The South China Sea in legal perspective, by Hasjim Djalal

Monday, 21 January 2013 08:53 vuquangtiep

A.   Legal Perspective

1.    Customary International Law:

a.    What are these:

·         Freedoms of the sea.

·         Cooperation between states.

·         Peaceful settlement of disputes.


2.    International Conventions or Treaties:

a.    UNCLOS 1982

b.    Bilateral and regional agreements/arrangements

c.    UN Charter

d.    Other relevant international conventions.

Freedoms of the sea, resources use, and the use of the space, such as by shipping, have now been highly regulated particularly by UNCLOS 1982 and by other international conventions such as IMO, ICAO, UNESCO, etc.

B.   What are the “disputes” in the South China Sea?

1.    Claims to the sea?  As China seems to imply?  Needs for clarifications, limits, coordinates of the area claimed.  Slowly, it appears that what China claims sovereignty is over the features in the 9 dotted lines, not sovereignty over the sea itself.  The “U-Shape” lines appear to be “allocation” line, not territorial line.

2.    Claims to the “features”(islands, rocks, reefs, low tide elevations, banks, atoll, etc.)?

3.    The rights to maritime zones of the “features” (internal waters, archipelagic waters, territorial seas, contiguous zones, Exclusive Economic Zones, Continental Shelf/margin).

4.    The nature of the claims: Territorial sovereignty, sovereign rights, jurisdictions, interests.

5.    “Historic claims”, what are these and how long should it become historic?

6.    Is Chinese Taipei/Taiwan a “party” to the “dispute”?  Can an “entity” be a party to the “disputes”?  Can Chinese Taipei/Taiwan be regarded as a “South China Sea entity”?

7.    Is Myanmar, and for that matter Thailand, Cambodia, Laos, even Singapore, be regarded as parties in the South China Sea disputes because these states signed the DoC with China and they are not exactly in the South China Sea or involved in the disputed area. 

8.    Is ASEAN a party to the South China Sea disputes?

9.    A number of UNCLOS 1982 provisions would be useful and instrumental in those issues, such as the provisions on islands and rocks (Article 121), on various models of baselines and the nature of the waters enclosed by the different baselines, on management of resources, either living or non-living, and others.



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