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1 UNCLOS AND MARITIME SECURITY IN THE SOUTH CHINA SEA Dr Nguyễn Thị Lan Anh 1 Abstract The South China Sea is a convergence of concerns about maritime security. With regard to traditional security, the escalating of conflicting territorial and maritime claims can lead to the sound of cannon in the South China Sea. In the perspective of non-traditional security, the degrading biodiversity of marine environment, the over-exploitation of marine resources, the menacing of freedom and safety navigation and over flight and the instability of livelihoods of coastal residents are the current threats. All of these prospects put maritime security in the South China Sea at a high alert. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is a multilateral and comprehensive legal framework which helps the countries promote peaceful, equitable and sustainable use and management of the sea with due regard to sovereignty of each other. With this objective, UNCLOS provides the basis for the countries in the South China Sea to curb and manage threats to maritime security. Although not create legal basis for solving sovereignty disputes, the Convention can be use to help the parties identify and narrow the subject of a sovereignty dispute. The Convention can provide a basis for the parties to make legitimate maritime claims and determine respective the rights and obligations of coastal states and other states. UNCLOS also establishes a mechanism for cooperation on environmental protection, marine scientific research and in particular cooperation obligations between littoral countries in the semi-enclosed seas. Dispute settlement mechanism of the Convention can be used to narrow down and proceed to resolve the dispute, in which countries are obliged to achieve temporary arrangements while pending for the final dispute settlement. In order to properly apply the provisions of the Convention to the specific situation of the South China Sea, countries should consider the Convention as legal basis to develop a legally binding code of conduct for the region. Maritime security is a relatively new concept and there are several approaches on its definition within the overall concept of security in international relations. Maritime security is developed to emphasize the importance of maintaining good order at sea in terms of the use and management of the marine resources for human development. In a hotspot like 1 Diplomatic Academy of Vietnam 1

2 the South China Sea, where sovereignty disputes and overlapping maritime claims are still escalating and complicated, the maintenance of maritime security is a vital issue, covering all aspects of traditional and non-traditional security. With regard to traditional security, the current tension and the modernization of army, particularly navy forces indicated that the parties had prepared for the use of force and armed conflict at regional level may occur. In non-traditional aspects, maritime and aviation safety, marine environmental protection, marine biodiversity and the maintenance of good livelihood for the people are among the fields that currently being seriously threaten. Moreover, countries in the region are largely dependent on marine economy. Maritime security will be crucial to the development and promoting cooperation among countries in Southeast Asia. The problem of maritime security can only be answered if the threats to maritime security was controlled and managed. In an attempt to find the tools to manage threats to maritime security, this paper will focus on the role of the Convention of the United Nations Law of the Sea 1982 (UNCLOS). UNCLOS was selected as a research tool due to the fact that almost all of the littoral states in the South China Sea are already members of the Convention. In addition, legal tools would be most suitable option for small and medium countries like those in Southeast Asia. With this objective, this paper will first explore the threats to maritime security in the South China Sea, analyze the relationship between UNCLOS and the threats, and then examine the role of the Convention in order to control and manage threats to maritime security. Threats to maritime security in the South China Sea The term maritime can be used as an adjective to refer to the sea space or can be understood as a field of international relations similar to political, economic, environment, etc. With the latter understanding, maritime security is a relatively narrow term, often used to emphasize security aspects of the use of the sea for the purpose of transportation and commerce. Accordingly, piracy, armed robbery at sea and accidents between vessels area threats to maritime 2

