19 - 2 - 2018 | 6:34
  • Increase font size
  • Default font size
  • Decrease font size
Home Conferences & Seminars Third International Workshop, November 2011 Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco Benatar

Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco Benatar

E-mail Print PDF

I. Introduction

The South China Sea (SCS) dispute has proven to be a hotbed for a variety of juridical quarrels, ranging from the extent of maritime zones[1], to territorial insular claims[2] and navigational rights.[3] One of the outlying issues that warrants closer examination concerns the baselines to be drawn around mid-ocean SCS islands.[4] As a starting position, one would surmise the applicability of the regime of normal baselines in accordance with the United Nations Convention on the Law of the Sea.[5]

alt

Indeed, a reading of Art. 121(2):

“Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.” (emphasis added)

in conjunction with Art. 5:

“Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.”

brings us to the conclusion that normal baselines, i.e. the low-water line of the coast, and possibly straight baselines, if circumstances so warrant, apply to of each island separately.[6]

There are however two noteworthy factors at play with respect to the SCS. Firstly, some of the mid-ocean features can be viewed as island groups and/or “archipelagos”, which is a legal term of art defined in accordance with a set of historical-geographic and economic-political criteria.[7] Secondly, continental/mainland States[8], island States[9], as well as an archipelagic State[10] have formulated claims to these territories. The qualification of the State from the perspective of the law of the sea has important implications.

A key question consequently comes to the fore: can States enclose the islands (boxed together as a unit) in a system connecting the outward points of the group? The practical results are important, because the baseline indicates from where to start measuring the various maritime zones falling under the jurisdiction of the coastal State (seaward)[11] and which waters are to become internal or archipelagic (landward) depending on the regime applied.[12]

It should be pointed out that identifying the precise composition and characteristics of SCS island groups is a task better left to geographers not jurists. With a view to making a legal theoretical contribution to this problem, we will consider the applicable rules more generally. Consequently, scholars can use such insights fruitfully when dealing with the particulars of the SCS. Moreover, we will centre our analysis on the situation of States other than archipelagic States (which deserves a separate treatment of their own), i.e. the so-called “mixed states”.[13] We will consider from their perspective whether two alternative systems for drawing baselines around offshore island possessions have a sound juridical basis in international law: the archipelagic and straight baselines regimes. Addressing the applicability of these alternative approaches to normal baselines is certainly not a moot point in the context of the SCS. By way of illustration the PRC has enacted legislation in which it has applied a system of straight baselines to the Paracel Islands.[14]

 

II. Archipelagic and Straight Baselines

A. Archipelagic Baselines

(i) 1982 Convention

There are a number of continental States around the globe that exert sovereignty over archipelagos, of which a definition can be found in Art. 46(b) 1982 Convention:

““archipelago” means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.”

Bent on increasing their scope of jurisdiction, States will often be inclined to adopt a method that offers “better” results than drawing normal baselines. With respect to their archipelagic possessions the method of archipelagic baselines presents itself as a prima facie logical option. There is however a catch. Art. 47(1) 1982 Convention stipulates that “an archipelagic State may draw straight archipelagic baselines (...)” (emphasis added), which harks back to “State[s] constituted wholly by one or more archipelagos and may include other islands.”[15] Does this mean that mainland States with offshore archipelagos are excluded from this beneficial regime? At first blush it would seem the reasonable conclusion.[16] On the other hand, the aforementioned provision does not exclude continental States expressis verbis. In order to solve the issue, recourse can be had to the travaux préparatoires (preparatory works)[17] which paint a much clearer picture.

