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A Case Study Of The Struggle Over South China Sea Territory Under The UN Convention On The Law Of The Sea's Principle For Joint Maritime Exploitation

The southern seas of Taiwan, the western seas of the Philippine islands, and the northern seas of Borneo are all included in the South China Sea. In the waters north of the Paracel/Xisha Islands and the Spratly/Nansha Islands, there are battles for competing interests. There are believed to be eleven billion barrels of oil and 190 million cubic feet of natural gas under the land in the South China Sea, which is the reason for these conflicts between various governments trying to gain from this region.

The majority of the region has been claimed by the People's Republic of China (hence "China" which has resisted claims made by the Philippines, Vietnam, Malaysia, and Brunei), While Taiwan has made a similar claim to China on its ownership of the South China Sea. The 1982 United Governments Convention on the Law of the Sea (UNCLOS 1982) contains regulations governing nations' rights to make claims for minerals found in seas where maritime-power nations are aware.

Therefore, the creation of an organisation for the advantages of the sea, engaged by representatives of contending members and representatives of neutral countries, is essential for the consolidation of the nations entitled to share in the benefits of natural resources. Such an institution ought to be dedicated to formulating binding laws that would ensure the safety and development of the area. The South China Sea is home to abundant natural resources, which are discussed in this article.

Many nations have made an effort to assert their right to exploit them. The study also examines how these nations defend their claims to the aforementioned natural resources and the roles that ASEAN integration and international law—specifically, the 1982 United Nations Convention on the Law of the Sea—play in resolving this contentious issue.

Introduction
The United Nations Convention on Law of the Sea 1982 relating to a Case Study of the Scramble for Areas in the South China Sea

There have been roughly 320 provisions and 9 annexes stipulated to control its state parties' compliance with the Convention on the Law of the Sea since the Third United Nations Conference on the Law of the Sea in 1973–1982. Additionally, no member state is permitted to make any reservations under the convention.

If the state parties can adhere to the conditions, they agreed upon for ratification 1, it can be said that the Convention fulfils its most ideal function as an international law that can control them not to carry out any actions under their sovereign power affecting rights to the exploration for and exploitation of the resources of the deep seabed.

Conflicts arising from the competition for natural resources in the sea and conflicts over the occupation of the air space over the territorial sea by extending national jurisdiction over 12 nautical miles in the high seas to have exclusive fisheries jurisdiction and regulate technology that can only be used by developed countries to carry out the mining in deep seabed so they can explore and consume natural resources in such area.

In reality, Mr. Arvid Pardo, who was serving as Malta's UN ambassador at the time, proposed the idea that natural resources in such a region should be considered a common legacy of humanity prior to the Third United Nations Conference on the Law of the Sea in 1967.

The Ad hoc Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction, or The Seabed Committee, was established by the General Assembly of the UN and later replaced by the Permanent Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction.

This was thought about and written in third UN Conference on the Law of the Sea and was provided in Part 11 of the Law of the Sea 1982 Convention stating that Area means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. The part contains the greatest number of provisions provided in the Convention, and it has caused controversies in negotiation.

Because they disagree with some of the terms and conditions outlined in Part 11, such as the transfer of technology to a developing country and the high payment of operating expenses in the Area, developed nations like the United States of America, the United Kingdom, Germany, and Japan largely refused to be bound by the Convention. State parties are aware of the marine code, which ought to be codified in every state party, nonetheless. Additionally, they believe that superpower states in the West are capable of leading by using technology to mine the deep seafloor.

Definition prescribed in the UNCLOS 1982

The seabed, ocean floor, and subsoil that lie outside the scope of sovereign jurisdiction are referred to as the Area. It refers to the seafloor and subsoil along the edge of the continental shelf, which are abundant in a variety of minerals that can exist as solid, liquid, or gas, including copper, cobalt, manganese nodules, and other metals.

An island is a piece of land that has formed naturally and is encircled by water that is high above the water. The territorial sea, contiguous zone, exclusive economic zone, and continental shelf of an island are identical to those of other lands. Except as stated in Article 121(3), which states that the Rocks should not have an exclusive economic zone or continental shelf because they are unable to support human settlement or economic life.

