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The Impact of the Law of the Sea

Convention on Conflict and Conflict
Management in the South China Sea
a b b c
Yann-huei Song & Stein Tønnesson
a
Institute of European and American Studies, Academia Sinica ,
Taipei , Taiwan , Republic of China
b
East Asian Peace Program, Department of Peace and Conflict
Research , Uppsala University , Uppsala , Sweden
c
Peace Research Institute Oslo (PRIO) , Oslo , Norway
Published online: 05 Aug 2013.
To cite this article: Yann-huei Song & Stein Tønnesson (2013) The Impact of the Law of the Sea
Convention on Conflict and Conflict Management in the South China Sea, Ocean Development &
International Law, 44:3, 235-269, DOI: 10.1080/00908320.2013.808935
To link to this article: http://dx.doi.org/10.1080/00908320.2013.808935
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Ocean Development & International Law, 44:235–269, 2013
Copyright © Taylor & Francis Group, LLC
ISSN: 0090-8320 print / 1521-0642 online
DOI: 10.1080/00908320.2013.808935
The Impact of the Law of the Sea Convention

on Conflict and Conflict Management in the South
China Sea
YANN-HUEI SONG
Institute of European and American Studies
Academia Sinica
Taipei, Taiwan, Republic of China, and
Downloaded by [212.144.234.36] at 04:28 25 August 2015
East Asian Peace Program, Department of Peace and Conflict Research

Uppsala University
Uppsala, Sweden
STEIN TØNNESSON
East Asian Peace Program, Department of Peace and Conflict Research
Uppsala University
Uppsala, Sweden, and
Peace Research Institute Oslo (PRIO)
Oslo, Norway
This article examines the impact of the UN Law of the Sea Convention on conflict
behavior and management in the South China Sea during four periods: during its
negotiation (1973–1982); from its signing to the entry into force (1982–1994); from
then until the China-ASEAN Declaration on the Conduct of Parties in the South China
Sea (1995–2002); and from the setting of a timeline for outer limits of continental shelf
submissions to the events following the 2009 submissions (2003–2013). Ambiguous
effects were found. On the one hand, the Convention has generated or exacerbated
conflict by raising the stakes, failing to resolve key legal issues, and encouraging
overlapping zone claims. On the other hand, it has provided obligations, language, and
techniques for conflict management and resolution. The conflict-enhancing impact was
found to have been more substantial than the peace-promoting effects. Nevertheless,
the balance has shifted toward more emphasis on conflict management and also some
utilization of the Convention’s peacemaking potential. If this long-term trend continues
and the Convention is more rigorously respected and applied, the Convention may in
the end be found to have contributed to regional peace.
Keywords dispute resolution, South China Sea, UN Convention on the Law of the Sea
Received 2 October 2012; accepted 14 January 2013.

This article builds on a paper presented at the workshop “Securing Maritime Peace in East Asia:
The Role of International Law,” held at the University of Central Lancashire, Preston, England, 23–24
April 2012. The authors thank all workshop participants for helpful suggestions and comments.
Address correspondence to Yann-huei Song, Institute of European and American Studies,
Academia Sinica, Nangang (115), Taipei, Taiwan, R.O.C. E-mail: yhsong@sinica.edu.tw; or Stein
Tønnesson, Peace Research Institute Oslo (PRIO), Box 9229 Grønland, N-0134 Oslo, Norway.
E-mail: Stein@prio.no
235
236 Y.-h. Song and S. Tønnesson
Introduction
The year 2012 marked the thirtieth anniversary of the United Nations Convention on the
Law of the Sea (LOS Convention),1 which was adopted by the Third United Nations
Conference on the Law of the Sea (UNCLOS III) and opened for signature, together with
the Final Act of the Conference, at Montego Bay, Jamaica, on 10 December 1982. The
Convention, considered “[a] Constitution for the Oceans,”2 consists of 17 parts, 9 annexes,
and 320 articles. Designed to regulate the use and utilization of 70% of the earth’s surface,
the Convention has been praised as the most comprehensive political and legislative work
ever undertaken by the United Nations. Numerous new concepts related to the use of the
oceans were developed such as transit passage; archipelagic waters; exclusive economic
zones (EEZs); and the International Seabed Authority. The Convention entered into force
on 16 November 1994 and, as of 30 January 2013, 165 states and entities were party to it.
All of the countries bordering the South China Sea are parties to the LOS Convention,
with the exception of Cambodia and the Republic of China (Taiwan) (see Table 1). Although
Taiwan is not a party, its government has agreed to be bound by the treaty on a voluntary
and reciprocal basis.3

It is stated in the Preamble of the LOS Convention that the codification and progressive
development of the law of the sea “will contribute to the strengthening of peace, security,
co-operation and friendly relations among all nations in conformity with the principles
of justice and equal rights.” The question discussed in this article is: If this happened in
the South China Sea during the period when the Convention was negotiated (1973–1982)
and in the 30 years after it was adopted (1983–2013), has the Convention strengthened
peace, security, cooperation, and friendly relations among the South China Sea countries?
Table 1
Signature and ratification of the LOS Convention by countries bordering the
South China Sea
Country Signature Ratification

Brunei Darussalam 5 December 1984 5 November 1996
Cambodia 1 July 1983 (Not yet)
China 10 December 1982 7 June 1996
Indonesia 10 December 1982 3 February 1986
Malaysia 10 December 1982 14 October 1996
Philippines 10 December 1982 8 May 1984
Singapore 10 December 1982 17 November 1994
Taiwan (Republic of China) N/A∗ N/A∗
Thailand 10 December 1982 15 May 2011
Vietnam 10 December 1982 25 July 1994
∗
The Republic of China was unable to sign the United Nations Convention on the Law of the Sea
(LOS Convention) because of its exclusion from the Third United Nations Conference on the Law
of the Sea (UNCLOS III) at the insistence of the People’s Republic of China, which took over the
Chinese seat in the United Nations just before the conference began. Taiwan has also been barred
from acceding to the Convention because Article 307 provides that “[t]his Convention shall remain
open for accession by States and the other entities referred to in Article 305.”
Source: United Nations–Treaty Collection on the Internet, Chapter XXI, LAW OF THE SEA, 6.
United Nations Convention on the Law of the Sea, available at treaties.un.org/Pages/ViewDetailsIII.
aspx?&src=TREATY&mtdsg no=XXI∼6&chapter=21&Temp=mtdsg3&lang=en.
The Law of the Sea in the South China Sea 237
Or has it instead disrupted the peace and undermined cooperation by raising the stakes of
sovereignty disputes? This is part of a larger question concerning the impact of law on
international relations: Does international law promote peace and cooperation, or create
new battlegrounds? If both, which effect is predominant?
The question in the context of the South China Sea is whether the LOS Convention
has exacerbated sovereignty and maritime disputes by encouraging conflicting claims, or
whether it has constrained aggressive behavior and helped manage or resolve disputes
among the countries involved.4 It is immediately clear that one of the main sources of
rising tension and escalation of conflict in the South China Sea has been the EEZ and
continental shelf claims made by states on the basis of the provisions in the Convention.
States have enacted domestic maritime legislation in accordance with the provisions and
established maritime zones that overlap with zones claimed by other states; this has given
rise to conflicts, which have threatened peace and stability. On the other hand, the parties to
the disputes, as well as other countries concerned, have repeatedly urged that the conflicts
be dealt with by peaceful means in accordance with international law. The rules and proce-
dures of the Convention have been used to successfully delimitate maritime zones through
negotiation in many parts of the world, including the margins of the South China Sea, and
such rules have been further developed by precedents set in third party adjudications and
negotiated treaties concerning various parts of the world’s coastal waters. The Convention
and these precedents could serve a peace-promoting function in hotly disputed areas such
as the South China Sea. It could also be argued that the main sources of tension have
not been the national legislation and other actions that comply with the provisions of the
Convention, but the tendency of states to make extravagant claims with no or scant basis in
the treaty.
The above are the questions to be discussed in this article, which mainly deals with
Parts V, VI, VIII, and IX of the Convention about, respectively, the EEZ, the continental
shelf, the regime of islands, and the semienclosed seas. Although the question of whether
or not there is an area (a “donut”) in the middle of the South China Sea beyond the national
jurisdiction of states over the continental shelf, as measured from any side, is important,
this question has not so far had much impact on tension or cooperation among the interested
countries. This article also does not discuss the issue of navigational rights, although this
is highly relevant to how international law affects conflict behavior. The main reason for
omitting this question is that the conflict over navigational rights within the territorial sea
and EEZ is primarily between China and countries outside the region, such as Australia,
India, Japan, and in particular the United States, not between the local states. Moreover the
LOS Convention’s provisions concerning the freedom of navigation were not new having
been agreed on earlier in the 1958 Geneva Conventions.5
At the level of official rhetoric, peace and law walk hand in hand. Since 1995, all the
member states of the Association of Southeast Asian Nations (ASEAN) have publicly and
repeatedly agreed to seek a peaceful resolution of the South China Sea disputes and they
have explored ways and means to prevent conflict and enhance cooperation consistent with
the provisions of the relevant treaties, declarations, and international law, including the LOS
Convention.6 China joined the member states of ASEAN at the third meeting of the ASEAN
Regional Forum (ARF), held in Jakarta in July 1996, and agreed to seek solutions to disputes
by peaceful means in accordance with international law in general and the LOS Convention
in particular.7 The political commitment made by the ASEAN member countries and China
15 years ago remains valid today. At the sixth East Asia Summit in Bali, November
2011, the 18 national leaders or their representatives recognized that “the international law
of the sea contains crucial norms that contribute to the maintenance of peace and stability
in the region” and reaffirmed their determination “to promote a democratic and just world
order based on the supremacy of principles and norms of international law, and on the need
to use relevant multilateral instruments, finding solutions to regional and global problems
through concerted efforts.”8 At the twentieth ASEAN Summit in April 2012, the 10 leaders
of the ASEAN member countries agreed to uphold “the universally recognized principles
of international law, including the 1982 United Nations Convention on the Law of the Sea
. . . , and to move for the eventual realization of a regional code of conduct. . . .”9 They also
reaffirmed the importance of the 2002 China-ASEAN Declaration on the Conduct of Parties
in the South China Sea10 as a milestone document that embodies the collective commitment
to promoting peace, stability, and mutual trust in the South China Sea and to ensuring the
peaceful resolution of disputes in this area in accordance with the UN Charter and the
universally recognized principles of international law, including the LOS Convention.11 In
July 2012, the foreign ministers and representatives of the nineteenth ASEAN Regional
Forum “called upon all parties to undertake peaceful resolution of the disputes in the
area in accordance with the recognized principles of international law, including the 1982
UNCLOS.”12 At the twenty-second ASEAN Summit in Bandar Seri Begawan, Brunei,

24–25 April 2013, the ASEAN member states reaffirmed their collective commitment to
“ensuring the peaceful resolution of disputes in accordance with universally recognised
principles of international law, including the 1982 UN Convention on the Law of the Sea,
without resorting to the threat or use of force, while exercising self-restraint in the conduct
of activities.”13 It is clear that the LOS Convention is generally considered to play a crucial
role in helping manage, if not resolve, maritime disputes.
This article examines the impact of the LOS Convention on conflict and conflict
management in the South China Sea in four periods since 1973. The key questions to be
asked for each period are:
• Did the LOS Convention exacerbate maritime disputes by encouraging conflicting
claims? Or
• Did the LOS Convention help manage or resolve conflicts?
The article is organized as follows. First, it examines the sovereignty and maritime
claims made by the countries that border the South China Sea before the adoption of the
LOS Convention, together with a discussion of their positions taken during UNCLOS III
(1973–1982) on some of its key articles. Then, the next three sections discuss the impact
of the Convention on conflict and conflict management in the South China Sea during
1982–1994, 1995–2002, and 2003–2013, respectively. The final section provides an overall
assessment of the role played by the LOS Convention in conflict and conflict management
in the South China Sea over the past three decades and suggests some possible ways forward
to enhance the peace promoting role of the Convention.
Actions Taken by the Claimant States During UNCLOS III, 1973–1982

In the early 1970s, the possibility of finding vast hydrocarbon resources in offshore areas
of the Yellow Sea, East China Sea, and South China Sea first arose. Although the Paracel
and Spratly islands had been disputed by the shifting littoral states for a century or more,14
the interest and attention from governments to these sovereignty disputes now took on a
new dimension. It seemed likely that possession of these islands could be a key to claiming
rights to resources in the area around them. While the prospect of finding hydrocarbons
became an interest for oil companies as well as governments, legal developments were
also happening on the global level to potentially allow states to claim sovereign rights to
resources in vast maritime areas beyond their immediate coasts, not just in the 12-nautical-
mile territorial sea that many countries had already declared. Well before UNCLOS III
began in 1973, a number of Latin American states fronting the Pacific and Atlantic oceans
had adopted 200-nautical-mile exclusive fishing zones.15 Some countries had also claimed
a substantial area of continental shelf based primarily on the 1958 Geneva Convention on
the Continental Shelf.16
The first global oil crisis came in October 1973, just 2 months before the first session
of UNCLOS III convened in December.17 The oil crisis increased the eagerness of littoral
countries to secure clear rights to potential offshore hydrocarbon resources.
While not directly correlated with the above, immediately after the end of the first
session of UNCLOS III, a military engagement took place between the naval forces of
China and the Republic of (South) Vietnam in the waters near the Paracels, which resulted
in the establishment of Chinese control over all of the Paracel Islands.18 The islands were
mostly uninhabited and had little economic value except as bases for fishing. Nevertheless,
China and South Vietnam both may have believed that the Paracels could provide a basis
for claiming sovereign rights to resources under the adjacent continental shelf and in huge
water zones.
The decision at UNCLOS III with the most immediate and far-reaching effect was the
adoption of the 200-nautical-mile EEZ within which coastal states gained sovereign rights
to explore and exploit, conserve, and manage the natural resources (although with full
and unimpeded freedom of navigation), and that continental shelf rights in the seafloor also
existed out to at least 200 nautical miles from shore.19 The Convention assured that, if certain
geomorphological and geological criteria were met that states also had shelf rights beyond
200 nautical miles.20 There was strong international support for the 200-nautical-mile EEZ
and continental shelf, which had its background in the Latin American fishery zone claims,
yet it was surprising that agreement could be reached on such a radical principle, which
subsumed a great part of the world’s oceans to exclusive national resource jurisdiction. It
was clear that the 200-nautical-mile EEZ regime was going to generate conflict in areas
where the distance between opposite national coasts is less than 400 nautical miles and
more obviously in semienclosed seas surrounded by many states and with islands subject
to sovereignty disputes.
How did the legal developments during UNCLOS III, and particularly the new regime
of the 200-nautical-mile EEZ and continental shelf, affect state behavior in the South China
Sea?
Shortly after a 1969 UN report was issued that indicated a vast hydrocarbon potential
in the offshore areas of Southeast and East Asia and during the negotiation of UNCLOS III,
military troops were sent by the Philippines, Vietnam, and Malaysia to occupy the largest
of the insular features scattered around the huge Spratly area. Although no similar actions
were taken by China or Taiwan, Taipei continued to maintain its base on Taiping Dao (Itu
Aba), the largest of the Spratlys.
There is little doubt that the eagerness to ensure control of these features was tied
to hydrocarbons and the new maritime zones under discussion at UNCLOS III. Between
1970 and 1980, the Philippines occupied Nanshan Island, Flat Island, Thitu Island, Loaita
Island, Northeast Cay, West York Island, Panata, and Commodore Reef. Between 1973 and
1978, Vietnam occupied Nam Yit Island, Southwest Cay, Sandy Cay, Spratly Island, Sin
Cowe Island, Amboyna Cay, Grierson Reef (a sand bank sometimes called East Sin Cowe
Island), Central Reef, and Pearson Reef. Malaysia followed up by occupying Swallow Reef
and Ardasier Reef in 1977 and Mariveles Reef in 1979. (See Table 2.) A number of oil
exploration contracts were awarded to foreign companies by Vietnam and the Philippines
Table 2
Land features occupied by the Philippines, Vietnam, and Malaysia during the Third United
Nations Conference on the Law of the Sea (UNCLOS III)
Standard Chinese names English names Year taken

