International law and the dispute over the spratly islands: Whither UNCLOS?

Contemporary Southeast Asia

Volumn 21, Issue 3, 1999, Pages 386-404

  Furtado, Xavier ^a  

^a DE LA SALLE UNIVERSITY   (Philippines)

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[No Author keywords available]

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EID: 84937324947     PISSN: 0129797X     EISSN: None     Source Type: Journal    
DOI: 10.1355/CS21-3D     Document Type: Article

References (42)

1. Because of its unique legal status, the ROC is not a party to the Convention and cannot become one unless its legal status is revised. While this set of issues is not explored in this article, it is worth noting that the ROC’s unique status poses special problems for negotiating any sort of arrangement regarding the sovereignty and control of the Spratly chain.
2. At the same time, the Philippines’ claim is also based on the notion that some of the Spratlys were discovered in 1956 by Thomas Cloma, a private Filipino citizen, and that, until that time, the Spratlys were considered terra nullius.
3. For a more thorough examination of each country’s position, see R. Haller-Trost, The Spratly Islands: A Study on the Limitations of International Law (Kent: Centre of South-East Asian Studies, University of Canterbury, 1990).
4. For the exact passage, see Treaties, Conventions, etc. Between China and Foreign States, 2nd edition (Shanghai: Inspector-General of Customs, 1917), p. 934. See also Hungdau Chiu and Choon-ho Park, “Legal Status of the Paracel and Spratly Islands, Ocean Development and International Law 3, no. 1 (1975): 11-13.
5. Marwyn S. Samuels, Contest for the South China Sea (New York: Methuen, 1982). pp. 52-69.
6. In particular, the author is referring to the San Francisco Treaty of September 1951 and the Sino-Japanese Peace Treaty signed on 28 April 1952. In both treaties, Article 2 states that “Japan renounces all rights, title and claim to the Spratly Islands and to the Paracel Islands”.
7. Not only has this claim been disputed for the normal reasons of territorial integrity and sovereignty, but there is considerable debate over the extent to which states can exercise “effective sovereignty and control” over uninhabitable islands (that is, islands that, in adhering to the stipulations outlined in UNCLOS III, one must conclude cannot support economic activity or human habitation).
8. As quoted in Samuels, op. cit., p. 79.
9. Presently, the basic principles outlined in UNCLOS seem to have played, at best, a limited role in helping Beijing decide its claim to the Spratlys. For a closer exploration, see Jeanette Greenfield, China’s Practice of the Law of the Sea (Toronto: Oxford University Press, 1992), pp. 150-67.
10. Gerald Segal, China Changes Shape: Regionalism and Foreign Policy, Adelphi Paper 287 (London: Brassey’s for the IISS, 1994), p. 45. See also Philip Bowring, “In South China Sea, Worrying Noises From Beijing”, International Herald Tribune, 21 July 1992; and Kathleen Callow, “China’s Spratlys Move Pushes Vietnam Closer To ASEAN”, Reuter Library Report, 20 July 1992.
11. At the July 1995 meeting of ASEAN ministers, China’s Foreign Minister, Qian Qichen, stated that although China is prepared to entertain the possibility of working “together with the countries concerned to resolve appropriately the relevant disputes according to the recognized international law”, and that “[j]oint development is the most realistic and practical way of handling the dispute”, China maintains “indisputable sovereignty” over the Spratlys. For more details, see Philip Shenon, “China Signals Willingness to End Island Dispute”, New York Times, 31 July 1995, p. A3.
12. In fact, despite the fact that both governments articulate separate positions on the Spratlys, their claims coincide with one another. Hence, as far as the Spratly issue is concerned, the outstanding “Taiwan issue” is largely inconsequential.
13. For more on this, see Kuan-Ming Sun, “Policy of the Republic of China Towards the South China Sea”, Marine Policy 19, no. 5 (1995): 401-9.
14. “Policy Guidelines for the South China Sea”, included as Appendix 1 in ibid., pp. 408-9.
15. This discussion draws heavily from Cheng-yi Lin, “Taiwan’s South China Sea Policy”, Asian Survey 37, no. 4 (April 1997): 323-39.
16. Republic of Vietnam, Ministry of Foreign Affairs, White Paper on Hoang Sa (Paracel) and Truong Sa (Spratly) Islands (Saigon, 1975).
17. For more on Malaysia’s interpretation of UNCLOS and an exploration of other pieces of legislation it has enacted in order to complement UNCLOS, see Hamzah Bin Ahmad, Malaysia’s Exclusive Economic Zone: A Study in Legal Aspects (Selangor Darul Ehsan: Pelanduk Publications, 1988), pp. 1-4.
18. Office of the Special Representative of the Secretary-General for the Law of the Sea, The Law of the Sea: Status of the United Nations Convention on the Law of the Sea (New York: United Nations, 1985), p. 22.