Therefore, Article 136 of the UNCLOS 1982 and the definition of Area shall take effect. The Article declares that natural resources are a common legacy of humanity and that no State, nor any State or natural or legal person, shall claim or exercise its sovereignty or sovereign rights over any part of the Area or its resources.

Any disputes over the seabed and subsoil must be resolved by mutual consent of the coastal states involved, as long as the seabed and subsoil belong to non-coastal states who have the legal right to exploit them in accordance with Articles 1376 of the UN Convention on the Law of the Sea and 1407, which was first proposed by Malta's ambassador to the UN, Dr. Alvid Pardo, in 1967. The Declaration of Principles Governing the Sea-Bed and the Ocean Floor and Subsoil was later formed from this notion. Finally, it was outlined in the UNCLOS 1982.

Maritime Zones under UNCLOS 1982

The UNCLOS 1982 has provided the maritime zones as shown in the picture below:
  1. Conflict on asserting rights over Islands in the South China Sea
    Islands in the South China Sea, including their topography and legal position The Spratly Islands, Paracel Islands, Pratas Islands, and Macclesfield Bank are the four island groups in the South China Sea. There are six disputing states, notably China, Taiwan, Vietnam, Malaysia, the Philippines, and Brunei, between two sets of islands: Paracel and Spratly. Indonesia is currently one of the states involved in conflict.

    The Spratly Islands are made up of about 150 naturally occurring islands, rocks, sand dunes, and other landforms, but fewer than 50 of these are truly islands under the definition outlined in Article 121(1), which states that an island is a naturally formed area of land surrounded by water that rises above the water at high tide.

    Additionally, it is believed that because the majority of the islands are so small, they should be regarded as dirty rocks. According to UNCLOS 1982's Article 121(3)9, a rock cannot have an exclusive economic zone or continental shelf if it cannot support human habitation or economic life.

    The Spratly Islands should not be regarded as islands because they are under water at high tide. As for reefs, shoals, and sandbars, they are not above water although water is at low tide. As a result, they cannot be under the sovereignty as prescribed by international law. If the provisions of the UNCLOS 1982 are applied to this fact, China shall have no rights to possess such area in the sea.

    As a result, a state has no authority to assert its sovereignty over territories that are in conflict with it if it cannot claim sovereignty over sea territory in areas that are above water at low tide. Is this accurate?

    In the instance of the territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea, the International Court of Justice's ruling established a precedent that can be used to address this subject (2007). Malaysia and Singapore were at odds over control of Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge (2008) 10.

    The decision of the International Court of Justice demonstrates how the way sovereignty is determined in relation to island possession affects the ownership of islands. This implies that exclusive economic zone rights (UNCLOS III. Art. 56) and rights of continental shelf (UNCLOS III, Art.56) shall be granted as prescribed in Article 121 (2).

    Article 121(3) states that an island that cannot support economic life or human settlement is not entitled to an exclusive economic zone or continental shelf. Construction and reclamation on the islands that were later reclaimed, which are now above water at high tide, contributed to the dispute in the South China Sea. This contradicts a clause in the Law of the Sea that says an island is a naturally created piece of land.

    Therefore, according to international law, China's reclaimed islands do not have the status of islands, and no exploration or exploitation is permitted there:
    1. Claim for rights over South China Sea
      Every state asserts its supreme claim to the South China Sea, and the Republic of China has always asserted its claims to the islands and maritime territory there. While Vietnam asserts ownership of islands and marine territory, the Philippines, Malaysia, and Brunei assert ownership of the 200-nautical-mile exclusive economic zone and the islands within it.
       
    2. Disputed Areas in the South China Sea as China Claim-Nine Dash Line
      China's claim is based on the Nine Dash Line's U-shape, which was depicted on a map of China in 1936. About 90% of the South China Sea's 3.5 million square kilometres, or marine territory, is covered by the Nine Dash's U-shape in historical times. The Eleven Dash Line used to be shaped like a U, but in 1953, China withdrew two of the Dashes that encompassed the Gulf of Tokin. Later, China added one Dash in 2013 to complete the U-shape, encompassing Taiwan.
       
