24/03/2011
The South China Sea (SCS) is surrounded by 7 states including China, the Philipines, Malaysia, Brunei, Indonesia, Singapore and Vietnam. It is a narrow and semi-enclosed sea. The SCS has abundant resources, serving as an important route linking East Asia with the Indian Ocean and Europe, and possessing a strategic importance. For various reasons, there have emerged many conflicts among countries surrounding the SCS. The security protection in the SCS has become an issue of mutual concern of the SCS coastal states and even many countries in the world.
Against this background, it can be said that there are issues affecting security in the SCS, and the underlying reasons vary as follows:
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) approved the status of territorial waters, EEZs, continental shelf, common sea, international seabed, etc and accomplished the distribution of marine living and non-living resources on the world scale in practice. In the SCS, littoral states passed domestic legislations to declare the establishment of their territorial waters, EEZs and continental shelf, claiming rights to marine resources in the region. As states with opposite and adjacent coasts unilaterally set up the sea areas under their control, creating the overlapping areas while they have not reached any delimitation agreement on the sea. In these cases, any unilateral action taken by any claimant in natural resources exploration and exploitation would inevitably spark off conflicts with other parties involved.
In the SCS, the Spratlys are formed of 97 scattering islands, reefs, shoals stretching over 1,000 km from the Southeast to the Northwest. In the 1950s and 1960s, the fact that the Spratlys were an integral part of the Chinese territory had never been seriously challenged. Today, many countries have claimed rights to entire or part of the Spratlys. Territorial disputes over the Spratlys constitute the main factor leading to the conflicts in the SCS.
Piracy has so far been a serious concern of maritime security. In the 1990s, the rocketing cases of piracy in the SCS have drawn increasing attention from the international community. Since 2004, though the number has drastically dropped, the piracy should not be overlooked. This remained a factor frequently affecting the security in the SCS.
Non-peaceful moves on the sea have served as another factor endangering security in the SCS. The most recent case happened in March 2009 as Impeccable military ship entered into the outer of the EEZs near Hainan island undertook exploration and reconnaissance activities without the Chinese government’s permission and almost collided with the Chinese ships. In the bilateral talks, the Chinese side insisted that the US military ship posed a threat to China’s security, while the US held that the Chinese ship threatened the US military ship.
In 2002, following the signing of China-ASEAN Declaration on the Conduct of Parties to the SCS, and thanks to numerous efforts by parties concerned, tensions in the SCS have been much relieved, and security in the region has been fundamentally guaranteed. Yet, skirmishes have occurred now and then, and more importantly, the causes underlying confrontations have been out-rooted yet. For the sake of stability and security in the SCS, countries involved need to develop cooperative relationship and synergy. Cooperation would not be a success without good will of all parties concerned. In the meantime, it is necessary to establish an international cooperation mechanism satisfactory to all parties, of which the best choice is international law.
International law which is widely accepted by international community is legally binding and criteria for states to identify legitimate behaviors, contributing to reduction and prevention of conflicting behaviors among states. International law may guarantee legitimate rights of states. In case there is a dispute, international law may ensure a fair and justified resolution to related parties to the disputes. In principle, international law may ensure equal position and mutual respect among parties to the disputes, and appeal to negotiations and agreements to peaceful resolve disputes. Therefore, use of international law as basis to resolve international disputes is not only the common recognition of international community but also a legal principle enshrined in several internal legal documents. For instance, the UNCLOS states clearly that “the delimitation of the EEZs and the Continental Shelf between states with opposite or adjacent coasts shall be effected by agreement on the basis of International Law” (Article 74, 83). In addition, I argue that most of principles to resolve the SCS disputes are very clear, and all parties concerned have no reasons not to resort to international law to resolve maritime disputes.
According to the stipulation of the UNCLOS, the coastal states have the rights to establish 200-mile exclusive economic zone, delineate the outer limits of its continental shelf throughout the natural prolongation of its land territory to the outer edge of the continental margin; and enjoy sovereignty rights over living and non-living resources; safeguard the maritime environment and conduct marine scientific research there. If there arise an overlap over EEZ and continental shelves between states with opposite and adjacent coasts, they have to negotiate to delineate the actual boundaries on the basis of international law and equity.
Islands are part of the land territory of a country. The sovereignty right over the island is commonly defined by international law regarding territory. The states respect the principle of equal sovereignty and territorial integrity. The UNCLOS stipulates that the state who owns islands has the rights to establish territorial seas and contiguous zones around these islands. The island can sustain human habitation or economic life of their own shall have exclusive economic zone or continental shelf.
According to international law, piracy has long been considered a type of international crime. All the states have rights and obligations to cooperate to the fullest possible extent in the repression of piracy, exercising the rights to seize pirate ships or aircrafts, and arresting and taking measures to punish pirates. These measures are mainly taken against the act of piracy in the high seas. If one country wants to take action against an act of piracy happening within the territorial seas of or the sea under the others’ jurisdiction, the former have to seek the approval of the latter.
Peaceful use of the seas has become a principle enshrined in the Convention. According to this principle, states parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State in conducting the passage on the sea. Article 301, the UNCLOS stipulates that foreign ship, including military one, in their innocent passage, shall not engage in acts, such as collecting information, conducting researches, which are prejudicial to the peace, good order or security of the coastal state . In accordance with Article 19, UNCLOS, in the exclusive economic zone of one state, all other States enjoy the freedoms of navigation and overflight which are required to comply with the relevant laws of the coastal country, respect the principle of peaceful use of the seas, and have no actions that threaten the peace and security of the coastal state.
It is optimistic that all parties concerned agree to use international law to resolve the disputes in the South China Sea. In the Declaration on the Conduct of Parties in the South China Sea, China and ten ASEAN members solemnly declared their commitment to the purposes and principles of the Charter of the United Nations, the 1982 UNCLOS, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations. The parties concerned undertake to resolve their territorial and jurisdictional disputes on the basis of universally recognized principles of international law. The Declaration on the Conduct of Parties in the South China Sea is a document of political will, not a legally-binding code. However, it is of great importance since it represents the political aspiration and consensus among parties. It can be taken for granted that if all the parties act in the spirit of the declaration, i.e. working toward the adoption of a code of conduct in the South China Sea and voluntarily assume obligations to safeguard the stability and security of the sea, we can hope for genuine stability and security there.
[1] Research Fellow, Center of International Law Studies, Chinese Academy of Social Sciences[1] Translated version
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