Abstract
Entitlement to islands, rocks and low-tide elevations in the South China Sea is based either on historical claims under customary international law or on maritime claims under the United Nations Convention on the Law of the Sea 1982 (UNCLOS). China’s ‘entitlement’ to islands, rocks and low-tide elevations in the South China Sea is based on historical claims spanning over two thousand years. However, there are other littoral claimants such as Taiwan, the Philippines, Vietman and Japan, and what is more, the United States is implicated in Japan’s claim for historical and other reasons. The objects of this article are to evaluate the rule of law and geoeconomics in claims to islands, rocks and low-tide elevations in the South China Sea, especially the Philippines-China arbitration; to show that the historical and maritime claims intersect and collide; to evaluate the United States’ involvement and the Thucydides trap; and to articulate the reasons why geoeconomics should guide not only the interpretation of UNCLOS but also state responses in terms of joint development and unilateral strategies.
Highlights
The South China Sea covers an area of 648,000 square nautical miles and acts as a bridge between littoral states which include the People’s Republic of China, Taiwan, Brunei Darusalam, Cambodia, Indonesia, Lao’s People Democratic Republic, Malaysia, Myanmar, the Philippines, Thailand, Vietnam and, arguably, Singapore because one of Singapore’s islands – Pedra Blanca – is situated in the South China Sea just beyond the Singapore Strait (Zou, 2015)
The entitlement to islands, rocks and low-tide elevations in the South China Sea is based on claims to “territorial sovereignty” under customary international law which intersect and collide with maritime claims under UNCLOS
UNCLOS has no mechanism for determining sovereignty over contested islands and features but in creating rights of its own the word “sovereignty” redolent of territorial sovereignty was avoided; instead, the term “sovereign rights” was used to denote rights acquired over maritime zones (Crawford, 2012; Shaw, 2012)
Summary
The South China Sea covers an area of 648,000 square nautical miles and acts as a bridge between littoral states which include the People’s Republic of China, Taiwan, Brunei Darusalam, Cambodia, Indonesia, Lao’s People Democratic Republic, Malaysia, Myanmar, the Philippines, Thailand, Vietnam and, arguably, Singapore because one of Singapore’s islands – Pedra Blanca – is situated in the South China Sea just beyond the Singapore Strait (Zou, 2015). Claims to sovereignty over islands and low-tide elevations in the South China Sea and, one might add, over Senkaku/Diaoyu Islands in the East China Sea are based on acts of discovery, historic use, and occupation – a matter of customary international law. Since neither historical title nor the law of discovery and occupation can be understood in terms of treaty law and since no treaty law – including UNCLOS – can exhaust the rules of international law, the disputes in the South China Sea must be discussed in terms of the two legal systems outlined above and in terms of geoeconomics (the use of economic tools to achieve geopolitical ends) because the solution of overlapping and contested claims in the South China Sea is not achievable under the rule of law and states, as we shall see in this excursus, prefer to ignore the jurisdiction or the decision of an international tribunal. The themes to be discussed are as follows: the rule of law and geoeconomics in claims to islands, rocks and low-tide elevations in the South China Sea; the use of geoeconomic tools to achieve geopolitical ends; a critical analysis of the disputes in the South China Sea; UNCLOS, geoeconomics and thwarting the Thucydides trap; and the reasons why geoeconomics should guide the interpretation of UNCLOS and the formulation of development and unilateral strategies on the islands, rocks and low-tide elevations in the South China Sea
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