 

(ii) Travaux préparatoires

During the Third United Nations Conference on the Law of the Sea (UNCLOS III) attempts were made by mainland States with offshore possessions to avoid differentiating between their situation, that of coastal archipelagos, and archipelagic States proper.[18] The sentiment of the mixed States was well put by the representative of one of their members, Portugal:

“[T]he arguments in favour of the establishment of a special regime for archipelagic states were also valid for archipelagos forming part of the territory of a coastal state, particularly with regard to the security and economic interests of such states. Application of a different regime to the latter would mean that the archipelagic part of the territory of mixed states would be regarded as second class territory.”[19]

Nine of them launched a working paper in 1974 to push through their ideas. Most interesting was the following passage in the document:

“Archipelagos forming part of a coastal State

Article 9

1. A coastal State with one or more off-lying archipelagos, as defined in article 5, paragraph 2, which form an integral part of its territory, shall have the right to apply the provisions of articles 6 and 7 to such archipelagos upon the making of a declaration to that effect.

2. The territorial sea of a coastal state with one or more off-lying archipelagos exercising its rights under this article will be measured from the applicable baselines which enclose its archipelagic waters.”[20]

This[21] and other endeavours were met with fierce opposition from many States opposed to extending the archipelagic regime to the mid-ocean archipelagos of continental States.[22] A number of States, fearing widespread claims[23], insisted that extending the scope of the regime would run counter to the interests of the international community with respect to the freedom of navigation.[24] In the end, the mixed States’ initiatives were torpedoed. Consequently, in light of the drafting history, the correct interpretation of the 1982 Convention is that the archipelagic regime, and the concomitant ability to legally draw archipelagic baselines, remain exclusive to archipelagic States.

 

B. Straight Baselines

(i) Rationale behind their usage

Faced with the inapplicability of the archipelagic regime and resolved to enhance their maritime domain, several continental States have sought recourse to regular straight baselines for their archipelagos and/or island groups with a view to achieving comparable results.[25] This dubious practice contravenes the 1982 Convention in spirit to say the least. In a noted study on straight baselines in international law, Reisman & Westerman develop a set of basic principles in order to give the apposite rules a sound legal interpretation faithful to the interpretative techniques enshrined in the Vienna Convention on the Law of Treaties. One such guideline is that “the regime of straight baselines must not be used to circumvent other established rules of international law.”[26] Quite justifiably, they cite the archipelagos of mixed States as a powerful case in point.[27]

 

(ii) Exceptional method

The specific context that gave rise to the regime governing straight baselines was the emblematic World Court decision in United Kingdom v. Norway.[28] The fact pattern underlying the decision entailed islands in the vicinity of the Norwegian coast considered for use as end-points for drawing baselines. This is wholly different from the scenario currently under consideration, i.e. “self-contained groups not in such special relationship with the mainland”.[29] There are other practical distinctions to be made. The expanse of water in the case of the mid-ocean archipelago is far greater than that of coastal archipelagos. In addition, the dependence to the mainland (geographic and physical) differs.[30]

Despite the particular situation that drove the World Court to acknowledge the international legal validity of the straight baselines rule, it was almost literally absorbed in Art. 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone[31]and subsequently in Art. 7 of the 1982 Convention. Because of its inclusion in a treaty regulating the law of the sea in a general sense, many States have seen this as an expansion of the (initially limited) scope of the rule, spawning novel and liberal interpretations in their practice. Nonetheless, these developments were reined in by the ICJ which reiterated the position that straight baselines, which deviate from normal baselines, are an exception and thus must only be used if the stringent criteria are met as stipulated in the 1982 Convention:

“The Court observes that the method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively.”[32]

Bearing this in mind, it would seem hard to apply the straight baselines logic to mid-ocean archipelagos.[33] Nonetheless, there appears to be at least one situation somewhat analogous to the factual elements underpinnings United Kingdom v. Norway and the wording of Art. 7 of the 1982 Convention: an insular group composed of a main island fringed by smaller islets.[34] Hence, it has been argued that the Furneaux Group in the Bass Strait (between Tasmania and the rest of Australia)[35], and certain subgroups within the Paracels[36] could fall within the remit of the rule.[37]

(continuing)

 

Read full text of this paper here



[1]E.g. A.G. Oude Elferink, ‘The Islands in the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?’, 32 Ocean Development and International Law (2001) 169.