19. Office of the Special Representative of the Secretary-General for the Law of the Sea, The Law of the Sea: Status of the United Nations Convention on the Law of the Sea (New York: United Nations, 1985), p. 40.
20. For more information, see Greenfield, op. cit., pp. 197-200.
21. United Nations, “UN Official Records: Summary Record of Meetings, Third UN Conference on Law of the Sea” (Montego Bay, 1982), p. 102.
22. Cristine Chinkin makes a similar assertion when she argues that these sorts of resource issues will inevitably lead to conflict because of the strategic importance of oil. The argument in this article, however, is much more fundamental and specific to the Spratly case. Nonetheless, for a more detailed exposition of Chinkin’s argument, see Christine Chinkin, “Dispute Resolution and the Law of the Sea: Regional Problems and Prospects”, in The Law of the Sea in the Asian Pacific Region, edited by James Crawford and Donald R. Rothwell (Boston: Martinus Nijhoff Publishers, 1995), pp. 237-38.
23. Choon-ho Park, “The South China Sea Disputes: Who Owns the Islands and the Natural Resources?” in The Law of the Sea: Problems from an East Asian Perspective, edited by Park Choon-ho and Jae Kyu Park (Honolulu: Law of the Sea Institute, University of Hawaii, 1987), pp. 487-88.
24. Choon-ho Park, “The South China Sea Disputes: Who Owns the Islands and the Natural Resources?” in The Law of the Sea: Problems from an East Asian Perspective, edited by Park Choon-ho and Jae Kyu Park (Honolulu: Law of the Sea Institute, University of Hawaii, 1987), p. 489.
25. Article 121 of the 1982 Convention.
26. Article 121(3) of the 1982 Convention.
27. For more on this particular bilateral dispute, see Andrew Sherry and Rigoberto Tiglao, “Law of the Seize: Radio Amateurs Arouse Latest South China Sea Tension”, Far Eastern Economic Review, 12 June 1997, pp. 17-21.
28. Ian Brownlie, Principles of Public International Law, 4th ed. (Oxford: Clarendon Press, 1990), p. 231.
29. China’s drive to claim sovereignty over the Spratlys for the purposes of extending its maritime claims in the South China Sea, despite the fact that the Spratlys may not legally qualify as islands, is noted in Michael Bennett, “The People’s Republic of China and the Use of International Law in the Spratly Islands Dispute”, Stanford Journal of International Law 28, no. 2 (Spring 1992): 431.
30. Rigoberto Tiglao, “Remote Control: China Expands Reefs to Extend Claims”, Far Eastern Economic Review, 1 June 1995, pp. 20-21.
31. See Article 46 of the Convention.
32. Interestingly, China attempted to use the archipelagic principle in asserting/ justifying its claim to the Paracels. The attempt to invoke UNCLOS in this way, however, is inappropriate as the PRC can, in no way, be considered “a group of islands”.
33. As cited in Raphael Perpetuo M. Lotilla, “Philippine Implementation of the UNCLOS: Issues, Problems, and Prospects”, in SEAPOL Workshop on “The Entry Into Force of the Law of the Sea Convention: Issues and Prospects”, edited by Kathleen I. Matics, Ted L. McDorman and Catherine Parker (Bangkok: South-East Asian Programme in Ocean Law, Policy and Development, 1992), p. 17.
34. As cited in Chinkin, op. cit.,. p. 238.
35. In fact, one of the problems that have been pointed out by some critics is that because UNCLOS outlines so many different forms of arbitration and/or adjudication, there arises a problem with consistency and, in some cases, deciding which jurisprudence takes precedence. See Chinkin, op. cit.,. p. 249.
36. It is worth noting that, in general, countries of the Asia-Pacific region have tended to shy away from having their maritime disputes adjudicated by the International Court of Justice. In fact, the Court has settled maritime boundary delimitation questions in every region of the world except East Asia. See also Chinkin, op. cit.,. pp. 258-59.
37. Nicolas Schrijver, Sovereignty Over Natural Resources: Balancing Right and Duties in an Interdependent World (Groningen: Netherlands, Rijksuniversiteit Groningen, 1996), pp. 211-12.
38. For a detailed explanation of how balancing these different interests has shaped UNCLOS, and some of the resulting problems, see W. Riphagan, “Dispute Settlement in the 1982 United Nations Convention on the Law of the Sea”, in The New Law of the Sea: Selected and Edited Papers of the Athens Colloquium on the Law of the Sea, edited by Christos L. Rozakis and Constantine A. Stephanou (New York: North-Holland, 1983), pp. 287-94.
39. G. Jaenicke, “Dispute Settlement under the Convention on the Law of the Sea”, ZAORV 43 (1983): 820.
40. Article 297, sections 2 and 3, and Annex V, section 2, 1982 Convention.
41. Schrijver, op. cit., p. 213.
42. Rapporteur’s Notes, “Sixth Session: Institutional Mechanisms for Cooperation”, in The Third Workshop on Managing Potential Conflicts in the South China Sea (Vancouver: South China Sea Informal Working Group, UBC Law), p. 31. Dr. Dayanku’s paper is entitled, “The Basis of Institutional Mechanisms for Cooperation”, which can also be found in this volume on pp. 156-59.