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A Different Approach to UNCLOS

Jan 19, 2022
  • Nong Hong

    Senior Fellow, National Institute for the South China Sea Studies

On Jan. 12, the U.S. State Department released a study — Limits in the Sea No.150 — regarding China’s maritime claims in the South China Sea. It concluded that the claims are plainly inconsistent with international law as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

Most of the critiques in the study, based on the U.S. presumption of China’s articulation of its South China Sea maritime claims following the arbitration in 2016, is not really much different from other governmental statements or announcements by the United States since that time.

Of the four categories of maritime issues that this study analyzes — sovereignty over maritime features, straight baselines, maritime zones and historic rights — the critique of straight baselines and the associated concept of entirety is distinct and worth discussing, given that the other three issues had been widely debated in the Law of the Sea community in the past few years.

Part IV of UNCLOS, which was launched in 1982, established a regime of archipelagic states and defined the rights and obligations arising from it. Some Law of the Sea analysts agree that a continental country that has oceanic islands does not enjoy the legal status of an archipelagic state; therefore the principles in Part IV do not apply to the oceanic archipelagos belonging to continental states.

Another position is that Part IV does not deny any rights or principles with respect to archipelagos belonging to continental states. The lack of specific arrangements for oceanic islands of continental states is the result of a compromise during the negotiations of UNCLOS III.

The interpretation and applicability of the island regime under UNCLOS has always been a question for debate. This was proved again in the South China Sea arbitration case between the Philippines and China.

Another associated question is how much weight an island may be given in maritime delimitation. It is a significant challenge, if not impossible, to define the legal status of each individual insular feature in the South China Sea and to evaluate the effect of them on maritime delimitation.

Applying the concept of the archipelagic regime to archipelagos in the South China Sea may provide an alternative.

First, it meets the criteria for a political, security and economic entity with interconnectedness. The political unity and economic integration of Spratlys (Nansha Islands), for example, are closely related. The islands’ economic integration or economic unity represent the close interrelationship between the insular features and the interconnected water resources.

Second, the historic criterion for the identification of the legal archipelago is provided as an alternative in case an archipelago cannot meet the other requirement. For example, the water-land ratio that is highlighted in the Limits in the Sea No.150 is based on Article 47 of UNCLOS. The four island groups in the South China Sea have been governed as a single entity throughout China’s administrations.

Although it is unclear what the specific requirements are for it to be a historical criterion, there is historical evidence that, for administrative or governance purposes, it only takes a short period of time to meet the requirement of consistently treating a particular archipelago as a single entity.

Third, some continental states have used straight baselines for their oceanic archipelagos, which may indicate that principles applicable to oceanic archipelagos of continental states are emerging. These include the Galapagos Islands (Ecuador), the Faroe Islands (Denmark), Houtman Abrolhos Islands (Australia), Canary Islands (Spain), Balearic Islands (Spain), Azores and Madeira Islands (Portugal), Turks and Caicos Islands (United Kingdom), Loyalty Islands (New Caledonia, France), Kong Karls Land (Svalbard, Norway), Coco Islands and Preparis Island (Myanmar), Andaman and Nicobar Islands. The Lakshadweep Islands (India), involve claimed rights over the sea areas around such archipelagos in their entirety, on the basis of drawing baselines (especially straight baselines) around the outlying archipelago as a whole.  

Fourth, one of the key elements during the negotiations on the concept of the archipelagic regime is the principle of balancing exclusive and inclusive interests of archipelagos (exercise of sovereignty) vis-a-vis those of third states (navigation, traditional fishing rights).

Archipelagic states achieved their main objective concerning the archipelagic concept, the unification of the waters of their archipelagos and the exercise of sovereignty over the archipelagic waters, while the interests of maritime powers were also secured through the navigation regimes, innocent passage  and archipelagic sea lane passage.

Applying an archipelagic regime in the South China Sea will serve to guarantee this important principle of balance in light of the needs of coastal states and the many user states in the region, the rights of oceanic islands of archipelagic states and those of continental states.

Compared with the straight baselines defined by Article 7 of UNCLOS, archipelagic baselines are less ambitious from a coastal state’s perspective and provide a more friendly environment for freedom of navigation. Applying the straight baseline from Article 7 means that waters within the line are internal waters, while waters circled by archipelagic baselines under Article 47 allow states to exercise innocent passage. Foreign vessels and aircraft may enjoy transit passage in the archipelagic sea lanes designated by coastal states. Neighboring States’ traditional fishing rights and other legal activities may be respected as well.

Applying an archipelagic regime in the South China Sea will balance the interests of coastal states and user states. It will benefit the stakeholders’ interest in freedom of navigation and will also serve to secure regional peace and stability. This approach will also address another concern expressed in the Limits in the Sea No.150 — “China’s requirement of prior permission for warships exercising innocent passage in the territorial sea and its restrictions on military activities in the EEZ.”

In addition to the heavy weight given to the critiques of “straight baseline” and “entirety” in this study, the Limits in the Sea No. 150 calls upon the rules-based international maritime order within the South China Sea and worldwide, highlighting the role of UNCLOS. China also never hesitates to voice its desire for a rules-based maritime order, recognizing the value of UNCLOS, while arguing that the role of customary international law should not be underestimated. It is directly linked to a long-standing and highly debated question on the preference between sources of international law.

In the context of the South China Sea, the question of whether the ratification of UNCLOS will deprive a coastal state of a claimed historical right is a typical example of the weight given to treaty law and customary international law. The question is who gets to write the codes on the rules-based order.

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