[2]E.g. M. Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands (Kluwer, 2000).

[3]E.g. E. Franckx, ‘American and Chinese Views on Navigational Rights of Warships’, 10 Chinese Journal of International Law (2011) 187.

[4]We will refrain from taking on the issue of ownership of the various insular features. Only the State to whom the islands belong can draw baselines that are opposable and recognized under international law. When studying island contentions it is important to distinguish sovereignty questions from other points. See R.W. Smith, ‘Maritime Delimitation in the South China Sea: Potentiality and Challenges’, 41 Ocean Development & International Law (2010) 214, at 220.

[5]United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into

force on 16 November 1994)[1982 Convention].

[6]See also M.H. Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary (Vol. III, Martinus Nijhoff, 1995), at 338.

[7]M. Tseggelidou, ‘The Legal Regime of Archipelagos’, 17 Thesaurus Acroasium (1991) 663, at 667.

[8]Brunei, Malaysia, People’s Republic of China, Vietnam.

[9]As regards the Republic of China, we will not address its status under international law (see e.g. J. Crawford, The Creation of States in International Law (Oxford University Press, 2006), at 198-221).

[10]The Philippines. Since the Republic of China has proclaimed archipelagic baselines, this country could possibly be treated here.

[11]T. Scovazzi, ‘Baselines’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law,

www.mpepil.com, at § 1.

[12]Internal waters: Art. 8 1982 Convention. See also C.J. Colombos, The International Law of the Sea (6th ed., Longmans, 1967): “In these waters, apart from special conventions, foreign States cannot, as a matter of strict law, demand any rights for their vessels or subjects although for reasons based on the interests of international commerce and navigation, it may be asserted that an international custom has grown in modern times that the access of foreign vessels to these waters should not be refused except on compelling national grounds.” Archipelagic waters: Art. 47 1982 Convention. See also C.J. Piernas, ‘Archipelagic Waters’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, www.mpepil.com, at §§ 14-18 (noting that archipelagic waters share with internal waters the characteristics that they fall under the sovereignty of the coastal State and are subject to the rights of innocent passage and transit passage but are further conditioned by additional rights and legitimate interests/activities of neighbouring States).

[13]Defined by Piernas, o.c., at § 5 as “States situated on both continental land and on one or more oceanic archipelagos.” See also P.E.J. Rodgers, Midocean Archipelagos and International Law: A Study in the Progressive Development of International Law (Vantage Press, 1981), at 165.

[14]For a succinct analysis, see D.J. Dzurek, ‘The People’s Republic of China Straight Baseline Claim’, IBRU Boundary and Security Bulletin (Summer 1996) 77, at 84-85. The PRC has also declared that it will determine baselines for the Spratly Islands in due course. See K. Zou, Law of the Sea in East Asia: Issues and Prospects (Routledge, 2005), at 46.

[15]Art. 46(a) 1982 Convention.

[16]L. Lucchini, ‘l’Etat insulaire’, 285 Collected Courses of the Hague Academy of International Law (2000) 251, at 307.

[17]See Art. 32 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [VCLT].

[18]For an overview of the position of the mixed States during the development of the 1982 Convention, see J.P. Losa (ed.), El Archipiélago Oceánico: Regulación Jurídico-Marítima Internacional (International Law Association (sección española), 1981), at 182-186 and 202-204.

[19]Doc. A/CONF.62/C.2/SR.37, UNCLOS III, Official Records, vol. II, at 266.

[20]Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand and Norway: Working Paper, Doc. A/CONF.62/L.4, UNCLOS III, Official Records, vol. III, at 81-83.

[21]The 1974 working paper failed to make it into the Informal Single Negotiating Text.

[22]J.R. Stevenson & B.H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session’, 69 American Journal of International Law (1975) 763, at 785.

[23]H.W. Jayewardene, The Regime of Islands in International Law (Martinus Nijhoff, 1990), at 120.

