Maritime Delimitation in the South China Sea: Potentiality and Challenges

Abstract

The South China Sea potentially is rich in hydrocarbon resources, but until such time that there is certainty of which country has exclusive maritime jurisdiction over what part of the seabed little or no exploitation will occur. Maritime boundary delimitation or some form of joint resource development is hampered by a legacy of sovereignty disputes over miniscule pieces of territory that are scattered throughout this water body. Unfortunately, the UN Convention on the Law of the Sea does not address how to resolve sovereignty disputes. The small disputed islands have no intrinsic value other than possibly providing the territorial basis from which to make the maritime claims. Given the nationalism associated with the territorial claims, any viable long-term solution will have to address how to discount these features and the States will have to have the political will to push their sovereignty claims aside in order to move forward towards some sort of joint development arrangements.

Keywords:

• island sovereignty disputes
• Article 121 (3)
• maritime boundary delimitation
• South China Sea

The author is an independent geographic consultant and a retired U.S. Department of State official. The views expressed in this article are the author's and do not necessarily reflect that of the U.S. Government.

Notes

1. Heda Bayron, “New Philippine Border Law Re-ignites Territorial Disputes in the South China Sea,” 17 March 2009, Voice of America, available at www.voanews.com/english/archive/2009-03.

2. Central News Agency, 9 May 2009, www.etaiwannews.com/etn/print.php. (This URL no longer exists.)

3. Reuters, 12 May 2009, available at www.reuters.com/article/oilRpt/idINPEK14634720090512.

4. 2 June 2009, Stratfor Global Intelligence, available at www.us.mc01g.mail.

5. Gabe Joselow, 16 July 2009, available at www.voanews.com/english/2009-07-16.

6. 1833 U.N.T.S. 397.

7. Currently the “two Chinas,” the Republic of China (ROC, or Taiwan) and the People's Republic of China (PRC, or mainland China), possess the same position on their common claims in the South China Sea. It is noted that there are special international issues pertaining to the role Taiwan can play in international organizations and conventions. Since both Chinas make the same claims, references in this article to “Chinese claims” apply to both the ROC and PRC. The “China” claim to islands, rocks, and shoals was first claimed, and illustrated, in a 1946 map produced by the Government of the ROC's Department of the Territories and Boundaries of the Ministry of the Interior. It designated its claim to the territories by depicting a “U-shaped” discontinuous line around the perimeter of the South China Sea. After 1949, the PRC has succeeded the ROC's claims to the South China Sea islands with a similar U-shaped discontinuous line on maps. The ROC has maintained its claims. See the 1946 ROC Map and the recent PRC Map attached to its 2009 Note CML/17/2009 in Nien-Tsu A. Hu, “South China Sea: Troubled Waters or a Sea of Opportunity?” in this Special Issue.

8. North Sea Continental Shelf Cases, [1969] I.C.J. Reports, 22 (emphasis added).

9. Daniel J. Dzurek, “The Spratly Islands Dispute: Who's on First?” Maritime Briefing, Vol. 2, No. 1, International Boundaries Research Unit, 1996, 1.

10. Spratly Island is located at approximately 8°38.5′ N, 111°55′ E and is situated in the southwest portion of these features. Vietnam occupies the island.

11. The map can be found in Dzurek, supra note 9, at 38.

12. Ibid., at 48.

13. John M. Glionna, “Squatters in Paradise Say It's Job from Hell,” 26 July 2009, available at www.latimes.com/news/nationworld/world/la-fg-paradise-prison26-2009jul26,0,7243566.story.

14. Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea, 2004. See Nguyen Hong Thao and Ramses Amer, “A New Legal Arrangement for the South China Sea,” Ocean Development and International Law 40 (2009): 339.

15. For the treaty and analysis, see T. L. McDorman, “People's Republic of China-Vietnam,” in International Maritime Boundaries, Vol. V, eds. David A. Colson and Robert W. Smith (Leiden, the Netherlands: Martinus Nijhoff, 2005), 3745–3758.

16. Ibid., at 3746.

17. Brunei Darussalau, Preliminary Submission Concerning the Outer Limits of the Continental Shelf, May 2009, available at the Web site of the Commission on the Limits of the Continental Shelf at www.un.org/Depts/los/clcs_new/clcs_home.htm. The North Borneo (Definition of Boundaries) Order in Council, 1958, Statutory Instruments 1958 No. 1517; and the Sarawak (Definition of Boundaries) Order in Council, 1958, Statutory Instruments 1958 No. 1518.

18. Malaysia-Vietnam, Joint Submission to the Commission on the Limits of the Continental Shelf in Respect of the Southern Part of the South China Sea, Executive Summary, May 2009, available at the Web site of the Commission, supra note 17.

19. R. Haller-Trost, “The Brunei-Malaysia Dispute over Territorial and Maritime Claims in International Law,” Maritime Briefing, Vol. 1, No. 3, International Boundaries Research Unit, 1994, 4–5.

20. The Philippines, Republic Act No. 9522, An Act to Amend Certain Provisions of Republic Act No. 3046, as amended by Republic Act No. 5466, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes, approved 10 March 2009, available at the Web site of the Philippine Law and Jurisprudence Database at www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html (accessed 8 August 2009). See also the Philippines, “PGMA Signs Baselines Bill into Law,” 11 March 2009, available at the official Government portal of the Philippines at (accessed 8 August 2009).

