CIL Roundtable on the South China Sea, International Law and UNCLOS

Roundtable-members

Introduction

The South China Sea has long been a source of tension and potential conflict in the Asia-Pacific region. The underlying source of the tension is the territorial sovereignty disputes over the Spratly Islands (claimed partially or wholly by China/Taiwan, Viet Nam, the Philippines, Malaysia and Brunei), the Paracel Islands (claimed by China/Taiwan and Viet Nam), and Scarborough Shoal (claimed by China/Taiwan and the Philippines). The disputes on who has the better claim to territorial sovereignty over the disputed islands can only be resolved if the claimants can agree to settle them through direct negotiations or if all the claimants agree to some form of binding third party dispute settlement. Neither prospect is likely. This is why many observers believe that the only viable option is to set aside the sovereignty disputes and pursue joint development and other cooperative arrangements.

Discussions on setting aside the disputes and joint development are hindered by the fact that there is significant ambiguity on the maritime claims of the claimants. This is so despite the fact that all of the claimants (with the exception of Taiwan) are parties to the 1982 UN Convention on the Law of the Sea (UNCLOS), the international legal framework that governs claims to ocean space.

To this end, the CIL Roundtable brought together leading experts on law of the sea to examine the relevant principles under UNCLOS and provide objective and impartial analysis on how such principles apply to the South China Sea disputes. The issues discussed included:

Whether the only off-shore features which can be subject to a claim of territorial sovereignty are features which meet the definition of an island in article 121 of UNCLOS;
The rules on the drawing of baselines from off-shore features, especially if such features consist of reefs which are partly above water at high tide, partly above water at low tide or partly submerged at low tide;
The significance for the maritime claims in the South China Sea of article 121(3) which provides that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”;
Whether maritime claims to explore and exploit the resources of the waters and of the seabed and subsoil can only be made from mainland territory or from off-shore features which meet the definition of an island;
The principles governing the delimitation of maritime boundaries, especially the effect of small offshore features on the delimitation of overlapping maritime zones;
The rights and obligations of States in areas of overlapping maritime claims, especially in cases where some of the maritime claims are from islands subject to a territorial sovereignty dispute;
The rights and jurisdiction of coastal States under UNCLOS to explore and exploit the natural resources beyond their EEZs, including the extended continental shelf;
How the dispute settlement mechanisms in UNCLOS might apply to disputes between claimants concerning the interpretation or application of the provisions in UNCLOS.

CIL Roundtable

The CIL Roundtable enhanced understanding of law of the sea issues relevant to the South China Sea. It is hoped that a better understanding of the law of the sea issues will allow the claimants to advance their South China Sea claims in a manner consistent with UNCLOS and facilitate meaningful discussions on a long-term resolution of the South China Sea disputes.

Presentations

Session 2: Baseline Issues in the South China Sea
“Challenges in Defining the ‘Boundary’ between Land and Sea”, by Professor Clive Schofield, Director of Research, Australia National Centre for Ocean Resources and Security (ANCORS), University of Wollongong.
Session 3: Maritime Zones from Islands and Rocks
“Maritime Zones from Islands and Rocks”, by Professor Clive Symmons, Trinity College Dublin.
Session 4: Maritime Delimitation and Offshore Features
“Maritime Delimitation and Offshore Features”, by Professor Tullio Treves, Universita di Milano, Milan, Italy.
Session 6: Legal Issues Arising from the Extended Continental Shelf Claims
“Do the Coastal States in the South China Sea Have a Continental Shelf Beyond 200 Nautical Miles?”, by Professor Alex Oude Elferink, Deputy Director, Netherlands Institute for the Law of the Sea.
Session 7: Rights and Obligations in Areas of Overlapping Maritime Claims
“Rights and Obligations in Areas of Overlapping Maritime Claims”, by Judge David Anderson, Former Judge, International Tribunal for the Law of the Sea.
Session 8: UNCLOS Dispute Settlement Mechanisms
“UNCLOS Dispute Settlement Regime”, by Professor Robert Beckman, Director, Centre for International Law, NUS

Roundtable Members

S. JAYAKUMAR, Chairman, CIL International Advisory Panel, Singapore
Tommy KOH, Chairman, CIL Governing Board, Singapore
David ANDERSON, Former Judge, International Tribunal of the Law of the Sea, UK
Robert BECKMAN, Director, CIL, Singapore
Ted MCDORMAN, University of Victoria, Canada
Arif Havas OEGROSENO, Member, CIL International Advisory Panel, Indonesia
Alex OUDE ELFERINK, Deputy Director, Netherlands Institute for the Law of the Sea, Netherlands
Bernie OXMAN, Richard A. Hausler Professor of Law, University of Miami, USA
Clive SCHOFIELD, Director of Research, Australia National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia
Clive SYMMONS, Trinity College, Dublin, Ireland
Tullio TREVES, Universita di Milano, Milan, Italy

Agenda

The CIL Roundtable agenda includes the full programme and can be downloaded in PDF format here or by clicking the button below.