[24]Although this was a major concern, there were other reasons behind the differentiated treatment, some political (decolonization context). For a critique of the latter, see R. Lattion, L’archipel en droit international (Payot, 1984), at 113-116.

[25]M. Tsamenyi, C. Schofield & B. Milligan, ‘Navigation through Archipelagos: Current State Practice’, in M.H. Nordquist, T.T.B. Koh & J. Norton Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (Martinus Nijhoff, 2009) 413, at 418, footnote 20.

[26]W.M. Reisman & G.S. Westerman, Straight Baselines in Maritime Boundary Delimitation (St. Martin’s Press, 1992), at 102.

[27]Id., at 103.

[28]Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, at 116. For an in-depth analysis of the litigants’ arguments before the Court as regards archipelagos, see Rodgers, o.c., at 58-64.

[29]G. Fitzmaurice, ‘Some Results of the Geneva Conference on the Law of the Sea. Part I. The Territorial Sea and Contiguous Zone and Related Topics’, 8 International and Comparative Law Quarterly (1959) 73, at 89-90.

[30]C.F. Amerasinghe, ‘The Problem of Archipelagoes in the International Law of the Sea’, 23 International and Comparative Law Quarterly (1974) 539, at 570.

[31]Art. 4(1) Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 U.N.T.S. 205 (entered into force on 10 September 1964). See R.D. Hodgson, ‘Islands: Normal and Special Circumstances’, J. King Gamble, Jr. & G. Pontecorvo (eds.), Law of the Sea: The Emerging Regime of the Oceans (Ballinger Publishing Company, 1973) 137, at 153 (lamenting that “probably no other article of the Convention based on islands has been so used and perhaps misused by the states of the world.”).

[32]Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 16 March 2001, at 103, § 212.

[33]For a nuanced approach attempting to extract more general lessons from the Anglo-Norwegian precedent that are transposable to mid-ocean archipelagos, see Amerasinghe, o.c., at 544-546.

[34]V. Prescott & C. Schofield, The Maritime Political Boundaries of the World (2nd ed., Martinus Nijhoff, 2005), at 169. “Fringing” implies “more than a few islands, distributed in a continuous plane in front of the coast in the manner of a fringing reef.” (Reisman & Westerman, o.c., at 86). Contra Li & Z. Jie, ‘A Preliminary Analysis of the Application of Archipelagic Regime and the Delimitation of the South China Sea’, 11 China Oceans Law Review (2010) 167, at 177 (arguing that the method of drawing straight baselines around mid-ocean archipelagos is not specifically regulated by the 1982 Convention and in accordance with the Preamble must be regulated by customary international law (requiring them to see if state practice and opinion juris supports this approach)).

[35]J.R.V. Prescott, ‘Straight and Archipelagic Baselines’, in G. Blake (ed.), Maritime Boundaries and Ocean Resources (Croom Helm, 1987) 38, at 45.

[36]Dzurek, o.c., at 85.

[37]See also V. Prescott, Limits of National Claims in the South China Sea (ASEAN Academic Press, 1999), at 18 (considering that France’s Kerguelen Islands constitute “the benchmark for straight baselines around mid-ocean archipelagos”, which can be found in T. Scovazzi & G. Francalanci, D. Romano & S. Mongardini (eds.), Atlas of the Straight Baselines (2nd ed., Guiffrè, 1989), at 135).

 


Newer news items:
Older news items:

Comments  

 
0 #6 Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco BenatarNathaniel 2018-01-29 10:12
I have checked your blog and i have found some duplicate
content, that's why you don't rank high in google, but there is a tool that can help you
to create 100% unique content, search for; Boorfe's tips unlimited
content

Stop by my web site ... PearlineSmall: https://Herman33.wix.com
Quote
 
 
0 #5 Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco BenatarGeoffrey 2018-01-13 11:05
Fat as well several advertisements to even play the game.


