Robert Beckman Director, Centre for International Law

The 5th International Workshop The South China Sea: Cooperation

for Regional Security and Development 10-12 November, 2013, Hanoi, Viet Nam

Disputed Areas in the South China Sea

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1. Disputed Areas due to Sovereignty Disputes over Islands

– If two or more States claim sovereignty over an island and the

territorial sea adjacent to it, this is an area in dispute

– If two or more States claim an EEZ from a disputed island, this

is also an area in dispute

2. Disputed Areas due to Overlapping Maritime Claims

– The EEZ and continental shelf claims from mainland territory of

claimant States can overlap with one another

– The EEZ and continental shelf claims from mainland territory

can overlap with EEZ claims from islands

Categories of disputed areas

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• Claim to sovereignty can only be made to “islands” – naturally

formed areas of land surrounded by and above water at high

tide

• State occupying an island does not necessarily have the better

claim to sovereignty under international law

• Customary international law on the acquisition and loss of

territory governs which State has the better claim to sovereignty

• Sovereignty disputes cannot be resolved by a court or tribunal

unless both States CONSENT

Disputed areas due to sovereignty disputes over islands

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1. None of the claimant States have officially stated which

features they believe are islands capable of appropriation and

entitled to maritime zones of their own

2. None of the claimants have issued baselines from the islands

except for questionable baselines of China around Paracels

3. None of the claimants have identified which islands are

ROCKS entitled only to a 12 nm territorial sea

4. None of the claimants have identified which islands are

entitled to an EEZ and continental shelf of their own

Problems in identifying disputed areas around islands in the SCS

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• In several cases in Asia the claimant State occupying an island

does not recognize that there is a dispute on sovereignty over

the island:

1. Korea does not recognize that Japan also claims sovereignty

over Dokdo / Takeshima

2. Japan does not recognize that China/Taiwan also claims

sovereignty over Sengkaku / Diaoyu

3. China does not recognize that Vietnam also claims

sovereignty over the Paracel Islands

Disputes on existence of a dispute

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• Classic definition of a “dispute” under international law was set

out by the Permanent Court of International Justice in 1924 in

the Mavrommatis Palestine Concessions Case:

“ A dispute is a disagreement on a point of law or fact, a

conflict of legal views of or interests between two persons”

When is there a “dispute” ?

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1. Whether a feature is an ISLAND under Article 121(1) that is

subject to appropriation and entitled to maritime zones

2. Whether an island is a ROCK under Article 121(3) which is not

entitled to an EEZ and continental shelf of its own

3. Whether the maritime zones claimed from an island have been

measured from BASELINES drawn in accordance with the

provisions in UNCLOS

Disputes on the maritime claims that can be made from disputed islands

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• Two or more States claim sovereignty over the 12 nm territorial

sea adjacent to the island

• Two or more States claim sovereign rights and jurisdiction to

explore and exploit natural resources in 200 nm EEZ

surrounding the island

• Claimant States must recognize that all States have a right of

innocent passage through the territorial sea adjacent to the

disputed islands

• Claimant States must recognize that all States have freedoms of

high seas in EEZ surrounding the disputed islands

Rights and obligations in waters surrounding disputed islands

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• Maritime Zones surrounding the islands are “disputed waters”

between the claimant States

• There are no rules in UNCLOS setting out the rights and

obligations of the claimant States towards each other in such

disputed waters except the provision on “abuse of rights”

• Only applicable rules may be those in United Nations Charter

and customary law:

1. No threat or use of force

2. Peaceful settlement of disputes

Rights and obligations of claimant States towards each other

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• The absence of rules governing conduct of claimant States in such

disputed waters is a potential source of conflict

• Two or more States believe they have the right to exercise

jurisdiction in the waters surrounding the disputed island

• Can be serious tension if coast guard vessels of one claimant

arrest fishing vessels of the other claimant

• Can be serious tension if a coast guard vessel of one claimant

intentionally challenges a coast guard vessel of the State that has

occupation or control of the disputed island

• Code of Conduct provisions essential to prevent potential conflicts

Managing potential conflicts in waters surrounding disputed islands

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1. The EEZ and continental shelf claims from mainland territory

of claimant State will overlap with one another

– Outer limit of EEZ claims in SCS are not clear

– Brunei, China and Philippines have yet to make claims to

extended continental shelf

2. Any EEZ claim from islands will overlap with EEZ and

continental shelf claims from mainland territory

– An EEZ claim by China from the Paracels and Spratlys will

result in a large area of overlapping claims

Disputed areas due to overlapping maritime claims

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• Only Malaysia and Vietnam have published maps indicating the

outer limit of their EEZ claim and their claim to an extended

continental shelf

• When Brunei, China and the Philippines clarify the outer limit of

their EEZ claims and also claim an extended continental shelf,

there will be large areas of overlapping claims

• If China claims an EEZ from the Paracels and Spratlys, there will

be a large area of overlapping claims with the EEZ and

continental shelf claims of the other claimants

Overlapping EEZ and continental shelf claims in the SCS

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• UNCLOS provides clear rules in Articles 74 and 83 on the

obligations of States with respect to overlapping EEZ and CS

claims

• The arbitral decision in the Guyana v Suriname case under

Annex VII of UNCLOS has applied and explained the provisions

in Articles 74 and 83

Rules governing conduct in areas of overlapping EEZ and CS Claims

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• 1. The delimitation of the EEZ/CS between States with opposite

or adjacent coasts shall be effected by agreement on the basis

of international law, as referred to in Article 38 of the ICJ

Statute, in order to achieve an equitable solution.

• 2. If no agreement can be reached within a reasonable period of

time, the States concerned shall resort to the procedures

provided for in Part XV of UNCLOS.

Articles 74 and 83, paras 1 and 2

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• 3. Pending agreement as provided for in paragraph 1,

the States concerned, in a spirit of understanding and

cooperation, shall

– make every effort to enter into provisional arrangements of

a practical nature and,

– during this transitional period, not jeopardize or hamper the

reaching of the final agreement.

Such arrangements shall be without prejudice to the final

delimitation.

Articles 74 and 83, para 3

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1. There are a lack of legal rules governing the “disputed waters”

surrounding disputed islands

2. A Code of Conduct should set out rules for conduct in “disputed

waters” surrounding disputed islands

3. Articles 74 and 83 set out rules for areas of overlapping EEZ and

CS claims between opposite and adjacent States

4. Claimant States should clarify their EEZ claims from islands so

that the areas of overlapping EEZ claims is clear

5. If areas of overlapping EEZ claims are clarified, it would be easier

to identify areas for “joint development”

Conclusions

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Robert Beckman

Director, Centre for International Law

National University of Singapore

Website: http://cil.nus.edu.sg

Email: CILDIR@nus.edu.sg

Thanks for Your Attention

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