South China Sea Dispute

Questioning The Legality of Internation Law: South China Sea Dispute

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Written by Anahad Kaur

From: Lovely Professional University

Introduction

“International law” term was coined by Jeremy Bentham for the first time. The term International Law or Law of Nations has been used in contradistinction to the National Law or Municipal Law i.e. the law of the land.

Today the scope of international law has extended from the preservation of peace to regulating the various activities of international life, like space expeditions, ocean floor explorations, protection of human rights and the global environment, management of the international financial system, etc.

International Law also provides certain rights and duties to individuals. It has been so, particularly, after the establishment of the United Nations Organisation. Universal Declaration of Human Rights and International Covenants of Human Rights further confirm that the individuals have become not only the subjects of international law but can also directly claim rights and remedies provided under international law.

International law’s legality has always been a topic of question among the countries and scholars. Due to this doubt about the legality, there have been many instances where the decisions taken or rules made on international level have been dishonoured and one of those instances is the South China Sea Dispute. The South China Sea has long been regarded as one of the most complex and challenging ocean-related maritime disputes in East Asia.

Overview of the South China Sea Dispute

The South China Sea is considered to be one of the busiest waterways in the world and is a significant gateway for trade and merchant shipping. The South China Sea disputes are maritime and island claims between different sovereign states in the region.

Parties to these disputes are China, Brunei, Taiwan, the Philippines, Vietnam, and Malaysia and are geopolitically located in the Indo-Pacific region. Countries in the region, including China, Vietnam, the Philippines, and others, are locked in disputes over territories like the Spratly and Paracel Islands, as well as the waters surrounding the Indonesian Natuna Islands. These areas are highly coveted because they offer access to valuable fishing grounds, are believed to hold significant reserves of crude oil and natural gas, and control over them would mean dominance over crucial shipping lanes. As a result, tensions have escalated as each country asserts its claims and seeks to secure its interests in these strategically important locations. Key issues include sovereignty over islands, rocks, and reefs, as well as rights to fishing grounds, oil and gas reserves, and freedom of navigation.

Importance of International Law in Resolving Territorial Disputes

International law serves as a cornerstone in the resolution of territorial disputes by providing a structured framework for addressing conflicts peacefully. Through treaties, conventions, and customary norms, nations establish guidelines and principles to govern their interactions and resolve disagreements in a manner that upholds fairness and stability. Among these legal instruments, the United Nations Convention on the Law of the Sea (UNCLOS) holds significant importance, especially in the context of the South China Sea dispute.

UNCLOS serves as a comprehensive legal regime governing maritime affairs, providing a set of rules and regulations that define the rights and responsibilities of coastal states, as well as the boundaries of maritime zones. By delineating various maritime zones such as territorial waters, exclusive economic zones (EEZs), and the continental shelf, UNCLOS establishes clear parameters for the exercise of jurisdiction and exploitation of marine resources.

After three UN conferences on the Law of the Sea, UNCLOS was created. The UNCLOS III came into effect on 14 November 1994 precisely 21 years after the first meeting and one year after ratification by the sixtieth state (GRID-Arendal 2014). One of the main purposes of UNCLOS III is to strengthen peace, security, cooperation, and friendly relations among all nations in conformity with the principles of justice and equal rights (United Nations 1982). The unique dispute resolution system under UNCLOS is one of the most notable features of the Convention.

The question whether it can be called a superior law remains in doubt in spite of the growing acceptance and respect for international law among the member-States. International Law deals with States as legal and political entities and it applies to all the States equally without any regard to their size and power. However, the powerful States have a peculiar tendency to interpret the principles of international law in such a manner as to suit their interest and convenience.

Historical Background of the dispute

Over the last year, disputes in the South China Sea have dominated headlines, and they seem sure to continue to generate fresh national security issues. Already, too, they have raised a variety of legal questions that will inform the future course of both the conflict and the region.

The claimants have argued bitterly over the “true” history of these island chains. Some have tried to ground their modern claims by proving a long and unbroken record of national control over claimed features. Through the first half of the twentieth century, the Sea remained quiet as neighbouring states focused their attention on conflicts unfolding elsewhere.

Even after the end of World War II, no claimant occupied a single island in the entire South China Sea. The main conflict in the South China Sea dates back to 1279, when China drew a territorial map of its influence that included the entire South China Sea. Since then, control over the region has changed hands between regional powers and, later, colonial states. The Philippines acted first, followed by China, which launched a planned invasion of some islands.

The dispute seemed to take a turn for the better in 2002, when ASEAN and China came together to sign the Declaration on the Conduct of Parties in the South China Sea. For a while, the Declaration seemed to keep conflict at bay.

In May 2009, Malaysia and Vietnam sent a joint submission to the Commission on the Limits of the Continental Shelf setting out some of their claims. This initial submission unleashed a flurry of notes verbales from the other claimants, who objected to the two nation’s claims. In particular, China responded to the joint submission by submitting a map containing the infamous “nine-dash” line. This line snakes around the edges of the South China Sea and encompasses all of the Sea’s territorial features as well as the vast majority of its waters.

China ignoring the ruling

The Tribunal overwhelmingly ruled in favour of the Philippines in the award released on 12 July 2016. It concluded that, in the matter of China’s claims of historical rights and its nine-dash line, China had no legal basis to claim historical rights to resources within the sea areas falling within the nine-dash line. The Tribunal found that China and other states had historically made use of the islands in the SCS, but it found no evidence that China had historically exercised exclusive control over the waters and their resources (Tribunal 2016).

After the award was released, China continued to oppose the ruling and did not recognize the award. The Chinese Ministry of Foreign Affairs stood behind the state’s interpretation that since the Tribunal proceeded with the arbitration despite China’s refusal to participate, this voided and nullified the award (Philips et al. 2016). As such, the Chinese government stated that China’s territorial sovereignty and maritime rights in the region remained unaffected by the ruling.

Later on, Rodrigo Duterte as president in 2016 on an anti-American, pro-China platform, declared that it wanted to ‘set the award aside’ and renegotiate the dispute settlement directly with China. Duterte also stressed his intention to decrease the Philippines’ dependence on the United States, going as far as to no longer consider America an ally, and turning toward China for economic partnership. But in 2020, Duterte asserted that any attempts by China to undermine the award would be rejected and fought off.

Regulating Deep-Sea Mining Activities in International Waters

Conclusion

When countries disagree, it’s best to talk things out first. Negotiations should be a top priority. But it’s crucial to make sure that everyone gets a fair chance to speak up, especially in smaller countries. If clarifications don’t work, smaller countries can use legal channels like those provided by UNCLOS to settle disputes. So, negotiations and legal routes both play important roles in solving international disagreements.

In the South China Sea Dispute, China rejecting the award is affecting the legality and the power of the International Law. Although the countries have sovereignty but it cannot be absolute or it will result in weakening of the legality of the International Law.

References

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