by Furtado, Xavier. Contemporary Southeast Asia
Where does the United Nations Convention on the Law of the Sea (UNCLOS) sit vis-a-vis the ongoing disputes over the Spratly Islands? The present row between the Philippines, China, and Malaysia over their respective claims to the Spratly archipelago highlights the tendency of policy officials and the political leadership to invoke the name of UNCLOS to either justify their claims and/or to cast aspersions on the behaviour of other claimants.
Headnote
Where does the United Nations Convention on the Law of the Sea (UNCLOS) sit vis-6-vis the ongoing disputes over the Spratly Islands? The present row between the Philippines, China, and Malaysia over their respective claims to the Spratly
archipelago highlights the tendency of policy officials and the
political leadership to invoke the name of UNCLOS to either justify
their claims and/or to cast aspersions on the behaviour of other
claimants. This discourse, however, reveals the poor under
Headnote
standing that many have of UNCLOS, its provisions and the extent to
which it can provide a workable framework for resolving this particular
jurisdictional dispute. This article reviews the relevant terms and
articles contained in UNCLOS and provides a realistic assessment of its
potential contribution. In addition to highlighting the strengths of
UNCLOS, the discussion will also point to its very real limitations.
The recent tension between China and the Philippines over their respective claims to the Spratly Islands is the latest round in a territorial dispute that has plagued the Asia-Pacific region for several decades. Thus far, the Spratlys conflict has eluded any sort of lasting settlement. Instead, the frequent (almost annual) diplomatic confrontations and the occasional military tensions over the islands have been managed in a piecemeal and ad hoc way by the six states involved - Brunei, Malaysia, the People's Republic of China (PRC), the Philippines, the Republic of China (ROC) on Taiwan, and Vietnam ("the Spratly six").
Whenever tensions arise, there is a flurry of activity - Philippine air force jets fly over Mischief Reef taking pictures of China's latest "renovations" to its structures on the reef, communiques are sent, and diplomats are dispatched. While a region-wide military crisis has been averted thus far, many analysts and policy-makers agree that this annual pattern is too risky to continue indefinitely. The threat that this ongoing dispute presents to regional stability calls for a more stable mechanism to resolve it peacefully.
In the midst of the accusations and the ongoing search for solutions, officials from virtually all of the concerned governments have invoked the United Nations Convention on the Law of the Sea (hereafter referred to as UNCLOS or the Convention) to justify their own behaviour while also casting aspersions on the behaviour of the other(s). Having been signed and ratified by all of the Spratly six,1 UNCLOS represents the only framework/set-of-rules that has been commonly agreed upon for establishing oceanic boundaries. As a result, it offers the claimants a common foundation from which to begin their negotiations.
UNCLOS, however, is not without its own shortcomings. While it is a useful piece of international legislation, it cannot be applied blindly to the Spratly conflict. Although the Spratlys conflict is in many ways a straightforward territorial dispute, it is also a function of the region's unique set of historical and geopolitical considerations that challenge the ability of the Convention to provide an authoritative framework that all the parties can use. Consequently, applying the Convention to this particular issue requires special consideration.
UNCLOS, of course, does not seek to resolve territorial disputes. Rather, it is meant to provide a standard against which any co-operative arrangement regarding the Spratlys should be measured. The purpose of this article is to discuss whether or not the Convention is, on its own, an appropriate guide. In order to do this, the article will provide an overview of the history and genesis of the Spratlys dispute and, in doing so, review each government's claim. The article will then examine some of the Convention's key provisions. Set against this backdrop, the assessment will highlight some of the challenges UNCLOS confronts in trying to provide the claimants with a workable framework.
The Nature of the Claims
Questions over ownership and control of the Spratlys have been complicated by more than a century of colonial competition beginning in the early 1800s. As the French and British empires crumbled through the nineteenth and twentieth centuries, they left in their wake a series of power vacuums and a corresponding dearth of rules, norms and mechanisms with which to resolve conflicting territorial claims. Competing claims to the South China Sea began to first garner international attention towards the end of the nineteenth century as Britain, France, and Japan competed with one another and with China over sovereign control of the South China Sea. As these powers eventually withdrew from Southeast Asia, other states were brought into the fray, complicating matters further.
