HOW TO SOLVE

SOUTH CHINA SEA BY

BY APPLYING INTERNATIONAL LAW

(A CASE STUDY)
ABSTRACT

The Spratly Islands are contentious islands of more than 100 islets, reefs and islands in

the South China Sea between the Philippines and Vietnam and it is one of the largest continental

shelves in the world. The claimants are China, Vietnam, Taiwan, Malaysia, Brunei and the

Philippines. There are no native islanders but there are rich fishing grounds and believed to hold

vast amounts of oil and gas. There are more than half of the world’s supertanker traffic passes

through the region’s waters. There is also a conflict over fishing in the sea. It is believed that the

strategic location and economic benefits of the Spratlys have been the common reason for the

claims of all the claimant countries. If one party gains exclusive control over the area, that state

would achieve total control over the economic development and the trade routes in the region.

Philippines, Malaysia and Brunei Malaysia and Brunei also lay claim to territory in the South

China Sea that they say falls within their economic exclusion zones, as defined by the United

Nations Convention on the Law of the Sea in 1982. China cites history--to have owned the

islands--dating back to the Tang dynasty by which it has also long ago abandoned. The

Vietnamese, on the other hand, believed that the islands have been long ago conquered by their

ancestors and it says it has actively ruled over both the Paracels and the Spratlys since the 17th

Century. America’s involvement in the dispute plays a vital role in settlement. The US had and

still has an important role in Asia in particular regarding to stabilization of the region. The US

has the capabilities and the will to create a balance in the Asian region, and is particularly

important regarding the South-China Sea as it has the power to bring small countries on eye-

level with China on the negotiation table. The failure to reduce the risks of conflict, combined

with the internal economic and political factors that are pushing claimants toward more assertive

behavior, shows that trends in the South China Sea are moving in the wrong direction.
INTRODUCTION

The Spratly Islands are contentious islands of more than 100 islets, reefs and islands in

the South China Sea between the Philippines and Vietnam and it is one of the largest continental

shelves in the world. Basically, continental shelves are rich in resources such as minerals, natural

gas, oil, and seafood. The Spratly links the Pacific Ocean and the Indian Ocean. The South China

Sea region is the world’s second busiest international sea lane. There are more than half of the

world’s supertanker traffic passes through the region’s waters. The Spratly Island occupies a

total less than five square kilometers and spread over more than 400,000 square kilometers of

sea. The land is not fit for the plow, does not support permanent crops, and has no grassland,

pastures or forests. Furthermore, the Spratly Islands have not been occupied by humans until

recently. There are a number of different nations have sought to claim some but not all of the

islands. The claimants are China, Vietnam, Taiwan, Malaysia, Brunei and the Philippines. There

are no native islanders but there are rich fishing grounds and believed to hold vast amounts of oil

and gas. It is a rivalry over territory and sovereignty over ocean areas and the Paracels and the

Spratlys - two island chains claimed in part or in whole by a number of countries.

DISCUSSION

What are the main issues in the South China Sea dispute?

Various countries in the region have rivalry over rights to various resources, including oil

and gas. There is also a conflict over fishing in the sea – between those countries with large

fishing ships and countries which seek to protect the South China Sea from overfishing. Their

control over Spratly Island may lead the basis for control of the large portions of the South China
Sea. South China Sea is the seaway passed everyday by numerous ships trading across the region

and continent. After the oil crisis in the early 1970s Spratlys became important to all the

claimants. Spratly’s conflict could be considered as a conflict of interest. The claimants are

against about the distribution of the Spratlys. Almost all involved governments have brought

about both history and international law to justify their respective sovereignty claims. The most

important provision in this regard is the 1982 UNCLOS. It created several guidelines concerning

the status of islands, the continental shelf, enclosed seas, and territorial limits; and it is most

important for the legal recognition of the 200 nautical miles Exclusive Economic Zone.

Why are so many countries interested with Spratly Island?

The Paracels and the Spratlys may have wide reserves of natural resources. The area is

also one of the region's main shipping lanes, and home for fishing that supplies the livelihoods of

large population of people. It is believed that the strategic location and economic benefits of the

Spratlys have been the common reason for the claims of all the claimant countries. If one party

gains exclusive control over the area, that state would achieve total control over the economic

development and the trade routes in the region.