The Philippines Mahuan Dao Nanshan Island 1970
Feixin Dao Flat Island 1970
Zhongye Dao Thitu Island 1971
Nanyue Dao Loaita Island 1971
Beizi Dao Northeast Cay 1971
Xiyue Dao West York Island 1971
Shuanghuang Shazhou Panata 1978
Siling Jiao Commodore Reef 1980
Vietnam Hongxiu Dao Nam Yit Island 1973
Nanzi Dao Southwest Cay 1973
Dunqian Shazhou Sandy Cay 1973

Nanwei Dao Spratly Island 1973
Jinghong Dao Sin Cowe Island 1973
Ambo Shazhou Amboyna Cay 1973
Ranqing Shazhou Grierson Reef 1978
Zhong Jiao Central Reef 1978
Bisheng Jiao Pearson Reef 1978
Malaysia Danwan Jiao Swallow Reef 1977
Guangxingzai Jiao Ardasier Reef 1977
Nanhai Jiao Mariveles Reef 1979
Source: Pan Shiying, “The Nansha Islands: A Chinese Point of View,” WINDOW, 3 September
1993, 29.
in 1973 and 1974.21 In February 1974, in response to acts taken by Taiwan to reinforce its
garrison on Taiping Dao (Itu Aba) and the occupation of a number of islands located in the
Spratlys by South Vietnam, the Philippines reconfirmed its claim to the area called Kalayaan
(Freedomland) and filed formal protests with South Vietnam and Taiwan. Tensions escalated
and a military confrontation between South Vietnam, the Philippines, and Taiwan seemed
imminent. But, according to Marwyn S. Samuels, this was avoided because of a shared fear
of a Chinese attack and U.S. pressure on Saigon.22
In January and February 1974, in response to the actions taken by South Vietnam to
occupy a number of land features in the Spratlys, the Chinese Foreign Ministry issued
statements reiterating that:
The Nansha [Spratly] islands, Xisha (Paracel) Islands, Zhongsha [Macclesfield

Bank] Islands and Dongsha [Pratas] Islands, are all part of Chinese territory.
The People’s Republic of China has undisputable sovereignty over these islands
and their surrounding area.23
The Foreign Ministry of South Vietnam responded by issuing a White Paper in February
1975 (2 months before the fall of Saigon to North Vietnamese forces), in which Vietnam
claimed ownership of Hoang Sa (Paracel) and Truong Sa (Spratly) islands, and stated that
[t]he Government of the Republic of Vietnam and the Vietnamese people, de-
termined to defend their sovereignty and the territorial integrity of the country,
solemnly denounce the occupation of these Vietnamese territories by foreign

troops. Regarding the Hoang Sa (Paracel) Islands, not only was the gross vio-
lation of Vietnamese sovereignty by the People’s Republic of China a defiance
of the law of nations and the Charter of the United Nations: in-as-much as
this involved the use of force by a world power against a small country in
Asia, it also constitutes a threat to peace and stability in South East Asia. In
the case of the Truong Sa (Spratly) Islands, although foreign occupation was
not preceded by bloodshed, it nevertheless represents a grave violation of the
territorial integrity of the Republic of Vietnam. The rights of the Vietnamese
people over those islands have been as firmly established there as on the Hoang
Sa archipelago.24
In September 1975, China sent a Diplomatic Note to the Democratic Republic of Viet-
nam, by then in control of the whole national territory, reminding it of China’s sovereignty
over the Paracel and Spratly islands.25 In the same month, Deng Xiaoping, then vice
prime minister, told a Vietnamese delegation visiting Beijing—according to a Vietnamese

source—that “the Paracels and the Spratlys will be our future topics for discussion.”26
In June 1978, assumingly motivated by progress made at UNCLOS III toward estab-
lishing a specific legal regime of the EEZ and partly in response to the declarations issued
by China and Vietnam to assert sovereignty over the Spratly Islands, the president of the
Philippines issued a proclamation declaring ownership of those islands situated within the
defined boundaries of the Kalayaan Island Group:
[T]hese areas do not legally belong to any state or nation but, by reason of
history, indispensable need, and effective occupation and control established
in accordance with the international law, such areas must now be deemed to
belong (to) and (be) subject to the sovereignty of the Philippines . . . while
other states have laid claim to some of these areas, their claims have lapsed by
abandonment and cannot prevail over that of the Philippines on legal, historical,
and equitable grounds.27
This proclamation was followed by another Presidential Decree, establishing an EEZ

for the Philippines outside its archipelagic waters.28
Also likely motivated by the foreseeable outcomes at UNCLOS III, the newly estab-
lished Socialist Republic of Vietnam issued a declaration on its territorial sea, contiguous
zone, EEZ, and continental shelf in May 1977, shortly before it became a member of the
United Nations.29 Much of the wording of the declaration was taken verbatim from the
negotiating text issued by UNCLOS III in 1976.
In April 1979, at a meeting between the Chinese vice foreign minister Han Nianlong
and his Vietnamese counterpart, the Chinese side made the following statement:
The Xisha Islands and Nansha Islands have always been an inalienable part
of Chinese territory. The Vietnamese part should come back to its original
position of recognizing that fact, respect China’s sovereignty over these two
sets of islands, and withdraw all its personnel from those islands of the Nansha
Islands which it occupies.30
China, however, did not take any steps to invade or occupy the Vietnamese-held islands
in the Spratly area, although China and Vietnam were heading for a bloody war at their
land border. The reasons why China did not challenge Vietnam militarily in the Spratlys
were probably its lack of naval capacity and a concern that it might be impossible to defend
isolated islets or reefs against a determined counterattack.
In 1979, China granted seismic survey blocks in the not yet delimitated Beibu (Tonkin)
Gulf to a number of Western oil corporations and signed contracts with 48 foreign oil
companies to conduct maritime surveys far beyond its coast, signaling its intention to
expand its maritime zones into the South China Sea.31 In September, the Chinese Foreign
Ministry issued a statement, reiterating the government’s position on its sovereignty over the
Paracel and Spratly Islands as well as their surrounding sea areas and also emphasizing that
“the nature resources in these areas are China’s property.”32 This was followed by an official
document entitled “China’s Sovereignty over the Xisha and Nansha Islands Indisputable”
issued by the Chinese Foreign Ministry on 30 January 1980.33 The document cited historical
and cultural evidence to support the position that the Paracel and Spratly islands had been
under Chinese sovereignty since no later than the Song dynasty. In 1981 in response to the
Chinese document, the Vietnamese Ministry of Foreign Affairs published a booklet entitled
“The Hoang Sa and Truong Sa Archipelagoes: Vietnamese Territories,” which reiterated the
position made in a previous booklet in 1979 that “Vietnam has been in possession of the two
archipelagoes of Hoang Sa and Truong Sa since the time when no other countries claimed
sovereignty over them,” and that “Vietnam has been continuously exercising its sovereignty
over these two archipelagoes ever since.”34 In 1979, Taiwan’s Executive Yuan (Cabinet)
declared the establishment of a 200-nautical-mile EEZ and claimed the sovereign rights
over the continental shelf contiguous to its coast as recognized by the 1958 Continental
Shelf Convention and general principles of international law.35 The declaration did not,
however, specify whether the ROC claimed an EEZ and continental shelf around any or all
of the Spratlys. Malaysia declared the outer limits of its continental shelf in 1979 and an
EEZ in 1980.36
Maritime zone claims were also made by other South China Sea littoral states not
involved in disputes over sovereignty to islands. In 1978, the Ministry of Foreign Affairs
of Cambodia issued a statement reaffirming its claim to exclusive sovereign rights to all
the natural resources within its EEZ and continental shelf and, in addition, claimed that all
of its islands have a territorial sea, contiguous zone, EEZ, and continental shelf.37 In 1980,
Indonesia and Singapore both issued a claim to a 200-nautical-mile EEZ; in Indonesia’s
case, it was measured from its archipelagic baselines.38 Thailand claimed a continental
shelf in 1973 without defining its limits—just as UNCLOS III began—and an EEZ in 1981,
the year before the Convention was adopted.39 Bilateral maritime boundary agreements
were signed between some of the Southeast Asian states, or between them and external
countries such as Australia, India and Papua New Guinea.40 However, no maritime boundary
agreements were concluded during this time period concerning any part of the South China
Sea itself.
During the negotiations at UNCLOS III, there were repeated claims and counterclaims
to ownership of islands and maritime rights in the South China Sea (in particular by Vietnam,
China, and the Philippines) and, as mentioned, a naval battle took place in the Paracels.
There were no bilateral negotiations between claimant states. Clearly, the codification and
progressive development of the law of the sea played a role in stimulating the actions taken
by the states in claiming and protecting their perceived sovereign rights. Accordingly, the
answer to the question concerning whether the LOS Convention exacerbated maritime
disputes in the South China Sea by encouraging conflicting claims during this period is a
clear yes.
This answer must, however, be qualified. UNCLOS III only contributed to an already
existent scramble among the states to strengthen their claims of sovereignty over the South
China Sea islands. The 1970s and early 1980s scramble cannot be attributed principally to
UNCLOS III. There had been similar scrambles before, in the 1930s for strategic reasons,
and in 1956 when there was first an expectation of finding oil.41 The new features in
the 1982 LOS Convention were not known when the scramble commenced in 1973 or
when China used force to take full control of the Paracels in January 1974. The likelihood
that a consensus might emerge on a 200-nautical-mile EEZ became clear only during 1975.
However, the new 200-nautical-mile EEZ regime raised the stakes and made the sovereignty
disputes in the South China Sea more salient and even more difficult to manage or resolve
than before.
The answer as to whether UNCLOS III helped to manage or resolve conflicts in the
South China Sea is an equally clear no. This may be ascribed to the fact that the LOS
Convention was only in the making. The negotiations opened new opportunities for making
national claims to sovereign rights over ocean space and resources, and the LOS Convention
itself could only be expected to become a tool for conflict resolution at a later stage.
The main impact of the new legal developments evident during UNCLOS III was to
raise the stakes and exacerbate tension by encouraging states to make claims that overlapped
as well as by increasing the perceived salience of small island features in the Paracels and
Spratlys. While China took control of the Paracels in January 1974, the main activists
in the Spratly area were Vietnam and the Philippines which, as noted above, occupied a
number of previously unoccupied islets. Taiwan and China did not take part in the Spratly
scramble, although both Taipei and Beijing publicly confirmed their claims to all of the
Spratly Islands. In spite of the peacemaking rhetoric in connection with the signing of
the LOS Convention and its provisions for peaceful conflict resolution and cooperation, it
is difficult to see that the emerging Convention had any significant peacemaking effects
during the 1973–1982 period.
It can be argued, however, that if UNCLOS III had not led to the adoption of the 200-
nautical-mile EEZ, the prospect of finding oil would at any rate have led to a scramble. That
is because continental shelf rights had been established well before UNCLOS III, beginning
with the Truman Proclamation in September 1945 that led to the 1958 Continental Shelf
Convention.42
Impact of the Adoption of the LOS Convention, 1982–1994

