The Role of Maritime Law in Regulating the South China Sea: A Multi-Stakeholder Approach to Managing Disputes
Macaraig, C.E. and Fenton, A.J., 2021. Analyzing the Causes and Effects of the South China Sea Dispute: Natural Resources and Freedom of Navigation. Journal of Territorial and Maritime Studies, 8(2), pp.42-581.
Nankivell, J.D., 2016. The Role and Use of International Law in the South China Sea Disputes. The National Bureau of Asian Research2.
1.1. Background of the South China Sea Disputes
Separating the two disputes, understanding the Paracel and Spratly Archipelagos is noteworthy. Over the last few years, China’s strategic moves to assert its claims over the Paracel and Spratly Islands have developed almost exclusively through its long-term naval modernization and the expansion of militarized artificial islands within the nine-dash line. The most recent reclamation phase, in conjunction with soldiers being escorted to the new man-made islands, has led to rising tensions and disputes between the primarily affected military stakeholders – China, Vietnam, Philippines, and Malaysia. Another stakeholder involved is Taiwan, although it is not recognized as an independent country by the United Nations, and no United Nations tribunal has provided any institution with the jurisdiction to resolve this particular dispute.
The South China Sea disputes have been an ongoing issue for hundreds of years and are currently labeled as one of the most complex in the world. To give a very broad yet detailed overview, according to the United Nations Convention on the Law of the Sea (UNCLOS), the international tribunal used three major factors that enable states to extend their territorial sea to twelve nautical miles plus in order of importance: 1) any principal island to which it is appurtenant is normally inhabited by human beings, 2) there are such circumstances of each sufficient regularity and that settlement of the area it has acquired the character of such activities, and 3) except if it has become fully absorbed in one state. It should be noted that already existing before the United Nations Conference on the Law of the Sea, through continuous use over the generations, the archipelago’s peoples have used these islands in their daily lives and since then and even before, our country has continuously and naturally developed and possessed these islands.
1.2. Significance of Maritime Law in the Region
The significance of the SCS, therefore, crosses not just geography, borders, and nation-states, but also different elements of international law, such as maritime trade, maritime security, the law of the sea, international human rights, the law of armed conflict, the law regulating State Responsibility, as well as international environmental law. These areas of law, when overlapped with regional peace-making actor groupings, such as the ASEAN Regional Forum (ARF) or the East Asia Summit (EAS), raise the primary research question: (i) what is the present state-of-play of the dispute regime of the South China Sea, (ii) the role of international law in managing these disputes, and (iii) if maritime law is a relevant tool in managing these disputes, should its regulation beyond the territorial waters of the SCS be relegated purely to national law (in the form of the coastal state’s EEZ)?
Secondly, the SCS has been a large part of the maritime silk road, and the development of historic rules for the use of the sea has been hotly controversial. If, as reported by the media, the focus of the SCS dispute is going to shift to the exclusive economic zones (EEZs), could these developments be seen as a possible rise of a new maritime silk road dispute? Maritime trade has been a long-time source of economic benefit as well as a source of disputes. While the South China Sea is the focus of disputes, the introduction of the initiative in the South China Sea should be seen as part of this.
Maritime law is of great significance in the South China Sea (SCS) region for a number of reasons. Firstly, the law of the sea provides key legal definitions for features in the sea, which are crucial to establishing maritime claims, such as territorial seas, exclusive economic zones, and the continental shelf beyond territorial waters (TWNs). The law of the sea provides a means for clarifying claims of states, as well as a system for dispute resolution. The SCS dispute could therefore be viewed as a question of maritime dispute management.
2. Legal Framework for Regulating the South China Sea
The 2016 arbitral award was a significant development, but it solved only a symptom of the larger issue which is the underlying SCS disputes. These disputes are not spurious and in fact encompass geo-strategic and geo-economic considerations that would impact not merely the SCS but the wider Indo-Pacific region and the international community. Needless to say, they will continue to be the subject of academic discourses and policy dialogues. However, they also have devastating effects that are felt on the ground. Countries embroiled in disputes with China stand to lose billions of dollars in fish stocks and the rich mineral and hydrocarbon resources that have been located in the SCS. If the disputes cause an armed clash or war, multiple countries are likely to have their trade and investment impacted. Such concerns therefore make necessary a multi-stakeholder initiative by involving states, businesses, and other figures from civil society to address the series of underlying disputes, as well as to ensure that the future of the UNCLOS regime in general and the vital SCS in particular remains intact.