One of the greatest difficulties in deciding the legitimacy of each claim is arriving at a set of common criteria and norms with which states can make their claims. While the PRC, ROC and Vietnam claim the entire Spratly archipelago because of what they perceive to be their "historical right" to the area, Brunei, Malaysia, and the Philippines base their respective claims on the stipulations regarding continental shelves outlined in UNCLOS.1 As a result, one of the central difficulties is reconciling historically-based claims with those that employ the norms of international law. While some would argue that the historical claims of the PRC, ROC, and Vietnam should be discarded because they do not conform to the stipulations of UNCLOS, this is unrealistic. The notion of historical entitlement sits at the foundation of their claims to the Spratly archipelago and are unlikely to dissipate simply because analysts choose to ignore them. As a result, any proposed framework must address such concerns.
While providing a comprehensive review of each state's claim to the Spratlys would go well beyond the scope of this article, it would be useful to gain a broad understanding of how each party sees its own claim as well as those claims made by the other states involved. Though by no means meant as an exhaustive review, the following section provides an outline and summarizes each claim.3
China
Beijing argues that its claim to the entire South China Sea dates from the Xia dynasty, which reigned between the twenty-first and the sixteenth centuries B.C. In addition to claiming that it was the first to discover the South China Sea and its various island groups, Beijing contends that it was the first to name, map, study, use, and patrol the South China Sea and the islands therein; the first to open sea lanes through the South China Sea; the first to place the South China Sea and its islands under the jurisdiction of a national and/or local government; and the only government to have accepted the Japanese surrender at the end of World War II and retaken sovereign control of the area. Based on accepted norms of the time, it is argued that these actions entitle China to the entire South China Sea and all of its constituent features, which include the Spratly archipelago. To argue that China's claim is not codified anywhere in conventional international law is, to Chinese officials, to miss the point. As will be explored later, it is the continued use of these norms that poses one of the greatest obstacles to the effective application of UNCLOS to the Spratlys conflict.
China's earliest formal claim emerged with the signing of the Convention Respecting the Delimitation of the Frontier between China and Tonkin on 26 June 1887 which concluded the Sino-French War of 1884-85. Article 3 of this convention provided for a delimitation line between French and Chinese territorial claims in the South China Sea. Despite its ambiguities, Chinese officials have interpreted Article 3 as giving Beijing ownership and control of the Paracel and Spratly Islands.4 For the remainder of the nineteenth century and into the early 1900s, China made several attempts (much to the chagrin of the French and Japanese) to assert control over the South China Sea on the basis of this convention.5
The Spratlys conflict attained renewed importance in the closing days of World War 11 when Nationalist China (the ROC) occupied and established an operations base on the island of Itu Aba. At the same time, France continued to play a role in the dispute by claiming certain islands for the government in Paris as well as aiding Vietnamese claims in the area. General confusion as to the ownership of the Spratlys was then exacerbated by ambiguous settlements at the conclusion of World War Il.6 The eventual collapse of the French empire in Indochina left the status of the Spratlys undecided, and enabled the ROC to exercise what it felt was effective control over the islands. Of course, other parties to the dispute argue that the legitimacy of this claim is, at best, dubious.7
The next three decades were characterized by several sporadic and contentious claims made by five of the six disputing parties. During this time, many of these claims went largely unnoticed by the international community and, as a result, were not closely scrutinized to determine their legitimacy. In August 1951, Zhou En-lai, then the PRC's Foreign Minister, responding to the draft of the San Francisco Treaty, outlined Beijing's position on the South China Sea:
In fact, the Paracel Archipelago and Spratly Island, as well as the whole Spratly Archipelago ... have always been Chinese territory. Though occupied for some time during the war of aggression unleashed by Japanese imperialism, they were taken over by the then Chinese government following Japan's surrender. The Central People's Government of the People's Republic of China declares herewith: The inviolable sovereignty of the People's Republic of China over Spratly Island and the Paracel Archipelago will by no means be impaired, irrespective of whether the American-British draft for a peace treaty with Japan should make any stipulations and of the nature of any such stipulations.8
