BanglaBhoot
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The China Philippines Dispute in the South China Sea:
Does Beijing have a Legitimate Claim?
Synopsis
China's objection to the Philippines latest move to explore for hydrocarbons off Palawan has raised the temperature over the Spratlys. The best way forward is for both parties to put aside their dispute and allow for joint development while refraining from unilateral activities.
Commentary
AFTER RELATIVE calm for the past few months, the dispute between China and the Philippines over the South China Sea has flared up again. The latest exchanges between the Philippines and China were triggered by Manilas announcement that it would open new blocks off Palawan for exploration of hydrocarbons. China has objected to the reported actions because it argues that some of the blocks are in areas over which it claims rights and jurisdiction.
The critically important question is whether China has a legitimate claim under international law to rights and jurisdiction in the waters where the blocks are located. If so, it would mean that the blocks in question are within an area in dispute, and the objections of China to unilateral actions by the Philippines are valid.
Is China Claiming 80% of the South China Sea?
China has a long-standing historic claim to sovereignty over the features in the South China Sea known as the Spratly Islands, which it refers to as the Nansha Islands. China has consistently objected to sovereignty claims of the Philippines, Vietnam, Malaysia and Brunei over some of the islands.
The infamous nine-dashed line found in Chinese maps of the South China Sea has prompted critics to describe its claim as a territorial waters claim; they assert that either China is claiming sovereignty over all the waters within the nine-dashed line or it is claiming 80 % of the South China Sea as its own.
However, the Chinese Ministry of Foreign Affairs has reiterated that China is not claiming sovereignty over all of the South China Sea. Although China has not completely clarified its nine-dashed line, in official diplomatic notes to the United Nations, it has claimed sovereignty over the Spratly Islands and their adjacent waters.
It is generally agreed that adjacent waters refers to the 12 nautical mile (nm) territorial sea which can be claimed from any land territory, including islands. Further, China has also stated in its official diplomatic notes that the Spratly Islands are entitled to an exclusive economic zone (EEZ) and continental shelf under Chinese law and under the 1982 UN Convention on the Law of the Sea (UNCLOS). A State does not have sovereignty in its EEZ or on its continental shelf, but it does have sovereign rights and jurisdiction for the purpose of exploring and exploiting the natural resources of the sea-bed and subsoil in its EEZ and on its continental shelf.
Philippines claims Reed Bank is not an area in dispute
The Philippines claims that it has sovereign rights to explore and exploit the hydrocarbon resources in the blocks in the Reed Bank because it claims a 200 nm EEZ measured from straight baselines connecting the outermost points of the outer most islands in its main archipelago.
The Philippines has not claimed an EEZ or continental shelf from any of the disputed islands in the Spratlys over which it claims sovereignty. Rather, its position seems to be that even if some of the features near Reed Bank are islands because they are naturally formed areas of land above water at high tide, these islands should only be entitled to a 12 nm territorial sea, not to an EEZ or continental shelf.
The position of the Philippines is based on the distinction in UNCLOS between islands and rocks. Although islands are in principle entitled to a territorial sea, EEZ and continental shelf, rocks which cannot sustain human habitation or economic life of their own are only entitled to a 12 nm territorial sea.
The practical effect of the position of the Philippines is to reduce the areas in dispute in the Spratly Islands to the islands themselves and the 12 nm territorial sea adjacent to them. Since the blocks in the Reed Bank are more than 12 nm from any disputed island, they would not be within an area in dispute, but would fall solely within the EEZ of the Philippines measured from its archipelago.
Can China maintain that the Reed Bank is an area in dispute?
China could maintain that some of the features in the Spratlys near Reed Bank, such as Nanshan Island (Ma Huan Dao / Dao Vinh Vien / Lawak), are islands under UNCLOS because they are naturally formed areas of land above water at high tide. Further, China could maintain that some of these islands are entitled to an EEZ and continental shelf because they are capable of sustaining human habitation or economic life of their own.
If China claims that some of the islands near Reed Bank are entitled to an EEZ and continental shelf, it can maintain that it has sovereign rights and jurisdiction under UNCLOS to explore and exploit the hydrocarbon resources in these zones. Consequently, the EEZ and continental shelf measured from the disputed islands will overlap with the EEZ of the Philippines measured from its archipelago. The area in dispute will then be the disputed islands, their 12 nm territorial sea, and the areas where the EEZ and continental shelf of the islands overlaps with the EEZ of the Philippines.
If the blocks in question near Reed Bank are in an area in dispute, this has implications for the activities that can lawfully be undertaken by the Philippines and by China. Recent international arbitral decisions have found that unilateral exploration and exploitation activities in areas in dispute are contrary to UNCLOS, especially if they involve drilling.
