International Law and the Dispute over the Spratly Islands: Whither UNCLOS?

Abstract

Where does the United Nations Convention on the Law of the Sea (UNCLOS) sit vis-a-vis the ongoing disputes over the Spratly Islands? The present row between the Philippines, China, and Malaysia over their respective claims to the Spratly archipelago highlights the tendency of policy officials and the political leadership to invoke the name of UNCLOS to either justify their claims and/or to cast aspersions on the behaviour of other claimants. This discourse, however, reveals the poor understanding that many have of UNCLOS, its provisions and the extent to which it can provide a workable framework for resolving this particular jurisdictional dispute. This article reviews the relevant terms and articles contained in UNCLOS and provides a realistic assessment of its potential contribution. In addition to highlighting the strengths of UNCLOS, the discussion will also point to its very real limitations. Introduction The recent tension between China and the Philippines over their respective claims to the Spratly Islands is the latest round in a territorial dispute that has plagued the Asia-Pacific region for several decades. Thus far, the Spratlys conflict has eluded any sort of lasting settlement. Instead, the frequent (almost annual) diplomatic confrontations and the occasional military tensions over the islands have been managed in a piecemeal and ad hoc way by the six states involved - Brunei, Malaysia, the People's Republic of China (PRC), the Philippines, the Republic of China (ROC) on Taiwan, and Vietnam (the Spratly six). Whenever tensions arise, there is a flurry of activity -- Philippine air force jets fly over Mischief Reef taking pictures of China's latest renovations to its structures on the reef, communiques are sent, and diplomats are dispatched. While a region-wide military crisis has been averted thus far, many analysts and policy-makers agree that this annual pattern is too risky to continue indefinitely. The threat that this ongoing dispute presents to regional stability calls for a more stable mechanism to resolve it peacefully. In the midst of the accusations and the ongoing search for solutions, officials from virtually all of the concerned governments have invoked the United Nations Convention on the Law of the Sea (hereafter referred to as UNCLOS or the Convention) to justify their own behaviour while also casting aspersions on the behaviour of the other(s). Having been signed and ratified by all of the Spratly six, [1] UNCLOS represents the only framework/set-of-rules that has been commonly agreed upon for establishing oceanic boundaries. As a result, it offers the claimants a common foundation from which to begin their negotiations. UNCLOS, however, is not without its own shortcomings. While it is a useful piece of international legislation, it cannot be applied blindly to the Spratly conflict. Although the Spratlys conflict is in many ways a straightforward territorial dispute, it is also a function of the region's unique set of historical and geopolitical considerations that challenge the ability of the Convention to provide an authoritative framework that all the parties can use. Consequently, applying the Convention to this particular issue requires special consideration. UNCLOS, of course, does not seek to resolve territorial disputes. Rather, it is meant to provide a standard against which any co-operative arrangement regarding the Spratlys should be measured. The purpose of this article is to discuss whether or not the Convention is, on its own, an appropriate guide. In order to do this, the article will provide an overview of the history and genesis of the Spratlys dispute and, in doing so, review each government's claim. The article will then examine some of the Convention's key provisions. Set against this backdrop, the assessment will highlight some of the challenges UNCLOS confronts in trying to provide the claimants with a workable framework. …