    Map of the South China Sea as China Claim-Nine Dash Line
    The issue is that if China asserted its claims over the historical maritime territory known as the Nine Dash, which belonged to it, it would be in a position to control fishing, which would depend on the state's permission. Such a Chinese defence is comparable to the one made by the Indonesian island nation after UNCLOS III,1982, went into effect. As a result, Thailand could not assert its historical right to fish in the marine territory of the state of the islands if fishing occurs there and Indonesia must be paid fees. If this occurs, the offender will be charged with violating their sovereign right to exploit natural resources in the sea and will be arrested.

    It is obvious that claims made by coastal states regarding historical rights have led to claims for maritime rights going back further than any time when maritime laws permitted such claims to be made. It goes without saying that coastal governments have consistently asserted these rights until the rights are acknowledged by other states and recognised under the Law of the Sea. As a result, each of the rights—historical right, traditional right, and established right—conveys a distinct meaning.

    As it goes against the interests of other states, China's historical claim to the South China Sea has faced opposition. It's interesting to note that since there is no set rule in this area, claims for historical rights can be continuously created or eliminated based on the authority of all parties involved. Regarding its legal authority to utilise natural resources on maritime territory, any state may share or differ from other states' opinions.

    Take Australia as an example. The nation rejected Japan's historical claim that it had the right to explore the pearls on the Arafura Sea continental shelf. However, Australia made a solid case for accepting historical rights to engage in fishery activities in the contiguous zone at the Law of the Sea Conference in Geneva in 1958 because there are no other states' vessels engaged in fishing in areas close to Australia's shore.
     
  2. Modern theory related to claims for rights over the sea.
    Modern theory's foundation in relation to historical seas Prior to World War II, neither the exclusive economic zone nor the continental shelf was subject to claims. After World War II, the United States made the first continental shelf claim. China has yet to make a claim to any other sea region. Regarding historical sea territory, China followed western governments that have long made claims to such territory.

    China's claim to historical marine territory was made for the sea that is distant from the beach, contrary to a new argument put forth by anti-China nations that historical marine area may only be claimed if it connects to shores. This shows that China used broad provisions to establish a contemporary system of modern theory.
    1. Result of China's claim for historical rights

      China hasn't always been clear about the specifics of its South China Sea claim. However, the country's ability to control the South China Sea grows as its naval power increases.

      This shows that China bases its claims on historical marine territory established by the Nine Dash and asserts ownership of islands present within the territory in accordance with the ownership doctrine in order to reserve its rights to benefit from natural resources found in the sea as well as on land that is surrounded by water and under the sea.

      It's interesting to note that China has never asserted sovereignty over the historical marine territory in the South China Sea, as claimed in the historical marine territory, so it does not desire to do so. Due to China's failure to disclose its aircraft's sailing and route information over the region in order to avoid interfering with other governments' flight paths, other nations may have sovereignty over and possession of such other territory.

      Rights of sailing ships and flying are historical rights of China which can be approved based on facts and the rights are consistent with the provision as prescribed in the part of freedom of sailing ships and flying as provided in the Law of the Sea. However, whether the rights shall be approved or not depends on agreement from states in the international community which shall be proceed respectively.
       
    2. Legal status of islands in the South China Sea after the Second World War.
      Documents indicating rights over Paracel and Spratly Island were present during the period when World War II was on the verge of ending. The specifics are as follows:
      1. Cairo declaration of the leaders of the U.S., China and England on 1 December 1943 declaring that islands in the Pacific Ocean possessed by Japan were returned to China;
         
      2. Paus Adam declaration, a leader of the U.S., China, and England on 26 July 1945, Article 8 providing that Japan shall have sovereignty over Honshu, Hokkaido, Kyushu, Shikoku island and small islands.
         