The LOS Convention was adopted in April 1982 and opened for signature that December; it
entered into force on 16 November 1994. During those 12 years, a number of actions were
taken by the South China Sea states that were aimed at supporting their claims or weakening
the claims of others. These actions included the ratification of the LOS Convention, the
deployment of military troops to additional features in the Spratly area, the enactment
of domestic maritime legislation, and the signing of contracts with foreign companies to
explore and exploit hydrocarbons. A naval battle took place between China and Vietnam in
the Spratly Islands in March 1988 after China had established a physical presence there in
the previous year. The possibility of an armed conflict between the two countries remained
high at least until they normalized their relations in 1991. To what extent were the many
actions in the period affected by the newly completed LOS Convention and the expectation
of its entry into force? Did the Convention have any positive effect in terms of conflict
resolution or management?
In 1987, China completed a geophysical survey of the seabed in the area between
and surrounding the Spratly Islands. The survey suggested that the geological conditions
were such that the area might contain exploitable reservoirs of oil and gas.43 Also in
1987 China decided to separate Hainan Island from Guangdong Province, making it a
province in its own right and declaring the Spratly Islands to be its “strategic border.”44
It was apparent that China was ready to move into the Spratly area. The opportunity was
provided by an invitation from the Intergovernmental Oceanographic Commission (IOC)
of the United Nations Educational, Scientific and Cultural Organization (UNESCO) for
the establishment of five observation posts as part of the organization’s worldwide ocean
survey project. Specifically in March 1987, the IOC entrusted China with the task of
building an observation station in the Spratly Islands.45 China chose Yongshu Jiao (Fiery
Cross Reef) and began construction of the necessary infrastructure. In response, Vietnam
dispatched cargo ships with construction materials to the same reef, apparently seeking
to build structures to underpin its claim. Fiery Cross Reef is located near other islands
occupied by Vietnam. A number of small incidents took place in January–February 1988.
On 13–14 March when Chinese and Vietnamese troops apparently engaged in a contest for
taking possession of a 5-kilometer-long and 400-meter-wide reef, Chigua Jiao (Johnson
South Reef) of which only a tiny part was above water, fighting broke out and naval ships
of the two countries exchanged fire. The Chinese warships sank all of the Vietnamese ships
within a half-hour, with an estimated 74 Vietnamese soldiers either killed or drowned. As
a result of the naval battle, China proceeded by the end of 1988 to occupy six reefs and
atolls in the Spratly area.46 Just as in January 1974, China used force but this time it did
not evict the Vietnamese from any feature occupied by Vietnam. China instead moved
into nearby reefs, and the battle apparently took place when troops from the two countries
simultaneously arrived at a submerged reef. Thus, China did not violate the UN Charter as
would appear to have been the case in 1974. On the other hand, it is of questionable legality
that a state can claim and occupy a submerged reef, which is usually considered to be a part
of the seafloor.47
In April 1988, China accused Vietnam of preparing for war in the Spratlys.48 A
month later, it was reported that there were 20 Chinese and 30 Vietnamese warships in
the area.49 In March 1989, a Spratly front line headquarters was established by China to
command a patrol mission.50 In August 1989, China placed “sovereignty markers” on six
features.51 In September 1989, the Chinese Ministry of Foreign Affairs officially demanded
the withdrawal of all Vietnamese forces from the Spratly Islands.52 It was reported that the
Chinese navy was preparing to take action. However, no action was taken, mainly it was
claimed because of a shortage of funds, but more probably because of a desire to avoid
further international isolation after the “June Fourth Incident” (at Tiananmen Square).53 It
has also been claimed that action was delayed by Soviet leader Mikhail Gorbachev’s visit
to Beijing in June 1989. The Soviet Union was still Vietnam’s ally and Vietnam was about
to withdraw its troops from Cambodia as part of an international effort to end the Third
Indochina War.
The Sino-Vietnamese crisis in the Spratlys marked the last outright military confronta-
tion that has taken place in the South China Sea. None of the many later incidents have
involved direct fighting between military forces.
In August 1990, in an effort to allay ASEAN’s fear over Beijing’s entry into the
Spratly area, Premier Li Peng declared that “China is ready to join efforts with Southeast
Asian countries to develop the Spratly Islands, while putting aside for the time being the
question of sovereignty.”54 The same proposal was restated by the Chinese delegation to the
“Managing Potential Conflicts in the South China Sea” workshop in Bandung, Indonesia,
in July 1991.55 This track-two workshop process had been initiated by Indonesia in the
previous year, with participation from all of the South China Sea countries, including China
and Taiwan. The Indonesian initiative marked a transition of the South China Sea issues to
a phase where the law of the sea became a shared frame of reference in attempts to establish
cooperation in a number of domains and to institute conflict prevention mechanisms. This
more cooperative atmosphere evolved in conjunction with the end of the cold war and the
Third Indochina War, 3–4 years before the LOS Convention entered into force, and just
as China was ready to follow the example of the ASEAN countries by enacting EEZ and
continental shelf legislation.
China’s 1992 legislation and oil concessions, however, led to renewed tension. On 25
February 1992, the Chinese People’s Congress enacted the Law of the People’s Republic
of China on the Territorial Sea and the Contiguous Zone.56 Article 2, which provides that
the “land territory of the People’s Republic of China includes the mainland of the People’s
Republic of China and . . . all islands appertaining there to including . . . the Dongsha
[Pratas] Islands; the Xisha [Paracel] Islands; the Zhongsha Islands [Macclesfield Bank]
and the Nansha [Spratly] Islands . . .” was followed by a contract signed between the
China National Offshore Oil Corporation (CNOOC) and the Crestone Energy Corporation
of the United States in an area near Vanguard Bank (Wan’an Tan) in the westernmost
part of the Spratlys. This Chinese concession partly overlapped with existing Vietnamese-
granted oil blocs.57 The Vietnamese Foreign Ministry protested the Chinese action, saying
that the contract “seriously violated Vietnam’s sovereign rights over its continental shelf
and exclusive economic zone.”58 In reaction, China warned that it would use its navy, if
necessary, to enforce the contract.59 About 2 months later, China further raised the stakes
by placing a “sovereignty marker” on Gaven Reef (Nanxun Jiao) just southwest of Itu Aba
(Taiping Dao).60
In response to the Chinese actions, the Philippines obtained support from the other
member states of ASEAN to adopt a Declaration on the South China Sea at the twenty-
fourth ASEAN Ministerial Meeting in July 1992, which emphasized the need to settle
all sovereignty and jurisdictional issues by peaceful means without resort to force and
urged all parties concerned to exercise restraint with the view toward creating a positive
climate for the eventual resolution of all disputes.61 The declaration further agreed to pursue
selected areas of cooperation in the South China Sea without prejudicing the sovereignty
and jurisdiction of countries that have direct interests in the area and also that the principles
in the 1976 Treaty of Amity and Cooperation in Southeast Asia could be the basis for
establishing a code of international conduct for the South China Sea.62 China was asked to
subscribe to this declaration, but it chose not to. In the same month, it was reported that
China had deployed two warships to the Spratly area to prevent Vietnam from resupplying
a rig that was drilling in a corner of the Crestone contract area.63
In July 1994, when ratifying the LOS Convention, China made a number of declarations
concerning the Paracel and Spratly islands, including the following statement, which is
interesting because it made a clear distinction between the question of sovereignty to
islands and the delimitation of maritime zones.
The National Assembly reiterates Viet Nam’s sovereignty over the Hoang Sa
[Paracel] and Truong Sa [Spratly] archipelagoes and its position to settle those
disputes relating to territorial claims as well as other disputes in the Eastern
Sea [South China Sea] through peaceful negotiations in the spirit of equality,
mutual respect and understanding, and with due respect of international law,
particularly the 1982 United Nations Convention on the Law of the Sea, and
of the sovereign rights and jurisdiction of the coastal States over their respec-
tive continental shelves and exclusive economic zones; the concerned parties
should, while exerting active efforts to promote negotiations for a fundamental
and long-term solution, maintain stability on the basis of the status quo, refrain
from any act that may further complicate the situation and from the use of force
or threat of force.
The National Assembly [differentiates] between the settlement of the dis-
pute[s] over the Hoang Sa and Truong Sa archipelagoes and the defense of
the continental shelf and maritime zones falling under Viet Nam’s sovereignty,
rights and jurisdiction, based on the principles and standards specified in the
1982 United Nations Convention on the Law of the Sea.64
Based on the actions taken by the South China Sea claimant states between 1982 and
1994, it can be concluded that the finalization of the LOS Convention and the expectation
of its entry into force encouraged conflicting claims and motivated China to enter the
scramble for occupation of features in the Spratly area. This led to the 1988 naval battle
with Vietnam. However, a transition occurred. All of the claimant states began to refer
to the LOS Convention not only as a basis for claims, but also as a reason for putting
aside the sovereignty disputes while jointly developing the resources of the area, instituting
cooperative mechanisms, managing the conflicts peacefully, abstaining from occupation
of any further features, and considering the development of a code of conduct. Although
China was an eager proponent of the general principle of joint development, Indonesia
took upon itself the hosting of the annual “Managing Potential Conflicts in the South
China Sea” workshops and the Philippines took the initiative to establish an international
code of conduct. In addition Vietnam urged settlement of the South China Sea disputes
through peaceful negotiations and with due respect for international law, and it made a clear
distinction between sovereignty claims to islands and the delimitation of maritime zones.
The importance of the LOS Convention in helping manage and resolve the South China
Sea disputes was thus recognized, although progress was exceedingly slow and mixed with
continued outbursts of tension.
Impact of the Entry into Force of the LOS Convention, 1995–2002

The Philippines and Indonesia ratified the LOS Convention in May 1984 and February
1986, long before it entered into force on 16 November 1994. Vietnam became a party in
July 1994. Two years later, in June, October, and November 1996, China, Malaysia, and
Brunei followed suit. Thus, by the end of 1996, all of the countries involved in territorial
disputes in the Paracel and Spratly islands, with the exception of Taiwan, had ratified the
LOS Convention (see Table 1).
It might have been hoped that entry into force of the LOS Convention for the majority
of the countries bordering the South China Sea would contribute to the “strengthening of
peace, stability, cooperation and friendly relations among all nations.”65 This did not happen.
Actions taken by the South China Sea countries in implementing the LOS Convention,
including the adoption of domestic maritime legislation, gave rise to conflict. At the same
time, however, the role of the LOS Convention in managing conflicts in the South China
Sea was increasingly recognized and the claimant states regularly pledged to live up to their
obligation to resolve disputes by peaceful means at important regional security dialogue
meetings such as the ASEAN Summits, ASEAN Ministerial Meetings, and the ARF.
In February 1995, shortly after the Convention entered into force, the Philippines
discovered that China had built structures on Mischief Reef some 113 nautical miles from
the coast of Palawan. The Philippines launched strong protests against the Chinese action
and the Philippine Senate passed a bill to modernize the country’s armed forces.66 In
March 1995, the ASEAN foreign ministers issued a statement in support of the Philippines,
expressing their “serious concern over recent developments which affect peace and stability
in the South China Sea.”67 The United States responded with a comprehensive official
statement on the Spratly Islands and the South China Sea on 10 May 1995, which stated
that the United States would view with serious concern any maritime claim, or restriction
on maritime activity in the South China Sea that was not consistent with international law,
including the LOS Convention.68 The United States, however, was careful not to take any
position on the sovereignty disputes or overlapping ocean claims.
At a meeting with the foreign ministers of the ASEAN countries in July 1995, China’s
foreign minister Qian Qichen proposed, for the first time, to hold bilateral talks with con-
cerned countries to resolve disputes in the South China Sea in accordance with international
law. He urged that all of the claimants abide by those principles under international law
that govern state-to-state relationships and the peaceful settlement of international disputes
in order not to complicate or enlarge the Spratly issue. In addition, he pointed out that the
Chinese proposal to “shelve disputes and facilitate joint development” formed the most
realistic and practical way forward.69
In August 1995, delegations from China and the Philippines met for consultations on
the South China Sea and other areas of cooperation and agreed to adopt a bilateral code
of conduct in the South China Sea.70 Pending resolution of the sovereignty disputes, the
two countries agreed to abide by a number of principles, notably to settle their bilateral
disputes in accordance with the recognized principles of international law, including the
LOS Convention. This was followed by the adoption of another bilateral code of conduct
between the Philippines and Vietnam in November 1995, in which the two sides also agreed
to abide by the principle of solving their disputes on the basis of respect for international
law.71 In December 1995, at the fifth ASEAN Summit, held in Bangkok, it was stated that
ASEAN shall seek an early, peaceful resolution of the South China Sea dispute
and shall continue to explore ways and means to prevent conflict and enhance
cooperation in the South China Sea consistent with the provisions of the TAC
[Treaty of Amity and Cooperation] and the ASEAN Declaration on the South
China Sea of 1992 as well as international law including the United Nations
Convention on the Law of the Sea.72
Meanwhile the LOS Convention continued to provide an impetus for making new or
reinforcing existing maritime zone claims in the area. In August 1995, Thailand proclaimed
the establishment of a contiguous zone.73 In August 1996, Indonesia adopted an act to
stipulate the boundaries between its inland waters, archipelagic waters, and the 12-nautical-
mile territorial sea outside of its archipelagic baselines.74 In June 1996, when it ratified the
LOS Convention, China reaffirmed its sovereignty over all its archipelagoes and islands,
including the Paracels and Spratlys, as listed in Article 2 of the 1992 Law on the Territorial
Sea and Contiguous Zone.75 China also promulgated the location of straight baselines and
the outer limit of part of its territorial sea adjacent to the mainland, to Hainan Island, and
those of the territorial sea adjacent to its controversial archipelagic baselines around the
Paracel Islands.76 In response to the Chinese claim, the Philippines stated:
China’s action in a disputed part of the South China Sea disturbs the stability
of the area, sets back the spirit of cooperation that has been slowly developing
in the South China Sea and does not help in the resolution of the disputes there.
The Philippines calls upon China to confer with other parties to the disputes
in the South China Sea with a view to settling their differences in a friendly
manner on the basis of equality and mutual respect.77
Vietnam also objected to China’s baselines in a Note Verbale dated 6 June 1996 in
which it asserted that the baselines around the Paracels constituted a serious violation of
Vietnamese sovereignty, that China had violated the LOS Convention by giving the Paracels
the status of an archipelago (although China is not an archipelagic state) in order to illegally
annex a vast sea area into its internal (or archipelagic) waters, and that China had failed
to comply with the provisions of the LOS Convention, in particular, Article 7 (straight
baselines) and Article 38 (right of transit passage).78
In July 1996, Indonesia sent the Chinese Embassy in Jakarta an aide-mémoire seeking
clarification of the Chinese territorial claims in the South China Sea.79 ASEAN raised the
same question during a dialogue between its seven member countries and China on 29 July
1996. China was asked to explain why it drew straight baselines around the disputed Paracel
Islands, from one outermost point to the other in the way that only archipelagic states can
do.80 The United States also objected to the Chinese baseline claim through a publication
issued by the Department of State in July 1996.81 The United States noted that “[r]egardless
of whose sovereignty the Paracel Islands come under, straight baselines cannot be drawn”
since the LOS Convention “is quite clear in stating that an archipelagic State ‘means a
State constituted wholly by one or more archipelagos and may include other islands.”’82 In
September 1996, it was reported that “the United States has implicitly warned Beijing that
it will not respect a formal Chinese declaration that would restrict freedom of movement
by American warships and military aircraft in Asian waters.”83
Island disputes between China and the Philippines flared again in May 1997 when
Beijing warned that the raising of a Philippine flag on Scarborough Shoal (Huangyan Dao)
in the South China Sea was “a serious violation” of its sovereignty. China claimed that
Scarborough Shoal “belongs to its Zhongsha Islands (Macclesfield Bank) and is not at all
a disputed island.”84
Two years after the ratification of the LOS Convention and declaration of the straight
baselines, China enacted the Law of the People’s Republic of China on the Exclusive
Economic Zone and the Continental Shelf on 26 June 1998.85 Article 2 establishes a
200-nautical-mile EEZ, extending from the same baselines from which the breadth of the
territorial sea is measured. The same article defines China’s continental shelf as being the
seabed and subsoil of the submarine areas that extend beyond its territorial sea, throughout
the natural prolongation of its land territory, to the outer edge of the continental margin (or
to a distance of 200 nautical miles from the baselines where the outer edge of the continental
margin does not extend up to that distance). Article 2 also provides that the delimitation of
the EEZ and the continental shelf between China and its opposite or adjacent states shall be
effected by agreement on the basis of international law and in accordance with the equitable
principles. All of this is in accordance with the LOS Convention. More controversially,
under Article 14, China indicated that no provisions of the law “can prejudice historical
rights” of China.86 China did not clarify the meaning of “historic rights,” and whether or
not they may be compatible with recognizing other countries’ EEZ and continental shelf
rights. China also left open the possibility to claim an EEZ and continental shelf around
both the Paracel and Spratly islands. Such an EEZ and continental shelf claim could overlap
to a great extent with the EEZ and continental shelf claims of the Philippines, Malaysia,
Brunei, and Vietnam.
In early November 1998, the Philippines sent a protest after discovering that Chinese
warships were stationed in waters not far from islands claimed and occupied by itself and
that the Chinese had been constructing new concrete buildings on Mischief Reef, in addition
to solidifying those discovered in 1995.87 In February 1999, according to a report containing
photographs and other intelligence, China was building a fuel storage facility next to the
airstrip on Woody Island in the Paracels. Some U.S. military officials believed that the fuel
depot was built for Su-27s or future Chinese FB-7 fighter bombers to increase the range of
the jets and allow them to reach the Spratlys.88 Also in February 1999, Philippines defense
secretary Orlando Mercado said that China had built what appeared to be a helipad, radar
facilities, and possible gun emplacements on Mischief Reef.89
In June 1999, Malaysia set up structures on Investigator Shoal, which is about 80
nautical miles adjacent to Sabah. In August, Malaysia built structures on Erica Reef,
northwest of Investigator Shoal and northeast of Mariveles Reef. In September 1999,
a senior Philippines defense official said that Vietnam was upgrading its structures on
Cornwallis South Reef and Alison Reef in the middle of the Spratly area, and that Taiwan
was improving its military structures on Itu Aba (Taiping Dao).90 In October 1999, the
Philippines government protested Vietnam’s enlargement of a two-story octagonal building
set up in 1992 on Tennent Reef (Pigeon Reef) into a three-story structure.91 In April 2001,
a U.S. Navy EP-3 surveillance plane and a People’s Liberation Army F-8 jet of China
collided over the South China Sea near Hainan. The United States asserted that it was
exercising its legal right under international law to fly over China’s EEZ. China claimed
that the United States was violating Chinese rights in its EEZ.92
The intensity of the disputes in the South China Sea continued to rise despite the entry
into force of the LOS Convention. However, except for the EP-3 collision with a Chinese
fighter jet, which had little to do with the disputes over maritime zones or sovereignty to
islands, the increased tension did not lead to any direct military confrontations. Moreover,
during the 1995–2002 period, the usefulness of the LOS Convention for conflict man-
agement was repeatedly emphasized by representatives of all the countries at the annual
meetings organized by ASEAN. The series of ASEAN meetings involving China from 1995
to 2002 played a significant role in the adoption on 4 November 2002 of the Declaration on
the Conduct of Parties (DOC) by the foreign ministers of ASEAN and China at the eighth
ASEAN Summit in Phnom Penh.93
The DOC reaffirmed the commitment of the parties to the purposes and principles
provided in the international agreements such as the LOS Convention and other recognized
principles of international law. The declaration added that the member states of ASEAN and
China would avoid undertaking activities that had the potential to complicate or escalate
disputes and affect the peace and stability in the South China Sea. A significant example was
given in the declaration when it stated that the parties concerned would refrain from “action
of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features
. . .”94 The DOC indicates that freedom of navigation in and overflight of the South China
Sea will be respected; territorial and jurisdictional disputes are to be resolved by peaceful
means; efforts are to be undertaken to build trust and confidence; cooperative activities are
to be explored or conducted; and consultations and dialogues are to be continued. ASEAN
and China also reaffirmed that the future adoption of a legally binding regional code of
conduct in the South China Sea would promote peace and stability in the region, and
agreed to work toward it. The declaration contains several important confidence building
measures: the holding of dialogue and exchanges of views between defense and military
officials; ensuring just and humane treatment of all persons who are either in danger or
distress; and notifying on a voluntary basis other parties concerned of any impending
joint or combined military exercises conducted in the Spratly or South China Sea region.
Pursuant to the declaration, the parties concerned may explore or undertake cooperative
activities respecting: marine environmental protection; marine scientific research; safety
of navigation and communication at sea; search and rescue operations; and combating
transnational crime, including but not limited to trafficking in illicit drugs, piracy, and
armed robbery at sea and illegal traffic in arms.
After the entry into force of the LOS Convention in November 1994, conflicts between
the claimant states in the area continued to occur and even grew in intensity. The occurrence
of these conflicts was related to the entry into force of the LOS Convention and actions
taken by the South China Sea countries to implement the Convention. Several aspects of the
Convention generated conflict. First, the difference between the Chinese and the U.S. view
on the right to conduct naval and aerial military operations within the EEZ of other states
was, and remains, a constant generator of conflict.95 Second, as already noted, the 200-
nautical-mile EEZ regime was bound to generate conflict when applied in a semienclosed
sea. Third, the LOS Convention opened up the possibility that even small islets could
generate their own EEZ and continental shelves, if they were deemed to satisfy the criterion
in Article 121(3) of the LOS Convention; namely, the ability “to sustain human habitation
or an economic life of their own.” As long as it remains undecided if the Spratly and Paracel
insular features in whole or in part can generate EEZs and continental shelves of their own,
the sovereignty dispute over these islets will continue to appear vital, with the result that it
is difficult to see that the conflict resolution potential of the LOS Convention can come into
play. It might be argued that the ambiguity of Article 121(3) was a necessary condition for
the acceptance of the LOS Convention by states with widely diverging interests regarding
the capacity for small islands to generate maritime zones. The ambiguity of Article 121(3)
has, however, generated conflict. Its peacemaking potential depends on gradual development
of more precision through precedents in bilateral boundary agreements and decisions by
the International Tribunal for the Law of the Sea (ITLOS) and the International Court of
Justice such as the latter’s 2012 decision in Nicaragua v. Colombia.96
After the Convention entered into force, its role in managing and resolving conflicts was
recognized more often than previously in official statements from the bordering countries
particularly during the drawn-out negotiations leading to the adoption of the DOC, which
reduced the level of conflict for some years after 2002.
While a positive development in the period, the DOC was not the most important one,
rather it was the December 2000 Sino-Vietnamese Agreement for the Gulf of Tonkin.97
This agreement not only was important in itself, but it also set possible precedents for other
parts of the South China Sea. The agreement resulted from long and arduous negotiations,
and it is a textbook example of how the LOS Convention’s provisions may be used to arrive
at an equitable solution. During the negotiations, Vietnam gave up its long-held claim that
a straight line drawn under the 1887 Sino-French border treaty should continue southward
through the Gulf and thus constitute the maritime border. Vietnam had been claiming that
all the waters west of that line were Vietnamese “historic waters.” When negotiating the
Gulf of Tonkin Agreement, China and Vietnam put aside principles derived from the way
that sovereignty issues are decided on land and instead applied the principles of the law
of the sea. They apparently first calculated an equidistant line, then gave partial effect to
some (mainly Vietnamese) islands, and then adjusted the result in order to achieve a more
equitable solution based on the length of the relevant coasts. One island, the populated
Vietnamese Bach Long Vi, was not only given a 12-nautical-mile territorial sea, but also a
right to an EEZ. However, given the island’s limited size, its effect on maritime delimitation
was modest, so its EEZ now extends only 3 nautical miles beyond the 12-nautical-mile
territorial sea. The main reason why the Gulf of Tonkin Agreement was concluded was that
China and Vietnam’s leaders had made a mutual and public pledge to reach an agreement by
2000, and then entrusted their main legal and other experts with carrying out the pledge. A
similar political commitment could be what is needed in other parts of the South China Sea.
Impact of the LOS Convention After the Adoption of the DOC, 2003–2008
Beijing’s decision not to devaluate the Chinese currency during the 1997–1998 Asian
financial crisis and the signing of the DOC in November 2002 helped foster closer relations
between ASEAN and China, between China and the Philippines, and between China and
Vietnam. In October 2003, the heads of state of the member countries of ASEAN and
China issued a Joint Declaration on a Strategic Partnership for Peace and Prosperity.98 The
declaration expressed an intention to implement the DOC and to discuss and plan concrete
modes, areas, and projects of follow-up actions. In the same month, China acceded to the
Treaty of Amity and Cooperation in Southeast Asia.99 Agreement followed on a detailed
Plan of Action to Implement the Joint Declaration on ASEAN-China Strategic Partnership
for Peace and Prosperity on 29 November 2004, with the view of strengthening “the strategic
partnership for regional peace, development and prosperity . . .”100
On 14 March 2005, the China National Offshore Oil Corporation, the Vietnam Oil and
Gas Corporation, and the Philippine National Oil Company signed a Tripartite Agreement
for Joint Marine Scientific Research in Certain Areas in the South China Sea, in which
they agreed to undertake joint maritime seismic activities in an area of 142,886 square
kilometers for 3 years (2005–2008).101 In the joint statement from the signing ceremony,
the state-owned companies indicated that the agreement would help transform the South
China Sea from a sea of conflict into a sea of peace, stability, and cooperation.102
In December 2004, the first ASEAN-China Senior Officials’ Meeting (SOM) agreed to
establish an ASEAN-China Joint Working Group (JWG) to draft guidelines and an action
plan for the implementation of the DOC. However, over the next 4 years, the group was
unable to reach agreement on guidelines, mainly because of disagreement over a paragraph
that stated: “ASEAN will continue its current practice of consulting among themselves
before meeting with China.” China insisted that the South China Sea disputes should be
resolved by bilateral consultations among relevant parties and not between China and
ASEAN as a group.103
Tensions began to reemerge in 2007. In April, Beijing accused Hanoi of infringing
on China’s sovereignty by agreeing with British Petroleum (BP) to exploit natural gas and
lay pipelines from the Nam Con Son basin to the Vietnamese shore. Vietnam claimed that
Nam Con Son, which is less than 200 nautical miles from the Vietnamese coast, is on
its continental shelf. In June 2007, BP announced that it was halting seismic work after
China hinted that the company’s actions were infringing China’s sovereignty. BP later
sold its stake in the Nam Con Son gas field to the state-owned Indian Oil and Natural
Gas Corporation company. In July 2007, a ship belonging to the Chinese navy fired at
Vietnamese fishing vessels near the Spratly Islands, injuring five Vietnamese fishermen. In
December 2007, Vietnam registered a protest against China’s plan to set up a “Sansha City”
(an administrative unit) in the Paracels to manage not just the Paracels, but the Spratlys and
Macclesfield Bank as well.
Tensions continued to rise in 2008. In June, China asked the U.S. corporation Exxon-
Mobil to withdraw from an exploration deal it had with Vietnam, claiming that the blocks
under contract were in Chinese waters and, therefore, constituted a breach of Chinese
sovereignty. In August 2008, Taiwan issued a statement reiterating its sovereignty over the
Spratly Islands after Datuk Seri Najib Tun Razak, deputy prime minister of Malaysia, led
members of the media to Swallow Reef (Pulau Layang-Layang) and proclaimed Malaysia’s
sovereignty over the disputed island.104
From Outer Continental Shelf Submissions to Arbitration, 2009–2013