3 security. 2 With the former reference, sea space is similar to that of the mainland, hence maritime security is a broad term covering a number of security domains from traditional to non-traditional. Due to the spatial characteristic of the sea, maritime security in this sense emphasizes good order at sea. Accordingly, the sea is not only a source of resources, but also an environment for transportation, communication and commerce. 3 Order at sea should be maintained for human development and such order may be under threat from causes such as war, piracy, terrorism, proliferation, drug trafficking, and other illegal acts. The control of threats to maritime security will help ensure security on the mainland, ensure global stability and the maintenance of freedom of navigation would be beneficial to all countries. 4 The South China Sea is a semi-enclosed sea, containing enriches resources and a hub of important global shipping lanes. 5 Maritime security in the South China Sea is vital not only to the littoral countries but also meaningful for other user states. 6 Despite the wide or narrow interpretation, maritime security in the South China Sea is currently under threat. Firstly, the use of force and the occurrence of armed conflict in the South China Sea are possible. In the past two years, countries in the South China Sea has been continuously improving and modernizing their military forces, particularly navy. China led the way with increasing huge military budge every year. By 2010, military expenditure of China has risen to USD 78 billions. 7 China specially focused on developing navy forces. It built a nuclear 2 Michael McNicolars, Maritime Security: An introduction, Butterworth- Heinemann, Geoffrey Till, Seapower: A Guide for the Twenty-first Century, Taylor &Francis, 2009 p US National Strategy for Maritime Security: A Cooperative Strategy for the 21st century seapower, p.8 5 It is one of the most diversified tropical seas. The rich fishing stock, the high potential of hydrocarbon resources and the discovery of hybrid coal make the South China Sea become an attractive pool of resources. In addition, more than 41,000 ship, accounting for more than half of the world shipping volume sail through the sea annually. 6 E.g. although not the littoral states, Japan and Korea have transported 80% of their oil import through the South China Sea. 7 The official statistic on military expenditure of China announce on 4 March However, according to some Western sources, this number did not cover the expenditure for importing military equipment. In 2009 alone, the Ministry of Defense of the United States reveal that 3

4 submarine base at Sanya (Hainan Island) and equipped aircraft carrier and other modern weapons. Military strength of China has caused concern to the countries in the region and somehow forced them enter into an arms race in the region. Vietnam plans to buy six Russian-built kilo-class submarines. Singapore, Indonesia and Malaysia are each adding two submarines. 8 All these events show that the countries seem prepared for the worst scenario of the use of force and armed conflict in the South China Sea. This assumption has been more imminent when China conducted harassment activities to the seismic survey vessels of coastal states 9 and transmitted the messages that the littoral states should mental prepare for the sounds of cannons if they remain at loggerheads with Beijing 10. Secondly, the right to freedom of navigation of vessels and over flight of aircrafts could be affected. The incidents of EP3 and USNS Impeccable 11 revealed that in the situation of no armed conflict in the South China Sea, the interpretation and application of various legal provisions could still create a negative impact and impede vessels and aircrafts enjoy the freedom of navigation and over flight as provided for under international law. This prospect would even be more serious if armed conflict occurred as a large flow the total military expenditure of China reached USD 150 billions. Russia also announced that china has spent USD 17 billions to import military equipment from them from 2001 to Vinod Saighal, Is Time Running Out: The Urgency for Full, Final and Equitable Resolution of the South China Sea Imbroglio, Presentation at The South China Sea: Towards a region of Peace, Security and Cooperation, Hồ Chí Minh, E.g. the harassment to Philippines seismic survey vessel in the Reed Bank in March 2011 and the cut of seismic cable of the Bình Minh 02 and Viking of Vietnam in May and June Global Times, 25 November Although Chinese spokesman announce that the opinion of Global Times is not the official of Chinese government, the fact that an official voice of the Chinese Communist Party cover this view indicated that at least this was the view of majority leaders of Beijing or this can be considered as threaten policy of the country. Earlier in June, the Global Times already transmitted a similar message to Vietnam. 11 The first incident related to the crash between Chinese aircraft and the military EP3 of the United States on location of 70 miles away from Hainan Island on 1 April The second concerned the incident between Chinese navy ship and the Impeccable of the United States on the location of 75 nautical miles from the base lines of China on 8 March

