The South China Sea and the Law of the Sea

MANILA, Philippines - Crossed by the most important maritime route of the planet, and source of fossil fuels, the South China Sea is one of the most important of maritime disputes. Five countries claim sovereignty over all, or part, of the islands, islets and rocks scattered all over, as well as on maritime areas that depend on them. A dispute of this kind can only be settled through negotiation in respect of international law.

The United Nations Convention on the Law of the Sea (UNCLOS), adopted at Montego Bay (Jamaica) in 1982, has been ratified by 155 countries (including all the coastal States of the South China Sea) and remains an essential reference regarding this issue. UNCLOS specifies the rights of the States on their marine environment: each State has the right to establish the breadth of its territorial sea to a limit not exceeding 12 nautical miles wide (22 kms) and a jurisdiction over an exclusive economic zone (EEZ) or fishing zone, not extending beyond 200 miles (370kms). The States may exploit the continental shelf of their EEZ up to a limit of 200 miles, or beyond, to the outer edge of the continental margin up to 350 miles, when there is a basis to prove that it is a natural prolongation of their land territory.

Concerning the Spratleys, the main question lies on the type of the emerged structures in the area. In effect, it is a well established principle of international law that “land dominates the sea”, it is therefore the sovereignty on land that allows the exercise of sovereignty, or jurisdiction, over maritime space that depend on them. UNCLOS distinguishes in this light the “islands” which may have 12 miles of territorial waters and an exclusive economic (or fishing) zone 200 miles wide, from “rocks which cannot sustain human habitation or economic life of their own” which shall have a territorial sea but no EEZ or continental shelf. This definition of islands remains however relatively loose and the coastal States, under all latitudes, rather tend to interpret it according to their own interests.

In the case of the Spratleys the nature of the emerged structures (islands or rocks) may be questioned: some have military garrisons, but do they conform to the definition of UNCLOS particularly with regards to having “economic life of their own”? Currently, only the island of Pagasa seems to conform to this qualification, and thus to have an Exclusive Economic Zone of 200 nautical miles since it has a village of fishermen. Other islands could perhaps eventually conform to this criteria in the future if the garrisons are replaced by fishermen.

This issue is equally important in reference to the definition of the continental shelf, since if we trace arcs of 200 nautical miles around the “islands” of the Spratleys, there will be no more area left for a continental shelf beyond 200 miles measured from the coast of the mainlands, as this area would in fact be integrated in the EEZ measured from the “islands” of the Spratleys.

If international law and the jurisprudence of the International Court of Justice have progressively specified the rules and procedures in solving conflicts such as that of the Spratleys, the situation remains indefinitely unresolved if the countries keep firmly to their positions, which is often the case regarding questions of sovereignty. In this case, UNCLOS specifies that the countries may sign “provisional arrangements of a practical nature” which shall be “without prejudice to the final delimitation”. This gave way to the formula of the Joint Development Areas which have been applied in certain parts of the world.

Several areas of this kind have been established in South East Asia, particularly between Malaysia and Thailand, or between Malaysia and Vietnam. These agreements may cover the exploitation of the sub-soil, but also of the “water column” for fishing and the protection of marine environment. There are still several unresolved disputes in Europe regarding the delimitation of EEZ, but their practical implications are not relevant because fishing has been covered by a common policy managed by the European Commission. The protection of the marine environment of the “water column” being also guaranteed by multilateral agreements.

In the Spratleys, the creation of Joint Development Areas is more sensitive for the sub-soil exploitation since the economic and financial implications are very high; meanwhile, it may be simpler for the management of the “water column” since the challenges involved: protection and management of resources, protection of the marine environment, equally affect all the coastal States.

(Didier Ortolland is a specialist of maritime delimitations, author of the Geopolitical atlas of the maritime spaces (ed Technip 2008), currently Deputy Chief of Mission of the French Embassy, this article reflects his personal views.)