United States: Navigating The South China Sea Dispute Through UNCLOS

Last Updated: July 9 2015
Article by Stefanos N. Roulakis

The South China Sea has historically been an area of competing maritime claims as well as a key area for international shipping, currently carrying more than half the world's international trade. China, to the consternation of its neighbors, has been undertaking a variety of construction activities in the South China Sea, such as constructing artificial islands on top of reefs, rocks, and other formations. The United States and several of China's neighbors, particularly the Philippines, have objected to these practices. This dispute may lead to problems for vessels transiting the South China Sea. Additionally, it may lead to an opportunity for supporters of the United Nations Convention on the Law of the Sea ("UNCLOS") to put pressure on the U.S. Senate to ratify, particularly since the U.S.' stance on the South China Sea issue is supported by UNCLOS.

While the policy debate surrounding the dispute in the South China Sea is defined by strategic, military, and foreign policy considerations, the legal framework for any path forward ultimately finds its basis in UNCLOS. Although the United States has signed UNCLOS, the U.S. Senate has not provided the "advice and consent" needed to ratify the treaty under the U.S. Constitution. UNCLOS' proponents argue that UNCLOS goes a long way to bolstering the U.S.' position on the South China Sea, particularly in limiting the claiming of a territorial sea around islands and protecting rights of innocent passage and freedom of navigation. Given these facts, the current dispute over the construction of islands in the South China Sea may give further attention for the U.S.' ratification of UNCLOS.

Background

Within the South China Sea, there are hundreds of reefs, rocks, atolls, cays, and other outcrops, which are subject to several, potentially competing, maritime claims from the surrounding countries of Vietnam, the Philippines, Malaysia, Brunei, and China, among others. Since early 2014, China has quietly undertaken land reclamation and construction activities on some of these outcrops, heightening tensions between the United States and China, and leading America to condemn these activities in official statements. While China maintains that it is merely asserting its sovereign rights in accordance with international law, the United States and other countries have cited concerns relating to the militarization of these outcrops. China counters that its actions are not novel under international law, and asserts that it has the right to develop its territory without interference.

At the time of writing, China has announced that it will complete its land reclamation activities in some islands, "as planned." China also emphasized that it respected international law with respect to freedoms of navigation and overflight. Despite these developments, tension remains.

Opponents are concerned that China has taken the position that these outcrops are "islands" under international law. Under UNCLOS, a state is afforded 12 nautical miles of territorial sea and a 200-mile "exclusive economic zone" ("EEZ") extending from the "low-water line along the coast." If China were able to assert that these outcrops met the definition of islands under UNCLOS, it would have the effect of dramatically extending China's territorial sea and EEZ hundreds of miles beyond the country's mainland. This would effectively turn some of the busiest shipping lanes in the world into an area largely under Chinese jurisdiction.

While the Philippines has filed for arbitration with the Permanent Court of Arbitration ("PCA"), China has claimed it is not bound by the arbitration and has released a legal brief to this effect. The United States has called for a resolution to the dispute under international law, but the U.S.'own checkered past with UNCLOS has made this call less credible.

UNCLOS in the United States

President Clinton signed the convention in 1994, but it was never ratified by the U.S. Senate. U.S. practice seems to support the notion that America considers itself at least partially bound by UNCLOS. In establishing the maritime boundaries of the United States, both Presidents Reagan and Clinton noted that they were acting in accordance with UNCLOS. President Reagan noted, "The United States will recognize the rights of other states in the waters off their coasts, as reflected in [UNCLOS]." United States Ocean Policy, statement by President Reagan, 22 I.L.M. 464 (Mar. 10, 1983). In signing the Convention, President Clinton noted that the U.S.' policy is "to act in a manner consistent with [UNCLOS]' provisions relating to traditional uses of the oceans and to encourage other countries to do likewise." Presidential Letter of Transmittal of the Law of the Sea Convention, Oct. 6, 1994, Sen. Treaty Doc. No. 103-39, at iii (1994). The administrations of George W. Bush and Barack Obama have also supported UNCLOS and urged the Senate to ratify it, but to no avail. Curtis Tate, "Senate Action on Treaty Could Unlock Arctic Riches, Panel Told," The News Tribune, July, 28, 2011. More recently, current U.S. Secretary of State John Kerry, acting in his previous role as Senate Commerce Committee chairman, held hearings regarding ratification of UNCLOS.