      3. China - Japan Peace Treaty signed in Taipei on 28 April 1952, Article 2 stating that Japan shall give up its rights to possess Paracel and Spratly islands.
      As shown by the aforementioned facts, Japan apparently waived all claims to the Paracel and Spratly islands that were specified in the Treaty. According to the Cairo Declaration, China would receive the islands back. However, political issues prevented the islands from being given back to China. Communist China was in power in 1950, and it was engaged in conflict with the United States in Korea. China was not given the islands because it was an enemy of the United States.

      The United States believed that Taiwan might have been colonised by China if the islands had been returned to Taiwan, which represented China in the UN. It signified that the enemy got the islands back. The worried about this by the United Nations. The U.S. did not act according to what its leader had announced in Cairo. Rather, it left this issue to the states around China to fight for the islands.
       
    3. Claims of Vietnam, the Philippines, Malaysia, and Brunei
      The Nine Dash area consequently overlapped the exclusive economic zones and/or continental shelves of Vietnam, the Philippines, Malaysia, Brunei, and Indonesia when the new law of the sea allowed coastal governments to assert their rights to the exclusive economic zone and continental shelf. However, Indonesia, whose Natuna Island was covered by the Nine Dash, conducted diplomatic negotiations with China. Unlike the other four countries15, it did not protest. The Philippines, Malaysia, and Brunei in the past hid their intentions for years out of fear that they were requesting fewer advantages than their rival governments.

      As permitted by the United Nations Convention on the Law of the Sea, these states asserted their rights to the fullest extent possible. This can be claimed based on exclusive economic zone at 200 nautical miles and/or continental shelves depending on geographical characteristic. Besides, they and China claim on sovereignty over islands of Spratly Islands.

      Regarding Vietnam, it asserts ownership of the Paracel Islands as well as rights to an exclusive economic zone, continental shelf, and fishing and oil drilling concessions.
       
    4. Claim of Taiwan
      Since Taiwan is a part of China, its claim must be taken into account alongside China's. Since the National Commission, China's pre-Communist government, administered the country while it was based in Taiwan, Taiwan has claimed in accordance with the Nine Dash's U-shape, and the claim persisted even after the National Commission relocated there.

      When the National Commission ruled over mainland China, it only asserted claims to the islands in the Nine Dash U-shaped region and their respective territorial seas. (At the time, the law of the sea did not grant coastal states the authority to assert claims to the exclusive economic zone.)

      As for China, it took its claim to the historical naval region in the U-shape of the Nine Dash more seriously than Taiwan. If Taiwan's claim were successful, China would benefit since, if China and Taiwan were united, China would own all of Taiwan's acquired rights.
       
    5. Competition of construction in the South China Sea
      On Yongxing Island or Woody Island in the Paracel Islands, China constructed Sansha in 2012. Sansha has an area of 13 km2. It has a two-kilometer runway for aeroplanes, a pier for massive ships that can hold 5,000 tonnes of cargo, a post office, parking for helicopters, shelters for small warplanes, underground shelters for stocking oil and ammunition, banks, hospitals, and schools, as well as 1,000 residents.

This island serves as the South China Sea headquarters and contact point for the Chinese armed forces. As a result of such city development, Yongxing Island is now a populated island with the right to assert maritime claims against neighbouring states. China built buildings, piers, runways, and filled the sea.

China built a concrete structure with several stories, piers, a place for helipads, and a radar station on Mischief Reef in 1994. This island is located in the Philippines' exclusive economic zone, 209 kilometres from Palawan. China dredged up the sea and built a 3,110-meter runway on Fiery Cross Reef, which is located in the Spratly Islands. It also excavated sand and constructed piers. This island has a large pier that may be utilised by army ships and ships bringing oil as well as an airstrip for military aircraft. In order to create new islands in the Spratly Islands (Johnson South Reef, Cuarteron Reef, and Gaven Reef), China also dredged sand to replace areas where rocks and sand were present.

According to Mr. Albert del Rosario, the Philippine's minister of foreign affairs, China is in charge of some sections of the South China Sea. China covers seven rocks in earth on Spratly Island.

