While the recent ruling by the Arbitral Tribunal in The Hague on the dispute between China and the Philippines in the South China Sea has theoretically ‘cleared the air’ on some aspects of maritime boundary-making, in practical terms it may not have helped the situation.
The surprising feature of the ruling was the judgment that there are no ‘fully entitled’ islands in the Spratly group. There are numerous ramifications of this judgment, including for the status of other islands in the South China Sea. Islands in both the Paracel and Pratas groups are much larger than in the Spratlys and likely to satisfy the criteria to be regarded as ‘fully entitled’ islands. But maritime boundaries near the Paracels cannot be defined while sovereignty over this group is disputed between China and Vietnam.
Theoretically the ruling that there are only ‘rocks’ in the Spratlys provides a basis for a system of exclusive economic zone (EEZ) boundaries in the South China Sea with a number of enclaved territorial seas around the ‘rocks’. There may even be a resulting patch of high seas that are uncontested, although this may be closed off in part by the outer continental shelf claims by Vietnam and Malaysia. Vietnam could also help ‘clear the air’, as well as bolster ASEAN solidarity, by dropping its claim to features within the EEZs of Malaysia and the Philippines.
The importance the Tribunal attached to EEZ jurisdiction may reinforce the nationalistic attitude the littoral states attach to their EEZs. They will be looking for ‘fences in the sea’ rather than recognising that maritime boundaries are not an end in themselves but rather a means of effectively managing maritime space. This should be the basic objective of all the littoral states to the South China Sea. It is also their obligation under Part IX of the United Nations Convention on the Law of the Sea (UNCLOS) in terms of cooperating in semi-enclosed seas.
There are other issues that complicate maritime boundary agreements in the South China Sea. Negotiation and adoption of a maritime boundary is fundamentally political, and the politics of maritime boundary-making restricts effective governance of the South China Sea. A country’s negotiators will be influenced by national sentiment and reluctant to concede sovereignty over maritime space that the community regards, rightly or wrongly, as part of their own country.
Unfortunately this is the situation now in the South China Sea, with the national media of claimant countries, including the Chinese media, giving wide coverage to the disputes. The recent ruling may reinforce these sentiments.
Another issue in determining maritime boundaries in the South China Sea is whether or not EEZs should coincide with continental shelf boundaries. Different approaches to this issue are evident around the world, depending as much as anything on the state of the bilateral relationship between the neighbouring countries. If the relationship is sound, overlapping jurisdiction may be feasible, but if it is not, the parties are unlikely to achieve the necessary level of agreement and cooperation.
While the general trend is to have coincident continental shelf and EEZ boundaries, this is not always possible, and states with overlapping claims may adopt separate boundaries for their EEZ and the continental shelf. This may be the case where a continental shelf boundary was agreed, largely on the basis of geological considerations, prior to wide acceptance of the EEZ regime under UNCLOS.
This issue is already a problem in the South China Sea where Indonesia and Malaysia have agreed on a continental shelf boundary east of the Natuna islands, but no EEZ boundary. Malaysia wants the EEZ and continental shelf boundaries to coincide, but this is opposed by Indonesia. Similarly, Indonesia and Vietnam have agreed on a continental shelf boundary but no EEZ boundary.
The South China Sea situation will only be settled when the bordering countries change their mindsets from one of sovereignty, sole ownership of resources and seeking ‘fences in the sea’ to one of functional cooperation and cooperative management.
A cooperative management regime is the only solution to the problems of the South China Sea. The most acceptable framework for a new regime would be a web of provisional arrangements covering cooperation for different functions with perhaps even different areas for each function.
These functions could include joint development of oil and gas resources, fisheries management, marine safety, marine scientific research, good order at sea, and preservation and protection of the marine environment. Regardless of whether or not maritime boundaries are agreed, urgent safety, resource and environmental problems dictate the need for increased dialogue and cooperation.
Sam Bateman is an Advisor in the Maritime Security Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University, Singapore.
A version of this article was first published here on RSIS.
Another interesting article by Dr Bateman.
