How to resolve the South China Sea issue

Considering the difficulties a state faces in compromising its territorial claims, political negotiation will be a long-drawn process. Before reaching a solution, a wise choice for China and other countries locked in the disputes would be to discuss and sign some cooperative agreements on "low-level" issues such as environmental protection, marine transportation, and anti-piracy and anti-smuggling actions to prevent the disputes from worsening. Such cooperation will be not only in line with the Declaration on the Conduct of Parties in the South China Sea, but also in accordance with the Article 123 of UNCLOS on "cooperation of States bordering enclosed or semi-enclosed seas".

Sino-US disputes, on the other hand, are more complex and can only be resolved politically. The two countries understand and interpret UNCLOS differently, including the scientific research in and peaceful use of exclusive economic zones.

Both have different interpretations of the third point of Article 58 of UNCLOS, which says: "In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part."

But neither has accepted the jurisdiction of the ICJ. So they cannot use its explanation or rulings. And since the US has not joined the convention and China has ruled out the possibility of international arbitration in the issue, a legal solution to the problem is not possible.

Several mechanisms exist between China and US, such as dialogues on sea security and Asia-Pacific affairs, through which they resolve their disputes politically. The two countries need to deepen their understanding and strengthen mutual trust, especially on the interpretation of UNCLOS to maintain peace and stability in the region.

But because neither international nor regional mechanisms on the sea are likely to be changed in the near future, it is essential for China to give the final shape to its domestic laws and regulations.

First, China should clarify the legal status of its "nine-dash" U-shaped line in the South China Sea.

Second, China should publicize its mare clausum (baseline of territorial sea) in the South China Sea, especially near the Nansha Islands, apart from setting up a special committee on sea affairs and making sea laws and regulations more coordinated.

Third, cooperation between the Chinese mainland and Taiwan should be enhanced. Given the progress in cross-Straits relations, the two sides can start cooperation on easier issues such as environmental protection, scientific research, fisheries and disaster prevention to set up a cross-Straits framework on sea issues, because both have the responsibility of defending the interests of the nation.

The author is a law scholar with the Shanghai Academy of Social Sciences and the Academy of Ocean of China.

(China Daily 07/07/2011 page9)

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