all countries such as China, Philippines Vietnam, Malaysia, Brunei, Taiwan and Indonesia. UNCLOS provides influential and comprehensive legal framework for the sustainable development of the international sea’s boundaries and their navigational rights. 

United Nations General |Assembly has recognized the convention for the sustainable development, strengthening peace, navigational rights, security cooperation, economic advancement, social engagements and peaceful relations among all the nations of the world. Thus UNCLOS is recognized as an important instrument for the legal framework and protection for the maritime environment (Hancox, 1995).

 According to the article 186, it highlights the maritime disputes and the policy matters where a states can enjoy their legal territorial rights. According to the article 11, annex VII of the arbitration that explains that arbitration decision will be final and binding on all the signatories parties of the arbitration. But there is no legal basis if any state does not appear in the court. But the arbitration has no argument for  the state’s absent from the court cannot effects the final decision of the tribunal. According to the article 289 of the tribunal, in this circumstances, tribunal opted a single term for the decision. Firstly by using his discretionary powers by the tribunal, formulates the technical and scientific experts that will investigate the facts and figure regarding the disputes. Secondly, the tribunal can independently declare the decision on the basis of documentary evidences (Gerald H, 1994).

Article 138 of the Rules of the Tribunal overviews as taken after: 

The authority of tribunal is also consisted on a legal advice on a legal request from a claimant states on any specific or general issue related to the Law of Seas. Article 2 of the UNCLOS describes the legal status of the territorial sea limits, country’s air space limits over the territorial waters. Article 4 elaborates the outer limits of the territorial sea and article 6 of the convention highlights the rules and regulations regarding the reefs, cays, and outlets and low tide elevation respectively. Article 15 of the convention describes about the delimitation of the territorial sea, innocent passage in the territorial sea and the rules and regulations for all the ships, submarines and other ships that runs under the water. Article 47 is very important because it highlights the breadth of the territorial sea, contiguous zone as well as the Exclusive Economic Zone (EEZ) ( Black, 1968).

Law of sea convention has more than 100 articles that clearly highlights the dispute settlement mechanism. This settlement mechanism considered in both perspectives in simple as well as complex. The structural matters of dispute settlement mechanism classified into three parts. The first part highlights the voluntary proceeding, the second one is the compulsory proceedings that involves binding of the decision and the last one is the limitations of the compulsory proceedings.  From the subject matter, dispute settlement mechanism classified related to the limits of the boundaries, rights and duties of the coastal states where they can exercise their territorial rights. In the rationa1 matter jurisdiction perspective, the dispute settlement mechanism elaborates the dispute among the stats and the dispute involving internationa1 organizations and individua1s (Beckman R. , 2011).

The convention has a very important participation for the progress of peace, stability and justice among the nations of the world. The convention has three fundamental principles for the resolution mechanism. The first one is the peaceful settlement among the nations, second one is the much more flexibility in the dispute settlement procedure and the last one is that the convention assures to states for the dispute settlement where states are unable to solve the dispute (Taylor, 2014).

The convention invokes the states for the dispute settlement if the states met three provision. First one is that the dispute must be fall within the parameters set by the convention. The second one is that the states must be free from the any kind of regional, bilateral and general agreement that can give both parties an alternative way for dispute settlement because of the mutual agreement shall be avail instead of the parameter set in the law of the sea convention For the peaceful resolution of the dispute, states must share views for reach on the conclusion if the convention fail to conclude the resolution process. According to the article 284, bot the parties of the dispute resolution process, invite the third party for the conciliation process and then both parties bond to accept the third party decision and the terms and conditions set by the conciliation body. This conciliation body has five members. Both the parties nominate two members for each side and then these four members select the fifth member. When the commission formed then this conciliation body hear the both party,s objections and claims. Then the commission formulates the settlement proposal before reaching towards a peaceful settlement ( Nordquist, 2018).

If the states does not accept the above mentioned dispute settlement process then according to the article XV of the convention provides  a compulsory dispute settlement that obligates the parties with the dispute settlement procedure. When all the disputed parties agreed to form an dispute settlement procedures then a state can choose any of the following for the dispute settlement process. According to the annex VI the international tribunal for the law of sea, the international court of justice, according to the annex VII of  the arbitration tribunal of the law of sea convention (Amer, 1998). 

