The Claimants and the Limits of UNCLOS
The current SCS claimants are backed by a myriad of border treaties and historical claims that stretch back at least the past millennia. However; since 1982, the United Nations Convention on Law of the Sea (UNCLOS) has emerged as the most important and recent forum to resolve or counter these claims. For its part, China signed onto UNCLOS in 1994 and recently defended its claims in the SCS as “indisputable sovereignty” over the area. As a background, UNCLOS’s boundaries are based solely on land that is “above” sea-level on a 24-hour basis. A baseline is commonly referred to as coterminous with a low water mark running along the coast. From these “dry” baseline boundaries, exclusive economic zones (EEZ) are allowed to extend for up to 200 nautical miles (roughly 230 miles). Features, such as reefs, are generally limited to just territorial sea area (up to 12 nautical miles or roughly 14 miles). Islands, on the other hand, are generally defined as having fresh water and, as such, are entitled to territorial sea, plus the rights of the EEZ.
But what makes the SCS territorial dispute so difficult is that many of these competing zones and claims overlap one-another precisely because of the separate island claims that speckle the SCS. While Part XV of the convention does provide legal mechanisms for the arbitration of disputes as they arise, there is nothing laying out exactly how to proceed if these islands were to become partially or permanently flooded-over. All current developments aside, after decades of contention, the territorial rights of the SCS are no closer to being resolved. It could be a few more decades before the claims are resolved and by then the area may be completely submerged. One would think that the treaty’s signatories would have included provisions to address this eventuality. Yet, they did not.
With imminent sea-level rise on the horizon, the low-lying islands of the SCS will likely disappear; thus jeopardizing the framework of this pivotal convention, while scuttling the various claims. For the Chinese, a tremendous amount of EEZ-based territory would be potentially lost as underscored by their infamous nine-dash line that dips deep into the SCS. In the background of rising sea level, it would behoove China to consolidate and legitimize its claims soon, either through diplomatic means or force, rather than later. This would likewise be true for the other claimants.
There are various alternate solutions for China and the other claimants to follow. One simple and probable solution would be to continue to build-up and structurally reinforce their present claims in the Spratly or Paracel Islands against rising waters. This scenario would basically keep the status quo. Yet, this may not be attainable in the short term given the recent events in the SCS and East China Sea.
Alternatively, if the claimants were completely flooded out and each used their territorial baselines, the simplicity of the 200-mile EEZ baselines might make the situation more distinct on the maps and easier for the international community to arbitrate. Though this might not necessarily make the territorial claims that much more palatable or acceptable to any of the parties involved, including China. Unfortunately the Bangkok Climate Change Conference at the end of August did not offer the claimants an opportunity to address any of these possibilities in regards to UNCLOS. In the end, as the scenario in the SCS continues to play out, it may augur well for other sea level vulnerable littoral and island nations, as well as anticipating the burgeoning claims in the Arctic.
Wilson VornDick is a Lieutenant Commander in the U.S. Navy where he is assigned to the Pentagon. Previously he worked at the Chinese Maritime Studies Institute at the U.S. Naval War College. This piece reflects the author’s opinions, not the official assessments of the U.S. Navy or any other Government entity.