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A principled approach to managing the South China Sea Disputes

A principled approach to managing the South China Sea Disputes. Disputes in the South China Sea. Territorial sovereignty disputes Maritime entitlement (or delimitation) disputes China’s U-shaped line?. Sovereignty disputes in the East Sea. Hoang Sa: between Viet Nam and China

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A principled approach to managing the South China Sea Disputes

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  1. A principled approach to managing the South China Sea Disputes

  2. Disputes in the South China Sea • Territorial sovereignty disputes • Maritime entitlement (or delimitation) disputes • China’s U-shaped line?

  3. Sovereignty disputes in the East Sea • Hoang Sa: between Viet Nam and China • Truong Sa: between Viet Nam, China (including Taiwan), the Philippines, Malaysia and Brunei • Scarborough: between China and the Philippines All are very tiny features!

  4. Entitlement vs Delimitation ITLOS in Bay of Bengal (Bangladesh/Myanmar) in 2012: Delimitation presupposes an area of overlapping entitlements. Therefore, the first step in any delimitation is to determine whether there are entitlements and whether they overlap.

  5. Basis for entitlement: UNCLOS Art 121 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in para 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

  6. ‘Rock’ vs‘Island’ 125.664 nm2 EEZ 452 nm2 Territorial sea

  7. What do entitlement disputes mean? • Dispute about what is a naturally formed area of land, surrounded by water, which is above water at high tide. • Dispute about what is ‘rock’ and what is ‘island’ (before delimitation dispute arises)

  8. Some features in the Spratlys

  9. Scarborough

  10. If Paracels and Spratlys were ‘Islands’

  11. China vs Viet Nam & the Philippines • China: the Paracels and the Spratlys each are entitled to an exclusive economic zone and a continental shelf of their own. • Viet Nam appears to claim maritime zones from its land territory, rather than from the features. • Philippines there are at best ‘rocks’ in the Spratlys. • Indonesia (2010)

  12. China’s Nine-dash line map introduced to the UN in 2009(covering 80% of the East Sea)

  13. The China’s official position? • Chinese Notes Verbales to the UN SG (2009): China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).

  14. Chinese scholars on U-shaped line • Land sovereignty claim • Maritime zones of China’s islands under UNCLOS • Maritime boundary line • Historic rights claim

  15. Ramification of disputes • Improper management of maritime issues • Competing economic activities: obstacles to development • Rising tensions: threats to peace and stability • Freedoms of ‘high seas’? (navigation, fishing…)

  16. Fishing ban in the South China Sea started in 1999 Hainan Province’s Measures to Implement the Fisheries Law of the PRC (from January 2014)

  17. Obstructing oil exploration activities of coastal states • Reed bank incident in Philippine’s declared EEZ in March 2011; • Cable cutting incidents (Binh Minh 02 & Viking II) in Viet Nam’s EEZ in May – June 2011

  18. HYSY 981 Incident

  19. China’s view of HYSY 981

  20. A principled approach to managing the SCS disputes: the skin, the flesh and the core

  21. What to peel off, what to keep, and what to share? • The U-shaped line claim: is it the skin? China to decide. • Sovereignty over the disputed features: is this the core? • A definitive solution is not in the immediate prospect • Maritime zones: Is this the flesh? => The question of ‘Rock’ and ‘Islands” in the SCS

  22. Dispute over Maritime Entitlement • Article 121: a ‘Yes’ or ‘No’ Question • No compromise possible • Potential for third-party intervention under UNCLOS: ITLOS, Annex VII Tribunal or Conciliator

  23. What if ‘islands’ existed? Delimitation disputes would arise. BUT… • International law principles must be applied. • Case law and state practice shows that small islands will have little maritime entitlement in comparison with long coastline. • The maritime zones of the Paracels, Spratlys or Scarborough would be small and they would be disputed because of the disputed title over these ‘islands’. • These small disputed maritime zones could become the zones cooperation and joint management in the SCS (the other areas left to the jurisdiction of the coastal state).

  24. Thank you for your attention!

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