5 of approximate 41,000 ships, accounting for half of global shipping, annually sail though the South China Sea. 12 Thirdly is the degradation of the marine environment of the South China Sea, which was consider as one of the highest biodiversity in the tropical seas. The statistic of the environmental programs of the United Nations showed that 80% of coral reefs in the South China Sea are at risk, mainly from human activities. Two-thirds of the major fish species and several of the region s most important fishing areas are fully or over-exploited by the destructed measures. 13 Finally, marine environmental degradation and the possibility of armed conflict also directly affect human security. According to incomplete statistics of the Centre for fisheries development in Southeast Asia, the number of fishermen in the region is of over two million people. 14 Fish production needed to serve human consumption and economic development is increasing. Fisheries and fish processing play an important role for the economy of the coastal countries, e.g. Indonesia, Vietnam, Thailand and the Philippines who are among the world top ten fish exporting countries. 15 Fish in the South China Sea region provides about 25% of the protein necessary for the 500 million people. 16 Meanwhile, with the destroyed coral reefs and mangrove, the habitat environment for fish is endangered. Fishes become smaller in size and fish production is also declined, even extinct species. 17 Moreover, fishing in the region currently has not been well managed. The phenomenon of fishing by using eradication methods such as using poison, causing environmental 12 Scott Snyder, Brad Glosserman, and Ralph A. Cossa, Confidence Building Measures in the South China Sea, Issues and Insights, No 2-01, Pacific Forum CSIS, 2001, p.4 13 Christopher John Paterson, UNEP/GEF Review of Coral Reefs in the South China Sea, 2006, p This number has not taken into account the fishermen of Vietnam. Source: (accessed on 31 October 2011). This statistic also did not count the large number of fishermen of China and Taiwan in the South China Sea. 15 Sources: World Review of Fisheries and Aquaculture, 2010, accessed at (accessed on 31 October 2011). China and Taiwan are alo leading fishery exporters in the world. 16 Scott Snyder et al, note 12, p Christopher J. Paterson, op.cit, note 13 5

6 pollution still occurs. Illegal, unreported and unregulated fishing is not controlled. 18 Disputes among littoral states over fishing rights have led to the arrest and confiscation of fishermen. All these factors show that threats to human security, namely to the livelihoods of fishermen in the coastal states, to the food security from aquatic species in the South China Sea. Most of the facts illustrated the maritime insecurity of the region derived from direct and indirect activities of the littoral states. Acts of arms race, enhanced law enforcement measures to control maritime zones are the direct cause leading to the threat of armed conflict threatening safety of maritime navigation and over flight, threatening to livelihoods of fishermen. These acts were conducted with the aim at fortifying sovereignty and maritime claims. At the same time, in an indirect way, the lack of control and cooperation on transnational issues such as control pollution sources, conservation of marine species has led to threats to the marine environment and the decline of marine resources. These acts caused by the fact that the sovereignty and maritime disputes has prevented the parties from cooperation due to the concern of recognizing sovereignty of each other. All in all, the root causes of threats to maritime security in the South China Sea is derived from the sovereignty and maritime claims and directly reflected through activities to reinforce such claims. The relationship between UNCLOS 1982 and threats to maritime security The 1982 United Nations Convention on the law of the sea is a package treaty, concluded after nine years and 11 sessions of negotiation from 1973 to The Convention is recognized as the world constitution of the sea with more than 300 articles and comprehensive provisions on ocean exploitation and management. The objective of the Convention is to promote the peaceful use of the sea, utilizing the ocean resources on the principle of equitable, sustainable, 18 Some countries like the Philippines and Indonesia start to estimate the effect of IUU fishing to their economies. This caused the strengthening in patrol and arrest of foreign fishing vessels. In addition, China was also active in sending petrol vessel to the EEZ of the littoral states to prevent the fishing and arrest fishing vessels of other countries. 6

