29 Jun 2009
The South China Sea dispute involves six states: the Philippines, Malaysia, Brunei, Indonesia, Vietnam and China.
On 7th May 2009, Malaysia and Vietnam made a joint submission relating to an area in the South of the South China Sea. On 8th May 2009, Vietnam made a submission on its own relating to an area near the centre of the South China Sea.
The Philippines has not made a submission for any area in the South China Sea. According to the Philippines, the reason for not making such a submission is to avoid creating new conflicts or exacerbating existing ones. The Philippines has not protested either Vietnam’s own submission or Malaysia and Vietnam’s joint submission.
Despite their differences over the Spratlys, Malaysia, Vietnam, Brunei and the Philippines have consulted, worked with and given each other opportunities to participate, and refrained from making excessive claims that might have infringed on the rights of other countries. This is an encouraging sign for conflict resolution in the South China Sea.
In stark contrast to this, China did not make a joint submission with any country. Instead, it protested both Vietnam’s own submission and the joint submission by Malaysia and Vietnam.
According to the United Nation Convention on the Law of the Sea, or UNCLOS, every coastal state is entitled to an exclusive economic zone out to a maximum of 200 nautical miles from its baselines. Article 76 of UNCLOS stipulates the criteria upon which a coastal state may claim an extended continental shelf beyond 200 nautical miles. The outer limits of this claim have to be submitted to the United Nations’ Commission on the Limits of the Continental Shelf, or CLCS, for validation. For most states, the deadline for submission was May 13th, 2009.
The CLCS will examine the coastal states’ submissions and make recommendations on valid outer limits of the continental shelf beyond 200 nautical miles. The CLCS has no mandate or authority to settle territorial disputes, nor can it make any recommendation that will prejudice future resolution of such disputes. However, if a coastal state establishes the outer limits of its extended continental shelf on the basis of the CLCS’s recommendations, those limits will become final and binding.
Although the CLCS is neutral regarding territorial disputes, the requirement that the outer limits of continental shelf claims are validated by it has some impacts on the resolution of these disputes.
Firstly, the CLCS’s rules have the effect of encouraging the disputing states to be specific about the limits of their claims. Knowing exactly what the different claims are is an important prerequisite for resolving the differences between those claims.
Secondly, these rules have the effect of encouraging the disputing states to work with each other to determine the outer limits of their combined extended continental shelves. This collaboration might sow the seeds for further collaborations in resolving the disputes.
Thirdly, UNCLOS’s criteria for the outer limits of the continental shelf, which are scientific and neutral, put states with excessive claims in a disadvantaged position. Unless those states adjust their unreasonable claims in order to satisfy UNCLOS’s criteria, it is unlikely that their claims will be accepted by the CLCS.
Fourthly, the procedures of CLCS submission do not favour more powerful states at the expense of weaker ones. As such, these procedures uphold the principle of justice and fairness to all.
Neither of China’s protests, relating to Vietnam’s own submission and to the joint submission by Malaysia and Vietnam respectively, uses any of UNCLOS’s scientific criteria for the outer limits of the continental shelf. Instead, China’s protests include and refer to a map of China’s U-shaped line, which loops around 80% of the South China Sea.
It is worth noting that China did not make any submission to the CLCS relating to the South China Sea. The reason for this is clear: it is simply impossible to justify China’s U-shaped line using UNCLOS’s scientific criteria for the outer limits of the continental shelf.
This is the first time China has presented the U-shaped line to a UN body in the context of maritime delimitation. This qualitatively changes the status of the U-shaped line from a mysterious and ambiguous claim into something that can be interpreted as a claim to the waters, the seabed and the subsoil within that line. Southeast Asia and the world’s major seafaring states should be concerned by this development.
In short, the actions taken by the different states relating to the CLCS submissions have highlighted two opposing approaches in the South China Sea dispute. The approach undertaken by the five South East Asian countries is to put aside differences regarding the island disputes, to apply UNCLOS and to work with each other towards delimiting maritime boundaries. The one undertaken by China is to reject UNCLOS and to work progressively towards seizing 80% of the South China Sea. Due to the fundamental differences between these two approaches, it is still highly uncertain that the South China Sea dispute could be resolved in a peaceful, lawful and fair way in the foreseeable future.