Cooling it in the South China Sea

Author: Peter Drysdale, Editor, East Asia Forum

There are times when taking an important international dispute before the International Court of Justice (ICJ) is either necessary or able to resolve a difference in a way that will leave both parties appeased no matter whether the outcome favours them or not.

The Philippines former National Security Adviser Roilo Golez points to an image showing Chinese claims in the South China Sea during a rally on 24 July 2013 in Manila. (Photo: AAP)

Some see Australia’s taking the issue of Japanese whaling to the ICJ in this latter light. There are others, such as the maritime and territorial issues in the South China Sea, it can be argued, where taking a dispute to the court will less likely achieve the fundamental interests of the parties nor resolve claims in a way that is acceptable to both parties no matter what the outcome.

In a recent essay for East Asia Forum, Donald Rothwell argued persuasively that the application of the law of the sea through the ICJ was unlikely to resolve territorial claims in the South China Sea in a way that would settle claims over associated maritime resources or easily satisfy any of the claimants in these disputes.

Rothwell pointed out that ‘The decision handed down by the International Court of Justice on 19 November 2012 in the Nicaragua v Colombia case has several implications for the South China Sea disputes, particularly with respect to the status of the disputed maritime features under the 1982 UN Convention on the Law of the Sea’. The Court looked at a range of issues that not only bear similarities to important aspects of the South China Sea disputes but also set a precedent for interpretation of the relevant international law.

Rothwell’s key conclusion was that, in the context of the South China Sea, the Nicaragua v Colombia decision suggested that, even if territorial sovereignty was conclusively settled over disputed islands and associated maritime features, the likelihood that sovereignty over these features would confer vast maritime claims upon the successful party or parties would be compromised. This is either because these features are not Article 121(1) islands, or because they would have a distorting impact upon the maritime boundaries based upon competing maritime claims from continental or island land masses whose status is not in dispute.

This is a vitally important conclusion. Certainly there was little reassurance in Rothwell’s analysis that any of the parties might confidently expect to win extensive claims over resources or other rights through a successful claim of sovereignty over these territories. Rothwell’s assessment is reinforced, it seems, if read in conjunction with the Bangladesh v Myanmar verdict handed down in 2012 by the International Tribunal for the Law of the Sea where a natural, self-sustaining island with 7,000 inhabitants (a real island not a collection of rocks) was not deemed capable of generating its own Exclusive Economic Zone (EEZ) (because it blocked the sea-ward projection from coastline of the other state’s EEZ entitlement). The Nicaragua v Colombia verdict is further testament to the ongoing development of oceanic law in favour of commerce and economic interests, and to the relative disfavour of narrower attributes based on sovereignty.

In this week’s lead essay, Sourabh Gupta looks carefully at the likely outcome of the Philippines’ Notification and Statement of Claim at the International Tribunal for the Law of the Sea (ITLOS), seeking to invalidate China’s nine-dash line which encompasses virtually the entire South China Sea.

Gupta interprets Philippine optimism about the success of this initiative to a view that Chinese claims within the nine-dash line are contrary to the United Nations Convention on the Law of the Sea (UNCLOS), a view encouraged by the recent ICJ judgment which refuted the idea that offshore land features can generate claims to vast maritime spaces.

The Philippine action has predictably angered the Chinese and complicated the resolution of conflicting claims, dragging the United States unwillingly into the argument. Gupta says that ‘until China makes clear what baselines it claims, or furnishes an outer continental shelf claim to the UN Commission on the Limits of the Continental Shelf (China has partially done this in the East China Sea), its claim to entitlements in the South China Sea will remain legally indeterminate’. The Philippines, he points out, is in a similar position.

While it may be too late, Gupta concludes that, ‘rather than lodge overly-enterprising legal claims, the Philippines should negotiate practical and cooperative arrangements for the joint exploitation of common resources in the South China Sea’. The success of such a cooperative strategy would in turn depend on China’s moving away from ‘its constructionist interpretation of selective UNCLOS provisions’ and accepting the commercial and economic purposes of modern oceanic law. ‘Submitting an outer continental shelf claim that implicitly separates the sharing of sovereign rights from sovereignty disputes over land/geological formations in the South China Sea — and limiting law enforcement activities to the hypothetical median line in the interim — would be an excellent place to start’.

There are practised modes (to which China has been party), in which such interests can be negotiated with the help of the law of the sea and they are likely, as Gupta argues, to lead to more productive outcomes all round.

Peter Drysdale is Editor of the East Asia Forum.