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| Shahriar Alam Mehedi Tapadar |
The
South China Sea (SCS) is a region of immense geopolitical and economic
significance, characterized by overlapping territorial claims and maritime
disputes. Central to understanding these complexities is the United Nations
Convention on the Law of the Sea (UNCLOS), which provides the legal framework
for activities in the oceans. Article 58 of UNCLOS, pertaining to the rights
and duties of states in the exclusive economic zone (EEZ), holds particular
relevance in analyzing the positions of the SCS claimant states. This article
will examine how key claimant states – China, the Philippines, Vietnam,
Malaysia, and Brunei – interpret and apply Article 58, highlight areas of
convergence and divergence, and offer recommendations for promoting stability
and adherence to international law.
(1) Understanding Article 58 of UNCLOS:
Article 58, titled "Rights and duties of other States in the exclusive economic zone," stipulates that all states, whether coastal or land-locked, enjoy the freedoms of navigation and overflight, and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships and aircraft. These rights are to be exercised "with due regard to the rights and duties of the coastal State" (United Nations Convention on the Law of the Sea, 1982, art. 58). Conversely, states exercising these freedoms are also bound to "have due regard to the rights and duties of the coastal State and to the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law" (United Nations Convention on the Law of the Sea, 1982, art. 58).
The crux of the SCS disputes, concerning Article 58, often revolves around the interpretation of "other internationally lawful uses of the sea," and the delicate balance between high seas freedoms and the sovereign rights of the coastal state within its EEZ.
(2) Positions of South China Sea Claimant States:
China: China, asserting its "nine-dash line" claim, holds a broad interpretation of its historical rights in the SCS, often viewing the waters within this line as its sovereign territory or subject to its historic rights, thereby asserting extensive jurisdiction (Hayton, 2014). While China ratified UNCLOS, its domestic legislation and practices often reflect an expansive view of its rights within its asserted EEZ and beyond. Regarding Article 58, China generally acknowledges the freedoms of navigation and overflight for foreign vessels, but its emphasis on "due regard to the rights and duties of the coastal State" often translates into demands for prior notification or permission for certain military activities (e.g., intelligence, surveillance, and reconnaissance – ISR operations) by foreign states within its claimed EEZ (Becker, 2018). This stance frequently clashes with interpretations of other states that view such activities as falling under high seas freedoms. China also emphasizes its right to regulate resource exploration and exploitation within its claimed EEZ and views foreign scientific research without its consent as a violation of its sovereign rights (Poling, 2017).
The Philippines: As a signatory and strong advocate of UNCLOS, the Philippines largely adheres to a strict interpretation of its provisions. Its claims are primarily based on geographical proximity and UNCLOS principles, including the establishment of an EEZ extending 200 nautical miles from its baselines. The 2016 Permanent Court of Arbitration (PCA) ruling in Philippines v. China affirmed the Philippines' sovereign rights over features within its EEZ, including parts of the Spratly Islands, and largely invalidated China's historical claims under the nine-dash line (Permanent Court of Arbitration, 2016; Batongbacal, 2016). From the Philippine perspective, Article 58 guarantees the rights of other states to navigation and overflight within its EEZ, but these activities must respect the Philippines' sovereign rights, particularly regarding resource management and environmental protection. It views China's activities, such as harassment of Filipino fishermen or construction on disputed features, as violations of its sovereign rights under UNCLOS.
Vietnam:
Vietnam, another strong proponent of UNCLOS, bases its claims on historical
presence and the principle of effective occupation over certain features, as
well as the establishment of its EEZ and continental shelf. Vietnam generally
aligns with the Philippines' interpretation of Article 58, emphasizing the
balance between high seas freedoms and the coastal state's sovereign rights and
jurisdiction within its EEZ. Vietnam has consistently protested what it views
as Chinese infringements on its sovereign rights, particularly concerning oil
and gas exploration activities and harassment of its fishing vessels within its
claimed EEZ. It upholds the right of unimpeded navigation and overflight for
all states but expects these activities to respect its sovereign rights and
jurisdiction under UNCLOS.