Best Way Forward
For now, the most that can be said is that China has a basis under UNCLOS and international law for claiming sovereign rights and jurisdiction to explore and exploit the hydrocarbon resources in the waters surrounding some of the Spratly Islands. Accordingly, its protests to the Philippines can be seen as a legitimate action to
preserve its rights.
The best way forward may be for the two countries to side-step the sovereignty disputes and the rock-island disputes and enter into negotiations to define the areas in dispute that can be subject to joint development arrangements. In the meantime, they should exercise restraint and refrain from any unilateral activities which would exacerbate the already complex disputes.
http://www.rsis.edu.sg/publications/Perspective/RSIS0362012.pdf
Having it both ways
Mar 9th 2012, 2:20 by Banyan
AN INTERESTING and helpful piece by Robert Beckman, a professor of international law at the National University of Singapore, clarifies some of the issues behind what has become, for now, the hottest of the myriad disputes in the South China Sea.
This one pits the Philippines against China. The Philippines has announced that it is going to open new maritime blocks off its island of Palawan for oil-and-gas exploration. It claims the area as part of the exclusive economic zone (EEZ) attached to the main Philippine archipelago. China has objected, since it claims the area in question.
It is often assumed that this is based on Chinas mysterious nine-dashed line claim, a piece of historic cartography which China sometimes insists gives it indisputable sovereignty over most of the sea, but whose legal basis seems at best flimsy.
However, Mr Beckman points out that China also has an unresolved territorial claim to the Spratly archipelago (also claimed in its entirety by Taiwan and Vietnam). The Spratlys are mainly tiny rocks and islets, which under the United Nations Convention on the Law of the Sea (UNCLOS) would be entitled just to territorial waters, of 12 nautical miles (22km). However, some might be considered habitable, and hence count as islands, which would have a full 200-mile EEZ, which would overlap with the Philippines' archipelagic EEZ.
And so, on this analysis, China does have a legitimate basis for its claim; the area is in dispute, and the Philippines would be in the wrong to pursue hydrocarbon exploration unilaterally.
One thing about this seems odd though. If China follows UNCLOS in this area of the sea, can it ignore it in areas where it has no such claim, just its nine-dashed assertive line? The answer, I suppose, is yes; China can always have it both ways.
The South China Sea: Having it both ways | The Economist
Does Beijing have a Legitimate Claim?
Synopsis
China's objection to the Philippines latest move to explore for hydrocarbons off Palawan has raised the temperature over the Spratlys. The best way forward is for both parties to put aside their dispute and allow for joint development while refraining from unilateral activities.
Commentary
AFTER RELATIVE calm for the past few months, the dispute between China and the Philippines over the South China Sea has flared up again. The latest exchanges between the Philippines and China were triggered by Manilas announcement that it would open new blocks off Palawan for exploration of hydrocarbons. China has objected to the reported actions because it argues that some of the blocks are in areas over which it claims rights and jurisdiction.
The critically important question is whether China has a legitimate claim under international law to rights and jurisdiction in the waters where the blocks are located. If so, it would mean that the blocks in question are within an area in dispute, and the objections of China to unilateral actions by the Philippines are valid.
Is China Claiming 80% of the South China Sea?
China has a long-standing historic claim to sovereignty over the features in the South China Sea known as the Spratly Islands, which it refers to as the Nansha Islands. China has consistently objected to sovereignty claims of the Philippines, Vietnam, Malaysia and Brunei over some of the islands.
The infamous nine-dashed line found in Chinese maps of the South China Sea has prompted critics to describe its claim as a territorial waters claim; they assert that either China is claiming sovereignty over all the waters within the nine-dashed line or it is claiming 80 % of the South China Sea as its own.
However, the Chinese Ministry of Foreign Affairs has reiterated that China is not claiming sovereignty over all of the South China Sea. Although China has not completely clarified its nine-dashed line, in official diplomatic notes to the United Nations, it has claimed sovereignty over the Spratly Islands and their adjacent waters.
It is generally agreed that adjacent waters refers to the 12 nautical mile (nm) territorial sea which can be claimed from any land territory, including islands. Further, China has also stated in its official diplomatic notes that the Spratly Islands are entitled to an exclusive economic zone (EEZ) and continental shelf under Chinese law and under the 1982 UN Convention on the Law of the Sea (UNCLOS). A State does not have sovereignty in its EEZ or on its continental shelf, but it does have sovereign rights and jurisdiction for the purpose of exploring and exploiting the natural resources of the sea-bed and subsoil in its EEZ and on its continental shelf.