7 and respects of sovereignty of each other. 19 Unfortunately, for security of the South China Sea, the Convention was considered as not playing an active role. 20 This assumption was firstly base on the reason that the root for the threat to maritime security in the South China Sea is the territorial dispute, but UNCLOS has no provision to regulate on this issue. Moreover, history of the South China Sea dispute showed that the dispute seems to be expanding and escalating due to the provisions of the Convention. The time that the Convention was negotiated coincided with addition of three new claimants, namely the Philippines, Malaysia and Brunei. 21 It is submitted that it was the new provision of the Convention on the legal regime of islands that opened the possibility of generating full maritime zone for islands had made the coastal countries recognize the importance of entities in the South China Sea and made new claims. 22 In addition, coastal countries intentionally explained and applied provisions concerning baselines and maritime zones in the most favor for their country. Hence, from the sovereignty claims over the islands, the dispute has expanded into maritime disputes. The parties have competed with each other in the exercise of sovereignty rights and jurisdiction in order to reinforce its claims and ultimately, this create threats to maritime security in the region. In the opposite perspective, however, one can also argue that it is completely no contradiction between the purpose of UNCLOS and maritime security to 19 Preamble of UNCLOS. For full text, see UN document No. A/CONF.62/122 (1982), or 20 This was the argument of Sam Bateman in UNCLOS and its Limitatiosn as the Foundation for a Regional Maritime Security Regime, Working paper, No. 111, Institute of Defence and Strategic Studies, Singapore, Philippines officially declared their first claim to 53 features of the Spratlys, named Kalayaan Group in It also reaffirmed the claim by a Presidential Act in Malaysia introduced a map on continental shelf and claimed a few features on that continental shelf in Brunei also published a map on fishery zone and continental shelf in , in with claim the Louisa Island. 22 The legal regime of island already provided for under Article 10 of the Convention on Territorial Sea in Article 10, however, only defined islands and allowed islands to delineate territorial sea. The provisions of UNCLOS has inherited Article 10 and develop further to open for the possibility of generating full maritime zone for islands under the conditions of having economic life of their own or sustaining human habitation. With the new development, the coastal states saw the potential of islands to expand their maritime zones. 7

8 maintain good order at sea. With the recent accession of Thailand, most of the littoral states, especially those are parties or have interests in the South China Sea disputes are already members of UNCLOS. 23 As a member, the coastal states are obliged to interpret and apply the obligations stipulated in the Convention in good faith on the principle pacta sunt servanda. 24 Accordingly, the provisions of the Convention shall be interpreted and applied for the purposes of the Convention and as such can not threaten maritime security in the South China Sea. Specific role of the Convention can be seen in the following aspects: The role of UCLOS 1982 in containing threats to maritime security Limit and clarify the subject of territorial claims For territorial claims, although contain no provision related to territorial sovereignty, UNCLOS can be applied to narrow and clarify the subject of territorial disputes. Currently, the subjects of sovereignty dispute that affect maritime security in the South China Sea are mostly mid-ocean islands of the South China Sea. 25 Countries often make general claims to a group of entities known as Hoang Sa, Truong Sa and Kalayaan. In fact, not all features of the Paracels and Spratlys or Kalayaan are eligible of the subjects of territorial disputes. Features on the sea can be divided into three groups, namely submerged features, low tide elevations and the islands. UNCLOS has given very clear 23 Thailand ratified UNCLOS on 15/5/2011, bringing all littoral states, except Cambodia a member parties of UNCLOS. 24 A basic principle of international law provided for under Article 26 of the Vienna Convention on the Law of Treaty, Article 2 of UN Charter and became an international customary with binding effect on all countries. 25 Despite territorial claims to mid-ocean islands, littoral states also have disputes over Sabah between the Philippines and Malaysia, over Preah Vihear Temple between Thailand and Cambodia. However, these disputes hardly create harmful effect to maritime security. In addition, disputes between Malaysia and Singapore over some islands namely the Sidadan, Ligitan and Pedra Branca have been suscessfully settled by jurisdictional measure in 2002 and