In March 2009, the U.S. Navy hydrography vessel Impeccable was in the South China
Sea surveying the seabed in areas where Chinese submarines would pass to and from the
Sanya base on Hainan Island. Approximately 75 nautical miles south of Hainan Island,
the Impeccable was approached by five Chinese vessels that attempted to force it to leave
the area.105 The United States protested, reportedly stating that consistent with international
law the U.S. military can conduct activities “in waters beyond the territorial sea of another
state without prior notification or consent,” including in an EEZ of another country.106 In
response, China stated that the U.S. complaint about the harassment of the Impeccable
was “totally inaccurate.”107 China accused the United States of violating international and
Chinese law.108 The core issue was the interpretation of provisions of the LOS Convention
concerning marine scientific research and navigational freedom within the EEZ of a coastal
state. The Impeccable incident demonstrated the two countries’ conflicting interpretations
of Article 58 of the LOS Convention, a difference of opinion that was already evident at
UNCLOS III.109
In May 2009, Malaysia and Vietnam submitted their proposed outer limits of their
continental shelf beyond 200 nautical miles in the South China Sea to the Commission on
the Limits of the Continental Shelf (CLCS), a body established by the LOS Convention
with the task to review submitted material and make recommendations to the submitting
states.110 There were two submissions—the joint submission by Malaysia and Vietnam for
the southern area111 and the submission by Vietnam for the northern area.112
In response to the Malaysian and Vietnamese submissions, China and the Philippines
sent protest letters restating their claims to sovereignty over land features and sovereign
rights in the sea. A series of communications followed from China, Vietnam, Malaysia,
the Philippines, Indonesia, and Taiwan.113 The various claims now for the first time were
formulated in official communications. On the one hand, this tended to clarify certain issues;
on the other, the submissions and protests further exacerbated the well-known disputes.
By attaching its map with a U-shaped line, which had existed since the 1940s, to a
letter to the U.N. China gave it an official status, and thus opened it to legal scrutiny and
commentary. China indicated that it has “indisputable sovereignty over the islands in the
South China Sea and adjacent waters, and enjoys sovereign rights and jurisdiction over the
relevant waters as well as the seabed and subsoil thereof (see attached map).”114 China may
be understood to claim all the waters enclosed by the line as internal or territorial waters
based on a historic waters claim or it may claim sovereignty over only the islands and their
“adjacent waters” and sovereign rights to natural resources in their EEZs. The wording
of the letter to the UN was ambiguous and did not use conventional legal terms. Chinese
statements and actions since May 2009 have supported the probably calculated ambiguity
as to whether the U-shaped line is meant as a claim to only the islands and their maritime
zones or to historical rights within a larger area.115
The Chinese response to the Malaysian and Vietnamese submissions also stated that
“China has indisputable sovereignty over the islands in the South China Sea and the adjacent
waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the
seabed and subsoil thereof” and that the submissions seriously infringed its sovereignty,
sovereign rights, and jurisdiction in the South China Sea.116 As a result, the Chinese Note
Verbale asked the CLCS not to consider the submissions.
Vietnam responded stating that “China’s claim over the islands and adjacent waters
in the Eastern Sea (South China Sea) as manifested in the map attached with the Notes
Verbales CLM/17/2009 and CLM/18/2009 has no legal, historical or factual basis, therefore
is null and void.”117 Malaysia responded with less confrontational wording, stating that the
submissions “constitute legitimate undertakings in implementation of the obligations of
State Parties to the [LOS Convention], which conform to the pertinent provisions of [the
LOS Convention] as well as the Rules of Procedure of the [CLCS].”118
Indonesia, in its response to the Chinese communications, especially the map with the
U-shaped line, made clear its view that “those remote or very small features in the South
China Sea do not deserve an exclusive economic zone or continental shelf of their own,”
and that the map
clearly lacks international legal basis and is tantamount to upset the [LOS
Convention]. . . . Allowing the use of uninhabited rocks, reefs and atolls isolated
from the mainland and in the middle of the high sea as a basepoint to generate
maritime space concerns the fundamental principles of the Convention and
encroaches [on] the legitimate interest of the global community.119
The Philippines did not clarify its position on the legal capacity of the islands
in the Spratlys to generate maritime zones. However, in August 2009, the Philippines
joined China in asking the CLCS not to proceed with the Joint Malaysian-Vietnamese
Submission since it overlapped with areas claimed by the Philippines and also concerned
the “controversy” over sovereignty to North Borneo (the Malaysian state of Sabah).120
China’s and the Philippines’ Notes Verbales will prevent the CLCS from considering the
Malaysian-Vietnamese submissions.
In April 2011 the Philippines reaffirmed its sovereignty and jurisdiction over all “geo-
logical features” in the Kalayaan Island Group (said to encompass 53 islands, reefs, shoals,
cays, rocks, and atolls) and challenged the legitimacy of the Chinese claim to sovereignty,
sovereign rights, and jurisdiction over these islands, their “adjacent waters,” “relevant
waters,” and seabed and subsoil encircled by the U-shaped line.121
In April 2011, in response to the communication from the Philippines, China asserted
that
under the relevant provisions of the 1982 United Nations Convention on the
Law of the Sea, as well as the Law of the People’s Republic of China on the
Territorial Sea and the Contiguous Zone (1992) and the Law on the Exclusive
Economic Zone and the Continental Shelf of the People’s Republic of China
(1998), China’s Nansha [Spratly] Islands is [sic.] fully entitled to Territorial
Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.122
It may be presumed that in China’s view, the Pratas and Paracel islands, perhaps even
Scarborough Shoal (Huangyan), also have a right to an EEZ and continental shelf.
The Malaysian and Vietnamese submissions and the communications that followed
clarified the position of the various countries as to the capacity of small features—islands,
sandbanks, shoals, or rocks—to generate extended maritime zones. Indonesia, Malaysia,
and Vietnam took the explicit or implicit view that such features can have only
12-nautical-mile territorial waters. China saw them as “fully entitled” to an EEZ and
continental shelf of their own. The views of Brunei, the Philippines, and Taiwan are not yet
known. However, it seems likely that Brunei, which does not occupy any features in the
Spratlys, will agree with Indonesia, Malaysia, and Vietnam. The Philippines seems to be
moving in the same direction. By contrast it must be tempting for Taiwan, which occupies
Itu Aba/Taiping Dao, the largest of the Spratly Islands, and also Pratas Island, to argue
that at least those two features can have the full suite of maritime zones. By implication,
the same would have to be the case for Woody Island, the largest in the Paracels, although
probably not for the very small Scarborough Shoal, which in the view of the Philippines
can have only a 12–nautical-mile territorial water zone.
Since 2009, a series of enforcement and other actions have been taken by China
apparently to demonstrate its jurisdiction over the South China Sea, and these actions
appear to pertain to the whole area within the U-shaped line. In March 2009, China sent its
largest fishery patrol ship, Yuzheng 311, to the Spratlys for fishery protection and maritime
surveillance.123 In May 2009, China announced a unilateral 3-month moratorium on fishing
in the South China Sea from the 12th parallel north of the Spratly Islands up to the Chinese
coast. The aim of the moratorium was to preserve fish stocks and prevent illegal fishing.124
Since 2009, China has annually announced a 3-month fishing ban, which has given rise to
jurisdictional disputes, in particular with Vietnam, concerning the waters surrounding the
Paracel and Spratly islands. China has repeatedly seized Vietnamese fishing boats in waters
near the Paracel Islands.125
Enforcement actions have also been taken by China in the area west of Palawan in
the eastern part of the South China Sea. In February 2011, three Philippines’ fishing boats,
operating in the waters off Jackson Atoll, 140 nautical miles west of Palawan, received the
following warning from a Chinese warship, reportedly a Jianghu-V Class missile frigate:
“You are in [China’s] territory. Leave the area immediately.”126 The Philippines claims
that Jackson Atoll belongs to the Kalayaan Island Group which, under the Philippines’
law is part of the country’s regime of islands, and that the waters in this area are within
the Philippines’ EEZ.127 In October 2011, in response to the action taken by a Philippines
naval vessel against a Chinese fishing vessel that was operating in the waters off Reed Bank
(Liyue Bank) of the Spratly archipelago, China’s foreign ministry spokesperson Jiang Yu
stated that
China enjoys indisputable sovereignty over the Nansha [Spratly] Islands and
their adjacent waters. It is completely justified for Chinese fishermen to fish in
an area that has been a traditional fishing ground for generations. The actions
taken by the Philippines have harmed the lawful rights and interests of Chinese
fishermen.128
The Philippines rejected China’s statement.129