The United Nations Convention on the Law of the Sea (UNCLOS) 1982 is the primary legal instrument that regulates all maritime issues among states and the South China Sea (SCS), and the 2016 arbitral award handed down pursuant to it had been widely hailed as a triumph of the UNCLOS system in guiding an amicable solution to the region’s outstanding disputes. Among others, the tribunal resolved that China’s claims to much of the SCS had no basis in law and that the nine-dash line was unfounded. Whilst the award has prompted the other SCS claimants to once again engage China on the issue and helped to shift its narrative from historical rights to territorial ownership, the development also raised concerns about the future of the UNCLOS regime. China rejects the tribunal’s ruling and has continued to militarize the features it controls. It has also opposed external military operations in the SCS and may in the future adopt the same stand on other UNCLOS activities.
2.1. United Nations Convention on the Law of the Sea (UNCLOS)
The South China Sea, which is home to numerous uninhabited islands and occupied land features, is supposedly of great economic value. Portions of it are believed to be rich in oil and natural gas, and it is also a highly traveled body of water for shipping due to its location between the Indian and Pacific Oceans. The body of water has been subject to disputes and claims from states, including China, the Philippines, Vietnam, Malaysia, Brunei, and Taiwan, for more than 1,000 years. These disputes have heightened international concern due to growing actions undertaken by the aforementioned territorial claimants, some of which include the construction of artificial islands. Currently, the region is predicted to suffer from instability led by the arms race in the Spratly and Paracel Islands (along with other relevant disputed maritime areas). During a 2016 Hague tribunal on the Philippines, it ruled in several areas in favor of the Philippines, its independence and sovereignty in investigating and exploring for hydrocarbons, blocks China’s own drilling activities, and imposes limitations on China’s ability to fish in the surrounding waters. China has rejected the tribunal findings, and the fear is raised that if no approach is made to alleviate the tensions, the risk of escalation is greater since China may become emboldened to enforce the claims.
The United Nations Convention on the Law of the Sea (UNCLOS), more formally known as the “Convention on the Territorial Sea and the Contiguous Zone,” was created in 1980 to address the complaints of many nations that previous maritime laws left a number of issues unresolved. The process of making UNCLOS lasted nine years, and it took from 1980 to 1994 for the necessary 60 nations to sign this convention, which went into effect in 1996. There are currently 167 parties (or signatory states) to UNCLOS along with the European Union, reportedly making UNCLOS the “world’s constitution for the oceans.” The convention covers many topics, including the definition of maritime boundaries, activities of states within their Exclusive Economic Zones (EEZ), rights of landlocked countries and archipelagic nations, and the effects of these laws on international peace and security. However, this paper will only discuss states and the continued determination of states, through diplomatic means, to settle international disputes of a maritime nature that arise among them.
2.2. International Court of Justice (ICJ) Jurisdiction
In the background of such assessment, this section examines the matters that the ICJ can and would not be competent to debate over the South China Sea. The build-up section takes a step back to re-emphasize the nature of the consultative outline in international justice based on the inherence of maritime and national integrity in dealing with the Interamic Regional. It is the compass not so much to tell on the South China Sea matter being adaptable between the character of questions by different involving AFC membrane, but more so on showing which issues the ICJ can accommodate in terms of rules and terms as those risks created in boundaries structure incorporating the maritime territorial topography with the promptitude by the Parties to such a peripheral architecture mix.
In its doctrinal concept, the logic of international law should advance every issue except those: 1) which are referred to WHO domain; 2) that have not been regulated by international law; 3) to which international consent has been refused in accordance with the vincenium rule provided by the Hague Convention of 1907; and 4) which were implemented on the exclusive integrity of each state. For the most part, international courts will only rely on documents expressed by state making (‘principle part’) that ensure its competency area.
Part of the complex legal discourse of the South China Sea disputes also has to do with what issues are disputable through international justice. While one of the key principles of the International Court of Justice (ICJ) should be that whatever disagreement that can be settled through negotiation and independent of legal issues, then parties are not expecting the Court’s verdict. There have also been many instances when international legal wrangles involving heightened political tension put their contradictory assessment on disputes over interests and how to handle conflicting contentions on recommendations beyond value.