9 definition of an island as "a naturally formed area of land, surrounded by water, which is above water at high tide" under Article 121 (1). The criterion of "naturally formed", "surrounded by water" and "above water at high tide" must be combined to determine a feature as an island. These criteria eliminate human intervention to alter the format, structure and nature of the feature in order to form an island. Also, the criteria above at high tide also distinct islands and low tide elevations as the latter are only above water at low tide. 26 Features that are not even above water at low tide are submerged features and are the part of the continental shelf or seabed. Among these features, only islands satisfy to be subjects of territorial claims. Low tide elevations and submerged features can be used as the base points under certain conditions stipulated by UNCLOS 27 but cannot be the subjects of territorial claims. 28 Also, based on the view that the low tide elevations could not be fully assimilated with the islands, low tide elevation cannot be used as base points if they are located in zones of overlapping claims. 29 In addition, human intervention to build structures on a low tide elevation or a submerged feature can create an artificial island. However, artificial islands neither subjects of territorial claims nor can be freely built without the consent of coastal states. 26 Article 13, UNCLOS 27 Under Article 13(1) of UNCLOS, a low tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. In addition, under Article 7(4), straight baselines shall not be drawn to and from low tide elevations, unless lighthouses or similar installations, which are permanently above sea level, have been built on them. 28 In the judgment of the ICJ in the Qatar v. Bahrain case (2001), the legal regime of low tide elevations has been developed. By recalling the rule of Article 13(2), the conditions for a low tide elevation to be used as a basepoint under Articles 13(1) and 7(4) and reviewing the current treaty law and state practice, the Court concluded that the few existing rules do not justify a general assumption that low tide elevations are territory in the same sense as islands (para.206). Even though low tide elevations can be used as basepoints under the provisions of Articles 13(1) and 7(4), the law of the sea does not in these circumstances allow application of the so-called leap-frogging method as is still applicable in the case of two islands (para.207). 29 Although low tide elevations in Qatar v. Bahrain only located in the overlapping territorial sea, but para.209 did not narrow the limitation of the using such low tide elevations as basepoints in the overlapping territorial sea only. Therefore, it is submitted that low tide elevation cannot be used as base points if they are located in other overlapping maritime zones as well. 9

10 Once built up, artificial islands are only entitled a maximum safety zone of 500 meters, completely different from islands. 30 Thus, if related provisions of UNCLOS are interpreted and applied in good faith, the number of islands is eligible as the subject of territorial claims in the South China Sea will be much smaller than those are generally claimed at present. The parties cannot build constructions to turn submerged features or low tide elevations to islands in order to make territorial claims. Thereby, the proper application of the provisions of UNCLOS will help to clarify and narrow the subjects of territorial claims of the parties, thus restrain the occupation of submerged features or low tide elevations and build up construction on these features. Establishing the legal basis for maritime claims Regarding maritime claims, the doctrine of land dominates the sea codified in UNCLOS provided that the seas can only be generated from the title of territorial sovereignty. 31 Accordingly, the mainland of the coastal states can generate inland waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf. 32 Islands can also create full maritime zones as if they have their own economic life or be able to sustain human habitation. 33 If overlapping happen between maritime zones of opposite or adjacent states, maritime delimitation will be conducted for the equitable solution. 34 State practice in applying these provision of UNCLOS in the context of the South China Sea indicated the following remarks: Firstly, maritime zones generated from islands are still controversial issues due 30 Article 60, UNCLOS. Thảo luận về vai trò của đảo nhân tạo trong bối cảnh tranh chấp biển Đông, xem thêm: Zou Keyuan, The Impact of Artificial Islands on Territorial Disputes over the Sprattlys Islands, Presentation at The South China Sea: Towards a region of Peace, Security and Cooperation, Hồ Chí Minh, Judgment of the North Continental Shelf Case, Judgment, ICJ Reports (1969), p.3, para As provided for under Articles 2, 33, 57, 76, UNCLOS on the delineation of the maritime zones of coastal states. 33 Article 121 (3), UNCLOS 34 Article 74(3) và 83(3), UNCLOS 10

