What do you think the award, especially the recognition of your role in UNCLOS, signifies? 

It is an endorsement of my work to build a world governed by law and not by force.

You took over the presidency of UNCLOS III in 1980, inheriting nearly a decade of negotiation. What were the hardest compromises you had to broker in the final years before the 1982 signing? 

The biggest challenge was the Reagan Administration’s radical demands on seabed mining which were rejected by the developing countries. [U.S. President Ronald Reagan changed the stance of the U.S. taken during the Jimmy Carter era. He objected to UNCLOS Part XI’s treatment of the deep seabed as the “common heritage of mankind” that he saw as going against free-enterprise and private-property norms.]

The U.S. never ratified the Convention despite the 1994 Part XI fix. Many other nations such as Iran haven’t either. Is there a case for UNCLOS IV so all nations are onboard? 

We have 172 countries which are parties to UNCLOS. This is near universal. Even though the U.S. is not a party it regards UNCLOS as the authoritative law of the sea.

Do you think the Malacca-Singapore straits are a model for resolving the Strait of Hormuz? Or do you think status quo before the war is the best solution for the world, if not for Iran? 

The priority is to end the war. Before the war there was no trouble in the Strait of Hormuz.

Do the Malacca-Singapore straits provide transit rights to warships and submarines? Iran seems to be very keen on not allowing that. 

Iran is not a party to UNCLOS. However, the regime of transit passage has become part of customary international law and is binding on Iran.

Given current EEZ (exclusive economic zone) and seabed disputes — South China Sea, Indian Ocean boundary questions — do you think UNCLOS’s core architecture is holding up?

It is still the “constitution” of the world’s ocean.

Countries dub some ships as dark fleet and take punitive, material action against them including in the high seas. Do you agree with that?

This is a big problem for the International Maritime Organization (IMO). It is at the IMO that we should try to tackle this problem.

How has the dispute resolution mechanism worked?

Unlike other treaties under UNCLOS, states parties are bound by a system of compulsory dispute settlement. It has, in my view, worked very well.

Thai Foreign Minister Sihasak Phuangketkeow speaks to reporters in Bangkok after Thailand agreed to participate in a UN-backed conciliation process over a long-running maritime boundary dispute with Cambodia.
| Photo Credit: Reuters

Earlier this month, China declared new “baselines” around Scarborough Reef, a large coral atoll topped by a handful of rocks barely above sea level in the South China Sea.

By doing so, China reaffirmed its sovereignty claim over what has become a global flashpoint in the disputed waters.

This was a pre-calculated response to the Philippines’ enactment of new maritime laws two days earlier that aimed to safeguard its own claims over the reef and other contested parts of the sea.

This legal tit-for-tat is a continuation of the ongoing sovereignty and maritime dispute between China and the Philippines (and others) in a vital ocean area through which one-third of global trade travels.

The Philippines rejected China’s declaration as a violation of its “long-established sovereignty over the shoal”. Defence Secretary Gilberto Teodoro said:

What we see is an increasing demand by Beijing for us to concede our sovereign rights in the area.

As the tensions continue to worsen over these claims, there is an ever-increasing risk of an at-sea conflict between the two countries.

What is the Scarborough Reef?

Scarborough Reef is called Huangyan Dao in Chinese and Bajo de Masinloc by the Philippines. It is located in the northeast of the South China Sea, about 116 nautical miles (215km) west of the Philippine island of Luzon and 448 nautical miles (830km) south of the Chinese mainland.

At high tide it is reduced to a few tiny islets, the tallest of which is just 3 metres above the water. However, at low tide, it is the largest coral atoll in the South China Sea.

China asserts sovereignty over all of the waters, islands, rocks and other features in the South China Sea, as well as unspecified “historic rights” within its claimed nine-dash line. This includes Scarborough Reef.

In recent years, the reef has been the scene of repeated clashes between China and the Philippines. Since 2012, China has blocked Filipino fishing vessels from accessing the valuable lagoon here. This prompted the Philippines to take China to international arbitration under the United Nations Convention on the Law of the Sea (UNCLOS) in 2013.