Here is my blog post ... core gaming pantheonsite: http://dev-coregaming.pantheonsite.io/
Quote
 
 
0 #4 Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco BenatarChantal 2017-07-20 04:30
Hi guys! Who wants to see me live? I have profile at HotBabesCams.com, we
can chat, you can watch me live for free, my nickname is Anemonalove: https://3.bp.blogspot.com/-u5pGYuGNsSo/WVixiO8RBUI/AAAAAAAAAFA/JWa2LHHFI2AkHParQa3fwwHhVijolmq8QCLcBGAs/s1600/hottest%2Bwebcam%2Bgirl%2B-%2BAnemonalove.jpg , here is my pic:


https://3.bp.blogspot.com/-u5pGYuGNsSo/WVixiO8RBUI/AAAAAAAAAFA/JWa2LHHFI2AkHParQa3fwwHhVijolmq8QCLcBGAs/s1600/hottest%2Bwebcam%2Bgirl%2B-%2BAnemonalove.jpg
Quote
 
 
0 #3 Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco BenatarChristy 2017-06-09 17:58
I see your site needs some unique & fresh content.
Writing manually is time consuming, but there is solution for this hard task.

Just search for - Miftolo's tools rewriter

Review my weblog: GeraldHannah: http://Valerie22.blogg.se
Quote
 
 
0 #2 Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco BenatarArdis 2017-05-25 03:51
As thе admin of tҺis website is working, no hesitation verү qᥙickly
іt will be famous, dᥙe to its feature cߋntents.


Check oᥙt my blog post: thong
ke giai dac biet: http://traindriver.pukekotech.co.nz/forum/index.php?action=profile;u=156381
Quote
 
 
0 #1 Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco BenatarErin 2017-05-16 02:45
Hey thᥱre! I know this іѕ kinda off topic Ƅut I wɑs wondering which blog platform ɑre you using for thiѕ site?
Ⅰ'm getting sick and tired օf Wordpress Ьecause I've һad problems with hackers and I'm looking
at alternatives for аnother platform. Ι wouⅼd Ьe
awesome if you coᥙld point mе in tҺe direction οf a good
platform.

Alѕo visit mү blog chinh sach dai lys ѕon: http://www.ivorynews.co.id/berita-402-polda-sumut-latihan-pra-operasi-gelar-patuh-toba-2017-.html
Quote
 

Add comment


Security code
Refresh

Can a limited purpose maritime and air defence identification zone be established over the South China Sea?, by Mary George

Can a limited purpose maritime and air defence identification zone  be established over the South China Sea?, by Mary George

To stimulate South China Sea regional security cooperation in the control of piratical attacks against ships, this paper proposes the establishment of a limited purpose maritime and air defence identification zone over the South China Sea.

Read more...

Recent Developments in the Philippine Baselines Law, by Raul C. Pangalangan

Recent Developments in the Philippine Baselines Law, by Raul C. Pangalangan

The Philippines recently passed a 2009 Baselines Law that, it was hoped, would finally confront its long-standing dilemma on whether to abandon its 1898 “treaty lines” altogether and adopt the modern rules on the Law of the Sea. That hope did not come to pass.

Read more...

International Law in the South China Sea: Does it drive or help resolve conflict?, by Stein Tønnesson

International Law in the South China Sea: Does it drive or help resolve conflict?, by Stein Tønnesson

Abstract

The interplay of power and law in the South China Sea is not well understood. To analyze the disputes over navigation rights, sovereignty to islands, and delimitation of maritime zones we need to grasp how states define and defend their geopolitical interests as well as the ways in which international law influences their claims and conflict behaviour. This paper starts with the huge difference in interpretations made by geopolitically oriented political scientists and more normatively or legally oriented scholars. Then the paper asks how developments in international law have affected the conflicts in the South China Sea historically. It establishes parallel histories of alternation between periods of conflict and détente and of legal developments, both in customary and treaty-based international law. The main emphasis is on the law of the sea. The paper concludes by establishing causal linkages between the two histories, while seeking to ascertain in what ways the law as such has influenced conflict behaviour. Has it exacerbated disputes by encouraging conflictual claims? Or has it established rules and procedures that help manage or resolve conflicts? The paper is written on the assumption that the answers we give to these questions may influence the way we see the prospects of future peace in the South China Sea.