Brunei: Brunei has the smallest claim among the claimant states, primarily focused on its EEZ and continental shelf extending from its coastline. Brunei has generally maintained a low-key approach to the SCS disputes, preferring diplomatic resolutions. Its interpretation of Article 58 is consistent with other ASEAN claimant states, upholding the freedoms of navigation and overflight while asserting its sovereign rights within its EEZ. Brunei emphasizes the importance of peaceful resolution of disputes in accordance with UNCLOS.
(3)
Areas of Convergence and Divergence
Convergence: All claimant states, despite their differing interpretations of the extent of their claims, are signatories to UNCLOS and generally acknowledge its fundamental role in governing maritime activities. There is a general consensus on the freedoms of navigation and overflight for commercial vessels. Most ASEAN claimant states also converge on a "strict" interpretation of UNCLOS, emphasizing the coastal state's sovereign rights over resources and jurisdiction over certain activities within its EEZ, while acknowledging high seas freedoms.
Divergence: The most significant divergence lies in China’s expansive interpretation of its historical rights and its corresponding demands for prior notification or permission for certain military activities by foreign states within its claimed EEZ. This contrasts sharply with the interpretation of the United States and many other states that such military activities constitute "internationally lawful uses of the sea related to these freedoms" under Article 58 and do not require coastal state consent (Scott, 2016). The historical rights argument itself, as interpreted by China, is largely rejected by other claimant states and the international community, especially in light of the PCA ruling (Storey, 2016). Furthermore, the differing views on the legality of artificial island building and their entitlement to maritime zones also represent a significant divergence.
(4) Recommendations
To promote stability and adherence to international law in the South China Sea, the following recommendations are crucial:
Strict Adherence to UNCLOS: All claimant states must unequivocally commit to the full and effective implementation of UNCLOS, including its dispute settlement mechanisms. The 2016 PCA ruling, while not directly involving all claimant states, serves as a crucial legal precedent regarding the interpretation of UNCLOS in the context of SCS features and historical rights (Permanent Court of Arbitration, 2016).
Clarification of "Due Regard": International legal discourse and state practice should strive for greater clarity on the interpretation of "due regard" in Article 58, particularly concerning military activities and ISR operations in the EEZ. This could involve developing a common understanding or code of conduct for such activities to reduce misunderstandings and potential escalations.
Bilateral and Multilateral Dialogues: Continued and substantive bilateral and multilateral dialogues among claimant states, including within ASEAN frameworks, are essential. These platforms can facilitate discussions on practical cooperation, incident prevention, and confidence-building measures, thereby reducing the risk of conflict.
Code of Conduct in the South China Sea (COC): Expediting the finalization and effective implementation of a legally binding and enforceable Code of Conduct in the South China Sea is paramount. A robust COC should clearly delineate prohibited activities, establish communication channels, and provide mechanisms for dispute resolution.
Capacity Building and Transparency: Enhancing the maritime domain awareness and enforcement capabilities of claimant states, particularly smaller nations, can help in effectively asserting their rights under UNCLOS. Increased transparency in maritime activities and claims can also foster trust and reduce misperceptions.
Joint
Scientific Research and Resource Management: Where feasible
and agreeable, claimant states could explore joint scientific research and
resource management initiatives in less contentious areas of the SCS. This
could build trust and demonstrate a commitment to peaceful cooperation.
Respect for Freedom of Navigation Operations (FONOPs): While controversial for some, FONOPs by external powers, conducted in a manner consistent with international law, can help uphold the principles of freedom of navigation and overflight in the SCS, reinforcing the universal nature of these rights under Article 58.
(5) Conclusion:
Article
58 of UNCLOS is a critical legal instrument in understanding the complex
dynamics of the South China Sea disputes. While all claimant states acknowledge
UNCLOS, their interpretations and applications of Article 58, particularly
concerning the balance between high seas freedoms and coastal state sovereign
rights, vary significantly. China's expansive claims and practices pose a
notable challenge to the prevailing interpretations of other claimant states
and the international community. Moving forward, a renewed commitment to
UNCLOS, combined with enhanced dialogue, confidence-building measures, and the
timely implementation of a robust Code of Conduct, are indispensable for
fostering stability, promoting adherence to international law, and ensuring the
peaceful resolution of disputes in this vital maritime region.