Despite the fact that China, like the other claimants, has ratified UNCLOS, this historically based argument continues to be the basis of its claim to the Spratlys.1 In fact, as recently as 25 February 1992, the Standing Committee of the National People's Congress adopted the Law on the Territorial Waters and their Contiguous Areas. The Law decrees that "the extent of the PRGs territorial waters measures 12 nautical miles from the datum-line of the territorial waters"." China, however, has never published its territorial base-lines from which territorial waters in the South China Sea would be measured, leaving the entire issue unsettled. Although Beijing has made several public statements suggesting that the Spratlys' (alleged) resource wealth might be administered jointly, Beijing has never failed to remind its Southeast Asian neighbours that China sees itself as the sole sovereign authority over the entire Spratly chain.11
The Republic of China (ROC) on Taiwan
Following closely on China's claim is that of the ROG 12 With the invasion of Japanese forces on the island of Hainan in 1939, the Spratlys were placed under Taiwan's jurisdiction. After Japan's withdrawal from the region at the end of World War II, the ROC stationed troops on Itu Aba island. As a result, ROC officials claim that Taiwan was the first to occupy part of the Spratly chain and was the first to assert effective control and authority in the area. Although Taiwanese troops were withdrawn in 1948 to fight communist forces from the mainland, they were redeployed to Itu Aba in 1956 and have remained there ever since. Much like the PRC, the ROC also lays claim to the Spratlys as a matter of historical right. Even though the ROC government has recently revised its policy on the Spratlys,13 its historical claim remains central: "On the basis of history, geography, international law and the facts, the Spratly Islands... have always been part of the inherent territory of the Republic of China. The sovereignty of the Republic of China over them is beyond doubt. "14 In addition to arguing that ROC fishermen have drawn their livelihood from the waters of the South China Sea for several centuries, Taipei also contends that it has been exercising effective administration and control over some of the islands in the Spratly group ever since 1956, if not since 1948.
While the ROC's official position on the Spratlys is often seen as being identical to that of the PRC, the question of whether the ROC should bring its policy in line with that of Beijing remains open and further complicates the Spratly dispute." Those in Taiwan who see the PRC as a genuine threat to the ROC's security, argue against an identical position as it would scare claimants away from negotiating directly with Taipei. However, those who see stable cross-straits relations as the key to the ROC's continued prosperity, argue that closer cooperation with (if not acquiescence to) Beijing in the South China Sea is essential. Indeed, neither of these positions is truly in the ROC's interest as one would antagonize Beijing while the other would antagonize ASEAN where the ROC has growing economic interests. In the absence of any progress on the ever-present "Taiwan issue", ROC officials are likely to continue to balance the different domestic constituencies while continuing to push for a peaceful settlement.
Vietnam
Much like the PRC and the ROC, Vietnam's claim is also based on what it sees as its historical right to the area. The government in Hanoi argues that Vietnamese emperors had effectively administered the Spratly archipelago since the 1800s. They also contend that maps from the period show the Spratlys to be under Vietnamese control. While Hanoi concedes that it lost interest and failed to effectively administer the archipelago, it maintains that it regained its right to the Spratlys upon independence from France when it inherited France's territorial holdings in the area. At the Seventh Plenary Session of the United Nations General Assembly in 1951, Prime Minister Tran Van Huu stated: "As we must frankly profit from all the opportunities offered to us to stifle the germs of discord, we affirm our right to the Spratly and Paracel Islands, which have always belonged to Vietnam. 1116 In its 1975 White Paper, the Vietnamese Government reiterated that:
[T]he French, who occupied the southern part of Vietnam known as Cochinchina, took all those measures necessary for the establishment of the legal basis for possession of the Spratly Islands. In 1933, the Spratlys were incorporated into the French colony of Cochinchina and from that year forward have had an adequate administrative structure.