Read more...

Where’s the Stake? U.S. Interests in the South China Sea, by Jonathan G. Odom

Where’s the Stake? U.S. Interests in the South China Sea, by  Jonathan G. Odom

Introduction

Much of the legal discussion about the ongoing situation in the South China Sea focuses upon the United Nations Convention on the Law of the Sea (UNCLOS)[1], a convention that was concluded in 1982.  During that early 1980's timeframe, there was an iconic television commercial[2] in the United States promoting the fast-food chain of restaurants known as Wendy’s.  The commercial showed three little old ladies standing at a cash register of a fictional restaurant that was competing with Wendy’s.  Behind the ladies was a sign on the wall that read, "Home of the Big Bun."  On the countertop was a large hamburger bun with an extremely small meat patty.  Each of the old ladies stared intensely at the bun.  Two of the ladies were admiring the bun.  The middle lady said, "It certainly is a big bun. It's a very big bun. It's a big fluffy bun. It's a very big fluffy bun."  The lady on the right, however, was wholly unimpressed with the large bun.  Over and over, she kept yelling "Where's the beef?" across the counter to anyone who might listen. At the conclusion of the television commercial, as the screen faded to black, the viewer could hear the third lady doubtfully telling her colleagues, "I don't think there is anybody back there."

Read more...

A Bilateral Network of Marine Protected Areas between Vietnam and China: An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?, by Hai-Dang Vu

A Bilateral Network of Marine Protected Areas between Vietnam and China: An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?, by Hai-Dang Vu

Since 1999, China has enacted an annual fishing ban for two or three months in the summer in the North-Western part of the South China Sea. This year (2011), the ban took place from May 16th to August the 1st and in an area between the latitude 12° North to the North and longitude 113° East to the West.[1]Any fishing vessel that goes into this area during the banis subjected to fines and its catches and gear confiscated.[2]According to Chinese news and scholars, this fishing ban is necessary to protect the sustainability of marine life in this area and prevent overfishing[3] and has produced positive results[4].However, critics, including from China, question the effectiveness of this measure. Many commercially important fishes are not breeding at the time of the fishing ban. Furthermore, after a long pause due to the ban, fishing activities would increase manifold, which causes more risk of depletion of the stocks.[5]

Read more...

Regional Cooperation in the South China Sea, by Jon M. Van Dyke

Regional Cooperation in the South China Sea, by Jon M. Van Dyke

The Duty to Cooperate in Semi-Enclosed Seas

            The South China Sea is a semi-enclosed sea governed by Part IX of the Law of the Sea Convention,[1] which says in Article 123 that countries bordering such seas “should co-operate with each other in the exercise of their rights and the performance of their duties under this Convention”  More specifically, they are instructed to “endeavor, directly or through an appropriate regional organization (a) to co-ordinate the management, conservation, exploration, and exploitation of the living resources of the sea” and also to co-ordinate their activities “with respect to the protection and preservation of the marine environment.”  The countries bordering on the South China Sea have failed to create an effective regional organization, and their cooperation “directly” has been generally unsuccessful as well.  The Coordinating Body on the Seas of East Asia (COBSEA) has been mostly dysfunctional and the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA)has been modest in its accomplishments.  No effective organization to manage the shared fisheries has been established. 

Read more...

Resolution to Fishery Disputes in the South China Sea through Regional Cooperation and Management, by Kuan-Hsiung Wang

Resolution to Fishery Disputes in the South China Sea through Regional Cooperation and Management, by Kuan-Hsiung Wang

The disputes in the South China Sea could be categorized into two parts: one is on the sovereignty of those island features, and the other is the maritime zones that could be claimed. It is understandable that the best way to solve the disputes might be delimiting boundaries so that the areas of sovereignty and jurisdiction could be decided. However, such situation is not always possible. It is mainly because negotiation and adoption of a maritime boundary between the related States always focused on political considerations and there are no well-established laws for making boundaries. Although it is recognized that “equitable solution” is one of the most important principles in making boundary. However, there is no definite elements which have been decided, in spite of geographical and geological factors, coastal length, traditional fishing activities, relative impact on the livelihood and economic dependency are the considerations recognized in different cases.