2.3. Arbitral Tribunal Rulings
Furthermore, the Philippines remained open to an agreement, refusing a unilateral path of applying international arbitration. The prolonged ambiguity on China’s policy provided the Philippines with the opportunity to engage the United States, China, Japan, and Russia, hoping that diplomatic initiatives focused on security could resolve the issues. By 2013, the Philippines had been pursuing diplomatic and legal actions against China with the goal of being recognized as a legally unrecognized case of maritime disputes in the South China Sea before the United Nations. Among the instruments it used were the statements of heads of state of ASEAN in 2012 and 2013, which called for the effective resolution of the disputes in the civil fields. A DOC plan of early conclusion and the implementation of cooperation provisions in urgent cases.
Pending the arbitration decision, three Philippine presidents dealt with the issues in the West Philippine Sea (Reed Bank, Kalayaan Island Group (KIG), and the Scarborough Shoal). The Philippines consistently invoked the principles of the United Nations Convention on the Law of the Sea (UNCLOS) and established the zone of maritime jurisdiction provided for in the said convention. It sought two practical agreements with China for joint exploration in the Reed Bank, but China imposed conditions on the project. It entered into a second round of negotiations for a bilateral boundary agreement in the area coinciding with its claims in the KIG. The negotiations were finally aborted by China, which sought to negotiate on the basis of its nine-dash line.
3. Multi-Stakeholder Approach to Managing Disputes
We shall look at the South China Sea disputes from the perspective of the foundational law of the sea, especially considering the narrow view approach of the disputes taken by such international relations scholars. Considering that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the foundational law of the sea, we shall examine how far the law provides an approach that is capable of reaching fair solutions in resolving the disputes. The focus will be maritime law, specifically the foundational 1982 United Nations Convention on the Law of the Sea (UNCLOS) as a meta-legal approach that promotes states’ reasonable cooperation under other international laws to attain peaceful purposes of last resort. This law works best with and outside UNCLOS in the Indo-Pacific region for cooperative peaceful purposes of states and non-state actors to attain security in solving both traditional and non-traditional security challenges. Focused peace through maritime law creates a win-win framework among stakeholders (states, corporations, and non-state actors) especially facing common challenges in the South China Sea.
The present law looked at the issue as a problem of multiple conflicting interests when it stressed that “the South China Sea disputes are being driven by unresolved maritime claims and competition for energy-rich seabeds. Energy security has become the main strategic interest, which complicates the disputes and their territorial nature.” Security scholar Nancy Bernkopf Tucker supported this in her research on the disputes when she stated that “settlement requires addressing the complex combination of sovereignty and use rights and minerals” and that “the South China Sea is a global flashpoint of territorial, treatment, and resource disputes between six countries: China, Vietnam, Taiwan, Philippines, Malaysia, and Brunei.” There is no question that shipping and trade involving developing economies in Northeast and Southeast Asia are exposed to the spillover effects of the South China Sea disputes between the six claimants to islands there.
3.1. Role of Coastal States
Declaring that maps reflect two millennia of jurisdiction, the PRC’s environmental regulations are arguably as responsible for the 1992 dispute as is the 1982 United Nations Convention on the Law of the Sea (LOSC) itself. Nearly two decades later and in contrast but also in connection with China’s post-1982 liberalizing economy, Vietnam’s Law of the Sea and delineation of the exclusive economic zone (EEZ) in 2007 is perhaps the most remarkable and progressive example of Hanoi’s commitment to LOSC principles as a practically strong coastal state. In response to BC stipulation of 2003, Manila’s Archipelagic Baselines Act of 2009 reflects the Philippines’ status as an ancient seafaring people with territory that is dispersed in both the sea and the land towards which it faces. Such responsibilities and measures, however, have not long prevented coastal states from rejecting multistakeholder approaches to the South China Sea, now providing new opportunities for the remaining East Asian states to shape the subsequent maritime norm for regional security.
While the South China Sea is a semi-enclosed sea, this does not detract from the role of coastal states in developing and applying maritime law. On the contrary, as a semi-enclosed sea, the South China Sea is more representative of the importance that law ascribes to littoral states, not only in regard to their sovereignty jurisdiction over territorial seas extending 12 miles from the baselines from which their adjacent sea area has been measured, but also regarding their rights to make, adopt, and enforce environmental laws and regulations that are necessary to combat, prevent, and control pollution from ships (including oil pollution) and to otherwise promote marine scientific research, marine environment protection, and cooperation between states in protection of the marine environment. Arguably the dispute itself, and moreover effective management of it, has resulted in substantive differences in China’s and Vietnam’s respect for coastal states’ rights and responsibilities as addressed by the law of the sea, for example expressed in their foreign policies, national laws and regional and international governance.