Further, U.S. courts have applied the principles of UNCLOS since it was signed by President Clinton. The courts either used UNCLOS under the principle that it was applicable as a signed (but unratified) treaty or that UNCLOS reflected customary international law. In the contexts of UNCLOS as a signed—but unratified—treaty, in 1994, the U.S. Court of Appeals for the Ninth Circuit used UNCLOS' innocent passage provision to resolve a mooring laws case near Hawaii. Barber v. Hawaii, 42 F.3d 1185, 1195-96 (9th Cir. 1994). Likewise, in 1996, the First Circuit Court of Appeals cited several of UNCLOS' articles, reasoning that they were valid since they were used in presidential proclamations. United States v. Ramirez-Ferrer, 82 F.3d 1131, 1136 n.4 (1st Cir.1996).

With respect to the view that UNCLOS constitutes customary international law, in 1999, the First Circuit referred to the applicability of some UNCLOS articles, stating "[t]he Convention has been signed by the President ... it has not yet been ratified by the Senate. Consequently, we refer to UNCLOS only to the extent that it incorporates customary international law." Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d at 304-05 n. 14 (1st Cir. 1999). The Fourth Circuit also cited provisions of UNCLOS law on salvage and freedoms on the high seas as binding, because, on the basis of customary international law, "exclusive judicial action beyond the territorial limits of a nation would disrupt the relationship among nations that serves as the enforcement mechanism of international law and custom." R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 968 (4th Cir. 1999).

Concerning those provisions of UNCLOS directly implicated by China's actions in the South China Sea, it should also be noted that they find common acceptance in U.S. law. For example, UNCLOS provisions ensuring freedom of navigation and the free movement of maritime commerce constitute bedrock principles of the U.S.' historic maritime policy priorities. The U.S. Coast Guard has stated that it operates as though UNCLOS is in effect, and the U.S. Military has long pushed for UNCLOS ratification.

Islands Issue under UNCLOS

While UNCLOS can provide the framework for resolving the issues in the South China Sea, the application of these principles is more complex. Essentially, the debate rests on two key issues. The first issue is sovereignty. Under UNCLOS, states have the right to construct artificial islands within their sovereignty, even within their EEZ, which extends 200 miles from a coastline. Additionally, states have the right to construct artificial islands on reefs or rocks that are considered sovereign territory. Thus, the threshold issue in the South China Sea is the validity of the claims that China, the Philippines, and Vietnam make to the various islands. Should these states have a valid claim on the areas they claim, UNCLOS does give certain rights as far as the construction of certain islands.

The second issue is the status of the territory in question and whether this would give rise to a territorial sea. Under UNCLOS, the type of territory in question is critical to determining the rights afforded to it. For example, while a state may construct an artificial island in its EEZ, such an island does not give rise to a territorial sea. Alternatively, a rocky, uninhabitable island can give rise to a territorial sea and exclusive economic zone; in fact, the United States uses these principles to determine its own maritime boundaries.

Ultimately, these are complicated issues with no clear answers. The first question requires a complex legal analysis of competing historical, colonial, and other claims. The second issue is a question based on fact. The fact that there is a dearth of legal precedent for determining what is an "artificial island" creates further difficulties.

The complexity of the questions presented by the issues in the South China Sea show gaps that currently exist in Public International Law. While the Philippines has sought to move the barometer on this point by submitting its claim to PCA, China's refusal to participate will prove a stumbling block. Additionally, if the United States were a signatory to UNCLOS, it would have more clout to speak on issues relating to the South China Sea. The questions presented by this dispute may give rise to renewed calls for ratification.

Looking Forward

The shipping industry and maritime community as a whole have benefitted from the freedom of navigation and growth in rule of law brought about by UNCLOS and other maritime treaties. Indeed, the maritime community has been a worldwide leader in advancing rules to facilitate a truly global industry. The current dispute is an opportunity for states to recall the principles enshrined in UNCLOS as they resolve their disagreements, particularly in areas of dispute resolution, and ensure that the important shipping lanes of the South China Sea remain open to maritime commerce.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Stefanos N. Roulakis
 
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