Read more...

The South China Sea: Cooperation for Regional Security and Development, by Hasjim Djalal

The South China Sea: Cooperation for Regional Security and Development, by Hasjim Djalal

The efforts to develop cooperation for regional security and development, so far, has involved some formal approach of ASEAN and some informal approach by academic institutions and some informal unofficial approach by some South China Sea officials in their personal capacities. The formal approach has resulted in the Declaration of Conduct by the Foreign Minister of ASEAN and China in 2002 as well as by China and the Philippines, the Philippines and the Vietnam in formulating some confidence building measures or Code of Conduct between them. The informal approach has been initiated by Indonesia through the Workshop Process on Managing Potential Conflicts in the South China Sea since 1990. It should be noted however, that while the formal approach excludes Chinese Taipei in the process, but include Myanmar as an ASEAN Member although it is not located in the South China Sea, the second informal approach, however, includes Chinese Taipei as an “entity” in the South China Sea issues although no states around the South China Sea area has any diplomatic relations with the Chinese Taipei.

Read more...

The Internationalization of the South China Sea: Conflict prevention and management, by Leszek Buszynski

The Internationalization of the South China Sea: Conflict prevention and management, by Leszek Buszynski

Introduction

The South China Sea issue began as a territorial dispute over the sovereignty of the islands and sea territory involving China and five ASEAN countries, Vietnam, the Philippines, Malaysia, Brunei and Indonesia.  Both China and Vietnam claim the entire area and the islands within while the Philippines, Malaysia and Brunei have laid claims to contiguous areas based on EEZs and continental shelves and first discovery.  Had it been just a territorial issue it could have been resolved in some way as a product of Chinese efforts to reach out to ASEAN and to forge stronger ties with the region.  Later the issue involved access to the oil and gas reserves of the sea which became critical as global demand for energy rose and claimants devised plans to exploit the hydrocarbon reserves of the area.  Disputes erupted over the competing claims, particularly between China and Vietnam, which at times threatened to escalate.  Claims to energy resources need not result in conflict, however, and can be managed on the basis of joint or multilateral development for which there are various precedents and models though none quiet as complicated as would be required for the South China Sea. 

Read more...

Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco Benatar

Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco Benatar

I. Introduction

The South China Sea (SCS) dispute has proven to be a hotbed for a variety of juridical quarrels, ranging from the extent of maritime zones[1], to territorial insular claims[2] and navigational rights.[3] One of the outlying issues that warrants closer examination concerns the baselines to be drawn around mid-ocean SCS islands.[4] As a starting position, one would surmise the applicability of the regime of normal baselines in accordance with the United Nations Convention on the Law of the Sea.[5]

Read more...

UNCLOS and maritime security in the South China Sea, by Nguyen Thi Lan Anh

UNCLOS and maritime security in the South China Sea, by Nguyen Thi Lan Anh

Maritime security is a relatively new concept and there are several approaches on its definition within the overall concept of security in international relations. Maritime security is developed to emphasize the importance of maintaining good order at sea in terms of the use and management of the marine resources for human development. In a hotspot like the South China Sea, where sovereignty disputes and overlapping maritime claims are still escalating and complicated, the maintenance of maritime security is a vital issue, covering all aspects of traditional and non-traditional security. With regard to traditional security, the current tension and the modernization of army, particularly navy forces indicated that the parties had prepared for the use of force and armed conflict at regional level may occur. In non-traditional aspects, maritime and aviation safety, marine environmental protection, marine biodiversity and the maintenance of good livelihood for the people are among the fields that currently being seriously threaten. 

Read more...