China and Malaysia have been at odds over fishing activities in the waters near Pulau
Layang Layang (Swallow Reef) in the southern Spratlys, which has been under Malaysian
occupation since the late 1970s. In April 2010, China responded to action taken by Malaysia
against Chinese fishing boats by dispatching escort vessels.130 There also have been in-
cidents between China and Indonesia. In June 2010, during a standoff over Indonesia’s
seizure of a Chinese fishing vessel operating in the waters north of Natuna Island in the
southernmost part of the South China Sea, a Chinese maritime surveillance vessel pointed
its large-caliber machine gun at a carbon-hulled Indonesian craft, demanding the release of
the detained Chinese fishing boat. A similar episode had occurred in the previous month.131
These confrontations involving Indonesia occurred in an area within the Chinese U-shaped
line that is recognized in formal treaties between Indonesia and Malaysia,132 and Indonesia
and Vietnam133 as being within the Indonesian EEZ.
Since March 2011, there has been a new round of conflict over oil and gas exploration.
These disputes not only concern areas near the Spratlys but areas that, although within the
U-shaped line, are closer to the mainland coasts of Vietnam and the Philippines than to
any disputed island. In March 2011, two Chinese marine surveillance vessels ordered the
Veritas Voyager, a survey vessel operating on the Reed Bank in the eastern Spratlys near
the Philippines, to leave. The survey vessel had been chartered by a UK-based oil and gas
company, which had a contract with the government of the Philippines to conduct seis-
mic studies in the area of the Sampaguita gas field. The Philippines protested the Chinese
action.134 In May and June 2011, Chinese vessels were spotted in the area near Bombay
Shoal, Reed Bank, and Amy Douglas Bank, reportedly unloading building materials, erect-
ing posts, installing plastic buoys, and placing markers on these low-tide elevations and
underwater features. These are shallow waters, but it was also reported that China planned
to install a new advanced deep sea oil rig.135 In response, Lt. Gen. Juancho Sabban, chief
of the Philippines’ Western Command, asked Filipino fishermen to be ready to use their
boats to block the operation of the Chinese oil rig.136 On 4 July 2011, China delivered a
protest to the Philippines following Manila’s invitation to foreign companies to bid for oil
and gas rights in areas northwest of Palawan, claiming that the areas fall under China’s
“indisputable sovereignty.”137
A similar dispute had arisen between China and Vietnam. In May 2011, a Chinese
marine surveillance vessel cut the seismic cables of the Vietnamese ship Binh Minh 02 that
was operating in Vietnam’s Block 148, about 65 nautical miles off the coast of Vietnam, and
some 325 nautical miles south of Hainan Island and far away from any Spratly feature.138
This was followed by another cable-cutting incident in June 2011 near Vanguard Bank in
the westernmost Spratlys, the same area where Vietnam and China have had overlapping
hydrocarbon concessions since 1992. Vietnam interpreted the incidents as a Chinese effort
to enforce its U-shaped line claim.139
These incidents led to Chinese and Vietnamese officials in October 2011 signing a
six-point agreement providing that the two countries would solve their maritime disputes
“on the basis of legislation and principles enshrined in international law, including the
United Nations Convention on the Law of the Sea signed in 1982.” Both sides also pledged
to “fully respect legal principles” and agreed that their border negotiation teams would
have meetings twice a year to negotiate their bilateral differences while also consulting
third parties.140 The most important part of the six-point agreement was to reconfirm a
2008 agreement to have bilateral talks about maritime delimitation in the mouth of the Gulf
of Tonkin and to restart the talks.141 A maritime delimitation agreed on in the mouth of
the Tonkin Gulf may have some interesting implications for the whole of the South China
Sea. As noted above, the 2000 agreed boundary inside the gulf is based on a median line
between Hainan and the coast of central Vietnam with some effect being given to Con Co,
a small island off the coast of Vietnam.142 Vietnam may have to accept a line pointing in
a direction that will separate the Paracels from the Vietnamese coast. Vietnam would then
have to consider the Chinese-occupied Paracels as a Vietnamese enclave within the Chinese
EEZ. This would weaken the Vietnamese Paracels claim. For China, the problem is that,
if the existing maritime boundary is extended southeastward from the Tonkin Gulf, it will
approach the first of the nine dashes of the U-shaped line. Vietnam is unlikely to accept
a boundary that coincides with the U-shaped line. An extension of the Gulf of Tonkin
maritime boundary may thus clarify that the U-shaped line does not represent a claim to
“maritime territory” or “historic waters,” but only to the islands inside it and their maritime
zones. This would benefit conflict resolution in the South China Sea as a whole.
The prospect of seeing such clarification was given a boost on 29 February 2012,
when a spokesperson for the Chinese Foreign Ministry confirmed that there is a distinction
between sovereignty to islands and maritime delimitation and added: “No country including
China has claimed sovereignty over the entire South China Sea.”143 However, it did not
take long before China took action pointing in the opposite direction. China protested on
26 October 2011 when it was reported that gas had been found by ExxonMobil off the
coast of Vietnam, nearer to the Vietnamese coast than to any of the Spratlys but within the
U-shaped line.144 On 22 June 2012, Vietnam passed its first national maritime law, which
had been under preparation for many years. It asserted Vietnam’s sovereignty over the
Paracel and Spratly islands.145 Soon thereafter the Chinese National Offshore Oil Company
placed nine oil blocks for international tender along the U-shaped line adjacent to the
Vietnamese coast overlapping with existing Vietnamese blocks.146 A map of the Chinese
blocks was published that caused consternation in Vietnam. China also formally approved
its plan to elevate “Sansha City” in the Paracels to prefecture status, with responsibility for
administering all of the Paracels, the (submerged) Macclesfield Bank, and the Spratlys.147
Both Vietnam and the Philippines lodged protests.148
This new Sino-Vietnamese crisis followed a globally publicized one between China
and the Philippines over Chinese fishing. In early April 2012, the Philippines’ largest
warship tried to drive away Chinese fishing boats from the waters near Scarborough
Shoal/Huangyan, a group of small rocks encircling a lagoon west of Luzon. The shoal
as a whole is claimed by China, Taiwan, and the Philippines. If it should come under
Chinese or Taiwanese sovereignty and have a 12-nautical-mile territorial sea, then it will
form an enclave inside the Philippines’ EEZ. The Philippines’ warship attempted to arrest
Chinese fishing boats, but was prevented by two Chinese maritime surveillance vessels.149
A standoff followed, that lasted several weeks, with Chinese naval vessels observing from
a distance. In the end, bad weather forced the Philippines’ warship to withdraw after it
apparently got an understanding that the Chinese ships would also pull out. Some Chinese
boats remained, however, and the entrance to the lagoon was sealed off. The standoff was
seen in China as a big success. Chinese commentators claimed that an astute strategy,
using China’s superior force to deter the Philippines, had led to a situation of de facto
Chinese control.150 The Philippines launched an effort to get the United States to support
its sovereignty position in the South China Sea. The United States responded by upgrading
its support to the Philippines, but refrained from taking sides in the legal disputes over
Scarborough Shoal and the Spratlys (Kalayaan).151
During the Scarborough standoff, there was also tension between Taiwan and Vietnam.
In April 2012, a number of Taiwanese lawmakers visited Taiping Dao (Itu Aba) aiming to
reaffirm Taiwan’s sovereignty over the Spratly Islands. Vietnam lodged a protest against
the visit.152
While tensions rose, calls to respect international law continued to be made. For exam-
ple, in July 2010 the forty-third ASEAN Ministerial Meeting welcomed the commitment of
all the parties concerned to resolve the disputes through peaceful means in conformity with
the spirit of the DOC and the recognized principles of international law, including the LOS
Convention.153 At the seventeenth ASEAN Regional Forum, held in Hanoi in July 2010,
Secretary of State Hillary R. Clinton said that the United States, “like every nation, has a
national interest in freedom of navigation, open access to Asia’s maritime commons, and
respect for international law in the South China Sea” although “claimants should pursue
their territorial claims and accompanying rights to maritime space in accordance with the
UN convention on the law of the sea.”154
In July 2012, the forty-fifth Meeting of the ASEAN Foreign Ministers in Phnom Penh
failed to reach consensus on whether or not to include a specific mention of Scarborough
Shoal in its joint statement. Thus, for the first time, the ASEAN ministers ended the
meeting without issuing a joint communiqué.155 A majority of the ASEAN member states
reportedly supported the Philippines’ and Vietnam’s insistence that Scarborough Shoal be
mentioned, but Thailand, Myanmar, and the host nation Cambodia were opposed. Following
an Indonesian initiative, on 20 July 2012 the ASEAN foreign ministers issued a six-point
statement of principles concerning the South China Sea, which included calling for the full
implementation of the 2002 DOC and support for guidelines adopted in 2011 on how to
implement the DOC, and recognizing the need for an early conclusion of a regional code
of conduct, full respect for international law including the LOS Convention, the continued
exercise of self-restraint and non-use of force by all parties, and the peaceful resolution of
conflicts.156 At the twenty-first ASEAN Summit in Phnom Penh, 19 November 2012, China
and ASEAN concluded a long joint statement pledging to uphold the 2002 DOC and “keep
the momentum of dialogue and consultation to enhance trust, confidence and cooperation,
and work together for the adoption of a code of conduct in the South China Sea on the basis
of consensus.”157 At the twenty-second ASEAN Summit in Brunei 24–25 April 2013, the
heads of state/governments agreed to look “forward to continued engagement with China
in implementing the DOC in a full and effective manner . . . [and] . . . tasked our Ministers
to continue to work actively with China on the way forward for the early conclusion of a
Code of Conduct in the South China Sea . . . on the basis of consensus.”158
Developments since 2008–2009 indicate that this may be difficult. China changed its
general approach at that time and is pushing more actively its claims to natural resources,
both living and nonliving, in the whole area enclosed by the U-shaped line. The ASEAN
members and the United States repeatedly called on the concerned parties to follow the
rules of international law, in particular the law of the sea. In addition on 22 January 2013,
three months before the ASEAN Summit in Brunei, the Philippines commenced a new
dramatic initiative, which China appears to have resented, such that it now seems to uphold
any progress in China-ASEAN talks about a code of conduct. The Philippines, pursuant to
Article 287 and Annex VII of the LOS Convention, submitted a notification to China that
an Arbitral Tribunal would be established, to consist of five members, to decide on issues
discussed between the Philippines and China since 1995.159 The Philippines requested that
the Arbitral Tribunal issue an award that “China’s maritime claims in the SCS based on
its so-called nine-dash line are contrary to UNCLOS and invalid,” and that China must
“bring its domestic legislation into conformity with its obligations under UNCLOS.”160
In accordance with the requirements in the LOS Convention, the Philippines appointed
ITLOS Judge Rudiger Wolfrum as a member of the Arbitral Tribunal.
However, like several other countries, China had utilized the exception in Article 298
on mandatory dispute settlement declaring on 25 August 2006 that it “does not accept any
of the procedures provided for in Section 2 of Part XV of the Convention with respect to
all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the
Convention.”161 On 19 February 2013, China returned the notification to the Philippines
and refused to appoint any judge for the Arbitral Tribunal.162 In accordance with LOS
Convention Annex VII, the president of ITLOS was asked to appoint the four remaining
members. In March 2013, ITLOS Judge Stanislaw Pawlak was appointed to be China’s
arbiter and second member of the tribunal.163 This was followed by appointments of the
three last members of the tribunal on 24 April 2013, Jean-Pierre Cot of France, Chris
Pinto of Sri Lanka, and Alfred Soons of the Netherlands. Mr. Pinto later excused himself
and, on 21 June 2013, was replaced by Mr Thomas A. Mensah (Ghana).164 When its
proceedings begin, the tribunal must first decide if it has jurisdiction over the case, which
will require an examination of China’s 2006 declaration. If the Arbitral Tribunal decides
that it has jurisdiction to carry through with the merits of the case and eventually comes to
a decision that satisfies the Philippines’ expectations, this could undermine China’s respect
for international law and weaken the LOS Convention as an instrument for peaceful dispute
resolution. The existence of the tribunal might, on the other hand, persuade China to clarify
the legal meaning of the U-shaped line and define more precisely which areas of the South
China Sea it considers to be disputed.165 According to Foreign Minister Alfred de Rosario,
the Philippines’ action is based on “President [Benigno] Aquino’s policy for a peaceful
and rules-based resolution of disputes.”166 Regardless of these voiced good intentions, it is
impossible to say today if the arbitration will weaken or strengthen the role of international
law as an instrument of peaceful conflict management and resolution.
Conclusions and Ways Forward