21. See J.Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, 2d ed. (The Hague: Martinus Nijhoff, 1996), 216–217.

22. Treaty of Peace Between the United States and Spain, 10 December 1898, 187 Consolidated Treaty Series 100.

23. It should be noted, however, that specific archipelagic sea-lanes have not been designated by the Philippines.

24. The Philippines, A Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the Republic of the Philippines Pursuant to Article 76(8) of the United Nations Convention on the Law of the Sea, Executive Summary, May 2009, available at the Web site of the Commission, supra note 17.

25. An Act to Amend Republic Act No. 3046, supra note 20, sec. 2.

26. See People's Republic of China, Letter to Secretary-General of the United Nations, Doc. CML/12/2009, New York, 13 April 2009, available at the Web site of the UN Division on the Law of the Sea at www.un.org/Depts/los/LEGISLATIONANDTREATIES/Statefiles/Phil.htm; Vietnam, Permanent Mission to the United Nations, “Vietnam's Response to Philippine President's Signing of Baseline Act,” 13 March 2009, available at www.vietnam-un.org/en/news.php?id=77&act=print; and Bayron, supra note 1.

27. Robert W. Smith and Bradford L. Thomas, “Island Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes,” Maritime Briefing, Vol. 2, No. 4, International Boundaries Research Unit, 1998.

28. Informal Single Negotiating Text, Doc. A/Conf.b2/WP. 8, 7 May 1975, in Third United Nations Conference on the Law of the Sea, Official Records, Vol. IV (New York), 170–171.

29. Robert D. Hodgson and Robert W. Smith, “The Informal Single Negotiating Text (Committee II): A Geographical Perspective,” Ocean Development and International Law Journal 3 (1976): 230.

30. Robert D. Hodgson, “Islands: Normal and Special Circumstances,” in Law of the Sea; Emerging Regime of the Oceans, Proceedings of the Law of the Sea Institute, eds. J. K. Gamble and G. Pontecorvo (Cambridge, MA: Ballinger, 1974), 150–151.

31. Ibid., at 231.

32. It is noted in Hodgson and Smith, supra note 29, at 231, that there are many mainland coastal areas and larger islands that are uninhabited due to arid conditions, but they clearly can generate an EEZ or continental shelf.

33. Ibid., at 232.

34. See D. H. Anderson, “British Accession to the UN Convention on the Law of the Sea,” International and Comparative Law Quarterly 46 (1977): 778.

35. Hodgson and Smith, supra note 29, at 233.

36. See, generally, Yann-huei Song, “Okinotorishima: A ‘Rock’ of an ‘Island’? Recent Maritime Boundary Controversy Between Japan and Taiwan/China,” in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, eds. Seoung-Yong Hong and Jon M. Van Dyke (Leiden, the Netherlands: Martinus Nijhoff, 2009), 151–161.

37. People's Republic of China, Letter to the Secretary-General of the United Nations, Doc. CML/2/2009, New York, 6 February 2009.

38. Korea, Letter to the Secretary-General of the United Nations, Doc. MUN/046/09, New York, 27 February 2009, available at the Web site of the Commission, supra note 17.

39. See Report of the Nineteenth Meeting of the States Parties, Doc. SPLOS/203, 24 July 2009, paras. 70–79 and 106–108.

40. Dzurek, supra note 9, at 1.

41. LOS Convention, supra note 6, art. 11.

42. It should be noted that the Commission has no competence to make judgments or recommendations on a coastal State's baseline.

43. Malaysia-Vietnam Joint Submission, supra note 18.

44. The Philippines Partial Submission, supra note 24.

45. Malaysia-Vietnam Joint Submission, supra note 18; and Vietnam Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982, Partial Submission in Respect of Vietnam's Extended Continental Shelf: North Area (VNM-N), Executive Summary, April 2009, available at the Web site of the Commission, supra note 17.

46. Brunei Preliminary Submission, supra note 17.

47. People's Republic of China, Preliminary Information Indicative of the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles, May 2009, available at the Web site of the Commission, supra note 17.

48. People's Republic of China, Letter to Secretary-General of the United Nations, Doc. CML/17/2009, New York, 7 May 2009; and Letter to Secretary-General of the United Nations, Doc. CML/18/2009, New York, 7 May 2009, available at the Web site of the Commission, supra note 17.

49. Malaysia, Letter to Secretary-General of the United Nations, Doc. HA 24/09, New York, 20 May 2009, available at the Web site of the Commission, supra note 17.

50. Vietnam, Letter to Secretary-General of the United Nations, Doc. No. 86/HC-2009, New York, 8 May 2009, available at the Web site of the Commission, supra note 17.

51. PRC Letters, supra note 48, para. 2.

52. Vietnam Letter, supra note 50, para. 3.

53. Malaysia Letter, supra note 49, para. 3.

54. PRC Letters, supra note 48.

55. See Figure 1 in Nien-Tsu Alfred Hu, “South China Sea: Troubled Waters or a Sea of Opportunity?” (in this Special Issue).

56. Dzurek, supra note 9, at 11–15.

57. Ibid.

58. For a review of the history of the Philippine claim, see Dzurek, supra note 9, at 21; and J. R. V. Prescott, The Maritime Political Boundaries of the World (New York: Methuen, 1985), 217–225.

59. U.S. Embassy in Manila, Diplomatic Note No. 836 of 18 May 1961, State Department File No. 796.022/5-2461. On this topic, see Roach and Smith, supra note 21, at 216–222.

60. See Roach and Smith, supra note 21, at 220–221.

61. Ibid., at 221.

62. The Philippines Partial Submission, supra note 24.

63. See Dzurek, supra note 9; and Prescott, supra note 58, for further historic analysis of the Philippine claim.

64. See Appendix 2.

65. Declaration on the Conduct of Parties in the South China Sea, 4 November 2002, available at the Web site of ASEAN at www.aseansec.org/13163.htm.