According to the annex VII of the convention formulates the International Tribunal On the Law of Sea (ITLOS). The law body is operating from the Hamburg Germany and expert to deal regarding the dispute among the states and interpret and application of the LOSC. ITLOS is famous for fairness and representation of the principal legal system. The International Court of Justice ICJ) is operating from The Hague, Nether land and have the 15members one member from the state. The court make decision by majority of votes. If the votes are equal then president gave the final decision. The arbitral tribunal consists of five members and each party select the one members. First two members select the further three members. The basic principle of this arbitration that if one state does not participate in the court proceedings then the arbitral tribunal continue the arbitration process (Hannah, 2010).

According to the article 296 of the LOSC, the arbitration tribunal declares the verdict that binds the parties of the dispute in accordance with provision of tribunal. It is important to mention that ASEAN states should take step forward and conclude this dispute settlement with peaceful means. Firstly, all states must delimit their territorial borders that will put pressure on the negotiable table with China. Secondly, all states must suit a file against the unlawful activities in the SCS that will enable China to reconsider its aggressive policy in these disputed waters. (Bo, FEB 25, 2016).

Under the UNCLOS, countries that have their influences upon the territory that are declared as a maritime zone from such land district. All these maritime boundaries are delimited by the UNCLOS. The standard of measuring these zones is that the low water line that is delimited by the UNCLOS along with the coast (Valencia, 1997).

By the date of 1st July 2011 there were 161 states including European Union were the part of the UNCLOS. 5 states were confirmed into UNCLOS respectively Brunei 5 Nov 1996, China 7 June 1996, Malaysia 14 Oct 1996, Philippines 8 May 1984 and Vietnam 25 July 1994. These were the states which were the claimants and were involved in the conflict of SCS maritime dispute. After that Taiwan issued a bill in UNCLOS for resolving the dispute.

The directions done by the Taiwan to pass order by declaring these Maritime zones as gave in the UNCLOS and relationship of the positions of China and Taiwan in the disputed area.    According to the article 27 of the Vienna Convention on the Law of Treaties, 1969, 1155 units 331 became a law on 22 May 1969 and be implemented into force on 27 January 1980. On this declaration 111 parties planned to work on it on 1st July 2011   (Gerald H, 1994).

Issue among all these countries is related to the Paracel islands, Scarborough shoal, Spratlys Island and Pratas islands.  All these islands are located in the Natuna Island in the north of the Cambodia, Indonesia, Malaysia, Taiwan, China, Vietnam, Philippines. There are also other contested minor islands names Palawan and the Luzon between China and the all ASEAN countries (Forsyth, January 2015).

The convention highlights the maritime zones, exclusive economic zones, continental shelf, territorial waters, archipelago states and and navigation limits. The limits of the territorial waters up to 12 NM that is equal to 22 KM. In this economic zone. States can set their rules and laws and use the natural reserves within the EEZ.According to the Article IV of the convention that highlights the definition of archipelago waters and the formation of the territorial borders (Paul, February 2015).

 According to the convention , territorial borders can be drawn from the outer most points of the outer most islands. In these internal limits, states can use their navigational rights. After the territorial borders that is up to 12 Nautical Miles, then the c contiguous zone start is also up to 12 NM. This contiguous zone used for four purpose that are  custom, taxation, immigration and pollution. Further states also set laws for the enforcement of  all these four elements. The Exclusive Economic Zone has the limits up to 200 NM, 370 KM in which a state may use the the exploitation of the natural resources such as oil gas, fishing and minerals. Beyond these limits foreign states use the flight operation,  navigational rights. And may lay submarines optic fibers and cables. (Bowers & Koh, March, 2017).