11 to ambiguous wording of the Convention. Parties to the dispute tend to their maximum interests by following broad interpretation of the two conditions of Article 121(3), economic life and sustain human habitation, in order to claim the full maritime zones to the mid-ocean islands of the South China Sea. However, this trend goes against the purpose of Article 121 (3) is to reduce the distortion between the effect of mainland and island in generating maritime zones. Article 121(3) was not a tool to expand maritime zones for the islands. 35 Secondly, the maritime delimitation has been consistently applied in state practice through a two-step process of first to draw an equidistant line and second to adjust such line for an equitable solution. 36 Among the criteria to determine the adjustment, the proportionality of the length of coastlines always has the strongest effect. This gives the rise that even though the islands in the South China Sea are claimed of generating full maritime zones, due to their small in size, the ratio of the coastlines of the island will be much less than those of the mainland of littoral states. Thus, a significant reduction must be given to the maritime zones of such islands. Recent judgment in the case between Romania and Ukraine have shown that in order to delimit maritime zones between the two countries, the court was not necessary to consider the Serpent Island was the island under para.2 (i.e. has full maritime zones) or islands under para.3 of Article 121 in order to delimit the overlapping maritime zones between the two countries. 37 In this connection and taking into account the geographical characteristic of the South China Sea, it is submitted that maritime claims to the mid-ocean islands is not important as the effect of these islands will sooner or later be reduced or even excluded in maritime delimitation with the maritime zones of the mainland. This conclusion is drawn notwithstanding the settlement of the sovereignty claims over such islands. 35 If not, Article 121 can stop at para. 2 with the provision that islands can be fully assimilate with mainland in generating maritime zones. 36 Provision of UNCLOS and state practice on maritime delimitation was analysed in Nguyễn Thị Lan Anh, Maritime Delimitation in International Law and the Impacts on the South China Sea Disputes, Presentation at The South China Sea: Towards a region of Peace, Security and Cooperation, Hồ Chí Minh, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61, para

12 Thirdly, in addition to the legal basis for the delineation of the maritime zones the seas, no historical basis is provided for under UNCLOS as legal basis for maritime claim. UNCLOS only refers to historic bay and historic title when it stipulates on the regime of bays, the delimitation of the territorial sea between states with opposite or adjacent coats and limitation and exception in dispute settlement. 38 To date, state practice consistently applies historical term to historic waters or bays to build their claims to internal water, but only under very strict conditions. Such conditions are (i) the actual, peaceful and long lasting exercise of coastal state authority over the claimed area and (ii) the recognition of foreign states to the claim. 39 There was no state practice satisfied such conditions in the South China Sea. 40 Therefore, it can be said that if the provisions of UNCLOS are applied in good faith, they will create legal basis for maritime claims of the parties. Accordingly, maritime zones should be generated from the entitlements over the mainland of the coastal states. Based on the peculiarities of nature and geography, mid-ocean islands in the South China Sea should not be claimed of full maritime zones, and even if there are such claims, these islands cannot enjoy full effect in maritime delimitation due to the overlapping with the maritime zone of littoral states. The maritime claims on historic basis are inconsistent with the provisions of UNCLOS. In this line, the coastal state should clarify their maritime claims, and from which non-disputed maritime zones will be estimated. Create a legal basis for good conduct UNCLOS not only provided for legal basis to delineate maritime zones, it also promulgated the legal regime of each zone. The legal regimes of marine zones are characterized by rights and obligations of the two groups of countries, coastal and other states. Other countries are obliged to respect the rights and 38 For example, Article 10(6) says that [t]he foregoing provisions do not apply to so-called historic bays ; Article 15 mentions by reason of historic title as the exception in applying the meridian line in maritime delimitation, etc. 39 UN Doc. A/CN.4/143, 9 March 1962, titled Judicial Regime of Historic Waters, Including Historic Bays, (1962) 2 Yearbook of the International Law Commission, p.3 at Littoral states in the South China Sea never expressly or impliedly recognized any maritime claims on the basis of historic title. 12