The Permanent Court of Arbitration's 2016 ruling makes it plain that China's claim to rights in the South China Sea conflicts with the convention's provisions. China has joined the 1982 United Nations Convention on the Law of the Sea. The Convention establishes that each state's maritime territory is 12 nautical miles from its shore and grants each state the ability to control economic activity in the sea 200 nautical miles from its coast. The award was rejected by China. China declares that the Court does not have jurisdiction on the conflict in the South China Sea.

Conclusion
All the ASEAN members, on the one side, and China, a superpower, on the other, are the disputing nations over the benefits in the South China Sea. China has an advantage over the ASEAN members in terms of economic development, particularly where the law of the sea does not contain any provisions covering the occupation of land through the effective development of buildings on artificial islands for the purpose of territorial expansion in the Area.

The likelihood of more states claiming to benefit from the sea in this situation is relatively low. This article advises that the contending nations come to an international agreement to govern the advantages in the region, in which the states entitled to claim for benefits should be all the states in ASEAN, both coastal and non-coastal states.

This is because the area's natural resources are regarded as part of humanity's shared heritage. In the aforementioned international agreement, the Permanent Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor outside the Limits of National Jurisdiction's Framework shall be introduced. This Permanent Committee ought to collaborate with an ASEAN member country representative-led working group.

This will demonstrate neutrality in not letting the sea-power countries monopolise the benefits from the sea but rather distributing them fairly among all states involved. To strengthen the balance of power in the South China Sea, where the United States has been playing an expanding role in this region, China should support such a notion.

References:
  1. M. Dixon.Robert C. Sarah W, Case & Materials on International Law ,Law of the Sea , United Kingdom, Oxford University Press,6 Edition,2011,P. 389. [2] Jantree Sinsuppraroek, International Law- The Law of the Sea, Bangkok, Nithitham Publishing, 3Edition, 2019, P.227. [3]Jantree Sinsuppraroek,International Law- The Law of the Sea,Bangkok, Nithitham Publishing, 3Edition, 2019, P.230.
  2. (United Nation Convention on the law of the Sea ,Art.121-Regime of Islands). [5] United Nation Convention on the law of the Sea III, Art.136-Common heritage of mankind.
  3. United Nation Convention on the law of the Sea III, Art.137- Legal status of the Area and its resources
  4. United Nation Convention on the law of the Sea III, Art.140- Benefit of Mankind.
  5. Jumphot Saisoonthorn,(1999),Explanation on The Law of The Sea: Territorial Sea, Supreme Court Library, Thailand, P 11. [9]Jantree Sinsuppraroek, The South China Sea Dispute, Bangkok, Nithitham Publishing House, 2018, P.65.
  6. M. Dixon.Robert C. Sarah W, Case & Materials on International Law ,Law of the Sea , United Kingdom, Oxford University Press,6 Edition, 2011, P. 251
  7. Somboon Sangiambu, Balance of Power part the Power into Balance, Pitsanulok-Thailand, Pibulsongkram-Rajabhat University, 2 Edition, 2020, Pp. 74-75.
  8. Somboon Sangiambut, Balance of Power part the Power into Balance, Pitsanulok-Thailand,Pibulsongkram-Rajabhat University, 2 Edition, 2020, P. 76.
  9. Somboon Sangiambut, Balance of Power,Bangkok, Patthana Co.,Ltd. Publishing,2015. Pp. 61-62.
  10. Somboon Sangiambut, ASEAN Community,
  11. Bangkok-Thailand, PatthanaCo., Ltd.Publishing,2015, Pp.75-76.
  12. Bangkok Post-News, Published on 4 April,2014.
  13. Bangkok Post, Published on12 October 2014.
  14. Bangkok Post, Published on 4 April 2014.
  15. Bangkok Post, Published on 18 April 2014.
  16. Bangkok Post, Published on 27 March 2015
  17. Permanent Court of Arbitration, Hague, 2016. [21] Jantree Sinsuppraroek, The South China Sea Dispute, Bangkok, Nithitham Publishing House, 2018, p.45.

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