CO10116 | South China Sea: How China Could Clarify its Claims

Ten Points to reconcile China’s Claim with UNCLOS

China could make its claim in the South China Sea consistent with UNCLOS and at the same time protect its national interests by making the following points:

First, China claims sovereignty over all the islands within the u-shaped line, including those islands which are currently occupied by other states or by Taiwan, as well as sovereignty in a 12 nautical mile territorial sea adjacent to the islands;

Second, China claims an exclusive economic zone (EEZ) beyond 12 nm from those islands which are capable of sustaining human habitation or economic life of their own as set out in Article 121 of UNCLOS, and China has the sovereign right to explore and exploit the living resources in the water and the living and non-living resources of the sea-bed and subsoil in the EEZ;

Third, China recognises that all states enjoy high seas freedoms in the EEZ claimed from those islands, including the freedoms of overflight, navigation and the right to lay submarine cables and pipelines;

Fourth, sovereignty over the islands in the South China Sea is not governed by UNCLOS, and disputes concerning sovereignty over the islands in the South China Sea cannot be referred to any international court or tribunal without China’s express consent;

Fifth, given the highly sensitive nature of the sovereignty claims, it is unlikely that China and the other claimant states will be able to agree to settle the issue of sovereignty over the islands in the foreseeable future;

Sixth, although Malaysia and Vietnam have made submissions to the CLCS in which they claim an extended continental shelf beyond the limits of their 200 nm EEZ claims, the CLCS cannot consider those submissions under its rules of procedure because of the existence of a maritime dispute in the area;

Seventh, China ’s claim to an EEZ from the islands in the South China Sea will overlap substantially with the EEZ claims and the extended continental shelf claims of Malaysia, Vietnam and the Philippines. Such overlapping maritime boundary claims cannot be referred to any international court or tribunal without the consent of all the parties, including China. This is because China has exercised its right under Article 298(1) to opt out of the compulsory binding dispute settlement procedures in UNCLOS for disputes relating to the delimitation of maritime boundaries. Furthermore, the overlapping maritime boundary claims cannot be agreed upon until the sovereignty claims over the islands in the South China Sea have first been resolved;

Eighth, pending final settlement of the sovereignty and maritime boundary claims, the states concerned have little choice but to enter into “provisional arrangements of a practical nature” as called for in the UNCLOS provisions on boundary delimitation, provided that such provisional arrangements are without prejudice to the final determination of the sovereignty claims and to the final agreements on maritime boundaries;

Ninth, China is willing to work with the ASEAN member states on the development of confidence-building measures and cooperative measures as called for in the 2002 China-ASEAN Declaration on the Conduct of Parties in the South China Sea; and

Finally, China reaffirms its position that the claimant states should agree to set aside the sovereignty and maritime boundary disputes, and negotiate a mechanism which allows for joint development of the natural resources.

Towards a Long-term Solution

If China were to clarify its claim in the South China Sea in the above manner, it would enhance the legitimacy of its claim and provide a setting for discussions with its neighbours on the only viable long-term solution in the South China Sea, namely, the establishment of provisional arrangements of a practical nature in the South China Sea, including joint development of the natural resources.

About the Author

Robert Beckman is Director, Centre for International Law and Associate Professor at the Faculty of Law at the National University of Singapore, as well as an Adjunct Senior Fellow at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University.