13 obligations of coastal states and vice versa. Accordingly, internal water and territorial sea are under the sovereignty of coastal states. Exclusive economic zone and continental shelf under the sovereign rights of coastal states in the field of exploration, exploitation, management and conservation of natural resources, natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil. The coastal states also have jurisdiction over the establishment and use of artificial islands, installations and structures, marine scientific research and the protection and preservation of the marine environment. 41 Other states are entitled to the right of innocent passage in territorial sea, the right of freedom of navigation and over flight and other internationally lawful uses of the sea related to these freedoms in the exclusive economic zone. 42 Taking into account the prospects of effect of islands in maritime delimitation and the rights of coastal states entitled under UNCLOS, the littoral states in the South China Sea enjoy full sovereign rights over the exploration, exploitation, conservation and management of natural resources within their exclusive economic zones. The harassment, threats to use force, use of force to seismic survey vessels, arrest of fishing vessels and unilaterally application of fishing ban in the exclusive economic economic zone and continental shelf of coastal States are violating the rights of coastal States under the provisions of UNCLOS. In their turn, coastal states should also respect the rights of other nations by not obstructing the freedom of navigation and over flight and not discriminately recognizing the right of innocent passage. Therefore, if UNCLOS is properly interpreted, the majority of the activities that claimants currently made to strengthen their sovereignty and maritime claims and caused insecurity to the region are violate the obligations of member states under UNCLOS. Interpretation and application of provisions of UNCLOS concerning rights and obligation of coastal and other states will help 41 Article 56, UNCLOS 42 Article 58, UNCLOS on freedom of navigation and over flight in the exclusive economic zone and Articles 17-26, UNCLOS on the right of innocent passage. 13

14 to contain the threats to maritime security in the South China Sea. Proposed mechanisms for dispute settlement Dispute settlement mechanism provided for under Part XV of UNCLOS is aim at helping member parties resolve their disagreements on the interpretation and implementation of the obligations of the Convention. Accordingly, UNCLOS reaffirmed the basic principle of settlement disputes between member parties by peaceful means. 43 In line with this principle, any dispute between the parties must firstly to be resolved through the exchange of views and conciliation. 44 If reasonable time has passed, yet the dispute has not resolved, the parties are obliged to compulsory settlement by judicial measures. UNCLOS offered the parties the choice of forum among the International Court of Justice, the International Tribunal on the law of the sea, arbitration under Annex VII and arbitration under annex VIII. Failing to make an option, arbitration under Annex VII is the compulsory fora. 45 Notwithstanding the compulsory nature, the Convention allowed the member states is to opt a number of disputes out of compulsory dispute settlement of Part XV, of which dispute concerning sovereignty and maritime delimitation can be reserved. 46 Accordingly China has made a declaration to remove the applicability of compulsory procedures of part XV in the settlement of disputes related to sovereignty and maritime. 47 Many scholars supported an optimistic view that other parties should convince China as major powers, to withdraw its reservations to facilitate the objective and long-lasting settlement of the South China Sea dispute. 48 Pending for such a move from China, the littoral states can still use dispute settlement mechanism of the Convention to resolve a dispute concerning the 43 Article 279, UNCLOS 44 Article 283 and 284, UNCLOS 45 Article 287, UNCLOS 46 Article 298, UNCLOS 47 China has made such a Declaration dated on 25 August 2006 For full text see 0Upon%20ratification (accessed on 31 October 2011) 48 Sunil Agarwal, Legal Framework and International Law in Determining the disputed area in the SCS, Presentation at South China Sea Dispute: Way to Peace, Stability and Development, Kuala Lumpua, October