Philippines claims Reed Bank is not an area in dispute
The Philippines claims that it has sovereign rights to explore and exploit the hydrocarbon resources in the blocks in the Reed Bank because it claims a 200 nm EEZ measured from straight baselines connecting the outermost points of the outer most islands in its main archipelago.
The Philippines has not claimed an EEZ or continental shelf from any of the disputed islands in the Spratlys over which it claims sovereignty. Rather, its position seems to be that even if some of the features near Reed Bank are islands because they are naturally formed areas of land above water at high tide, these islands should only be entitled to a 12 nm territorial sea, not to an EEZ or continental shelf.
The position of the Philippines is based on the distinction in UNCLOS between islands and rocks. Although islands are in principle entitled to a territorial sea, EEZ and continental shelf, rocks which cannot sustain human habitation or economic life of their own are only entitled to a 12 nm territorial sea.
The practical effect of the position of the Philippines is to reduce the areas in dispute in the Spratly Islands to the islands themselves and the 12 nm territorial sea adjacent to them. Since the blocks in the Reed Bank are more than 12 nm from any disputed island, they would not be within an area in dispute, but would fall solely within the EEZ of the Philippines measured from its archipelago.
Can China maintain that the Reed Bank is an area in dispute?
China could maintain that some of the features in the Spratlys near Reed Bank, such as Nanshan Island (Ma Huan Dao / Dao Vinh Vien / Lawak), are islands under UNCLOS because they are naturally formed areas of land above water at high tide. Further, China could maintain that some of these islands are entitled to an EEZ and continental shelf because they are capable of sustaining human habitation or economic life of their own.
If China claims that some of the islands near Reed Bank are entitled to an EEZ and continental shelf, it can maintain that it has sovereign rights and jurisdiction under UNCLOS to explore and exploit the hydrocarbon resources in these zones. Consequently, the EEZ and continental shelf measured from the disputed islands will overlap with the EEZ of the Philippines measured from its archipelago. The area in dispute will then be the disputed islands, their 12 nm territorial sea, and the areas where the EEZ and continental shelf of the islands overlaps with the EEZ of the Philippines.
If the blocks in question near Reed Bank are in an area in dispute, this has implications for the activities that can lawfully be undertaken by the Philippines and by China. Recent international arbitral decisions have found that unilateral exploration and exploitation activities in areas in dispute are contrary to UNCLOS, especially if they involve drilling.
Best Way Forward
For now, the most that can be said is that China has a basis under UNCLOS and international law for claiming sovereign rights and jurisdiction to explore and exploit the hydrocarbon resources in the waters surrounding some of the Spratly Islands. Accordingly, its protests to the Philippines can be seen as a legitimate action to
preserve its rights.
The best way forward may be for the two countries to side-step the sovereignty disputes and the rock-island disputes and enter into negotiations to define the areas in dispute that can be subject to joint development arrangements. In the meantime, they should exercise restraint and refrain from any unilateral activities which would exacerbate the already complex disputes.
http://www.rsis.edu.sg/publications/Perspective/RSIS0362012.pdf
Having it both ways
Mar 9th 2012, 2:20 by Banyan
AN INTERESTING and helpful piece by Robert Beckman, a professor of international law at the National University of Singapore, clarifies some of the issues behind what has become, for now, the hottest of the myriad disputes in the South China Sea.
This one pits the Philippines against China. The Philippines has announced that it is going to open new maritime blocks off its island of Palawan for oil-and-gas exploration. It claims the area as part of the exclusive economic zone (EEZ) attached to the main Philippine archipelago. China has objected, since it claims the area in question.
It is often assumed that this is based on Chinas mysterious nine-dashed line claim, a piece of historic cartography which China sometimes insists gives it indisputable sovereignty over most of the sea, but whose legal basis seems at best flimsy.
However, Mr Beckman points out that China also has an unresolved territorial claim to the Spratly archipelago (also claimed in its entirety by Taiwan and Vietnam). The Spratlys are mainly tiny rocks and islets, which under the United Nations Convention on the Law of the Sea (UNCLOS) would be entitled just to territorial waters, of 12 nautical miles (22km). However, some might be considered habitable, and hence count as islands, which would have a full 200-mile EEZ, which would overlap with the Philippines' archipelagic EEZ.
And so, on this analysis, China does have a legitimate basis for its claim; the area is in dispute, and the Philippines would be in the wrong to pursue hydrocarbon exploration unilaterally.
One thing about this seems odd though. If China follows UNCLOS in this area of the sea, can it ignore it in areas where it has no such claim, just its nine-dashed assertive line? The answer, I suppose, is yes; China can always have it both ways.
The South China Sea: Having it both ways | The Economist