This article has found that UNCLOS III and the LOS Convention have had ambiguous
effects on peace and conflict in the South China Sea. On the one hand, the Convention has
exacerbated disputes over sovereignty to islands by encouraging overlapping zone claims
and failing to resolve key legal issues, notably by holding out the possibility that some of
the Spratly, Paracel, and Scarborough features may have a right to vast maritime zones. On
the other hand, the Convention includes obligations, language, and techniques for conflict
prevention, management, and resolution. Some of its most controversial ambiguities may
be resolved step-by-step through precedents set by court decisions and bilateral treaties.
Through an analysis of four historical periods since UNCLOS III began in 1973, the
article has found that the conflict-enhancing impact of the LOS Convention has been
more substantial overall than the peace-promoting effects. Nevertheless, the balance has
shifted over time toward a stronger regional emphasis on conflict management manifested
in the 2002 China-ASEAN Declaration on the Conduct of Parties (DOC) and the ongoing
attempts to develop a legally binding code of conduct on the basis of the DOC, which would
probably not have come about if it had not been for the “Managing Potential Conflicts in
the South China Sea” workshops, organized and hosted by Indonesian ambassador Hasjim
Djalal from 1990 onward as track-two diplomacy. Constructive utilization of the LOS
Convention’s peacemaking potential has been evidenced in a number of bilateral maritime
boundary agreements in peripheral parts of the South China Sea, the Gulf of Tonkin, the
Gulf of Thailand, and in the southernmost part of the South China Sea.
If these trends continue, and the provisions of the Convention are more rigorously
respected and applied by its parties, its peace-promoting potential will prove stronger than
its conflict-enhancing effects. After all, there is no way to resolve the maritime disputes
without reference to the LOS Convention. Although the Convention does not offer help to
resolve disputes over sovereignty of land features such as islands and rocks, it does provide
rules and language that must be used in formulating agreements on maritime delimitation.
It is time to confess to a methodological problem. In discussing the impact of the LOS
Convention, little attention has been paid to the question of what rules would have been in
place if there had been no UNCLOS III or LOS Convention. This counterfactual question
must be considered in evaluating the impact of the Convention as distinguished from effects
of the legal situation before UNCLOS III began and from developments in customary
international law that would have occurred even without the Convention. Since the LOS
Convention did not just create new law but mostly assembled and developed already existing
law much of its content would have been part of international customary and treaty law
even without any LOS Convention. Many of its provisions were in the four 1958 Geneva
Conventions. Other provisions reflected existing customary international law and, of course,
customary law would have continued to develop.
In the context of the South China Sea, the most important regime that might not
have been agreed on if it not been for UNCLOS III is the 200-nautical-mile EEZ. It was
a compromise struck between those coastal states that wanted to increase the breadth
of the territorial sea beyond 12 nautical miles and those maritime nations that found it
unacceptable to expand sovereignty in such a radical way, yet could endorse a special
zone where coastal states would have sovereign rights to the resources but not general
sovereignty or jurisdiction that would interfere with the freedom of navigation. Without the
LOS Convention, the conflict that was largely resolved through the EEZ compromise would
probably have continued to manifest itself in the form of unilateral national legislation and
on-the-water confrontation.
Without the Convention, the international law of the sea might have developed in
a fashion similar to what is happening in global trade. The failure of the World Trade
Organization’s Doha Round has led to the emergence of a patchwork–or noodle bowl–of
bilateral, regional, and cross-regional free-trade areas, with a great number of criss-crossing
treaty obligations. If there had been no agreement on a 200-nautical-mile EEZ, then state
practice most likely would have differed more radically than it does today. Some coastal
states would have been expansive, others more cautious, depending on their relationship
with the major maritime powers and their own interests. It is difficult to say if, without the
LOS Convention, the key issue with respect to the capacity of the Spratlys and Paracels to
generate an EEZ and continental shelf would have been closer or further away from being
resolved. It is, however, difficult to imagine that the risk of armed conflict in the Spratlys
would have been reduced by the absence of the LOS Convention. A more volatile legal and
political situation would probably have resulted.
Many commentators and political analysts see a dichotomy between law and so-called
realpolitik. Whenever states fail to reach agreement on the basis of international law, they
claim that realpolitik takes over. Then they compare naval and other military capabilities
and assume that the states with the most hard power, or those with the strongest allies,
will prevail and realize their aims. This study leads to disagreement with these realist
assumptions. Coercive naval power does not provide a realistic alternative to the application
of international law. Not even the strongest of states can force other sovereign states to keep
their fishermen away from disputed fishing grounds. Not even the strongest of states can
tap oil from basins located in areas claimed by other sovereign states without provoking
reactions that endanger the whole enterprise. Even “weak” states will not voluntarily sign
away part of their continental shelf through an “unequal treaty” with a militarily superior
neighbor. There is simply no realpolitik alternative—short of war—to resolving the South
China Sea disputes. The only viable solution is the application of international law.
Of course, the signing and ratification of the LOS Convention did not end legal devel-
opment of relevant law of the sea. Additional protocols and treaties have been concluded.
Through international court decisions and bilateral treaties, new ideas and obligations have
emerged and customary law has continued to develop. Some of the basic disagreements at
the time when the Convention was negotiated have continued to play out. In the South China
Sea context, the most important of such disagreements concern the extent of the sovereign
rights of coastal states in the EEZ vis-à-vis other rights, the legal regime of islands, and the
principle of equity in establishing maritime boundaries where EEZ and continental shelf
claims overlap.
Interestingly, all the South China Sea states that took an active part in UNCLOS
III—except Singapore–belonged to the camp of the developing coastal states and shared
the same expansionist aims. China, Vietnam, the Philippines, and Indonesia all pushed
for extending coastal state sovereignty. Malaysia and Brunei were mainly concerned with
protecting their already discovered offshore oil resources. Indonesia and the Philippines
obtained the special status as archipelagic states. Singapore, sensitive to a need for com-
bining freedom of navigation with good neighborly relations, played a constructive role in
working for compromise solutions.
Since the 1990s, remarkable changes have taken place, partly due to a better under-
standing of international law, but mainly because of China’s rising power. In spite of a rapid
expansion of legal expertise in China, its government and media have generally continued
to use the language of the 1980s, often referring to most of the South China Sea as Chinese
“maritime territory,” claiming sovereignty to features that are not above water at high tide
and failing to distinguish between land and water. Meanwhile, the other coastal states of
the South China Sea have become increasingly legalistic. Instead of seeking to expand their
maritime territory beyond the provisions of existing international law, they now aim to con-
solidate what they achieved through the LOS Convention. Jakarta, Hanoi, Manila, and Kuala
Lumpur have generally applied and implemented the language and basic provisions of the
law of the sea. In view of their wish for a stronger U.S. presence to counterbalance China,
they are no longer as eager as they may have been to deny foreign navies access to their ter-
ritorial seas and EEZs. They have even arrived at the peace-promoting conclusion that none
of the island features in the Spratlys are entitled to a continental shelf or EEZ of their own.
While the main claimant states in ASEAN have arrived at a shared understanding,
which could realize the peace-promoting potential of the LOS Convention, there has been
acrimony between them and China, with Taiwan as a more cautious, independent supporter
of the “Chinese” position. The tensions have played out in several diplomatic quarrels and
incidents during 2010–2013. Hence, the jury is still out concerning the ambiguity with re-
spect to the LOS Convention. Overlapping EEZ claims, conflicting interpretations of Article
121(3), and China’s “sovereignty” or “historic rights” within the U-shaped line continue to
drive conflict. As the arbitral tribunal requested by the Philippines has just been established,
it is impossible to know what impact it will have on conflict and conflict management.
Are there alternative ways out? The two proposals that are heard most often, which
are not mutually exclusive, are: a legally binding code of conduct and joint development
of the resources. Since 2002 ASEAN and China have held regular talks to discuss a legally
binding code of conduct, with the ASEAN foreign ministers reportedly agreeing on a draft
in 2012.167 If this effort is ultimately successful (an agreement was made on 30 June 2013
for Chinese and ASEAN foreign ministers; the two sides announced that they will hold
official consultations on the code of conduct in September 2013), it can help dampen or even
prevent new incidents and create an atmosphere conducive to long-term conflict resolution.
Joint resource development may be a good idea where two or more parties can agree that a
certain area is disputed. In order for parties to agree that an area is disputed, however, each
party must have a legitimate basis for claiming the area. Therefore, before accepting joint
development, one needs to narrow the target area to one that both or all sides are willing to
consider as disputed.
If China’s 7 May 2009 communication explaining that the attached map with a
U-shaped line indicates a Chinese claim to all islands inside “and their adjacent waters”
can be understood to mean the islands and the maritime zones they may generate on the
basis of the law of the sea, then it should be possible to agree that any area that is nearer
to legitimate baselines of the Philippines, Malaysia, Brunei, or Vietnam than to any of
the Spratly Islands is not under dispute. If this were agreed upon then a large area would
remain disputed between and around the Spratlys, which could perhaps become the focus
of joint development projects, but substantial areas of the South China Sea would be free
of disputed claims.
Two steps could be taken to further narrow the ocean area subject to dispute. The first
could be to ask the Law of the Sea Tribunal (or another third party adjudicative body) to
resolve the question of which, if any, of the Spratlys, Paracels, and Scarborough Shoal can
support human habitation or an economic life of their own so they can generate an EEZ
and continental shelf. Unless all of the 30 to 40 Spratly Islands are considered to have
such capacity, this would lead to adjustments in claimed areas between the Spratlys and the
opposite territorial coasts that would further reduce the disputed area. The next step would
be to establish an equitable median line between the Spratlys and the opposite coasts of
Palawan, Borneo, and Vietnam, taking into due consideration the principles of maritime
boundary delimitation including the length of the relevant coasts. Such a line is likely to
be much closer to the Spratly Islands than to the opposite coasts. The problem, of course,
with any such narrowing down of the disputed area is that it tends to benefit the ASEAN
states rather than China.
China’s continued peaceful development, economic growth, and global role depend
on a peaceful and stable neighborhood. This cannot be obtained through investment, trade,
and aid alone. Neither can it be achieved through coercion. The way forward for China,
just as for the other countries around the South China Sea, will go through negotiations,
bilaterally and multilaterally, with reference to the law of the sea.
Notes
1. U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397, adopted at Montego Bay,
Jamaica, on 10 December 1982 (entered into force on 16 November 1994).
2. “A Constitution for the Oceans,” remarks by Tommy T. B. Koh, Singapore, president of
the Third United Nations Conference on the Law of the Sea, adapted from statements on 6 and 11
December 1982, available at www.un.org/depts/los/convention agreements/texts/koh english.pdf.
3. On 12 January 1983, Republic of China foreign minister Chu Fu-sung declared at the sixth
plenary session of the Committee on Foreign Affairs of the seventh session of the Legislative Yuan
(the Parliament) that “[a]fter the Law of the Sea Convention enters into force, our attitude is that in
principle we will comply with its terms.” See Kuo-Tsai Chao, “The Republic of China and the Law
of the Sea,” in The Law of the Sea: Problems from the East Asian Perspective, eds. Choon-ho Park
and Jae Kyu Park (Honolulu: Law of the Sea Institute, 1987), 347.
4. These questions were first discussed in Stein Tønnesson, “International Law in the South
China Sea: Does It Drive or Help Resolve Conflict?” 3, paper presented at the third “International
South China Sea Conference,” Hanoi, Vietnam, 4–5 November 2011.
5. Territorial Sea and Contiguous Zone Convention, 29 April 1958 (entered into force 22
September 1964), 516 U.N.T.S. 205; High Seas Convention, 29 April 1958 (entered into force 3
January 1963), 450 U.N.T.S. 11.
6. See Bangkok Summit Declaration, Bangkok, 14–15 December 1995, available at
www.aseansec.org/5189.htm.
7. Chairman’s Statement at the third meeting of the ASEAN Regional Forum, Jakarta, 23
July 1996, para. iv, available at cil.nus.edu.sg/1996/1996-chairman%e2%80%99s-statement-of-the-
3rd-asean-regional-forum-issued-on-23-july-1996-in-jakarta-indonesia/.
8. Chairman’s Statement at the sixth East Asia Summit, Bali, Indonesia, 19 November 2011,
para. 5, available at www.aseansec.org/documents/19th%20summit/EAS-CS.pdf.
9. See Phnom Penh Declaration on ASEAN: One Community, One Destiny, adopted at
the twentieth ASEAN Summit, Phnom Penh, Cambodia, 3 April 2012, para. 5, available at
www.aseansec.org/documents/pp declaration 3%20April FINAL.pdf.
10. 2002 Declaration on the Conduct of the Parties in the South China Sea, available at
www.aseansec.org/13163.htm.
11. Chair’s Statement at the twentieth ASEAN Summit, Phnom Penh, 3–4 April 2012, available
at asean2012.mfa.gov.kh/documents/Chairman Statement 20th ASEAN Summit FINAL.pdf.
12. For the Chairman’s Statement, see presspool.jp/asean/officialdocuments/459991.html.
13. For the Chairman’s Statement, see www.asean.org/news/asean-statement-communiques/
item/chairmans-statement-of-the-22nd-asean-summit-our-people-our-future-together.
14. See Stein Tønnesson, “The South China Sea in the Age of European Decline,” Modern
Asian Studies 40, no. 1 (2006): 3–57.
15. These were Ecuador and Argentina, 1966; Panama; 1967; Uruguay; 1969; and Brazil,
1970. See Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart,
2010), 10.
