Wednesday, March 28, 2012

The China–Philippines dispute in the South China Sea: does Beijing have a legitimate claim?

After relative calm for the past few months, the dispute between China and the Philippines over the South China Sea has flared up again.

Manila’s announcement that it would open new blocks off Palawan for hydrocarbon exploration has triggered the latest exchange between the two countries. China objected to the reported actions, arguing that some of the blocks are in areas over which it claims rights and jurisdiction. The critical question here 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 the blocks in question are within an ‘area in dispute’, and China’s objections to unilateral actions by the Philippines would also be valid.

China has a long-standing historic claim to sovereignty over the Spratly Islands in the South China Sea, which it refers to as the Nansha Islands, and has consistently objected to the Philippines, Vietnam, Malaysia and Brunei each claiming sovereignty over some of the islands. China has claimed sovereignty over the Spratly Islands and their adjacent waters in official diplomatic notes to the UN. The ‘adjacent waters’ refer to the 12 nautical mile territorial sea which can be claimed from any land territory, including islands. 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 has ‘sovereign rights’ and jurisdiction for the purpose of exploring and exploiting the natural resources of the seabed and subsoil in these areas.
The Philippines claims that it has sovereign rights to explore and exploit the hydrocarbon resources in the Reed Bank blocks — near the Spratlys — because it claims a 200 nautical mile EEZ, measured from straight baselines connecting the outermost points of the outermost 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’, these islands should only be entitled to a 12 nautical mile territorial sea, not to an EEZ or continental shelf.

The Philippines’ position is based on the distinction in UNCLOS between ‘islands’ and ‘rocks’. While islands are in principle entitled to a territorial sea, EEZ and continental shelf, ‘rocks’ that cannot sustain human habitation or economic life are only entitled to a 12 nautical mile territorial sea. The practical effect of the Philippines’ position is to reduce the ‘areas in dispute’ in the Spratly Islands to the islands themselves and the 12 nautical mile territorial sea adjacent to them. Since the blocks in the Reed Bank are more than 12 nautical miles from any disputed island, they would not be within an area in dispute, but would fall solely within the Philippines’ EEZ, as measured from its archipelago.

China could maintain that some of the features in the Spratlys near Reed Bank, such as Nanshan Island, are ‘islands’ under UNCLOS because they are naturally formed areas of land above water at high tide. China could also 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 this claim were successful, China 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 nautical mile territorial sea and the sections of the EEZs that overlap. If the blocks in question near Reed Bank are within an area in dispute, this will have implications for the activities that the Philippines and China can lawfully undertake.

For now, China arguably 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. And 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 sidestep the sovereignty and rock–island disputes, and enter into negotiations to define the areas in dispute that can be subject to joint development arrangements. In the meantime, China and the Philippines should exercise restraint and refrain from any unilateral activities which would exacerbate the already complex disputes.

Robert Beckman is Director at the Centre for International Law and Associate Professor at the Faculty of Law, National University of Singapore. He is also Adjunct Senior Fellow at the S. Rajaratnam School of International Studies, Nanyang Technological University.
This article first appeared as RSIS Commentary No. 036/2012.

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