Three years later, an arbitration tribunal ruled that China has no historic rights to maritime areas where this would conflict with UNCLOS. The tribunal also concluded China had “unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal.”

China refused to participate in the arbitration case and has strongly rejected its ruling as being “null and void” and having “no binding force”.

What did China do this month?

China declared the exact location of the base points of its territorial claim around Scarborough Reef with geographical coordinates (longitude and latitude), joined up by straight lines.

The declaration of so-called “baselines” is standard practice for countries that want to claim maritime zones along their coasts. Baselines provide the starting point for measuring these zones.

A country’s “territorial sea” is measured from this baseline outward to as far as 12 nautical miles (22km). Under the UNCLOS treaty, a country then has full sovereignty rights over this zone, covering the seabed, water, airspace and any resources located there.

Countries want their baselines to be as far out to sea as possible so they can maximise the ocean areas over which they can reap economic benefits and enforce their own laws.

China is no exception. Along with other countries (especially in Asia), it draws the most generous baselines of all – straight baselines. These can connect distant headlands or other coastal outcrops with a simple straight line, or even enclose nearshore islands.

China is especially fond of straight baselines. In 1996, it drew them along most of its mainland coast and around the Paracel Islands, a disputed archipelago in the South China Sea. China defined additional straight baselines this March in the Gulf of Tonkin up to its land border with Vietnam.

China says these actions comply with UNCLOS. However, its use of straight baselines around Scarborough Reef conflicts with international law. This is because UNCLOS provides a specific rule for baselines around reefs, which China did not follow.

Based on our review of satellite imagery, however, China has only advanced the outer limit of its territorial sea by a few hundred metres in two directions. This is because its straight baselines largely hug the edge of the reef.

These new baselines around Scarborough Reef are therefore fairly conservative and enclose a dramatically smaller area than the US had feared.

NEW: The PRC Ministry of Foreign Affairs (MFA) released coordinates demarcating the PRC’s claimed territorial sea baseline around Scarborough Shoal on November 10.

The PRC’s announcement of a territorial sea baseline around Scarborough Shoal likely aims to legitimize its… pic.twitter.com/2VrI8Dqf6z

— Institute for the Study of War (@TheStudyofWar) November 13, 2024

China’s declaration signals that it may have abandoned its much larger “offshore archipelago” claim to what it calls the Zhongsha Islands.

China has long asserted that Scarborough Reef is part of this larger island group, which includes the Macclesfield Bank, a totally underwater feature 180 nautical miles (333 km) to the west. This led to concern that Beijing might draw a baseline around this entire island group, claiming all the waters within exclusively for its use.

The South China Sea arbitration tribunal ruled that international law prohibits such claims. There will be a collective sigh of relief among many countries that China decided to make a much smaller claim over Scarborough Reef.

Significance and future steps?

However, China’s clarification of its baselines around the reef signals it may be more assertive in its law enforcement here.

The China Coast Guard has said it will step up patrols in the South China Sea to “firmly uphold order, protect the local ecosystem and biological resources and safeguard national territorial sovereignty and maritime rights”.

Given the long history of clashes related to fishing access around Scarborough Reef, this sets the scene for more confrontation.

And what about the biggest prize of all in the South China Sea – the Spratly Islands?

We can now expect China will continue its long straight baselines march to this island group to the south. The Spratlys are an archipelago of more than 150 small islands, reefs and atolls spread out over around 240,000 square kilometres of lucrative fishing grounds. They are claimed by China, as well as the Philippines and several other countries.

These countries can be expected to protest any attempted encirclement of the Spratly Islands by new Chinese baselines.

(Authors: Yucong Wang, Lecturer, University of Newcastle; Clive Schofield, Professor, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, and Warwick Gullett, Professor of Law, University of Wollongong)

(Disclosure Statement: Clive Schofield served as an independent expert witness appointed by the Philippines in the South China Sea arbitration case. Warwick Gullett and Yucong Wang do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment)

This article is republished from The Conversation under a Creative Commons license. Read the original article.
 

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)