3.2. Involvement of International Organizations
A number of existing organizations with institutional capacity as the basic capability of dispute resolution include ICJ, ITLOS, and ICC. International Court of Justice (ICJ) is called the main judicial organ of the United Nations consisting of 15 (fifteen) judges who are from various countries listed in the protocol justice with their work in the authority of the state for him. The court only receives disputes between governments even if the dispute is built from a treaty or a clause of an international agreement as confirmation of a judge. Also, the court only receives disputes voluntarily. Indonesia in its Ratification of International Law No. 56 of 2007 on 18 September 2008 through the Minister of Foreign Affairs Agio Padjo No. 134 / Auburn / VI / 2007 ratified the court under Article 36 B concerning Clause 2,3 of the Statute of the International Court of Justice 1945. Pollock in The Standard of Civil IUS: An Economic Analysis Law.
Regarding international organizations, they can participate from the first phase when problems are evolving and have not developed into full disputes. Their participation is most effective during the second phase of preventing and managing disputes. A number of international organizations have established a partnership policy as an instrument for their programs, to involve actors in preventing and respecting maritime disputes. However, less attention has been paid to the potential for involving international organizations with the capacity to resolve disputes as a more effective instrument for this purpose. Is there a potential for organization, not as a program but as institutional capacity, to play a role in dispute resolution? Before examining a number of international organizations’ potentials to resolve disputes, it is necessary to set parameters in determining those potentials. Therefore, the capability of an organization must be seen from the relationship between potential and reality.
3.3. Diplomatic Negotiations and Mediation
Mediation could also be brought forward to break the deadlocks in bilateral negotiations or group talks considering Russia or the United States as possible mediators. The role of the mediators is aimed at serving as the conduit to ease the situation on DAO or South China Sea or to confine and delimit the issue of disputes. Indeed, the assumption Asian Ministers will not act as arbiters to decide on the rights nor their powers to judge the right or wrong of China or any country. Rumors may occur in such a way that diplomatic negotiations are initiated by some parties regarding the existence of the Arbitration Court of the United Nations Convention on the Law of the Sea. Diplomatic means can also be carried out through the provision of assistance and capacity building in managing unilaterally decided disputes by some part of ASEAN. Hence, negotiations lead to preventive efforts or dispute management at the initial stage.
The PRC has joined and ratified several international agreements to assert sovereignty in the disputed territory. The international community tries to solve the territorial disputes in the South China Sea through comprehensive measures and through political dialogue and bilateral diplomatic channels for peaceful means. Diplomatic negotiations and mediation are emerging as an approach to settle the territorial disputes in the South China Sea. Bilateral diplomatic negotiations and talks are initiated by the Philippines, Vietnam, and Malaysia respectively, between China and Russia, in the context of dealing with ASEAN meetings in which host nations are ASEAN.
4. Challenges and Implications for the Future
International law is accepted according to Article 38, paragraph 1 of the ICJ statute as having three principal sources: general international law, principles of equity, and/or (and in that order) relevant regional sources. Although general international law is the core of conventional international public law, its interpretation, creation, and advancement are often left to national statutes. Due to their common interest, optional rules of convention, or contractual relationships between a small community of states, multilateral international rules of law are put together by these states. According to Article 38, paragraph 1(b) of the ICJ Statute, international legal decisions should be rendered based on international conventional laws and/or treaties that have equal legal status with customary international laws. Preferred options that consist of standards for specific subjects in non-binding legal resolutions (recommendations, model practices, etc.) are bilateral or multilateral international laws that have been introduced to more recent boundaries of traditional international law, one of which is the UNCLOS.
The lack of relevant international treaties that regulate large parts of the South China Sea, to which the People’s Republic of China is a party and recognized as an important final-list state, far from just a declarant but a claimant in these small waters, complicates the resolution of the underlying disputes. Therefore, institutions comprising not only the coastal states but also recognized stakeholders who are major groups of interest in terms of maritime activities within the area remain an integrated component of future maritime management systems. Currently, underlying difficulties in intricate concerns such as boundary delimitation, environmental protection, exploitation and management of natural resources, navigation and overflight, and protection of cultural heritage are only solvable if, in line with customary law, relevant rules and principles of international law are applied. However, even the relations and practices of individuals could not be influenced by the guidelines of international law, let alone for states that are often operating under ‘sovereign’ aegis. Regrettably, regardless of the Security Council’s request for peaceful resolution of disputes in the area, relations among the coastal countries of the South China Sea have frequently been tense, especially periodic skirmishing or provoking round-diplomatic moves with respect to jurisdictional disputes.
