Legal and environmental regime of islands in the South China Sea: status under international law.

Publication: Global Jurist Topics

Publication Date: 01-DEC-04

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COPYRIGHT 2004 Berkeley Electronic Press

Abstract

The Spratly islands comprised an area of hundred and fifty features in the South China Sea (SCS) and on of the littoral States which have obtained their claims to sovereignty to them. The present article analyses under the rules of international law of the sea, the rules that govern the regime of islands. We should take in consideration that all the boundary States has claimed to sovereign over ths islands. China has put forward much documentation supporting the chinese claim based on historical and discovery occupation in the region. Taiwan demonstrates legal bases of claims in the SCS establishing a physical presence on the Spratlys after the japanese withdrawal after world war II. Other States that includes activities in the area of SCS is Vietnam, Philippines, Brunei and Malaysia. There is also explained that a discusses of a continental shelf, the maritime zones, the purpose of the boundary solution has involved also another point of analysis: the protection of the environment in the Spratly region and especially after the 1997. Governments of the region should have start to think and act seriously on environmental questions as a new consequences of various crisis in the last years.

KEYWORDS: spratly, islands, international status, environment

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The South China Sea (SCS) is a region of enclosed sea (1) with covers an area of some 800.000 square kilometers. It is a strategic waterway linking the Pacific and Indian oceans (2). The SCS is the maritime heart of a region bring in Southearn China (3) to Southeast Asia. The sea is of great importance economically, politically and environmentally to surrounding nations. High economic growth often coupled with depletion of natural resources, intensifies conflicts like the one in the South China sea (4).

Motivated by economic and geostrategic concerns, littoral states began in the late 1960 decade to make overlapping sovereignty claims to SCS islands. The major groups of the area of SCS are:

a) the Pratas (Dungsha);

b) the Macclesfield bank (Zhungsha) to which China and Taiwan claim chinese sovereignty;

c) the Paracels (Xisha) of ehich China/Taiwan and Vietnam contest each others claims and finally the Spratlys (Nansha) which are contested between other near states like China/Tawan, Vietnam, Malaysia and the Philipines. In addition some of the feature are situated in the exclusive economic zones (EEZ) claimed by Brunei (5).

There is also the idea of the geological stucture and geographical position may to be relevant when considering whether or not an island can generate maritime zones (6), was set out in the O.A.U Declararion on issues of the law of the sea in 1973. According to the draft article 2.2.: > (7).

The Spratly islands comprise an area of hundred and fifty features in the SCS and on of the littoral states have yet obtained for their claims to sovereignty to them. All the sovereignty claims to the Spratlys have weakness and thus each nation must know that is claim may not ultimately or completly prevail if the dispute were to be present to a tribunal or arbitrator. There is also the opinion that the sovereignty issue is totally and depriving the Spratly features of any weigh in maritime delimitation due to the complex situation of claims (8). The sovereingty issues are only half of the problem because the maritime zones and continental shelves must be delimeted as well (9). At the littoral states now thrive the strongest possible position or the maritime delimitation settlement. On the one hand if some of the island can generate maritime zones this would strongly influence the maritime delimitation in the SCS. On the other hand they are not granted maritime zones of their own the isolated outcropping scattered throughout the sea will have minimal effect on maritime delimitation (10). The delimitation of maritime bounderies is however difficult because many countries have not defined their maritime claims and often where they have done so, their claims are subject to multiple overlaps (11). The principles of international law have been thought to play a key role in resolving the dispute however thay may no necessarily provide a set of answers to absolutely evey issue. The littoral states acceptance of the United Nations Convention on the law of the sea and the conventions entry into force in 1994 (12) makes it most likely to assume that the legal rights put down in the convention will be a major took in solving the dispute (13). Article 121 of the UNCLOS, the regime of islands stipulates the basic rules regarding islands in international maritime law. In particular the article 121 support that:

a) <
b) Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive zone and the continental shelf (15) of a island are determined in accordance with the provisions of the convention applicable to other land territory (16);

c) Rocks (17) which cannot sustain human habitation or economic lige of their own shall have no exclusive economic zone or continental shelf>> (18).

The provisions are made subject to several different interpetation by states which makes the regime of island an even more complex issue. The nature of international legal processes does not support the possibility of swift changes. According to article 121.2, all islands qualifying the legal definition of an island found in article 121.1 (19) is entitled to maritime zones of national jurisdiction. The entitlement to the extensive maritime zones, the 200 nautical mile Exclusive Economic Zone (EEZ) and the continental shelf does not follow automatically from island status as defined in article 121.1. An exception is stated in article 121.3. Thus in order to decide whether or not some specific features should be entitle to maritime zones it is thus necessary first to conduct an analysis of the rules providing the definition of an island and islands entitlment to maritime zones (20).

The discussion is that we must find the rules and the laws that govern the regime of islands in the international law. We could take in consideration the role of the International Court of Justice, the establishment also of the International Tribunal of the Law of the Sea (21) and arbitrators in the definition of the law applicable to the delimitation of maritime boundaries, a similar contribution to the clarification of article 121 of the UNCLOS might be considered a possibility. There also a great number of circumstances which may cause tribunals and Arbitrators (22) to always address the issue for artcile 121 even if it is raised by one of the parties to the proceedings (23). The various cases concerning maritime delimitation which have been decided until in our days, have not accessed article 121 of the UNCLOS in any detail (24).

The entry into force of the convention strengthens the argument that the limitations on entitlements of features defined as such rocks, is customary international law (25). The status of article 121 of the UNCLOS was addressed in the Jan Mayen Consiliation. Interestingly the conciliation commission found that article 121 of the then Draft convention reflected >. In order to determine if a customary rule has emerged it is vital to not only find out if there exists a link consistent practice afferming it, but just as important to demonstrate that there exists a common obligation amongst states to comply with the rule, the opinion juris. Even if article 121. 3 (26) should represent general international law the use of a 121. 3 rock in an agreement to delimit the maritime boundary between states is not themsleves on a delimitation line that may even be inconsistent with general of convnentional international law unless third states are adversely affected.

In the article 31. 1 by the Vienna convention of the law of treaties (27) the general rule of interpretation it states that >. The continuous article is the basis on the fact that all states are sovereign and as such are only obligate by the treaties they themselves are parties to (28).

The concept of the dispute in the SCS area in regard to the maritime delimitation are basic of the law of the sea (29). We could observe an evolution of the international law of sea and in especially in the region of exclusive economic zones (30) and a continental shelf (31). On one hand any of the Spratlys have a right to an EEZ and a continental shelf than the high seas area will disappear or at last be strongly reduced. The islands will probably be given partial effect in the delimitation of...

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