It is true that French jurisdiction was disrupted by the Japanese invasion of 1941. However, shortly after the Japanese defeat in 1945, France returned Cochinchina to Vietnam, which then recovered all the rights attached to the former French colony. Immediately thereafter,
Vietnamese sovereignty over the Truong Sa [Spratly] Islands faced groundless claims from other countries in the area which military [sic] occupied some of the islands of the archipelago.17
As one can imagine, Beijing denies the legitimacy of Hanoi's historical claim as well as its subsequent argument that the Spratlys are part of its colonial inheritance from France. There is no indication, Beijing argues, that Vietnam was entitled to the Spratlys upon independence. Furthermore, France never laid claim to the entire archipelago. As a result, Beijing cannot see any conceivable reason why Vietnam should be entitled to the entire Spratly chain.
The Philippines
Further complicating the Spratly issue have been the subsequent claims of the Philippines and Malaysia. The Philippines' earliest claim was in 1956 when Thomas Cloma, a private Filipino citizen, claimed that he discovered a group of islands in the South China Sea which he named the "Kalayaan Islands". More than a decade later, in 1968, the Philippine military occupied eight of the islands that comprise Cloma's original claim. It was not until 1978 that the Philippine Government laid a formal claim to these islands through the issuance of Decree 1596. Since 1968, the Philippine military has posted garrisons on seven of the features while also developing a military airstrip on Thitu Island.
The Philippine claim rests on two key ideas. First, it argues that the islands were, before 1956, unowned and without a sovereign authority (terra nullius). Therefore, when Cloma laid his claim, he was appropriating for the Philippines territory which was not under another state's sovereign control. The government's second argument is based on the provisions for 200-nautical-mile Exclusive Economic Zones (EEZ) embodied in UNCLOS. The Kalayaan group, Manila argues, falls within the Philippines' legitimate EEZ.
These arguments are the subject of considerable controversy. Beijing, Taipei and Hanoi each argue that the Kalayaan group was not terra nullius and, instead, was under sovereign authority. Each argues that the Philippines' claim betrays an embarrassing ignorance of the facts. The Philippines' interpretation of UNCLOS is also questioned by other claimants who argue that the provisions for the EEZ outlined in the Convention apply only to areas/zones that would previously have been considered part of the high seas, not part of another state's sovereign territory. The Kalayaan group is not such an area. Depending on which government is protesting the Philippine claim, Kalayaan has always been under either China's, Vietnam's or Taiwan's sovereign control,
Malaysia
Malaysia's claim dates from 1979 when the government published an official map showing the southernmost islands of the Spratlys chain to be part of the country's continental shelf and EEZ. The Malaysian Government argues that, prior to its claim, these islands were uninhabited (res nullius). While its claim seems to be consistent with the terms of UNCLOS, several of the other claimants disagree." Some, like the PRC and ROC, argue that their historical entitlement to the Spratlys supersedes Malaysia's claim, while others dispute Malaysia's particular interpretation of the Convention and its use of occupation as a means to establish sovereign control.
Once again, controversy reigns. Other claimants contend that Malaysia has misinterpreted the continental shelf provisions in the Convention. While UNCLOS allows a state to control living and nonliving resources in its continental shelf, it says nothing about granting a state sovereignty over islands that may be located on its continental shelf, especially if they already fall within the jurisdiction of another state. In some ways, the Malaysian claim suffers from the same shortcomings as the claim by the Philippines.
As one can see, the Spratly dispute has several idiosyncracies. It is more than a simple territorial dispute and defies the easy application of UNCLOS. The modern conflict is a complex tapestry woven together by various threads, including notions of historical right, colonial inheritance, outright territorial annexation and the norms of twentiethcentury international law. Having provided an overview of the specific claims to the Spratly archipelago, we now turn to an assessment of UNCLOS in the light of the issues outlined above.
