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© , , | ./-
brill.com/estu
THE INTERNATIONAL JOURNAL OF
MARINE
AND COASTAL
LAW
() –
Dening Claims from Islands:
A Potential South China Sea Change
Robert C. Beckman
Centre for International Law, National University of Singapore, Singapore
Clive H. Schoeld
University of Wollongong, Wollongong, , Australia
Received: 5 March 2014; revised: 16 April 2014; accepted: 29 April 2014
Abstract
In the face of seemingly intractable territorial and maritime disputes in the South
China Sea, the article examines how the 1982 United Nations Convention on the Law
of the Sea (), sets out what maritime claims States can make in the South China
Sea and how it establishes a framework that will enable States to either negotiate mari-
time boundary agreements or negotiate joint development arrangements (s) in
areas of overlapping maritime claims. It provides an avenue whereby the maritime
claims of the claimants can be brought into line with international law, potentially
allowing for meaningful discussions on cooperation and maritime joint development
based on areas of overlapping maritime claims dened on the basis of the .
Keywords
South China Sea islands – maritime disputes – maritime claims – maritime
boundary delimitation – joint development
Introduction
The South China Sea territorial and maritime disputes are commonly viewed as
“intractable” and joint development of maritime areas subject to overlapping
jurisdictional claims is often ofered as a potential way forward. An enduring
194
() –
obstacle to the establishment of joint management mechanisms has, however,
been the question of precisely where such joint zones should be located. This
issue has been made especially problematic because of the lack of clarity in the
maritime claims of the parties. This article seeks to address this central, prob-
lematic issue and ofers a potentially “game-changing” route towards a clearer
denition of the areas of overlapping claims—something that has the poten-
tial to contribute substantially to de-escalating these disputes and is an essen-
tial precursor to the realisation of maritime joint development in the South
China Sea. This article examines how the 1982 United Nations Convention on
the Law of the Sea () sets out what maritime claims States can make in
the South China Sea and how it establishes a framework that will enable States
to either negotiate maritime boundary agreements or negotiate joint develop-
ment arrangements (s) in areas of overlapping maritime claims.
The analysis is based on the view that the States claiming sovereignty
over the islands in the South China Sea (the Claimants) will not be able to
resolve the territorial sovereignty disputes through negotiations for the fore-
seeable future. It is also considered that they will not be willing to give their
consent to refer the sovereignty disputes to an international court or arbitral
tribunal and ask that court or tribunal to determine which State has the better
claim to sovereignty. Consequently, we have not attempted to analyse the mer-
its of the sovereignty claims to the disputed islands. Nor have we attempted
to analyse the legal issues in a wider geopolitical context. The proposals made
here ofer avenues whereby the maritime claims of the South China Sea
Claimants can be brought into conformity with the . It is recognised that
for this to be achieved, political will on the part of the Claimants is essential.
We are, however, rmly of the view that the parties to the South China Sea
disputes have shared interests in relations that are grounded on trust, mutual
respect, cooperation and the rule of international law. Moreover, we believe
that the changes that we advocate can be efected at relatively limited cost
but potentially substantial benets to all of the South China Sea littoral States.
This article is organised as follows. First, the sovereignty and maritime claims
in the South China Sea are summarised. Second, the prospect of identifying
The authors would like to thank Ms. Youna Lyons, Senior Research Fellow at the Centre
for International Law, for her assistance in identifying and classifying the features in the
Spratly Islands and the Paracel Islands. The authors are also indebted to I Made Andi Arsana
of the Dept. of Geodetic and Geomatic Engineering, Faculty of Engineering, Gadjah Mada
University, Indonesia, for his assistance in the preparation of the maps accompanying this
article.
United Nations Convention on the Law of the Sea () (Montego Bay, 10 December 1982,
in force 16 November 1994) 1833 397.
195
() –
the areas of overlapping maritime claims and negotiating s in the areas
surrounding the Spratly Islands is examined. Third, an analysis of issues and
opportunities related to specic sectors of the South China Sea is provided.
Finally, some general conclusions are drawn on the role of the in dening
the areas of overlapping claims in the South China Sea.
Maritime Claims in the South China Sea
Sovereignty Claims to Ofshore Geographic Features
The fundamental legal dispute in the South China Sea is about which State has
the better claim to sovereignty over the disputed ofshore islands. The
has no provisions on how to determine competing claims to sovereignty over
islands or other land territory. That issue is governed by the rules and prin-
ciples of customary international law on the acquisition and loss of territory.
The provides a broad framework with respect to international law of
the sea issues. Of particular relevance to the present discussion, the
sets out the freedoms, rights and obligations of States on the high seas and
in the various maritime zones measured from land territory and islands. The
assumes that sovereignty over the land territory and islands has been
established. Therefore, the is of no assistance in resolving the territorial
sovereignty disputes in the South China Sea. Determining which coastal State
(or States) has (or have) sovereignty over the disputed islands of the South
China Sea is, however, directly relevant to claims to maritime jurisdiction in
keeping with the long-standing legal maxim that “the land dominates the sea”.
China, Malaysia, the Philippines, Taiwan and Vietnam have sovereignty
claims to some or all of the islands in the Spratly Islands and Brunei may
also claim sovereignty over one reef in the Spratly Islands. China, Taiwan
James Crawford, Brownlie’s Principles of Public International Law (8th ed., Oxford University
Press, Oxford, 2012) 215–244.
This point was emphasised by the International Court of Justice () in its rst case concern-
ing jurisdiction beyond the territorial sea, the North Sea Continental Shelf Cases (Germany v.
Netherlands, Germany v. Denmark) (1969) ... Reports 3, especially para. 19.
The Chinese name for the group of islands known as the Spratlys is Nansha and the
Vietnamese name is Trưng Sa. There are multiple names in Chinese, Vietnamese, Filipino
and Malay for most of the individual features in the Spratlys. For the sake of simplicity and
consistency, we have used only the English language versions. For a list of the names of
the features in the Spratly Islands in the various languages, see the Gazetteer to the map
published by the State Department in 2010. It is available on the web site at http://cil.
nus.edu.sg/wp/wp-content/uploads/2011/06/75967_gazetteer.pdf; accessed 5 April 2014.
