SOVEREIGNTY over the Spratly Islands in the South China Sea is
contested by China, Malaysia, the Philippines, Vietnam, Brunei and
Taiwan in whole or in part. Diplomatic notes submitted to the United
Nations Secretary-General by the Philippines and China in April have set
the stage for an evolving dispute between some Asean claimant states
(Malaysia, the Philippines and Vietnam) and China relating to the legal
status of the features comprising the Spratly Islands.
The most important issue at stake is: Who has the right to explore
and exploit the natural resources in and below the waters surrounding
the islands? While the dispute is ultimately about rights to these
natural resources, it is being structured as a legal dispute on the
interpretation and application of Article 121 of the 1982 United Nations
Convention on the Law of the Sea (Unclos).
Article 121 provides that an island - defined as 'a naturally formed
area of land above water at high tide' - can in principle generate the
same maritime zones as land territory. These include a 12 nautical mile
(nm) territorial sea; a 200 nm exclusive economic zone (EEZ); and a
Some of the Spratly Islands features claimed and occupied by the
claimants do not meet the definition of an island. They are either below
water at high tide, or above water at high tide only because of
reclamation works or the presence of man-made structures. Such features
are not even entitled to a 12 nm territorial sea.
Paragraph 3 of Article 121 creates an exception for certain
categories of islands by providing that 'rocks which cannot sustain
human habitation or economic life of their own' shall have no EEZ or
continental shelf. Many of the features in the Spratly Islands may fall
within this category and are thus entitled to only a 12 nm territorial
The diplomatic notes submitted to the UN Secretary-General by the
Philippines on April 5 and China on April 14 are the latest in a series
of diplomatic notes relating to the Joint Submission of Malaysia and
Vietnam dated May 6, 2009. In their joint submission to the Commission
on the Limits of the Continental Shelf, Malaysia and Vietnam claimed an
extended continental shelf beyond the outer limit of their 200 nm EEZ
claims in the South China Sea.
On May 7, 2009, China responded by diplomatic note, maintaining that
it has indisputable sovereignty over the Spratly Islands and their
adjacent waters. China also asserted sovereign rights and jurisdiction
over the 'relevant' waters in the South China Sea, attaching the
infamous nine-dashed line map to its diplomatic note.
The Philippines responded on April 4 this year, stating that Unclos
provided no legal basis for any claim to sovereign rights and
jurisdiction over 'relevant' waters (and the seabed and subsoil thereof)
within the nine-dashed lines outside of the claims to waters that are
'adjacent' to islands as defined in Article 121.
Although the language in the note is ambiguous, it seems to suggest
that China has no legal basis for claiming sovereign rights and
jurisdiction over any resources in or under the waters within the
nine-dashed line outside of the waters adjacent to the islands.
On April 14 this year, responding to the note of the Philippines,
China reiterated its traditional position that it has indisputable
sovereignty over all of the Spratly Islands and their adjacent waters.
It also asserted its sovereign rights and jurisdiction over the relevant
waters as well as the seabed and subsoil thereof. However, it did not
mention the nine-dashed line map, and it stated - for the first time -
that the islands are entitled to a territorial sea, EEZ and continental
shelf. China appears to be clarifying its claims and justifying them
In the evolving dispute about islands and rocks, the Asean claimants
are likely to maintain that they have sovereign rights and jurisdiction
over the natural resources in and under the waters in the Spratly
Islands. They based this claim on their 200 nm EEZ and extended
continental shelf claims measured from their land territory or
archipelagic baselines. They will not claim an EEZ from any of the
geographic features in the Spratly Islands, and will maintain that many
of the disputed features are not islands, and that those which are
islands are in fact, only rocks.
This strategy would give the Asean states undisputed sovereign rights
to explore and exploit the natural resources in and under most of the
waters in the Spratly Islands. The only areas where they will not have
sovereign rights and jurisdiction over the hydrocarbon resources will be
in the 12 nm territorial sea adjacent to islands, so long as the
dispute continues as to who has sovereignty over those islands.
To protect its interests, China will need to maintain that at least
some of the features are 'islands' which are entitled to an EEZ and
continental shelf of their own. Such a position will produce a
substantial overlap in the EEZ claimed by China from these islands and
the 200 nm EEZ and/or extended continental shelf claimed by the Asean
claimants from their land territory or archipelagic baselines.
One difficulty China will face is its own earlier position on islands
and rocks. In discussions at the UN on the right of Japan to claim an
EEZ and continental shelf from the island of Okinotorishima, China
argued that small, remote, uninhabited features should not be given an
EEZ or continental shelf of their own. The Asean claimants are likely to
maintain that this argument should also apply to the small geographic
features in the Spratly Islands as well.
The writer is Director of the Centre for International Law and an
Associate Professor at the Faculty of Law, NUS, as well as an Adjunct
Senior Fellow at the S. Rajaratnam School of International Studies, NTU.