China claims over the whole SCS declared that we own this property before the (CCP) Chinese Communist Party which came in power after the independence of Chin. Just before the two years of the independence in 1947 Kuomintang government showed an eleven dash line now today showing nine dash lines which illustrates the SCS as an integral part of the China.  China also claims over the Paracel Islands and the Spratlys Islands.  (Hancox, 1995). China has used the military troops to legalize his claim and to show his power to grab these islands. First time in 1974, got the Bow islands in the Paracels and in 1988 China captured Johnson reefs in the Spratlys islands. At the point, when China demarcated Nine Dash Line, there were no small islands on the shore of SCS at that time. In 1974, the result of the war was that this war gave power to China grab whole of the Paracel islands and in 1988, this war gave China a not too bad balance in the Spratlys. Due to these wars, numbers of Vietnamese marines were affected over the Johnson Reefs (Cooley, 2012).

  United Nation Convention on the Laws of Sea tries to resolve essential disputes among states related to seas, islets, rocks, low-tide heights and fake islets. 

The qualifications are as per the following: 

1. Islands are considered for the same sea area as sphere zone that consist on 12 NM regional ocean, 200 NM for Exclusive Economic Zones and mainland rack that was enlarge past about 200 NM.

 2. Rocks in the seas are under any country’s possession about to 12NM.

3. Low-tide rises cannot be eligible for any regional ocean, however can be utilized as basic focuses to quantify the regional ocean in the event that they are inside 12 NM from the territory or an island. 

4. Islands are considered for no sea regions, aside from a 500 meter comfort zone ( Nguyen, 2016).

The conflict raises many questions of law and also similar methods of law to resolve these questions. Issue regarding where and how a maritime boundaries can be drawn. China draws its maritime boundary through the nine dash line that was first drawn in 1947 and later this nine dash line claim give in to to the UNCLOS in 2009. But China has never offered latitude and longitudes of the nine dash line and other countries of the region privilege that there is no base of the NDL under the UNCLOS.

In 2009, China presented the note to the UN commission on the limitations of the mainland which declared that it has ruling over the water that covers the islands in the SCS. When China looks its bases of maritime claims on land sovereignty many of features that are not met the parameters set by the UNCLOS. China presented the nine dash line to the United Nations and used the term “relevant waters” (Kang, July 12, 2016).

Every state rejects the Nine Dash Line except. China claims this NDL these lines base on the historic rights according the United Nations Convention on the Laws of sea. While on the other hand no government is willing to accept these lines by claiming that these lines has no legal grounds under the UNCLOS. Philippines presented these NDL claims of China in the UN in 2013. Indonesia is the first state who challenged these documents of NDL by presenting to the secretary General of the United Nations by claiming that these lines have no legal basis under the UNCLOS and any other international laws.

United Nations Convention on the law of Sea provides the legal process and information for all the customary disputes in the sea of the world. The convention formulates the laws regarding communication among states and to boost up peace effective control and the equal use and equal rights to use of international sea. The convention also elaborates the off shores features that bind the international states to follow these laws. Every states has the right of specific maritime zone under the UNCLOS. According to the UNCLOS a state has the coastal rights up to nautical miles from its territory and also have the sovereignty over the waters of seas and natural resources in the seabed (Pejsova, October 2016).

According to this convention, any state has the right to manage theirs conflicts by peaceful and bilateral means according to their choices. \In this regard, Foreign Ministers ASEAN states agreed to settle SCS dispute by peaceful way. While Vietnam and China agree to this way of peaceful means to settle dispute in the SCS and want to set an example for other claimants of the SCS (Valencia M. J., 2007).

As mention above, the Philippine is not necessarily limited in its option for dispute resolution. Though the proceedings may default to arbitration, if both parties agree they could elect either to submit the dispute to settlement before the ICJ or engage in further agreements. This thing analyzes that arbitration is the best and suitable option for all the parties to resolve the contested issue in the region (Zhao, 2015).