UNCLOS: Flawed from the Start?
As the product of almost three decades of multilateral negotiations, UNCLOS represents the most comprehensive attempt to create a body of commonly accepted norms and standards. Now that it has been ratified by all six of the claimants, UNCLOS can provide the claimants with a common set of norms, principles and rules for delineating oceanic boundaries, determining lawful entitlement to living and non-living resources in the sea, and guiding the settlement of future boundary disputes.
However, as suggested at the outset of this article, UNCLOS by itself is insufficient. Its utility to those involved in the Spratlys dispute is limited because different histories, selective interpretations of UNCLOS, as well as the Convention's own vague wording, prevent it from acting as a credible body of law meant to guide state behaviour.
While these concerns do not render the Convention completely ineffective, they highlight important questions and concerns that must be addressed if the Spratly six are to arrive at an arrangement that is consistent with the Convention.
Indeed, it could be argued that the Convention's very beginnings were handicapped by the attitudes of those who (also party to the Spratly dispute) were present at its signing. Statements from key individuals were not encouraging and did not augur well for UNCLOS in Southeast Asia. For example, in the Philippines' declaration at the signing of UNCLOS, Filipino officials made it very clear that they were unwilling to reconsider their position on the Spratly dispute in light of the Convention. The fourth paragraph of their declaration reads: "Such signing [of the Convention] shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto...".19 In the same vein, the Chinese declaration at the signing focused almost exclusively on its position on the Spratly dispute:
With reference to the depository notification C.N.7.1983.TREATIES1 (Annex B) [of 23 February 1983] and C.N.104.1984.TREATIES-3 [of 22 May 1984] which involve the sovereignty and interests of the People's Republic of China over its territory of the Nansha Islands, [China] has the honour to reiterate as follows:
The so-called Kalayaan Islands are part of the Nansha Islands, which have always been Chinese territory. The Chinese Government has stated on many occasions that China has indisputable sovereignty over the Nansha Islands, and the adjacent waters and resources.10
Insofar as these statements reflect an unwillingness to alter positions in the light of the norms and standards detailed in UNCLOS, it is not difficult to see how UNCLOS might have been handicapped from the very beginning. In fact, the Chinese delegation's objections to UNCLOS were part of Beijing's more general concerns with the Law of the Sea before it joined the United Nations in 1971.11 Even upon signing the Convention, Han Xu, Chairman of the Chinese delegation had these words:
... we cannot but point out there are still shortcomings and even serious defects in the provisions of quite a few articles in the Convention. The Convention is not entirely satisfactory to us. At the previous sessions of the Conference, we repeatedly pointed out that in the articles of the Convention relating to the innocent passage through the territorial sea there were no clear provisions regarding the regime of the passage of foreign warships through the territorial sea. A considerable number of States including China time and again submitted their amendment in this regard. ... In addition, the relevant provisions in the Convention also contain shortcomings as regards the definition of the continental shelf and the principle of delimitation of the exclusive economic zones and continental shelf between opposite and adjacent states.22
These statements, made early on in the life of UNCLOS, reveal some of the substantive difficulties the Convention would encounter in attempting to help resolve the Spratly dispute.
While the Convention's stipulations are broad and multifaceted, there are a number of key concepts that lie at its core: the notion of a 200-nautical-mile EEZ; the notion of historical entitlement and claim; the assumption that the Convention's provisions take precedence over earlier norms/principles embodied in earlier agreements; the legal definition of an island; the rights and privileges of archipelagic states; the use of baselines to delineate territorial waters; and the practice of asserting and exercising administrative control (sovereignty) over new territory. Despite the Convention's apparent breadth, and the fact that it has contributed to the successful resolution of other oceanic disputes, some of its central concepts and assumptions make its application to the Spratly question awkward.