16. Continental Shelf Convention, 29 April 1958 (entered into force 10 June 1964), 499
U.N.T.S. 311.
17. UNCLOS III held 11 sessions from 1973 to 1982.
18. For a detailed account, see Lu Ning, Flashpoint Spratlys! (Singapore: Dolphin,
1995), 74–86. See also “Battle of the Paracel Islands,” Wikipedia, available at en.wikipedia.org/
wiki/Battle of the Paracel Islands; Marwyn Samuels, Contest for the South China Sea (New York:
Methuen, 1982), 98–117; David Muller, China’s Emergence as a Maritime Power (Boulder: West-
view, 1983), 152–154; Gerald Segal, Defending China (New York: Oxford University Press, 1985),
197–210; Chi-Kin Lo, China’s Policy Towards Territorial Disputes: The Case of the South China Sea
Islands (New York: Routledge, 1989), 53–60; Greg Austin, China’s Ocean Frontier: International
Law, Military Force and National Development (St. Leonards, Australia: Allen & Unwin, 1998),
73–77.
19. LOS Convention, supra note 1, arts. 55–85.
20. Ibid., arts. 76–77.
21. Timo Kivimäki, ed., War or Peace in the South China Sea (Copenhagen: NIAS Press,
2002), 14–15.
22. Samuels, supra note 18, at 104.
23. Statement of the Spokesman of the Foreign Ministry of the People’s Republic of China, 4
February 1974, People’s Daily, 5 February 1974, 1, and People’s Daily, 21 January 1974, 1.
24. Vietnam, “White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands”
(Republic of Vietnam, Ministry of Foreign Affairs, 1979), available at paracelspratlyislands.
blogspot.com/2008/01/white-papers-of-republic-of-vietnam.html.
25. Vũ Quang Viêt, “Towards a Just and Fair Resolution to the Conflicts in the Southeast
Asian Sea,” unpublished working paper, 18 August 2010 (available from the authors), Annex (Table
of Chronicle of Events Relating to the Paracels and Spratly Islands), n. 184.
26. Ibid., at n. 185.
27. Declaring Certain Area Part of the Philippine Territory and Providing for Their Government
and Administration, Presidential Decree No. 1596, 11 June 1978, available at www.lawphil.net/
statutes/presdecs/pd1978/pd 1596 1978.html.
28. Philippines, Establishing an Exclusive Economic Zone and for Other Purposes, Presidential
Decree No. 1599, 11 June 1978, available at www.lawphil.net/statutes/presdecs/pd1978/pd 1599
1978.html.
29. Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone, and
the Continental Shelf of Vietnam, Foreign Broadcast Information Service (FBIS), Daily Report: Asia
& Pacific, 24 May 1977. See Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law
of the Sea: An Analysis of Vietnamese Behavior Within the Emerging International Oceans Regime
(The Hague: Martinus Nijhoff, 1998), 46, 101.
30. People’s Daily, 27 April 1979, 5.
31. Chi-Kin Lo, supra note 17, at 126–128.
32. People’s Daily, 27 September 1979, 5.
33. People’s Daily, 31 January 1980, 1.
34. Vietnam, “The Hoang Sa and Truong Sa Archipelagoes: Vietnamese Territories” (Min-
istry of Foreign Affairs, Socialist Republic of Vietnam, 1981), available at hoangsa.org/tailieu/
Bo ngoai giaoVietnam81.pdf.
35. Kuo-Tsai Chao, supra note 3, at 341–342.
36. B. A. Hamzah, “Malaysia and the Law of the Sea: Post-UNCLOS III Issues,” in The Law of
the Sea: Problems from the East Asian Perspective, eds. Choon-ho Park and Jae Kyu Park (Honolulu:
Law of the Sea Institute, 1987), 356.
37. Cambodia, Statement Issued by the Spokesman of the Ministry of Foreign Affairs, 15
January 1978, available at the UN Division of Ocean Affairs and the Law of the Sea (DOALOS) Web
site, www.un.org/Depts/los.
38. Declaration by the Government of Indonesia Concerning the Exclusive Economic Zone
of Indonesia, 21 March 1980; Singapore Government press release, “Exclusive Economic Zone,”
(Ministry of Foreign Affairs, 15 September 1980), available at the DOALOS Web site, supra note 37.
39. Royal Proclamation Establishing the Continental Shelf of the Kingdom of Thailand in the
Gulf of Thailand, 18 May 1973; Royal Proclamation Establishing the Exclusive Economic Zone of
the Kingdom of Thailand, 23 February 1981, available at the DOALOS Web site, supra note 37.
40. See the listings for individual states at the DOALOS Web site, supra note 37.
41. Tønnesson, supra note 14, at 3–14, 48–56.
42. Continental Shelf Convention, supra note 16.
43. Zhong-yang-zhi-bao (Central Daily News), Taipei, Taiwan, 26 February 1987, 1.
44. Michael Bennett, “The People’s Republic of China and the Use of International Law in
the Spratly Islands,” Stanford Journal of International Law 28 (1992): 428.
45. See Peter Kien-hong Yu, International Governance and Regimes: A Chinese Perspective
(New York: Routledge, 2012), 83; and Wen Wei Po (Hong Kong), 10 April 1988, cited in Lee Lai To,
China and the South China Sea Dialogue (Westport, Connecticut: Praeger, 1999), 14.
46. Yongshu Jiao (Fiery Cross Reef), Chigua Jiao (Johnson South Reef), Dongmen Jiao,
Nanxun Jiao (Gaven Reef), Zhubi Jiao (Subi Reef), and Huahang Jiao (Guarteron Reef). See Pan
Shiying, “The Nansha Islands: A Chinese Point of View,” Window (Hong Kong), 3 September 1993,
29; and Lu Ning, supra note 18, at 87–93. See also Min Gyo Koo, Island Disputes and Maritime
Regime Building in East Asia: Between a Rock and a Hard Place (London: Springer, 2009), 154.
47. Features above water at low tide are called low-tide elevations. See LOS Convention, supra
note 1, art. 13. While the LOS Convention does not allow constantly submerged reefs to generate
maritime zones, low-tide elevations situated within the 12-nautical-mile territorial sea of an island
or mainland coast may be used as basepoints for measuring maritime zones. In these cases, they are
considered part of a state’s sovereign territory. R. R. Churchill and A. V. Lowe, The Law of the Sea,
3rd ed. (Manchester: Manchester University Press, 1999), 50, point out that the effect of Articles 13
and 121(3) creates “the rather anomalous result that a low-tide elevation can sometimes [because of
Article 13] generate an exclusive economic zone, whereas an uninhabitable ‘rock’ cannot [because
of Article 121(3)], even though the latter will usually be a much more visible manifestation of land.”
See also Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University
Press, 2012), 69–72.
48. Washington Post, 6 April 1988, 32.
49. “Conflict in Spratlys Spur Rift Between Hanoi and Moscow,” Christian Science Monitor,
14 June 1988, 8.
50. Shi-je-zhi-bao (World Journal), 16 March 1989, 31.
51. World Journal, 7 August 1989; Central Daily News, 8 August 1989, 1.
52. Central Daily News, 10 October 1989, 4.
53. John W. Garver, “China’s Push Through the South China Sea: The Interaction of Bureau-
cratic and National Interests,” China Quarterly 132 (December 1992): 1015.
54. “Reef Knots: China Seeks ASEAN Support for Spratly Plan,” Far Eastern Economic
Review 30 August 1990, 11.
55. See Proceedings of the Workshop on Managing Potential Conflicts in the South China Sea,
Bandung, 15–18 July 1991, Annex O: Speech on Political and Security Issues by Professor Wang
Ying-fan, 191–194.
56. China, Law on the Territorial Sea and Contiguous Zone, 25 February 1992, available at
the DOALOS Web site, supra note 37. See also Bureau of Oceans and International Environmental
and Scientific Affairs (BOIESA), U.S. Department of State, Limits in the Seas: Straight Baselines
Claim: China, 117, 9 July 1996, 11–14.
57. Barry Wain, “Beijing and Hanoi Play with Fire in South China Sea,” Asian Wall Street
Journal, 20 July 1994, 5.
58. “China Stirs the Pot,” Far Eastern Economic Review, 9 July 1992, 14.
59. Wain, supra note 57.
60. Lein-he-bao (United Daily News),Taipei, Taiwan, 1 December 1992, 10.
61. The 1992 Declaration is available at www.aseansec.org/1196.htm.
62. Treaty of Amity and Cooperation in Southeast Asia, 24 February 1976, available at
www.asean.org/1217.htm.
63. United Daily News, Taipei, Taiwan, 22 July 1994, 1.
64. The declarations to the LOS Convention are available at www.un.org/Depts/
los/convention agreements/convention declarations.htm.
65. LOS Convention, supra note 1, Preamble.
66. “Spratlys Tension Helps Push Forces Upgrade,” Jane’s Defense Weekly, 25 February
1995, 6.
67. Statement by the ASEAN Foreign Ministers on the Recent Developments in the South
China Sea, 18 March 1995, available at www.aseansec.org/2089.htm.
68. Statement by Christine Shelly, acting spokesperson, 10 May 1995, on U.S. Interest in
Southeast Asia, Hearing Before the Subcommittees on International Economic Policy and Trade and
Asia and the Pacific of the Committee on International Relations, House of Representatives, 104th
Congress, 2nd Session, 30 May and 19 June 1996 (Washington, DC: Government Printing Office,
1997), 157.
69. “Dialogue Between Vice Premier and Foreign Minister Qian Qichen and ASEAN,”
press release, 31 July 1995 (in Chinese). Cited in Li Guoqiang, “An Analysis of Several Options
for the Settlement of Sovereignty Disputes over the Spratly Islands,” China’s Borderland His-
tory and Geography Studies (2000): 79-88, available at http://www.tpcincweb.com/RendaFull/GB/
full2001/CH TXT/000/Full200102 CH TXT 1000241.html (in Chinese)
70. Joint Statement, Republic of the Philippines and the People’s Republic of China on the
South China Sea and on Other Areas of Cooperation, Manila, 9–10 August 1995, available in Yann-
huei Song, “United States and Territorial Disputes in the South China Sea: A Study of Ocean Law and
Politics,” Maryland Series in Contemporary Asian Studies, Vol. 2002, No. 1, Appendix B, 297–298.
71. Joint Statement on the Fourth Annual Bilateral Consultations Between the Socialist Re-
public of Vietnam and the Republic of Philippines, Hanoi, 7 November 1995, available in Yann-huei
Song, supra note 70, Appendix B, 299–301.
72. Bangkok Summit Declaration, 14–15 December 1995, para. 7, available at www.
aseansec.org/5189.htm.
73. Royal Proclamation Establishing the Contiguous Zone of the Kingdom of Thailand, 14
August 1995, available at the DOALOS Web site, supra note 37.
74. Act No. 6 of 8 August 1996 Regarding Indonesian Waters, available at the DOALOS Web
site, supra note 37.
75. For China’s declaration, see the LOS Convention declarations Web site, supra note 64.
76. Declaration of the Government of the People’s Republic of China on the Baselines of the
Territorial Sea, 15 May 1996, Law of the Sea Bulletin, no. 32, (1996): 37–40; and at the DOALOS
Web site, supra note 37.
77. Statement of the Department of Foreign Affairs of the Philippines on the Ratification by
China of the United Nations Convention on the Law of the Sea, Law of the Sea Bulletin, no. 32,
(1996): 88.
78. Vietnam’s Objections to the Statement of 15 May 1996 Made by the Government of the
People’s Republic of China on the Baselines from Which the Breadth of China’s Territorial Sea Is
Measured, Law of the Sea Bulletin, no. 32 (1996): 91.
79. “Beijing Questioned Over Sea Claims,” South China Morning Post, 22 July 1996, 11.
80. “ASEAN Demands China Explain Baselines in S. China Sea,” Asian Political News, 29
July 1996.
81. BOIESA, Limits in the Seas, supra note 56, at 11–14.
82. Ibid., at 8.
83. “U.S. Warns China on Sea Expansion,” International Herald Tribune, 19 September 1996.
84. “China Warns Philippines over Flag on Shoal,” Reuters North American Wire, 13 May
1997.
85. China, Law on the Exclusive Economic Zone and the Continental Shelf, 26 June 1998,
available at the DOALOS Web site, supra note 37.
86. It has been suggested that this wording constituted a claim by China to historic rights for
the waters within the U-shaped line. Chinese scholar, Zou Keyuan, who is now a research fellow
overseas, personal communication with the authors.
87. “US Solon to Washington: Stop Chinese in Spratlys,” Philippine Star, 14 December 1998,
available at www.oocities.org/researchtriangle/thinktank/3964/china.html.
88. Bill Gertz, “China Makes Upgrade to Islands Base, Coastline,” Washington Times, 11
February 1999.
89. “Manila: Chinese Helipad, Radars Seen in Spratlys,” Reuters, 16 February 1999.
90. “Vietnam, Taiwan Fortifying Structures in the Spratlys,” Kyodo World News Service, 21
September 1999.
91. “Philippines Protests Attack by Vietnamese in Spratlys,” Taiwan News, 29 October
1999, 5.
92. For discussion of the incident, see Margaret K. Lewis, “Note: An Analysis of State
Responsibility for the Chinese-American Airplane Collision Incident,” New York University Law
Review 77 (2002): 1404.
93. Declaration on the Conduct of the Parties, supra note 10.
94. Ibid., para. 5.
95. See Erik Franckx, “American and Chinese Views on Navigational Rights of Warships,”
Chinese Journal of International Law 10 (2011): 187–206; and Peter Dutton, ed., Military Activities
in the EEZ: A U.S.-China Dialogue on Security and International Law in the Maritime Commons
(Newport, RI: Naval War College, China Maritime Studies Institute No. 7, 2010).
96. Territorial and Maritime Dispute (Nicaragua v. Colombia), 19 November 2012, available
at the International Court of Justice Web site, www.icj-cij.org.
97. Agreement Between China and Viet Nam on the Delimitation of the Territorial Seas, the
Exclusive Economic Zones and Continental Shelves in Beibu Bay/Bac Bo Gulf, 25 December 2000,
Law of the Sea Bulletin, no. 56 (2004): 137. See Zou Keyuan, “The Sino-Vietnamese Agreement
on Maritime Boundary Delimitation in the Gulf of Tonkin,” Ocean Development and International
Law 36 (2005): 13–24; Nguyen Hong Thao, “Maritime Delimitation and Fisheries Cooperation in
the Tonkin Gulf,” Ocean Development and International Law 36 (2005): 25–44; and Ramses Amer
and Nguyen Hong Thao, “The Management of Vietnam’s Border Disputes: What Impact on Its
Sovereignty and Regional Integration?” Contemporary Southeast Asia 27 (2005): 429–452.
98. The Joint Declaration is available at aseansec.org/15265.htm.
99. Instrument of Accession to the Treaty of Amity and Cooperation in Southeast Asia, done at
Bali, Indonesia on 8 October 2003, and signed by Li Zhaoxing, Minister of Foreign Affairs, People’s
Republic of China, available at www.aseansec.org/15271.htm.
100. The Plan of Action is available at www.aseansec.org/16805.htm.
101. For details of the agreement, see www.scribd.com/doc/98998567/Tripartite-Agreement-
Marine-Scientific-Research; and nghiencuubiendong.vn/en/datbase-on-south-china-sea-study/doc
details/48-a-tripartite-agreement-for-joint-marine-scientific-research-in-certain-areas-in-the-south-
china-sea. See also Aileen S. P. Baviera, “The Influence of Domestic Politics on Philippine Foreign
Policy: The Case of Philippines-China Relations Since 2004,” RSIS Working Paper No. 241, 5 June
2012, available at www.rsis.edu.sg/publications/WorkingPapers/WP241.pdf.
102. “Commentary: Turning ‘Sea of Disputes’ into ‘Sea of Cooperation,” Peoples Daily, 16
March 2005, available at english.peopledaily.com.cn/200503/16/eng20050316 177021.htm.
103. See Yann-huei Song, “The Declaration on the Conduct of Parties and a Code of Conduct
in the South China Sea: Recent Actions Taken by ASEAN,” Asia-Pacific Forum, no. 52 (June 2011):
1–54, Center for Asia-Pacific Area Studies, RCHSS, Academia Sinica, Taipei, Taiwan; and Carlyle
A. Thayer, “Will the Guidelines to Implement the DOC Lessen Tensions in the South China Sea?
An Assessment of Developments Before and After Their Adoption,” paper presented at the third
“International Workshop on the South China Sea” cosponsored by the Vietnam Lawyers’ Association
and the Diplomatic Academy of Vietnam, Hanoi, Vietnam, 3–5 November 2011.
104. The government of the Republic of China (Taiwan) reiterated its sovereignty over the
Spratly Islands and proposed a Spratly Initiative that focused on environmental protection instead
of sovereignty disputes. Ministry of Foreign Affairs, Republic of China, 15 August 2008, avail-
able at www.mofa.gov.tw/EnPDA/News/Detail/4bf0f522-2c04-472b-b27d-b059f346fd5c?arfid=
7b3b4d7a-8ee7-43a9-97f8-7f3d313ad781.
105. See Jonathan G. Odom, “The True ‘Lies’ of the Impeccable Incident: What Really Hap-
pened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be
Concerned,” Michigan State Journal of International Law 18 (2010): 411; Mark J. Valencia, “The
Impeccable Incident: Truth and Consequences,” China Security 5 (Spring 2009): 22; and see, more
generally, Dutton, supra note 95.