Vietnam much like the PRC and the ROC, Vietnam’s claim is likewise in light of what it sees as its recorded ideal to the zone. The administration in Hanoi contends that Vietnamese heads had viably controlled the Spratly archipelago since the 1800s. They additionally battle that maps from the period demonstrate the Spratlys to be under Vietnamese control. While Hanoi yields that it lost intrigue and neglected to successfully regulate the archipelago, it keeps up that it recaptured its entitlement to the Spratlys upon freedom from France when it acquired France’s regional possessions in the zone. At the Seventh Plenary Session of the United Nations General Assembly in 1951, Prime Minister Tran Van Hu expressed: “As we should honestly benefit from every one of the open doors offered to us to smother the germs of disagreement, we certify our entitlement to the Spratly and Paracel Islands, which had dependably a place with Vietnam ( Thayer , 2009).

The Philippines convoluting the Spratly issue have been the ensuing cases of the Philippines and Malaysia. The Philippines’ most punctual claim was in 1956 when Thomas Cloma, a private Filipino national, asserted that he found a gathering of islands in the South China Sea which he named the “Kalayaan Islands”. Over 10 years after the fact, in 1968, the Philippine military involved eight of the islands that include Cloma’s unique claim. It was not until 1978 that the Philippine Government laid a formal claim to these islands through the issuance of Decree 1596. Since 1968, the Philippine military has posted armies on seven of the components while additionally building up a military airstrip on Thitu Island ( Win & Guillermo, 2005).

The Philippine claim lays on two key thoughts. To begin with it contends that the islands were, before 1956, unclaimed and without a sovereign expert. Along these lines, when Cloma laid his claim, he was appropriating for the Philippines domain which was not under another state’s sovereign control. The administration’s second contention depends on the arrangements for 200-nautical-mile EEZ exemplified in UNCLOS. The Kalayaan gathering, Manila contends, falls inside the Philippines’ honest to goodness EEZ. These contentions are the subject of significant debate. Beijing, Taipei and Hanoi each contend that the Kalayaan gathering was not land nullius and, rather, was under sovereign expert. Each contends that the Philippines’ claim double-crosses a humiliating numbness of the truths. The Philippines’ understanding of UNCLOS is likewise addressed by different inquirers who contend that the arrangements for the EEZ plot in the Convention apply just to zone that would already have been considered some portion of the high oceans, not some portion of another state’s sovereign region. The Kalayaan gathering is not such a zone. Contingent upon which government is challenging the Philippine claim, Kalayaan has dependably been under either China’s, Vietnam’s or Taiwan’s sovereign control (ESMOND & JR, 1994).

Philippine’s claim dates from 1979 when the legislature distributed an official guide demonstrating the southernmost islands of the Spratlys tie to be a piece of the nation’s mainland rack and EEZ. The Malaysian Government contends that before its claim, these islands were union habited .While its claim is by all accounts reliable with the terms of UNCLOS, a few of the other inquirers disagree. Similar to the PRC and ROC contend that their chronicled qualification to the Spratlys supersedes Malaysia’s claim, while others debate Malaysia’s specific understanding of the Convention and its utilization of occupation as a way to set up sovereign control. At the end of the day, discussion rules. Different petitioners battle that Malaysia has misconstrued the mainland rack arrangements in the Convention. While UNCLOS enables a state to control living and nonliving assets in its mainland rack it says nothing in regards to concede a state sway over islands that might be situated on its mainland rack, particularly in the event that they as of now fall inside the ward of another state. In some ways the Malaysian claim experiences an indistinguishable inadequacies from the claim by the Philippines (Roach , August, 2014).

The South China Sea dispute arbitration was conducted between the people’s republic of China and the republic of Philippines in the Permanent Court of Arbitration (PCA) under the section 1982 UNCLOS on January 22, 2013 under the article 286 0f UNCLOS that allow the parties that when there is no settlement has been reached then a resolution can be filed in a tribunal for conflict settlement that are specified in the article 287 of the UNCLOS. The court verdict was awarded in July 12, 2016. Republic of Philippines pursuit a case against China but China did not present her representative in the PCA (Schoenbaum, October 2016). Philippines have the reservation on the SCS and filed a case against China in PCA to resolve the following issues:

  • To resolve the dispute regarding entitlement in the SCS and maritime rights.
  • To resolve the dispute regarding the maritime zones in Scaraborough shoal as well as in the Spartly Island of SCS.
  • To resolve the dispute related to the marine environment, construction of artificial island, China’s lawfulness actions and interfering in the Philippines’ rights in the SCS.
  • To find the aggravation and assertiveness of China in the SCS and restrictions on Philippines’ access to marines station at second Thomas Shoal. 