Exclusive Economic Zones (EEZ)
With its focus on generating EEZ, UNCLOS frames any sort of interstate discussion over oceanic boundaries in a way that puts resource/ economic considerations at the centre of the discourse." This is even true in the case of the Spratlys where, given the uncertainty of available information on the archipelago's hydrocarbon wealth, it is not clear that such considerations should form a central part of the discussion. In the case of the Spratly question, the Convention's notion of an EEZ only feeds the expectation that there is something below the Spratly archipelego worth fighting for when, in fact, there is no reliable information to indicate that this is true. While the EEZ concept plays such a central role in the Convention, there is some question of whether or not UNCLOS, by itself, provides an appropriate set of norms and standards.
History and Territorial Irredentism
As a result of East Asia's troubled history, boundary and territorial disputes are especially sensitive issues. During the region's long history of colonialism, virtually every state (with the possible exceptions of Japan and Thailand) was forced to cede some territorial sovereignty to various foreign powers. In many cases, this resulted in an acute sense of national humiliation which, for some, continues to this day. The region's troubled history has not been forgotten by its citizens; the resulting bitterness and wariness of foreign incursions is part of the national psyche and plays an important role in shaping policy perspectives. As Choon-ho Park writes:
When sovereignty was restored to these former colonies or nearcolonies during the postwar years, each state became highly conscious of its new status and desirous of preserving it. Only within this context is it possible to appreciate their sensitivity to whatever affects their territorial integrity, a sensitivity that has yet to subside. Thus, a territorial dispute, especially one between a former ruler and the ruled, instantly touches the raw nerves of the people of a former colony and causes their nationalist sentiments to flare up, even if the piece of territory involved is scarcely worth arguing over.24
Because of these sensitivities, it is very difficult to convince either Hanoi or Beijing to relinquish what they see as their historic entitlement. As an integral part of their national territory, the Spratly archipelago represents an area lost to foreign control. To many Vietnamese and Chinese officials, the notion that UNCLOS - an agreement concluded as recently as 1982 - supersedes historical rights dating from the 1400s is absurd. While some may argue that these historical claims were surrendered when the PRC and Vietnam ratified UNCLOS, their continuing refusal to consistently couch their claims in the terms and stipulations outlined in UNCLOS indicates the extent to which historical considerations continue to shape policy decisions. As a result, these considerations should not be ignored nor treated lightly.
UNCLOS and the Continued Relevance of Earlier Norms and Practices While UNCLOS is silent on issues relating to the acquisition of territory and/or the maintenance of sovereign claims, it implicitly accepts a set of criteria/norms for making claims that contradict earlier norms used by the PRC and Vietnam for centuries. Arguing that their traders/ explorers/fishermen were the first to discover the archipelago and use the Spratlys to sustain their livelihood, Beijing and Hanoi each claim that they were the first to exercise effective administration and control. According to the accepted practice of the time, such claims were deemed legitimate. In fact, the colonial powers used similar principles when laying claim to various parts of the non-European world. UNCLOS, however, is based on a very different understanding: it accepts the notion that a state must exercise uninterrupted administrative control over the area in question. The inability to reconcile this perspective with the perspectives of Vietnam and China is a key obstacle. As Park writes:
In the final analysis, international law can effectively resolve only disputes that are basically legal, whereas the most important disputes, like [the Spratly dispute] with its highly complicated historical background, are political in nature and susceptible therefore to political resolution only. ... This point is especially relevant to China; China has a series of other extremely difficult territorial disputes ... For these reasons, neither party, China in particular, is likely to seek or agree to any type of legal settlement of the Paracel-Spratly dispute."
Even in those instances when the claimants have invoked UNCLOS, it was interpreted selectively and, on many occasions, was deliberately misinterpreted. There are a series of issues that are central to this problem and they add to the difficulty of applying the terms of the Convention to the Spratlys dispute.
The Definition of an "Island"
One such issue is the definition of an island. According to UNCLOS, an island can be used to generate an EEZ. The drafters of the Convention, not wanting small uninhabitable rocks and occasionally submerged features to be used as base points, defined an island as "a naturallyformed area of land, surrounded by water, which is above water at high tide" .16 The Convention is careful to differentiate between legitimate islands and "rocks which cannot sustain human habitation or economic life on their own"." In spite of this clear definition, some claimants (the PRC in particular) have used submerged features in the Spratly chain to claim territorial waters and EEZ.
