Universalizing the Law of the Sea in the South China Sea Dispute

Tác giả: Maximo Paulino T. Sison III

Ocean Development and International Law Số 49 (2): 157 – 175

Abstract:

This article argues that a resolution of the maritime disputes in the South China Sea must be based upon a universalist framework where the maritime interests of the world are upheld. The article discusses the universalist framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the universalist approach taken by the Tribunal on 12 July 2016 in the South China Sea Arbitration regarding the extinguishment of a state’s “exceptionalist” maritime claims and the adoption of strict criteria for the characterization of features at sea.

Conclusion:

There is a fundamental incompatibility between China’s position in the South China Sea and the law of the sea. China believes that it can legitimize its control over the South China Sea by obtaining, through bilateral deals, the consent of the relevant coastal states. This is the premise of its preferred approach of bilateral negotiations and consultations.

The law of the sea, developed over the centuries, has attained legitimacy by maintaining the balance between individual state entitlements and the global commons, as illustrated by the debate between Hugo Grotius’s Mare Liberum (“Open Seas”) and John Selden’s Mare Clausum (“Closed Sea”) in the seventeenth century. This balance rests on the practical reality that the oceans and seas constitute one physical unit and, in the words of UNCLOS, “need to be considered as a whole.” As such, the law of the sea must necessarily adopt a unified framework that “takes into account the interests and needs of mankind as a whole,” not only states that are geographically adjacent to a disputed region. China’s position would effectively enclave the entire South China Sea and disconnect it from the grid, as it were, of the law of the sea. This outcome is not a solution to the South China Sea dispute, as it also does not take into account the interests of all states in upholding UNCLOS and maintaining the global commons in the region. The failure to take into account all maritime interests in creating a solution to the South China Sea dispute necessarily creates an unstable situation in the region. Naval nations will continue to assert their traditional maritime rights in the global commons, such as freedom of navigation and overflight and the conduct of military activities. As is well known, the United States has been conducting Freedom of Navigation Operations in the South China Sea. These operations are intended to challenge “claims [that] are inconsistent with the international law of the sea and impinge upon the rights, freedoms, and uses of the sea and airspace guaranteed to all states under that body of international law.” The U.S. Freedom of Navigation Program was created in 1979 “to preserve [American] national interest and demonstrate a non-acquiescence to excessive maritime claims asserted by coastal states.” As U.S. Chief of Naval Operations Admiral John Richardson said in July 2016, “The U.S. Navy will continue to conduct routine and lawful operations around the world, including in the South China Sea, in order to protect the rights, freedoms and lawful uses of sea and airspace guaranteed to all. This will not change.” On 27 July 2017, the United Kingdom Foreign Secretary Boris Johnson announced that the United Kingdom has committed two newly built aircraft carriers to conduct freedom of navigation exercises including in the South China Sea. Johnson declared that this is “to vindicate [the United Kingdom’s] belief in the rules-based international system and in the freedom of navigation through those waterways which are absolutely vital for world trade.” This coincided with UK Defense Minister Michael Fallon’s announcement that the United Kingdom plans to send a warship to the South China Sea in 2018 for freedom of navigation exercises. Fallon said, “We have the right of freedom of navigation and we will exercise it.” As an important economic and strategic region in the world, the South China Sea cannot be carved from the legal regime that governs the rest of the world. A long-term and sustainable solution to the South China Sea dispute needs to consider all the maritime interests by creating a balance between individual state entitlements and the protection of the global commons. Without this balance, there is no stability because the outcome will likely be challenged by states or organizations under the belief that their rights have been unduly diminished. States will protect their own entitlements, as well as common rights beneficial to them. The pursuit of this balance has been the objective of the law of the sea over the centuries. Its most recent form is UNCLOS, an unrivaled achievement in international cooperation in establishing a comprehensive regime for the law of the sea.

It would seem that the most obvious way to resolve the South China Sea dispute is to apply UNCLOS as informed by the Award. In the first place, all the coastal states in the South China Sea, including China, are parties to UNCLOS. The United States may not be party to UNCLOS, but it considers most of the Convention’s provisions as embodying customary international law. The coastal states accepted the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, which expressly affirms “their commitment to the purposes and principles of … 1982 UN Convention on the Law of the Sea.” While the other coastal states are strictly not bound by the Award, it is a subsidiary source of international law that may help resolve their respective maritime disputes. The Joint Communique of the G7 Foreign Ministers’ Meeting on April 2017 considered the Award as “a useful basis for further efforts to peacefully resolve disputes in the South China Sea.” In resolving the South China Sea dispute, it is difficult to insulate the legal obligations of State Parties under UNCLOS. The Convention has been an integral part of the dispute, as shown by its consistent invocation in diplomatic correspondences among claimant States. While states may enter into agreements that modify or suspend certain provisions of UNCLOS, such agreements must not be incompatible with the object, purpose, and basic principles of the Convention. For the sake of argument, if the coastal states were able to enter into an agreement that supersedes UNCLOS, they would have to face the practical need of balancing the maritime interests of the world. UNCLOS has already been able to achieve a measure of that balance, with 168 state parties representing 87 percent of the membership of the United Nations and with the United States considering most of the Convention’s provisions as part of customary international law. Thus, in this scenario, the coastal states would have to “reinvent the wheel”—one that has already been developed over centuries of human activities at sea.

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