Exclusive Economic Zone in Major Media and Academic Journals in 2011: South China Sea and Other Seas, by Yearn Hong Choi

Exclusive Economic Zone in Major Media and Academic Journals in 2011: South China Sea and Other Seas, by Yearn Hong Choi

Introduction

Every coastal nation attempts to expand its sea territory by extending or expanding exclusive economic zone to the maximum possible. The EEZ was a new concept and a specific legal regime in the Law of the Sea Convention, building on the “exclusive fishing zones” and “fishing conservation zones” already in existence. The EEZ regime in the Convention was primarily aimed at living resources of the waters superjacent to the seabed. Although Article 56 (1) (a) stipulates that in the EEZ, “the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil,” Article 56 (3) affirms that the rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.” The EEZ is and must be an environmental conservation concept: However, it is  far from such a novel concept in reality. It is considered or interpreted as the coastal State’s privilege to claim its sovereign sea. Rights without obligations or duties have been claimed, rather blindly. This is something pathetically wrong or very ridiculous. Under the circumstances, 200 nautical miles of exclusive economic zone has been rather abused.

Read more...

Growing tension in South China Sea – Causes and Cures, by S. D. Pradhan

Growing tension in South China Sea – Causes and Cures, by S. D. Pradhan

The recent escalation in tension in South China Sea has indicated the need for objectively looking at the causes of dispute and the recent developments both negative and positive with a view to suggest measures todiffuse the situation, which according to some security experts has the potentials to escalate into an armed conflict and to help the involved nations to find a permanent solution.

Read more...

Abstract of The Risk of Applying Realpolitik in Resolving the South China Sea Dispute: Possible Implications on Regional Security. by Renato De Castro

Abstract of The Risk of Applying Realpolitik in Resolving the South China Sea Dispute: Possible Implications on Regional Security. by Renato De Castro

Located in the heart of Southeast Asia, the South China Sea is a semi-enclosed sea surrounded by China and several smaller and weaker Southeast Asian powers such as the Philippines, Vietnam, Malaysia, and Brunei.  Since the mid-1970s, these littoral states have been locked in a chronic competition as each one seek to extend its sovereignty and jurisdictional claims over more than a hundred islets, reefs, and rocks and their surrounding waters.  The biggest among the claimant states, China has shown propensity to use coercive diplomacy and even actual force to pursue its territorial claims.   In 1974, its forces drove the South Vietnamese from the Paracel Islands north of the Spratlys. Then in 1988, Chinese forces dislodged Vietnamese forces from Johnson Reef, after they sunk three Vietnamese trawlers near Fiery Cross Reef.  China’s promulgation of a territorial law claiming a large portion of the South China Sea in 1992, and Manila’s discovery of Chinese military structures on Mischief Reef in 1995 triggered a serious diplomatic row between the Philippines and China in the mid-1990s.

Read more...

South China Sea: China’s Rise and Implications for Security Cooperation, by Koichi Sato

South China Sea: China’s Rise and Implications for Security Cooperation, by Koichi Sato

In March 2010[1], Chinese diplomats told senior Obama administration officials that China (People’s Republic of China: PRC) would not tolerate any interference in the South China Sea, now part of China’s “core interest” of sovereignty. The People’s Liberation Army (PLA) navy and the Chinese maritime security agencies have begun to deploy their battleships and patrol boats in the South China Sea. Tensions between China and its Southeast Asian neighbors are on the rise. The United States, Japan, and Australia also show concern for the security of Sea Lines of Communication (SLOC) in the South China Sea. It is also said that the PLA navy has a plan to develop aircraft carriers. This paper analyzes these maritime challenges and explores implications for the security cooperation between China and its neighboring countries including Japan and the United States.

Read more...
More:

Language

South China Sea Studies

Joomla Slide Menu by DART Creations

Special Publication

 

Search

Login Form

Subscribe form

Top Photo Galleries

Web Links

VIETNAM MOFA SPOKESPERSON

 

NATIONAL BOUNDARIES