For example, both the PRC and the Philippines claim Scarborough Reef which lies some 215 kilometres west of the Philippines. While some features of the Reef are submerged, others manage to remain above sea level at all times. However, as those features are unable to generate any sort of economic activity and are uninhabitable, they cannot be used to claim an EEZ. In spite of this, the PRC and the Philippines continue to engage in an open confrontation over who has legitimate control over Scarborough Reef.211 More importantly, this has contributed to further confusion over the definition of an island as outlined in UNCLOS.29
The selective misinterpretation of specific definitions in UNCLOS has prompted some claimants to erect concrete foundations on top of otherwise submerged reefs to ensure that they remain above sea level at all times. China has fortified both Mischief Reef and Johnson Reef to extend its claims in the Spratlys.30 The ill-informed commentary and analysis of some academics and policy advisers have fuelled this sort of behaviour. For example, Pan Shiying of Beijing's Foundation for International and Strategic Studies has written:
With ownership of an island or reef, there would come territorial waters. And with territorial waters, there would come oceanic resources ... [P]ossession of a one [sic] small island or a piece of reef enables the country to claim a total of 1,500 square kilometres of territorial sea, or three times the size of Singapore. When it comes to the stipulation of economic zones, it enables the country that owns the island to claim 430,000 square kilometres of special economic zone.31
Not only has this kind of mistaken interpretation led to a series of bilateral confrontations over particular features in the Spratly chain, but it has also contributed to wider confusion within governments over the principles outlined in UNCLOS and, consequently, a general deterioration of the Convention's perceived legitimacy as an authoritative body of law.
Archipelagic States
Another area of potential difficulty is how states have chosen to interpret the Convention's unique provisions for archipelagic states. Part IV of UNCLOS defines an archipelago as "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"." UNCLOS affords archipelagic states, such as the Philippines, specific privileges in terms of drawing baselines for territorial/sovereignty purposes. Specifically, such states have the right to draw baselines around the fringes of their outermost islands. In doing so, archipelagic states are allowed to claim the waters within these boundaries as sovereign territory. Having established their periphery, archipelagic states can then claim their territorial sea and other maritime spaces as would any other state. As a result, it is possible that substantial areas of the ocean (which otherwise would be considered part of the high seas) would come under the sovereign jurisdiction of a single state. In the case of the Spratly dispute, the Philippines has benefited the most from these provisions and, at various times, has attempted (rightly or wrongly) to use them to justify its claim to the Kalayaan group.33
The privileges granted to archipelagic states are somewhat unclear and, as a result, are often open to misinterpretation. Moreover, in the case of the Philippines, it has proven very difficult to reconcile UNCLOS with existing provisions in the Philippine Constitution regarding internal waters. Article 1 of the 1987 Constitution states that "the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines 11.34 To reinforce this assertion, the Philippine Government made the following statement:
The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or the high sea from the rights of foreign vessels to transit passage for international navigation.35
Consider this in the light of the Philippine delegation's comments at the signing of UNCLOS, and one can see how Manila's 1978 claim to the Spratlys might generate controversy. While UNCLOS is not at fault, the Philippines example serves as yet another instance of how the authority of the Convention has been (and will likely continue to be) questioned. Because of this constitutional provision, UNCLOS is unable to provide all parties to the Spratly dispute with the common norms and standards its drafters intended.