CLAIMANTS OF SOUTH CHINA SEA. Philippines claimed and owned at least eight of the

islands in the Spratly called the Kalayaan group of islands. Derived from the 1982 Convention

on the Law of the Sea, the Philippines's claim over the waters and the maritime zones, which

grants the country the sole exploitation rights over the natural resources within the Exclusive

Economic Zone (which extends to 200 nautical miles around the coastal state) and, more relevant

to fossil fuel extraction, to continental shelf. The China’s claim to the island are based on the

same history as Taiwan's claim. The PRC government maintains that it is the legitimate Chinese
government. China cites history--to have owned the islands--dating back to the Tang dynasty by

which it has also long ago abandoned. The Vietnamese, on the other hand, believed that the

islands have been long ago conquered by their ancestors. It says it has actively ruled over both

the Paracels and the Spratlys since the 17th Century - and has the documents to prove it.

Taiwan’s claim to the island is based on its assertion that Taiwan and its Kuomintang

government are the true China. However, since Taiwan claims to be the true China, it believes

the islands belong to it and not to the People’s Republic of China. Malaysia and Brunei also lay

claim to territory in the South China Sea that they say falls within their economic exclusion

zones, as defined by the United Nations Convention on the Law of the Sea in 1982.

What are the major issues which have come up due to this dispute?

There are conflicts over the various ocean islands and other features, development of the

Spratly Islands in order to support additional EEZ claims to resources, interception of fishing

boats by China for "overfishing," and competing invitations by Vietnam and China to foreign oil

companies for exploration and development opportunities in the same areas of the Sea.

SOLUTION. Part VI on Continental Shelf of UNCLOS further justifies the claims of the

Philippines, Malaysia and Brunei based on proximity, which make the three countries stand for

their claims realistic. Some efforts to manage the conflict have been conducted. All the conflict

management efforts seem a good sign for peaceful solution in the Spratlys, but they tend to be

useless since there is a strong reluctance from China. In my own perspective, it’s difficult to

resolve the dispute by using international laws because neither China nor Vietnam has accepted

the jurisdiction of the UN's International Court of Justice (ICJ) without reservations. The

Philippines has accepted the ICJ's jurisdiction but has reservations on its jurisdiction over sea
and land territorial disputes. Thus the possibility of solving the problem through the ICJ can’t be

consider. Another thing is, according to Article 298 of UNCLOS, China made a statutory

declaration on Aug 25, 2006 to the UN secretary-general that it doesn't accept any international

court or arbitration in disputes over sea delimitation, territorial disputes and military activities.

Thus, the International Tribunal for the Law of the Sea cannot intervene in the South China Sea

disputes between China and some Southeast Asian countries. Since China refuses to accept the

presence of the Asian organization ASEAN as mediator many related countries hope that the US

could fulfill this role, which would also serve to balance the position of weaker states against

China. The US had and still has an important role in Asia in particular regarding to stabilization

of the region. Even though it has no natural border to the disputed region, the stability of its

economic partners and the freedom of navigation of such an important trade routes make the

South-China Sea a national interest for America. The US has the capabilities and the will to

create a balance in the Asian region, and is particularly important regarding the South-China Sea

as it has the power to bring small countries on eye-level with China on the negotiation table.

America’s involvement is therefore not about flexing the muscles and confronting rising China,

but about protecting the sovereignty and the interest of smaller states that are clearly

disadvantaged in this regional dispute.

CONCLUSION. The claimants of South China Sea are increasing pushed by economic and

political imperatives. Rising nationalism and the unwillingness of claimant countries to appear to

their domestic audiences as compromising their territorial claims slowly takes them towards

greater confrontation with China. The failure to reduce the risks of conflict, combined with the

internal economic and political factors that are pushing claimants toward more assertive

behavior, shows that trends in the South China Sea are moving in the wrong direction.
SOURCES:

http://www.cfr.org/east-asia/armed-clash-south-china-sea/p27883

http://www1.american.edu/ted/ice/spratly.htm

http://hir.harvard.edu/the-spratly-islands-dispute-order-building-on-china-s-terms?page=0,2

http://www.thephilippineisland.com/islands/spratly-islands-philippines.html

http://community.middlebury.edu/~scs/docs/Joyner,%20Spratly%20Islands%20Dispute.pdf

http://www.propinoy.net/2011/06/17/spratly-islands-101/