Overlapping maritime claims
On 18th July 2024, the Spokeswoman of the Vietnamese Ministry of Foreign Affairs (MOFA), Pham Thu Hang, made the statement following Vietnam’s submission on the limits of the extended continental shelf beyond 200 nautical miles with respect to Article 76 of the United Nations Convention on the Law of the Seas (UNCLOS). This article gives certain countries “extended claims” to up to 350 nautical miles. The Ministry even asserted that Vietnam has “fully legal and scientific bases” to demand the same in the central area of the South China Sea (SCS). Furthermore, at the end of the statement, the Vietnamese MOFA asserted its sovereignty over the Paracels and Spratly Islands. Earlier on 15th June, The Philippines Department of Foreign Affairs filed a claim with the United Nations to formally recognise the boundaries of its underwater continental shelf in the SCS, which also encompasses the Philippines’ rights over natural resources. Without any doubt, China has reacted strongly against both of these submissions. One common standpoint in China’s opposition is the unilateral character of these submissions to the Commission on the Limits of the Continental Shelf (CLCS). Second, China also places its disapproval within the context of violating the laws enshrined under the UN Charter, UNCLOS and the Declaration on the Conduct of Parties in the South China Sea jointly signed by the ASEAN and China.
However, submissions to the CLCS are not recent. The first series of submissions to the CLCS took place in 2009 with the submissions from Malaysia, Vietnam, Indonesia, China, Brunei Darussalam, and the Philippines. Malaysia and Vietnam made joint submission for a portion of the two States’ continental shelf, in the Southern part of the SCS. In response to this joint submission, China sent a letter to the United Nations along with a U-shaped line map. This was China’s first official claim over SCS with undisputable sovereignty and jurisdiction over the water, features, subsoil and sea bed, based on historical rights. Although China’s claims over the U-shaped lines or nine-dashed lines were considered illegal by the ruling of the Arbitration Court in 2016, China has consistently disregarded the ruling of the Tribunal on the grounds of historical rights backed by legal evidence.
Furthermore, in 2019, Malaysia’s partial submission to the CLCS, claiming the northern part of the SCS, also met similar objections from China, the Philippines and Vietnam. The Philippines and China have raised their concerns through the letters addressed to the Secretary-General of the United Nations. In response to Malaysia’s partial submission, the Philippines has pointed to overlapping claims over the Kalayaan Island Group and continental shelf. Whereas, China has invalidated Malaysia’s submission on the grounds of intrusion into China’s historical rights over the water and features of SCS in addition to subsoil and seabed. On a similar note, Vietnam also stepped in to address its concerns on the overlapping nature of Malaysia’s submission and China’s continuing claims over the features and water of Spratly and Paracels Islands, which is considered to be an infringement of Vietnam’s sovereignty and its historical rights over the same. To be precise, the submission to the CLCS has sparked diplomatic exchanges through formal notes among these Southeast Asian countries.
Irritants in this unending maritime dispute
Given the context, one of the irritants which has given shape to the existing dispute is the differences in perception regarding the measurement and drawing of baselines, historical rights, succession of rights from colonial powers, and current sovereignty issues. For instance, Spratly is an archipelago that comprises islands, islets, and corals. Not every features of Spratly are neither scientifically nor legally capable of meeting the definition of “islands” under Article 121 of the UNCLOS. Hence, it is not suitable to generate EEZ and a continental shelf. Secondly, prior to 2009 submissions to the CLCS, none of the countries, including China have officially released maps of their maritime areas. The third irritant pertains to China’s growing assertiveness in SCS, which has the potential to jeopardise peace, stability, energy exploration and freedom of navigation. Lastly, the conflict behaviour among these states are justified on the grounds of sovereignty, which tends to overlook the scientific and legal aspects of the UNCLOS. Hence, the amalgamation of such irritants has given rise to complexities which need to be resolved.
The legal aspect of maritime dispute resolution
However, looking at the basis of submission to the CLCS, states claiming rights over continental shelf have to produce scientific evidence in accordance to Article 76 (4) to (8) of the UNCLOS. The cases of disputes over continental shelves usually take place when two delimitation lines are not compatible and overlapping by nature. There are usually two types of disputes in this regard. Disputes over delimitation and dispute over sovereignty. These two are difficult to detangle from each other, given that both kinds of disputes are fought over the issue of sovereignty. The CLCS does not have a legal team to interpret the legality of the claims made by the states. Hence, the absence of legal character does not equip the CLCS to determine the legality of the claims made by the states. The CLCS interprets the aspects of the submissions in accordance to Article 76. Moreover, the states’ claims are examined by the team comprising experts from the field of geology, geophysics or hydrography. The Commission has only recommendatory powers, and the implementation of the recommendation is at the discretion of the states. The legal disputes arising out of the interpretation of the UNCLOS and examination of the legality of existing treaties are handled by the International Tribunal for the Law of the Sea (ITLOS). In short, the work of CLCS and ITLOS are complementary in nature, wherein the CLCS examines the scientific and technical basis of the submission, and ITLOS looks after the legal aspects behind it.
Given the context, differing statements and claims among some Southeast Asian countries and China points at the existing maritime dispute. In addition, not all states, like the Philippines and Malaysia share adjacent coasts with China. Only Vietnam and China have adjacent coasts. This makes the case complex, which will require a different delimitation methodology. The process of delimitation is done by ITLOS, guided by Article 83 of UNCLOS. So far, the ITLOS has dealt with cases of overlapping continental shelf of states only with adjacent not opposite coasts.
In case if these concerned states decides to resolve the existing maritime dispute through ITLOS, it will not only result in the delimitation of the maritime boundary but also ensure peace, stability and maritime security. However, whether such a move will act as a deterrent against China’s claims on SCS, the building of artificial islands and deployment of vessels to enforce the “nine-dash line” is hard to determine at this juncture given the heightened tensions in the SCS. In addition, the inconclusivity in regard to China’s adherence to rulings, acts like bottleneck in the overall maritime dispute resolution in the SCS.
Nonetheless for a sustainable maritime dispute resolution, maritime delimitation will be the solution to recognise the submissions to the CLCS, ensuring equitable distribution and utilization of natural resources.
