Offshore Patrol & Security Asia Pacific 17th & 18th October 2012

Renaissance Hotel, Kuala Lumpur, Malaysia

Territorial Disputes, Unresolved Maritime Boundaries & Maritime Security - Case Study: The South China Sea

Prof Robert Beckman Director, Centre for International Law

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1. Territorial Sovereignty Disputes

2. Maritime Boundary Disputes (Overlapping Claims)

3. Other Maritime Disputes

A. Island vs Low-Tide Elevation vs Artificial Island

B. Island vs Rock

C. Interference with sovereign rights to resources

D. Historic rights and jurisdiction

Types of Disputes in South China Sea

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• Spratly Islands - China, Taiwan and Vietnam claim all; Philippines claims those in KIG; Malaysia and Brunei claim some

• Paracel Islands – claimed by China, Taiwan & Vietnam

• Scarborough Shoal – claimed by China, Taiwan & Philippines

• Pratas Islands – claimed by China and Taiwan

• Macclesfield Bank – claimed by China and Taiwan

• Sabah - claimed by Malaysia and the Philippines

Territorial Sovereignty Disputes

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• No provisions in 1982 LOS Convention

• Governed by principles of customary international law on acquisition and loss of territory

• Cannot be referred to international court or tribunal without the express consent of the parties to the dispute

• Only viable option - set aside disputes & joint development

Territorial Sovereignty Disputes

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• An Island is “a naturally formed area of land surrounded by, and above water at high tide” [Article 121(1)]

• The general rule is that islands are entitled to the same maritime zones as other land territory: [Article 121(2)]

– Territorial Sea out to 12 nm

– Contiguous Zone out to 24 nm

– Exclusive Economic Zone out to 200 nm

– Continental shelf out to outer edge of continental margin

Maritime Zones from Land Territory

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LEGAL REGIMES OF THE OCEANS ANDAIRSPACE

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• State with sovereignty over the islands also has sovereignty over the 12 nm territorial sea

• Coastal State can apply and enforce its laws in its Territorial Sea

• Coastal States can enforce its customs, fiscal, immigration and sanitary laws in Contiguous Zone

• Coastal State also has jurisdiction to prescribe and enforce laws on fishing, exploration & exploitation of resources and marine scientific research in EEZ & on Continental Shelf

• THE PROBLEM - THERE IS MORE THAN ONE SOVEREIGN

Maritime Security & Territorial Sovereignty Disputes

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• Overlapping EEZ and continental shelf boundaries between opposite or adjacent States

– Malaysia-Philippines adjacent EEZ boundary

– Philippines-China EEZ boundary

– Vietnam-China Territorial Sea and EEZ boundary

– Indonesia-Vietnam & Indonesia-Malaysia EEZ boundary

Maritime Boundary Disputes

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• Maritime Zones from the disputed Spratly Islands overlap with the EEZ claims of the coastal States, especially the Philippines

• Even if only 12 nm Territorial Sea is claimed from disputed islands, the territorial sea claim will overlap with the EEZ claim of the coastal State and may also overlap with maritime zones claimed from other islands

• 1982 LOS Convention provides that in areas of overlapping boundary claims, States should exercise restraint and should enter into provisional arrangements of a practical nature

Maritime Boundary Disputes

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• One Claimant State tries to arrest fishing vessels, survey vessels or research vessels of another Claimant State (e.g. Philippines attempted to arrest Chinese fishing vessels in Scarborough Shoal)

• One Claimant State provides armed Coast Guard “escorts” for fishing vessels or seismic survey vessels of its nationals

• Such activities could result in use of violence or incident if the vessels do not have clear rules of engagement

Threats to Maritime Security in areas of overlapping claims

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26 May Incident in Block 148

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June 2011 Incident with Philippines Iroquois Reef & Amy Douglas Bank

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• China and Taiwan seem to be claiming sovereignty over features that are not islands

• Claimant States are occupying features which are not islands subject to a claim of sovereignty

– Low-Tide Elevations

– Submerged Features (Macclesfield Bank)

– Artificial Islands

– Installations and structures

Other Maritime Disputes

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Mischief Reef (China) island, Rock, Low-Tide Elevation or Installation ?

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Island, Rock, Low-Tide Elevation, Installation or structure?

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Swallow Reef (Malaysia) Pulau Layang Layang Island or Artificial Island ?

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• Evolving Dispute over whether some of the disputed islands area entitled to an EEZ and continental shelf of their own

• China has stated that the islands in the South China Sea are entitled to an EEZ and Continental Shelf

• Malaysia, Vietnam & Philippines have claimed an EEZ only from their main territory, not from any disputed off-shore islands

• 1982 LOS Convention provides that “rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf

Other Maritime Disputes

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Itu Aba / Taiping (Taiwan)

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• Three-Pronged Argument ?

1.Sovereignty over all features (not just islands) and their adjacent territorial sea

2.Sovereign Rights and Jurisdiction in the EEZ and Continental Shelf measured from the features

3.Historical Rights and Jurisdiction (and control) over the natural resources in and under the waters within the 9-dashed line, even within the EEZ of the coastal States

China’s current position ? ?

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June 2012 Petroleum Blocks of China

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• Greatest risk to maritime security is an incident escalating into armed conflict because of a lack of restraint in disputed waters, and a lack of clear rules of engagement

• Situation could improve if the Claimant States could agree on a Code of Conduct to enhance transparency and the exercise of restraint

• But major problem is lack of agreement on the maritime areas in dispute because of China’s 9-dashed line

• Situation could improve if all Claimant States would clarify their claims so that the areas of overlapping claims would be clear

Conclusions

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Thanks for your Attention

Robert Beckman Director, Centre for International Law

Email: cildir@nus.edu.sg

Website: www.cil.nus.edu.sg

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