Examining the Legality of “Historic Rights” Over the South China Sea: Are Joint Development Zones the Only Way Out?

© Do Kien Trung
© Do Kien Trung

Claims of the six governments involved in the long standing dispute in the South China Sea have not only managed to effectively plague the minds of policy makers, but have also raised pivotal issues surrounding the gap in international law provisions relating to historic rights. At a very preliminary level, Article 15 of the United Nations Convention on the Law of Seas (hereafter, “UNCLOS”) makes a brief reference to historical factors but constraints its application by restricting the historical context to only a matter of title, and not presence or discovery. While multilateral diplomacy and rounds of negotiation have failed in identifying or resolving the core questions of territorial and marine claims in the area, competing national claims to sovereignty are perceived to be an impediment to the stability that the UNCLOS seeks to provide. While the entire dispute relates to border conflicts in the Gulf of Tonkin, as well as the Natula Islands, what has been the most widely debated and discussed part of the dispute is the one concerning the various island chains in the basin of the South China Sea, namely the Spratly and Paracel Islands.

At a very fundamental level, a legal problem arises from the constant conflict that exists with regards to deciding the legitimacy of various claims made, with China, Vietnam and Taiwan (ROC) asserting historic presence and administrative exercise as a claim to decide borders, while Brunei, Malaysia and the Philippines base their claims on the provisions laid down in the UNCLOS itself. While several critics are of the opinion that the ratification of the UNCLOS by all the six parties involved automatically brushed aside all such “historical claims”, such an argument would be unrealistic, given the present fact scenario. Having said that, the focus of this paper shall be to examine alternate routes to resolve the current political deadlock. It is in that context, that joint development zones shall be examined as a possible alternative to the current methodology of dispute resolution (which emphasizes more on statutory rights from the UNCLOS than historic rights).

The Law Applicable to the Dispute

The Permanent Court of International Justice, in the Eastern Greenland case stated that “a claim to sovereignty based not upon some particular Act or Title such as a treaty of cession, but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign and some actual exercise or display of such authority”. It is pertinent to point out that the jurisprudence of both the International Court of Justice as well as the Permanent Court of International Justice in the period which followed this particular dispute, established that a “continual display of authority” would imply “effective administrative exercise” in the area concerned.

Furthermore, the decision of the International Court of Justice in the Sipadan Ligitan case, whereby Malaysia was granted sovereignty over the disputed island areas when “it could point to various acts of administration that demonstrated an effective exercise of authority” is to considered useful precedent in deciding the fate of the South China Sea dispute. It to be remembered however, that in the abovementioned fact scenario, the appellant State of Indonesia did not protest against any of the activities that were carried out by Malaysia.

The Claims of China

The claims of China over the Spratly and Paracel islands date back to the Xia Dynasty during the sixteenth to the twenty first century B.C, when it was the first country to discover the disputed group of islands. China also contends that it was the first to name, map, study and use the South China Sea and the islands within it. In fact, it was also able to effectively place the islands under the jurisdiction of its national government and therefore take sovereign control over the same. Another factor that has left the matter unsettled is that China has never published its territorial baselines from which territorial waters of the South China Sea were to be measured, confining a majority of their claims to only public statements.

The Claims of Vietnam

Similarly, Vietnam also places reliance on historic rights in asserting their claims of sovereign control, contending that Vietnamese emperors had been exercising effective administrative control over the archipelago since the 1800’s , an argument which was reiterated in its 1975 White Paper. In the context of the Paracels, dispute resolution might be slightly less complicated given the fact that there are only two claimants, China and Vietnam, in a situation where Vietnam had been exercising effective administration during the 1800’s , while China began its forceful occupation from 1960. Therefore, in terms of the duration of administrative control exercised, the argument made by Vietnam clearly carries greater legal credibility. Given such a situation, international law would lean favorably towards recognizing the rights of Vietnam over China.

However, in the case of the Spratly islands, dispute resolution is difficult and at multiple levels. Firstly, the compulsory jurisdiction clause of the ICJ under Article 36(2) of the ICJ statute has not been accepted by Vietnam, Malaysia and China. The Philippines, too continues to maintain a reservation with specific reference to the Spratly dispute. Given such logistical impediments, the only solution that seems plausible is one of collaborative action and joint use of the available resources. Given the fact that it is highly unlikely for any of the disputing parties to budge from their foreign policy in the matter (keeping in mind obvious commercial interests), resolving questions of title may take very long or may not be fruitful at all. Therefore, by envisaging the spirit of an “equitable solution” in the UNCLOS as explained in Article 83, co-operation seems to be only viable way out in ending the continual deadlock between the two sides in the dispute, and competing claims of historic title and statutory law. It is pertinent to note here, that despite several attempts at various modes of negotiation and dispute resolution, the political deadlock continues to persist, almost reaching a situation of absolute political power play. Therefore, it becomes even more pivotal to examine alternatives to end the deadlock, of which joint development zones have been stressed upon, in this paper.

As Park correctly points out,

“In the final analysis, international law can effectively resolve only disputes that are basically legal, whereas the most important disputes, like the Spratly dispute with its highly complicated historical back ground, are political in nature and susceptible therefore to political resolution only.”

In the context of the South China Sea dispute, one could adopt two methods of analysis to examine the various issues of legality of “historic rights” raised in the dispute. The first would be to adopt a plain reading of the UNCLOS, which would deny historic rights, until and unless a proper “title” existed (something over which there would have to be further scrutiny of evidence which would possibly lead to another deadlock situation) while the second would be to jump into a sea of what many critics view as a political deadlock than the resolution of a legal dispute, by taking into account the incredibly large number of elements which fall into the rubric of “presence” or “discovery”.

Given the overarching goal of the UNCLOS in providing to the maximum extent possible, a uniform code of delimitation and maritime dispute resolution, it is submitted that if historic title did exist and if they really are compelling enough to cause a change in the delimitation methodology, then even in that case, the “special circumstances” provision would apply, thereby making it redundant to look outside the statute. It is further contended that exploring new possibilities of argument, in an already vast pool of confusion, fails the object and the purpose of ratifying the UNCLOS in the first place. While it is submitted that historic rights deserve significant consideration in dispute resolution, such consideration can most certainly be made within the scope and purpose of the UNCLOS itself.

In the case of the 2006 Barbados Arbitration, the Court held that “determining an international maritime boundary on the basis of traditional fishing on the high seas by nationals of one of those States is altogether exceptional. Support for such a principle in customary and conventional international law is largely lacking”. Considering the statutory mandate of the UNCLOS under the provisions of Articles 74(3) and 83(3), duties to negotiate in good faith in pursuit of provisional arrangements point favorably towards the result of the 2007 Guyana Suriname Arbitration, which was to ensure that such arrangement was made in consonance with the spirit of international law.

Concluding Remarks

Given the current realpolitik that prevails over the resources in the South China Sea, statutory stability that the UNCLOS seeks to provide is clearly in jeopardy. While on one hand, there is no clear position of law relating to the precise definition of “historic rights”, the current academic literature on the matter restricts itself to a more solution driven approach towards the dispute. Given that fact, the creation of joint development zones, which may be governed by fresh legal norms as decided mutually by the parties, seems to be a credible solution.

Considering China’s obligations under international law, and given its political might in the area, the 2002 Declaration On the Conduct of Parties in the South China Sea, adopted by the foreign affairs department of the Association of Southeast Asian Nations (ASEAN), would also lean favorably towards the creation and maintenance of joint development zones. At a time when several questions have been raised about China’s respect towards international law, and when a political deadlock of such nature prevents effective dispute resolution, the creation of joint development zones as a political solution seems to have credibility.

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