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Home Database The Third International Workshop on SCS
The Third International Workshop on SCS

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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.

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.

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.

The issues involved in the South China Sea disputes and clashes of interests in it are extremely complex. They include legal, technical, domestic political, international political, strategic, and economic considerations. Unfortunately, in their effort to make things understandable to their readers, viewers or listeners, or out of their own ignorance, or both, the mass media contribute to the confusion, primarily by oversimplifying what is inherently complicated. The confusion is compounded by government officials, who should know better, and whose pronouncements, no matter how erroneous, are then picked up by the media, and so on.

This article will examine the above issues and the major obstacles which are preventing agreement on the areas in dispute. It will also examine the international law obligations of claimant States with regard to areas in dispute, including the limits under international law on what unilateral actions can be undertaken by States in areas in dispute.
Finally, the article will examine whether the Claimant States can use the dispute settlement mechanisms under 1982 United Nations Convention on the Law of the Sea (UNCLOS or ‘the Convention’) to clarify which areas are in dispute and which areas are not in dispute. It will explore whether efforts to reach an agreement on the areas in dispute might include referral of certain legal issues to compulsory binding arbitration under Annex VII of UNCLOS. In addition, it will examine whether it might be possible for two or more of the claimant States to seek an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS or ‘the Tribunal’) on legal issues arising from efforts to define the area in dispute. 

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South China Sea Studies

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