Tribunal concluded that there was no legal as well as historic basis of China’s nine dash line and China had not historically exclusive rights over the waters and reefs over the SCS. 

Tribunal found that certain features were within the EEZ of Philippines and China violated these exclusive economic zones of the Philippines. China violated by making artificial islands, interfering with the sovereign rights of fishing and oil exploitation in the Philippines’ EEZ at the Scarborough shoal. The tribunal also found guilty that China unlawfully restricted Philippines’ fishing rights and Chinese vessels created a security risk of potential collision by obstructed Philippines vessels (Baviera, 1998).

The tribunal also resulted that China violated its obligation to preserve the eco system and habitat of the sea. Furthermore tribunal noted that China depleted species by her harmful fishing activities as well as large scale of land reclamation in the SCS. PCA stated that China did not restrict her fishermen from gathering  different types of corals, reefs and turtles on large scale in the LOSC (Aguda, Loreto, & Aguda, 2009).

The tribunal found that China’s assertiveness in the disputed sea made their case weak in the PCA and continuation of China’s reclamation on large scale and construction of artificial islands in the SCS is incompatible. It is also incompatible for a state to claim unlawful activities in the disputed water while a case proceeding for resolution in the tribunal. 

Although the decision of the tribunal is considered a great win of the Philippines and a gesture of peaceful settlement of the disputed sea. The decision is final and all countries under the articles 11 and 296 of the LOSC which China is a party.

  It is argued that these actions entitle China to the entire South China Sea and all of its constituent features, which include the Spratly archipelago. To argue that China’s claim is not codified anywhere in conventional international law is to Chinese authorities, to overlook what’s really important. As will be investigated later, it is the proceeded with utilization of these standards that postures one of the best blockage to the compelling use of UNCLOS to the Spratlys struggle. China’s soonest formal claim rose with the marking of the Convention Respecting the Delimitation of the Frontier among China and Tonkin on 26 June 1887 which finished up the Sino-French War of 1884-85 (Darmody, 1995).

Article 3 of this tradition accommodated a delimitation line among French and Chinese regional claims in the South China Sea. In spite of its ambiguities, Chinese authorities have deciphered Article 3 as giving Beijing possession and control of the Paracel and Spratly Islands. For the rest of the nineteenth century and into the mid-1900s, China made a few efforts (much to the dismay of the French and Japanese) to declare control over the SCS on the premise of this tradition. The Spratlys struggle achieved restored significance in the end days of World War II when Nationalist China (the (ROC) Republic of China possessed and set up an operation based on the island of Itu Aba. In the meantime, France kept on assuming a part in the debate by guaranteeing certain islands for the legislature in Paris and helping Vietnamese claims in the range. General confusion regards to the responsibility for Spratlys was then exacerbated by equivocal settlements at the end of World War II. The inevitable fall of the French realm in Indochina left the status of the Spratlys undecided and empowered the ROC to exercise what it felt was successful control over the islands. Obviously, different gatherings to the question contend that the authenticity of this claim is the best case scenario, questionable (Chang T. K., 1991).

  The following three decades were described by a few sporadic and hostile cases made by five of the six debating parties. Amid this time a hefty portion of these cases went to a great extent unnoticed by the global group and thus were not nearly investigated to decide their authenticity. In August 1951, Zhou En-lai then the PRC’s Foreign Minister reacting to the draft of the San Francisco Treaty, delineated Beijing’s position on the SCS ( Carment, March, 2000).

In spite of the way that China similar to alternate petitioners has sanctioned UNCLOS. This truly based contention keeps on being the premise of its claim to the Spratlys. Truth be told, as of late as 25 February 1992, the Standing Committee of the National People’s Congress received the Law on the Territorial Waters and their Contiguous Areas. The Law proclaims that “the degree of the PRC’s regional waters measures 12 nautical miles from the datum-line of the regional waters”. China, in any case has never distributed its regional baselines from which regional waters in the SCS would be measured leaving the whole issue unsettled. In spite of the fact that Beijing has put forth a few open expressions proposing that the Spratlys’ asset riches may be controlled mutually Beijing has never neglected to remind its Southeast Asian neighbors that China considers itself to be the sole sovereign expert over the whole Spratly chain ( Furtado, 1999).