106. Ann Scott Tyson, “U.S. Protests Chinese Shadowing in International Waters,” Wash-
ington Post, 10 March 2009, available at www.washingtonpost.com/wp-dyn/content/article/2009/
03/09/AR2009030900956.html?hpid=moreheadlines; David Morgan, “U.S. Says Chinese Vessels
Harassed Navy Ship,” Reuters, 9 March 2009, available at www.reuters.com/article/2009/03/09/us-
usa-china-navy-idUSTRE52845A20090309.
107. “China Hits Out at US on Navy Row,” BBC News, 10 March 2009, available at
news.bbc.co.uk/2/hi/asia-pacific/7934138.stm.
108. “China Says U.S. Naval Ship Breaks Int’l, Chinese Law,” China News, 10 March 2009,
available at news.xinhuanet.com/english/2009-03/10/content 10983647.htm.
109. See, generally, Dutton, supra note 95.
110. See LOS Convention, supra note 1, Article 76 and Annex II regarding the commission.
The 2009 timing was a product of decisions made by the Meeting of States Parties to the United
Nations Convention on the Law of the Sea (SPLOS). With respect to the commission generally, see
the CLCS Web site at www.un.org/Depts/los/clcs new/clcs home.htm.
111. The Joint Submission of Malaysia and Vietnam is available at the CLCS Web site, supra
note 110.
112. The Submission of Vietnam Regarding the Northern Area of the South China Sea is
available at the CLCS Web site, supra note 110.
113. See Communication to the Secretary-General of the United Nations, dated 7 May 2009
from China; 8 May 2009 from Vietnam; 4 August 2009 from the Philippines; 18 August 2009
from Vietnam; 21 August 2009 from Malaysia; 8 July 2010 from Indonesia; 5 April 2011 from the
Philippines; 14 April 2011 from China; and 3 May 2011 from Vietnam. All of these communications
are available on the CLCS Web site, supra note 110. For Taiwan’s statements of 5, 8, and 12 May
2009, see www.mofa.gov.tw/webapp/ct.asp?xItem=40533&ctNode=2039&mp=1 (in Chinese).
114. China, Notes Verbale, 7 May 2009, supra note 113, para. 2.
115. See Masahiro Miyoshi, “China’s ‘U-Shaped Line’ Claim in the South China Sea: Any
Validity Under International Law?” Ocean Development and International Law 43 (2012): 1–17;
Michael Sheng-Ti Gau, “The U-Shaped Line and a Categorization of the Ocean Disputes in the South
China Sea,” Ocean Development and International Law 43 (2012): 57–69; Nguyen Dang Thang and
Nguyen Hong Thao, “China’s Nine Dotted Lines in the South China Sea: The Exchange of Diplomatic
Notes Between the Philippines and China,” Ocean Development and International Law 43 (2012):
35–56; Zou Keyuan, “China’s U-Shaped Line in the South China Sea Revisited,” Ocean Development
and International Law 43 (2012): 18–34; Li Jinming and Li Dexia, “The Dotted Line on the Chinese
Map of the South China Sea: A Note,” Ocean Development and International Law 34 (2003): 287–296;
Peter Dutton, “Three Disputes and Three Objectives: China and the South China Sea,” Naval War Col-
lege Review 64, no. 4 (2011): 42–67; Tran Truong Thuy, “China’s U-Shaped Line in the South China
Sea: Possible Interpretations, Asserting Activities and Reactions from Outside,” paper presented at the
“Conference on the Practices of the UNCLOS and the Resolution of South China Sea Disputes,” 3–4
September 2012, Taipei; Hong Nong, “Interpreting the U-Shaped Line in the South China Sea,” China
and US Focus, 15 May 2012, available at www.chinausfocus.com/peace-security/interpreting-the-u-
shape-line-in-the-south-china-sea; and Duong Danh Huy, “China’s ‘U-Shaped Line’ in the South
China Sea,” Yale Global Online, 24 September 2012, available at yaleglobal.yale.edu/content/chinas-
u-shaped-line-south-china-sea.
116. China, Note Verbale, 7 May 2009, supra note 113, para. 2.
117. Vietnam, Note Verbale, 8 May 2009, supra note 113.
118. Malaysia, Note Verbale, 20 May 2009, supra note 113.
119. Indonesia, Note Verbale, 8 July 2010, supra note 113.
120. The Philippines, Note Verbale, 4 August 2009, supra note 113.
121. The Philippines, Note Verbale, 5 April 2011, supra note 113.
122. China, Note Verbale, 3 May 2011, supra note 113. The use of “is” after “islands” in China’s
English-language letter to the U.N. could represent a deliberate attempt to interpret the Spratlys as an
island group (archipelago) instead of just a number of individual islands, reefs and atolls. On other
occasions, however, China has spoken of the Spratly Islands and “their” adjacent waters.
123. “China’s Largest Fishery Patrol Ship Starts Mission,” Xinhua News, 11 March 2009,
available at news.xinhuanet.com/english/2009–03/11/content 10993996.htm; “One More Ship to
Patrol South China Sea,” People’s Daily Online, 15 May 2009, available at english.peopledaily.
com.cn/90001/90776/90882/6658790.html; “Reinforced Patrol Sails from Hainan,” China Daily, 19
May 2009, available at www.chinadaily.com.cn/china/2009-05/19/content 7790652.htm.
124. “Fishing Ban Starts in the South China Sea,” Xinhua News, 17 May 2012, available at
news.xinhuanet.com/english/china/2012–05/17/c 131592412.htm.
125. See, for example, “China Again Demands Money for Vietnamese Fishermen,” Viet
Channel, 7 July 2009, available at vietchannel.wordpress.com/2009/07/07/china-again-demands-
money-for-vietnamese-fishermen/; “Vietnam Asks China to Return Seized Fishing Boats,” Vietnews,
30 March 2010, available at www.vietnewsonline.vn/News/Politics/13803/Vietnam-asks-China-to-
return-seized-fishing-boat.htm; and “China Navy Boards Vietnam Boat in Sea Spat,” Agence France-
Presse, 15 July 2011, available at www.abs-cbnnews.com/global-filipino/world/07/14/11/china-navy-
boards-vietnam-boat-sea-spat.
126. “China Fired at Filipino Fishermen in Jackson Atoll,” ABS-CBN News, 3 June 2011,
available at www.abs-cbnnews.com/-depth/06/02/11/china-fired-filipino-fishermen-jackson-atoll.
127. In accordance with Section 2 of the Republic Act No. 9522, the baseline in the Kalayaan
Island Group over which the Philippines exercises sovereignty and jurisdiction are determined
as “Regime of Islands” consistent with Article 121 of the LOS Convention. Republic Act No.
9522, 10 March 2009, An Act to Amend Certain Provisions of Republic Act No. 3046, as
Amended by Republic Act No. 5446, to Define the Archipelagic Baseline of the Philippines and
for Other Purposes, available at Lawphil Project, Philippine Laws and Jurisprudence Databank, at
www.lawphil.net/statutes/repacts/ra2009/ra 9522 2009.html.
128. China, Foreign Ministry spokesperson Jiang Yu’s regular press conference, 20 October
2011, available at www.fmpre.gov.cn/eng/xwfw/s2510/2511/t869942.htm.
129. “Philippines Rejects Chinese Demand to Return Boats Seized from Disputed Area,” BBC
Monitoring Asia Pacific–Political, 23 October 2011.
130. “China Ratcheting Up Regional Tension,” Asahi Shimbun, 24 July 2010, available at
www.asahi.com/english/TKY201007230527.html.
131. “Why Is China Picking Fights with Indonesia?” Weekly Standard, 6 August 2010, avail-
able at www.weeklystandard.com/blogs/why-china-picking-fights-indonesia; “Is China a Neighbor to
Indonesia,” Jakarta Post, 8 August 2011, available at www.thejakartapost.com/news/2011/08/08/is-
china-a-neighbor-indonesia.html.
132. Agreement Between Malaysia and Indonesia on the Delimitation of the Continental Shelf
Between the Two Countries, 27 October 1969, available at the DOALOS Web site, supra note 37.
133. Agreement Between Vietnam and Indonesia Concerning the Delimitation of the Continen-
tal Shelf Boundary, 26 June 2003, Law of the Sea Bulletin, no. 67 (2008): 39.
134. Ian Storey, “China and the Philippines: Implications of the Reed Bank Incident,” China
Brief 11, no. 8 (6 May 2011): 6–8, available at www.jamestown.org/uploads/media/cb 11 8 03.pdf.
135. Carlyle A. Thayer, “Security Cooperation in the South China Sea: An Assessment of
Recent Trends,” 16–17, paper presented at the first Manila conference on the South China Sea, “The
South China Sea: Toward a Regional of Peace, Cooperation, and Progress,” 5–6 July 2011, Makati
City, the Philippines. See also Michaela P. del Callar and Mario J. Mallari. “RP Gov’t Protests
China’s Planned Oil Rig, Constructions in Reeds, Spratlys,” Daily Tribune, 2 June 2011, available at
www.tribuneonline.org/headlines/20110602hed4.html.
136. Andrew Higgins, “In South China Sea, a Dispute over Energy,” Washington Post,
18 September 2011, available at www.washingtonpost.com/world/asia-pacific/in-south-china-sea-
a-dispute-over-energy/2011/09/07/gIQA0PrQaK story.html.
137. “Manila Rejects New Chinese Claim to Territory Just 50 Miles Away from Philippine
Province,” Washington Post, 14 November 2011, available at www.washingtonpost.com/world/asia-
pacific/manila-rejects-new-chinese-claim-to-territory-just-50-miles-away-from-philippine-prov
ince/2011/11/14/gIQAv3lmJN print.html.
138. “Vietnam Demands China Stop Sovereignty Violations,” Thanh Nien Daily, 29 May 2011,
available at www.thanhniennews.com/2010/Pages/20110530011353.aspx.
139. “Vietnam Alleges High-Seas Interference,” iStockAnalyst, 10 June 2011, available at
www.istockanalyst.com/business/news/5222203/vietnam-alleges-high-seas-interference.
140. “China, Vietnam Sign Accord on Resolving Maritime Issues,” Xinhua, 12 October 2011,
available at news.xinhuanet.com/english2010/china/2011-10/12/c 131185606.htm (accessed 24 Oc-
tober 2011).
141. Ibid. On the talks up to 2010, see Carlyle Thayer, “The Tyranny of Geography: Vietnamese
Strategies to Constrain China in the South China Sea,” Contemporary Southeast Asia 33 (2011): 350.
142. See supra note 97 and accompanying text.
143. Reported in M. Taylor Fravel, “Clarifying China’s Claim,” The Diplomat, 5 March
2012, available at the-diplomat.com/china-power/2012/03/05/clarification-of-china%E2%80%99s-
claim/comment-page-1/#comment-7077.
144. Ben Bland, et al., “US Gas Find Off Vietnam Adds to China Tension,” Finan-
cial Times, 26 October 2011, available at www.ft.com/intl/cms/s/0/e5674186-ffe5-11e0-ba79-
00144feabdc0.html#axzz1dqfBMYBw.
145. “Vietnam Introduces Maritime Law,” VietnamNet, 17 July 2012, available at
english.vietnamnet.vn/fms/government/24535/vietnamintroduces-maritime-law.html. The full Viet-
namese text is in Carlyle A. Thayer, “Viet Nam Law of the Sea,” Thayer Consultancy Background
Brief , 5 August 2012, available at www.scribd.com/doc/101998223/Thayer-Vietnam-s-Law-on-the-
Sea.
146. “Notification of Part of Open Blocks in Waters Under Jurisdiction of the People’s Re-
public of China Available for Foreign Cooperation in the Year of 2012,” 23 June 2012, available at
en.cnooc.com.cn/data/html/news/2012-06-23/english/322127.html.
147. Teddy Ng, “New City to Run Disputed Island Chains,” South China Morning Post, 22 June
2012.
148. “Philippines Slams China’s Establishment of Sansha City in South China Sea,” VOA News,
23 July 2012, available at www.voanews.com/content/philippines-slams-chinese-establishment-of-
city-in-south-china-sea/1443944.html.
149. James Hookway, “Philippine Warship in Standoff with China Vessels,” The Wall Street
Journal, 11 April 2012, available at http://online.wsj.com/article/SB100014240527023038154045
77336550439399694.html
150. See Ding Gang, “More ‘Doing’ Required in the South China Sea,” Huanqiu Shibao (Global
Times), 29 August 2012, English translation, available at southseaconversations.wordpress.com/2012/
08/30/more-doing-required-ding-gang-brings-the-taoguang-yanghui-debate-to-the-south-china-sea/.
151. Secretary of State Hillary R. Clinton, “Remarks with Secretary of Defense Leon Panetta,
Philippines Foreign Secretary Albert del Rosario, and Philippines Defense Secretary Voltaire Gazmin
After Their Meeting,” 30 April 2012, available at www.state.gov/secretary/rm/2012/04/188982.htm.
152. “VN Opposes Taiwanese Officials’ Visit to Spratly,” States News Service, 10 May 2012.
153. Joint Communiqué of the forty-third ASEAN Foreign Ministers Meeting, “Enhanced
Efforts Towards the ASEAN Community: From Vision to Action,” Ha Noi, Vietnam, 19–20 July
2010, available at www.aseansec.org/24899.htm.
154. Secretary of State Hillary R. Clinton’s remarks made on 23 July 2010, available at
www.state.gov/secretary/rm/2010/07/145095.htm. National Convention Center, Hanoi, Vietnam; 17th
ASEAN Regional Forum.
155. Nirmal Ghosh, “Asean Meeting Fails to Reach Agreement on Joint Statement; Lack of
Accord Unprecedented, Blow to Grouping’s Credibility: Shanmugam,” Straits Times (Singapore),
July 14, 2012.
156. Statement of ASEAN Foreign Ministers on ASEAN’s Six-Point Principles, available at
www.mfaic.gov.kh/mofa/default.aspx?id=3206&utm source=buffer&buffer share=b1430.
157. Joint Statement of China and ASEAN, 19 November 2012, “Full Text of ASEAN-China
Joint Statement,” available at english.cri.cn/6909/2012/11/20/191s733809.htm.
158. Chairman’s Statement at the twenty-second ASEAN Summit, “Our People, Our Future To-
gether,” Bandar Seri Begawan, 24–25 April 2013, available at www.asean.org/news/asean-statement-
communiques / item / chairmans - statement - of - the - 22nd - asean - summit - our - people - our - future -
together.
159. “Notification and Statement of Claim on West Philippine Sea,” The Philippines to the
People’s Republic of China, No. 13–0211, 22 January 2013, available at www.dfa.gov.ph/index.php/
newsroom/dfa-releases/7300-statement-by-secretary-of-foreign-affairs-albert-del-rosario-on-the-
unclos-arbitral-proceedings-against-china-to-achieve-a-peaceful-and-durable-solution-to-the-dispu
te-in-the-wps.
160. Ibid.
161. China’s 2006 Declaration is available at www.un.org/Depts/los/convention agreements/
convention declarations.htm.
162. “Chinese Spokesperson Hong Lei’s Remarks on China Returned the Philippines’ Notifi-
cation on the Submission of South China Sea Issue to International Arbitration,” 19 February 2013,
available at ph.china-embassy.org/eng/xwfb/+1014903.htm.
163. “Polish Judge Picked for Phl-China Arbitration,” Philippine Star, 26 March 2013, available
at www.philstar.com/headlines/2013/03/26/924087/polish-judge-picked-phl-china-arbitration.
164. “ITLOS Appoints 3 Members of UN Tribunal,” Philippine Star, available at www.philstar.
com/headlines/2013/04/26/935048/itlos-appoints-3-members-un-tribunal. “New Arbitrator and Pres-
ident Appointed in the Arbitral Proceedings Instituted by the Republic of the Philippines against
the People’s Republic of China,” Press Release, TLOS/Press 197, 24 June 2013, available at
http://www.itlos.org/fileadmin/itlos/documents/press releases english/PR 197 E.pdf
165. An excellent map showing the maximum extent of an EEZ claim based on the Spratlys and
Paracels (falling far short of the U-shaped line) is in Sarah Raine and Christian Le Mière, Regional
Order: The South China Sea Disputes (London: International Institute of Strategic Studies, 2013), 7.
166. “Statement by Secretary of Foreign Affairs Albert del Rosario on the UNCLOS Arbitral
Proceedings Against China to Achieve a Peaceful and Durable Solution to the Dispute in the
WPS [West Philippines Sea],” available at www.dfa.gov.ph/index.php/newsroom/dfa-releases/7300-
statement-by-secretary-of-foreign-affairs-albert-del-rosario-on-the-unclos-arbitral-proceedings-aga
inst-china-to-achieve-a-peaceful-and-durable-solution-to-the-dispute-in-the-wps. See also Raine
and Le Mière, supra note 165, at 217–220; and Carlyle A. Thayer, “The Philippines’ Claim to the
UNCLOS Arbitral Tribunal: Implication for Vietnam,” presentation at the international workshop,
“The Sovereignty over Paracel and Spratly Archipelagoes–Historical and Legal Aspects,” Pham Van
Dong University, Quang Ngai City, 27–28 April 2013.
167. Carlyle A. Thayer, “ASEAN’s Code of Conduct in the South China Sea: A Litmus Test for
Community-Building?” The Asia-Pacific Journal, Vol. 10, Issue 34, No. 4, August 20, 2012, available
at http://www.japanfocus.org/-Carlyle A -Thayer/3813; Carlyle A. Thayer, “Deference/Defiance:
Southeast Asia, China, and the South China Sea,” 20–26, paper presented at the annual meeting
of the International Studies Association, San Francisco, 5 April 2013.

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Ocean Development & International Law

The Impact of the Law of the Sea

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The Impact of the Law of the Sea Convention

East Asian Peace Program, Department of Peace and Conflict Research

Received 2 October 2012; accepted 14 January 2013.

and reciprocal basis.3

Country Signature Ratification

UNCLOS.”12 At the twenty-second ASEAN Summit in Bandar Seri Begawan, Brunei,

Actions Taken by the Claimant States During UNCLOS III, 1973–1982

Standard Chinese names English names Year taken

Dunqian Shazhou Sandy Cay 1973

The Nansha [Spratly] islands, Xisha (Paracel) Islands, Zhongsha [Macclesfield

solemnly denounce the occupation of these Vietnamese territories by foreign

prime minister, told a Vietnamese delegation visiting Beijing—according to a Vietnamese

This proclamation was followed by another Presidential Decree, establishing an EEZ

Impact of the Adoption of the LOS Convention, 1982–1994

Impact of the Entry into Force of the LOS Convention, 1995–2002

From Outer Continental Shelf Submissions to Arbitration, 2009–2013

The Philippines rejected China’s statement.129

Conclusions and Ways Forward

generally, Dutton, supra note 95.

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