Time to review law of the sea

Updated: 2011-08-30 08:10

By Li Jinming (China Daily)

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As tension heats up in the South China Sea, some bordering countries insist on solving the dispute simply within the framework of the United Nations Convention on the Law of the Sea (UNCLOS), but this insistence ignores history and violates inter-temporal law, a doctrine of international law.

As early as 1843, former United States secretary of state Abel P. Upshur wrote in an official letter: "A people's right to land discovered in the 16th century is determined on the basis of international law as understood at that time and not on the basis of improved upon or more enlightened views 300 years later."

Robert Y. Jennings, British scholar in international law and former president of the International Court of Justice, has said: "A juridical fact must be appreciated in light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises or falls to be settled."

Speaking of Chinese people's discovery of Xisha and Nansha islands, Choon-Ho Park, South Korean expert in the law of the sea, expressed doubt whether modern international law is fully applicable to the historical facts of pre-modern times, saying that the discovery and use of these islands should be in line with the circumstances of that time instead of the interpretation of modern laws.

L.F.L. Oppenheim's International Law: A Treatise says: "In former times, the two conditions of possession and administration, which now make the occupation effective, were not considered necessary for the acquisition of territory through occupation". In Oppenheim's opinion, in the age of discovery, some symbolic act other than "effective occupation" was enough to justify the acquisition of territory in light of the law contemporary with it. It was not until the 18th century that international law entailed "effective occupation", and only in the 19th century did countries conform to such regulations in their practices.

Viewed in this light, inter-temporal law can play a key role in solving historical territorial disputes. China's sovereignty claim over the Xisha and Nansha islands can be justified from two aspects.

On one hand, China's sovereignty claim over the Nansha Islands can be traced back to centuries ago when there were fewer conditions for establishing title. Just as Daniel J. Dzurek, an US geographer, wrote, because the Nansha Islands and reefs were minuscule and had little economic importance until the development of extended jurisdiction under the new law of the sea, the claimants made little effort to secure clear title to them by means of occupation.

On the other, in the early 20th century, China mainly occupied the major islets of the two archipelagoes, such as the Yongxing Island and the Taiping Island, because in light of the law of the sea in force at that time, a country did not have to occupy every islet, rock and reef to claim its sovereignty over an archipelago, especially when the rest of the islets were faraway and hard to be reached.

China did not often reiterate its sovereignty over the islands before World War II, because it was universally acknowledged that a country does not have to frequently claim its sovereignty when there is no strong sovereignty request from other countries. Such a principle has been widely adopted in solving territorial disputes, including the 1928 Island of Palmas Case, 1931 Clipperton Island Arbitration and the 1933 Legal Status of Eastern Greenland.

Although UNCLOS is now the law in force to regulate maritime activities, it cannot deny China's historical rights over the Nansha Islands. China's traditional maritime border took shape in 1947, 47 years before UNCLOS came into force in 1994, when concepts such as continental shelf and exclusive economic zone were not yet known. Just as Chao Kuo-tsai, an expert in international law at Taiwan-based "National Chengchi University", has said, vested right is restricted by the law contemporary with it and cannot be withdrawn by laws coming into force later.

Moreover, according to UNCLOS, a coastal country enjoys certain rights over its exclusive economic zone, but such rights are restricted to the natural resources and the country has no sovereignty title over the islands in the region. Therefore, the surrounding countries in the South China Sea cannot use the exclusive economic zone as an excuse to forcibly occupy China's Nansha Islands, even though some of these islands are less than 200 nautical miles from their coastal baselines.

After UNCLOS came into force, some surrounding countries in the South China Sea have been using its articles beneficial to them to claim sovereignty and jurisdiction rights over the islands, and thus intensifying the disputes. The intensified disputes make the implementation of UNCLOS questionable.

Kriangsak Kittichaisaree, former legal officer in Thailand's Ministry of Foreign Affairs, has said: "The 1982 Law of the Sea Convention merely set a 'goal' to be achieved but is silent as to the method to be followed to achieve it. It restricts itself to setting a 'standard', leaving it to the States themselves, or to the Courts, to endow this standard with specific content".

By manipulating the shortcomings of UNCLOS, the surrounding countries have forcibly occupied China's Nansha Islands, are hindering China's offshore oil drilling, and driving away and even sinking Chinese trawlers. Confronted with such threats, China should consider its own situation before enforcing UNCLOS, clearly stipulating its rights over its exclusive economic zone and continental shelf. This is a basic right of a sovereign country and the right way to defend the country's sovereignty and maritime interests.

The author is a professor at the Center for Southeast Asia Studies, Xiamen University, Fujian province.

(China Daily 08/30/2011 page9)