4.1. Geopolitical Tensions and Power Struggles
One of the emerging disputes in this region is the territorial dispute in the South China Sea involving territorial claims among China, Taiwan, Brunei, Vietnam, Malaysia, and the Philippines. However, recent disputes are also marked by the involvement of extra-regional powers such as the United States, acting as a superpower despite not being the regional heir. The involvement of the United States, a superpower, in regional conflicts mirrors the situation in the western Pacific during the Cold War. It not only fuels regional insecurity and a regional arms race, as crucial American support for the regional countries creates an external factor. It has an enormous potential to turn regional issues into international ones, or geopolitical ones into theoretical ones. If these aspects characterize the reality of the day, underlying factors shaping these emergences must be studied at a policy-based level, so that the best feasible solution could be found and come to be detailed as simple as modifying a mere policy of the four littoral claimants of the SCS.
In the last few years, and particularly in the last year, geopolitical tensions in Northeast and Southeast Asia have been escalating. It is much needed to have a serious examination of the reasons behind these increasing tensions. One of the reasons for this increase in tension could be explained by the Clash of Civilizations thesis, originally proclaimed by the late Samuel Huntington. In his famous book, Huntington predicted that as the bipolar system between the United States and the Soviet Union collapsed, a new multipolar system would emerge where realpolitik power struggles among civilization strains of humanity would predominate. While this perhaps might have been a rather pessimistic view, a quick look at the ongoing developments in Northeast and East Asia might provide some evidence to back up this claim.
4.2. Environmental Concerns and Resource Exploitation
Disputes in this area can be due to the resource potential. The EEZ was designed to promote peace and cooperation and to deal with aspects of the continental shelf that do not go beyond its reach. However, it brings territorial waters and high seas closer, potentially causing more devastating competition. The short 12-nautical miles territorial waters have limited access, and the high seas are far from it. When the superimposition of the contiguous economic zone data is complete, a region of 300 nm wide is surrounded by areas with limited rights and areas with total freedom. This gap allows fishing ships in exclusive zones and the sharing of world shipping routes, the use of which was at the discretion of coastal states. Such exclusions are ineffective against countries with advanced and extensive naval forces and can exacerbate disputes. In addition, the adjacent zones are of great economic and strategic importance, since they contain some of the most fertile and fish-capable areas, as well as access to the natural resources of unclaimed ocean floor and mining heritage.
Chapter XI, Part V of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) considers the Exclusive Economic Zone (EEZ). An EEZ is a zone of sea stretching up to 200 nautical miles (nm) from the baseline of a country. This allocation allows modern, total exclusion-producing means of exploitation, such as devices installed on the seabed, hazard-free access. Article 55-57 state that the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living. If the state lacks the capability, they may enter into cooperative agreements to do so. Similarly, UNCLOS also calls for may also be granted through a joint venture or production-sharing agreements. Also covering the EEZ, Article 58(1) states that these rights can only be exercised in accordance with the internationally accepted principle of the high seas freedom. This principle states that all countries have the right to freely navigate for both commercial and strategic military purposes.
4.3. Potential Impact on Regional Security
Although for different reasons, all South China Sea countries wanted to maintain the current state of lawlessness in the South China Sea; none is willing to provoke a full outbreak of maritime security incident in the region, possibly leading to an open warfare despite the fact that all sides have taken more than twenty years trying to improve their armed capabilities. On a smaller scale, though, there is an increasing probability of lower intensity military mishaps due to poor handling of the territorial disputes by any regional actor. Neither is it acceptable for the regional stakeholders, the United States or the member states of ASEAN, to have considerable impact on regional security dynamics. Therefore, it must be realized that maritime law is both relevant and necessary to address security challenges in the South China Sea, creating a useful case-study for better understanding of law’s role on global maritime security.
Because it covers more than 1.35 million square miles of water, potential actions in the South China Sea place significant strain on maritime law, and they could have devastating effects on sources of sustained economic growth and considerable national strategic advantages such as security, access to natural resources, and sovereignty claims in the area. As the disputes in the South China Sea are primarily of maritime nature, rather than of territorial one like the Westphalia system, international maritime law can play a greatly important role in safeguarding freedom of navigation and ensuring peace and stability in this vital region.