1 “The surprising feature of the ruling was the judgment that there are no ‘fully entitled’ islands in the Spratly group.”
To be able to make that ruling the Tribunal had to deceive itself that Itu Aba (Taiping Island) is a rock, according to Article 121(3). But anyone with a pulse can see that it is a ‘fully entitled’ island.
http://english.cri.cn/12394/2016/06/03/3441s929762.htm
By relegating Taiping Island to the status of a rock, the Tribunal was able to invalidate the nine-dash line, without the knotty problem of delimitation, which it was barred from making. Some dismissed it as a political decision.
But Japan and Uncle Sam will not be happy as the cavalier ruling has toppled their claims of a 200nm EEZ for Okinotori Atoll as well as Baker & Howland Islands respectively, which cannot sustain human habitation or economic life on their own.
2″But maritime boundaries near the Paracels cannot be defined while sovereignty over this group is disputed between China and Vietnam.”
Many patriotic Vietnamese scholars claimed that Vietnam discovered the Paracel and Spratly Islands first and had sovereignty over them since the 17th century. The problem is that in the 17th century “Vietnam” as a country did not exist.
It was only in 1802, when Emperor Gia Long ascended the throne, after defeating the rebels, was the peninsula named Vietnam for the first time.
At first, he wanted to name the peninsular “Nam Viet” but to be a tributary of Qing China he had to send his envoy to seek the approval of the Qing Emperor.
The request was turned down as the name sounded like “Nam Yue”, an ancient kingdom which had occupied the southern Chinese province near the northern border of the peninsular.
The proposed name was reversed to “Vietnam”.
Then the scholars changed their tune and pointed out that it was Emperor Gia Long who sent militia teams known as the Hoang Sa group to administer and develop the Paracels but did not explain how a vassal even dared to contemplate annexing the territory of the suzerainty state.
They also ignored the 1887 Sino-Franco Convention, concerning the Delimitation of the Border Between China and Tonkin, signed in Beijing on 26 June 1887, which stated clearly that all the isles, East of the Treaty delimitation line, were assigned to China which included the Paracel and the Spratly Islands.
On 14 Sept 1958, the Prime Minister of North Vietnam, Mr Pham Van Dong, sent a letter to acknowledge China’s 12nm declared territorial seas, which included those of the Paracel and the Spratly Islands.
Later, Mr Pham tried to explain his alleged ‘wrongdoing’. That was published in the 16 March 1979 issue of the now defunct ‘Far Eastern Economic Review’, in which he said that the reason he did what he did was because it was ‘wartime’.
But it was already on record that on 15 June 1956 that Mr Pham said “From the historical point of view, these islands are Chinese territory” (See Far East Economic Review, 16 March 1979, p11).
The writer, a former Australian Naval Commodore with research interests in regimes for good order at sea opined that “Vietnam’s current claim over Xisha (Paracel) Islands is seriously weakened by North Vietnam’s recognition of Chinese sovereignty over the islands in 1958 and its lack of protest between 1958 and 1975.”
In 1975 Hungdah Chiu, then a visiting Associate Professor at the University of Maryland School of Law and Choon-ho Park, then a research fellow in East Asia Legal Studies at Harvard Law School wrote, to wit:
“There is no doubt that China discovered and used the Paracels for several hundred years before Vietnam began asserting its claims in 1802.” (See ‘Legal Status of the Paracel and Spratly islands’ p17, in the Ocean Development and International law Journal, Volume 3, Number 1).
3 “Another issue in determining maritime boundaries in the South China Sea is whether or not EEZs should coincide with continental shelf boundaries.”
This is another weakness of Unclos since it is only the Law of Sea but not Law of the Land.
Unclos has no power to award a state any sovereignty over an island or reef or shoal or a continental shelf it did not have before the 1982 Unclos came into force in 1994.
If, by merely ruling that Mischief Reef and Second Thomas Shoal lie in the EEZ of the Philippines, the Tribunal implied that they belong to the latter, then the corollary is that Singapore Island should also belong to Malaysia as it lies only 3nm south of the Malaysian peninsular. This is not the case at all.