15 interpretation and application of some provisions of the Convention, including a key article of 121. Such a request can be submitted to the International Court of Justice or the International Tribunal on the Law of the Sea for a contentious case or for advisory opinion. 49 In addition, in cases of emergency, in order to prevent the occurrence of irreparable consequences, the parties may request the International Court of Justice or the International Tribunal on the Law of the Sea to decide a provisional measure. 50 The utilization of the dispute settlement mechanism of UNCLOS in the current context can at least help the coastal State reach a consistent interpretation and application of a number of important provisions for disputes in the South China Sea and prevent the parties from conducting threats to maritime security. Develop mechanisms of cooperation Many threats to maritime security, especially non-traditional security have arisen as a result of the fact that claimant states consumed too much time to strengthen their claims and hesitated to cooperate to manage transnational problems due to the concern of recognizing the sovereignty claims of the others. UNCLOS sets out the framework of cooperation on the protection and conservation of the marine environment, 51 marine scientific research, 52 development and transfer of marine technology, 53 and respects of the rights of land locked or geographical disadvantage states China currently claims for full maritime zones of the Spratlys by the declaration in its Note Verbale sent to the United Nations dated on 14 April Meanwhile, other countries like Indonesia, Vietnam, and Malaysia in their declaration are of the position that islands of the Spratlys are rocks. This difference in interpretation and application of Article 121 of UNCLOS in the case of the Spratlys can be submitted to ICJ or ITLOS. 50 Pursuant to Article 290, UNCLOS. In the practice of the ICJ and ITLOS, the Courts have considered to decide provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. For example, ITLOS considerd provisioanl measures in MIV SAIGA (Provisional Measures), ITLOS Reports 2, 1988, 21, Southern Bluefin Tuna, Order of 27August 1999 and Mox Plant, Order of 3 December For further, see Thomas A. Mensah, Provisional Measures in the International Tribunalfor the Law of the Sea (ITLOS) Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Part XII, UNCLOS 52 Part XIII, UNCLOS 53 Part XIV, UNCLOS 54 Articles 69, 70 and phần X, UNCLOS 15

16 Moreover, related specifically to the context of the South China Sea, the coastal states are obliged to achieve a temporary arrangement while pending for final solutions under the provisions of Article 74(3) and 83(3). 55 UNCLOS did not prescribe specific forms of interim arrangements, however, it is submitted that cooperation and joint development are well fit within these obligations. In addition, surrounding a semi-enclosed sea enriching with diversify tropical marine resources, the coastal states are also obliged under Article 123 to cooperate directly or through an appropriate regional organization in order to (i) management, conservation, exploration and exploitation of the living resources, (ii) coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment, (iii) coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; and (iv) invite, as appropriate, other interested States or international organizations to promote the implementation of this obligation. In short, while waiting to reach a permanent solution to the sovereignty dispute, countries should cooperate with each other in the areas under the provisions of articles 123 to control the threats to non-traditional security in the South China Sea. In way of conclusion The arguments in this paper demonstrated that if the provisions of UNCLOS are explained and applied in good faith in accordance with treaty obligations of member states, almost all of threats to maritime security in the South China Sea are able to contained and managed. The difficulty is that not all relevant 55 Articles 74(3) và 83(3) stipulated that pending final solution, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation 16

17 provisions of UNLOS to the South China Sea are clearly defined and easy to apply, e.g. Article 7 on straight baseline, Article 121 on the legal regime of islands, Article 58 on rights and obligations of other states in the exclusive economic zone. These articles have raised much of controversy and caused the lack of uniformly applied in state practice. To some extent, they are utilized to serve the interests of a certain country, complicated the disputes and threaten maritime security in the South China Sea. This can be justified by context of negotiating of UNCLOS and the aim of developing a general treaty applicable for the entire ocean in the world. Meanwhile, the South China Sea contains in its self a unique rich and diversify marine environment as well as the most complicated sovereignty and maritime dispute that has made it a hot spot of maritime security. The specific characteristics of the South China Sea show that the interpretation and application of the provisions of UNCLOS in good faith is vital but not sufficient. The littoral states, particularly the claimants to the dispute should be based on the Convention to develop a legal documents of the region, e.g. in the form of a legally binding code of conduct, to ensure the uniform application of UNCLOS and thereby effectively control and manage threats to security in the South China Sea. 17