UNCLOS and Dispute Settlement
Compared to many other bodies of international law, UNCLOS has a very elaborate set of guidelines for dispute settlement and mediation.16 Proceeding from the broader U.N.-wide stipulation that states must resolve their disputes peacefully, the drafters of the Convention ensured that Parts XI and XV (which outline available dispute settlement mechanisms) would cover any conceivable conflict that might arise. Hence, parties may choose one or more of the following forums for dispute settlement: the International Tribunal for the Law of the Sea, the International Court of Justice,37 an arbitral tribunal, a special arbitral tribunal (only for sensitive topics such as fisheries, research, navigation and environmental protection), and/or regional arbitration mechanisms (should they be available) .38 Regardless of the forum they choose, signatories must have their disputes settled in a forum with the power to make binding decisions. By requiring this, the drafters have (at least in theory) achieved something that is unprecedented in international legal circles. At the same time, considerable exceptions are made in order to accommodate particular governments and their interests, These exceptions weaken the credibility and, hence, the utility of the Convention.
The source of this particular shortcoming dates from the early days of the Convention. The drafters saw the need to balance a series of contending interests from three different constituencies: coastal states that are motivated by concerns over the use of their adjacent waters; third (or "flag") states that are interested in using the oceans for a variety of purposes; and the international community which is most interested in ensuring that these sometimes competing sets of interests do not result in armed confrontation. 19 In order to be able to balance these concerns, UNCLOS grants coastal states considerable exemptions from the requirement for binding arbitration. This was meant to ensure that the sovereign rights of coastal states are not compromised. While such an exception may seem inappropriate, the signing of UNCLOS may not have been possible otherwise.
It seems that the ... exceptions from compulsory judicial settlement were unavoidable because they all touch highly political issues. Otherwise a consensus on comprehensive and effective dispute settlement procedures providing for final judicial determination had probably not been attainable.40
In the case of certain disputes centring on scientific research in an EEZ or continental shelf of a coastal state, or involving the fisheries of coastal states, those states are not required to submit the disputes to binding dispute settlement.41 Special exemptions are also granted for issues of extreme political sensitivity. Such disputes include ocean boundary delimitation, military and law enforcement activities, and conflicts in which the Security Council exercises its mandate. As Nicolas Schrijver has pointed out:
The exclusion of disputes over sea-boundary delimitation results from the unclear delimitation criteria under the law of the sea. The exclusion clause entails that coastal States have the right to declare that they do not accept any or all compulsory settlement procedures over the boundaries of their territorial sea, continental shelf, EEZ or historic bays .42
Despite its relatively comprehensive provisions for dispute settlement, the Convention continues to face the same challenge that has always plagued international law: effective enforcement and credibility.
This review of the Convention's shortcomings illustrates how states involved in the Spratly dispute can choose to invoke UNCLOS only when it is convenient and/or interpret its stipulations in ways that justify their own actions. As long as the parties to the Spratly dispute continue their selective interpretation of the Convention's articles and, despite th eir ratification of UNCLOS, fail to accept its norms, principles and obligations in their entirety, UNCLOS will continue to be ineffective.
Conclusion
Despite the criticisms levelled in this article, the intention has not been to argue that UNCLOS is a worthless instrument. Rather, what is being suggested is that UNCLOS must be applied to the Spratly question in a way that accounts for the unique characteristics of the dispute. As Dayanku Zabaidah Binti Pengiran Kamaludin stated while presenting a paper to the Third Workshop on Managing Potential Conflicts in the South China Sea:
The development of international marine law, including the LOSC [sic], has become complicated and poses some problems regarding definitions, technical details, and jurisdictional matters. These uncertainties inhibit its usefulness as a guideline for dispute resolution. Nevertheless, this by no means renders the Convention useless, so long as the parties concerned have the political will to recognize new obligations, responsibilities, rights and liabilities within its framework.43
The lessons from this article are twofold. First, any useful attempt to develop a regularized mechanism with which to resolve the Spratly conflict must consider how UNCLOS and its key provisions can be integrated into the larger dispute resolution process. Secondly, the search for newer alternatives must focus on mechanisms and arrangements that are specific to the Asia-Pacific region. As a result, it is necessary for students and policy-makers to remember that multilateral arrangements emerging presently in East Asia are still relatively new. While this affords policy-makers considerable flexibility in entrenching the habit(s) of regularized dialogue and exchange, it also poses a unique set of obstacles which require new and creative strategies to ensure success.