On February 19 2013, China rejected the tribunal bench by sending a diplomatic note to Philippines. China stated that both countries China and Philippines have jurisdictional claims in the disputed sea and both countries agreed to settle this dispute through bilateral and friendly means. Throughout the proceedings, China neither participated nor appeared before the tribunal but Philippines successfully proceeded the case without the China’s participation under the article 9 of annex VII of the LOSC. On October 29 2015, China’s Ministry of Foreign Affairs stated that there would be no binding force that can effect on China. Foreign Ministry further illustrates that China’s sovereignty and rights in the SCS is totally based on the historical rights and its domestic laws as well as protected under the international law including the LOSC. China also stated that the claims presented in the tribunal were totally based on the political provocation and China has the indisputable sovereignty over the SCS islands, reefs, shoals and adjacent waters. China also stated that in terms of territorial sovereignty and maritime regions, China will not accept or imposed any unilateral decision by any third party dispute settlement (Schoenbaum, October 2016).

China publicly denounce the verdict of International court of arbitration but whatever the directions are provided by the court are being followed by China in the SCS. UNCLOS is an autonomous body in the world. And its importance in resolving the maritime disputes is fantastic. The body is created for the oceans disputes and since 1984 has been doing its work with great effort and potential. And failed to reduce the Chinese dominance in the region. Because UNCLOS has some limitations in his framework, it only gives the legal consultation regarding any issue of Mari times, but it does not possess any authority to bind the states.

China’s supremacy in this area is important because China is the foremost economy of the World, and with its strength of having large populous entity of the world and leader in the economy is now entering in the world of international politics, SCS is geographically very important area, with its strategic and economic importance every country of that region claims it. And china is the biggest competitors, now that area has become front line for its economic, strategic and geographical importance. US seems to be superpower of the world tries to resolve this issue but China’s growing military and strategic assertiveness  in SCS limits the US potential in Asia pacific. Mr. Zhou being a realist stated that China having a strong contender of the South China Sea dominates the whole region and this issue, and by increasing US participation in this issue tends to become more multifaceted.  

Vietnam and Philippine are one of the participants of contenders of South China Sea, but they are  depending on their foreign office mainly to deal with China by diplomatic means to resolve the issue, and this policy of Vietnam and Philippine indirectly weakens the stance of his partner regional actors and their ally USA and China are not unaware from all this situation as China changed its policy towards these countries as maintaining trade relations with them, and improving its stance on that issue and on the whole this step  considered pivotal for regional peace and stability. 

China as compared to other regional claimants of South China Sea is dominant and biggest power of that region and until past several years was dominating the whole region and not only claim the disputed territory but also was so near to grab all that Mr. Taylor who was a PhD scholar stated that China was somehow plays a bully role in this regional politics and to maintain the whole situation US dived herself into this regional battle for balancing the whole issue, US took stance to resolution the issue by using diplomatic means and forced China by their nine-dashed line old formula that thing works and the success gained when China decided to talk on this issue on ASEAN regional forum and the East Asian Summit while China and ASEAN have begun to take a positive move towards reaching an agreement by binding code of conduct.

It might be resulted that there should be some amendment in the rules and regulations and also in the law of UNCLOS regarding their authority and the power of implementation must be reconsidered. And UN should bind all members of it to give UNCLOS the authority to made decisions about the disputes. Law must be formulated with strict policies. On the whole, in the researcher’s opinion it would be good enough to resolve the maritime issue instead of being a watchdog.

*Nabel Akram, Master of Philosophy in Political Science

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One thought on “United Nations Convention On The Law Of Sea And The South China Sea Dispute – Analysis

  • January 9, 2022 at 6:14 am
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    Well written comprehensively on SCS’s status on UNLOS’s eyes.

    Reply

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