The Spratly Islands Dispute and the Law of the Sea
Whiting, David, Denver Journal of International Law and Policy
The United Nations Convention on the Law of the Sea, which went into effect on November 16, 1994, designates the Earth's ocean areas as being part of the common heritage of mankind, and sets forth the goals of finding peaceful and equitable solutions to disagreements regarding sovereignty over disputed territories and to establishing equal access to the Earth's marine resources.(1) In furtherance of these goals, the Convention contains provisions granting the state which has sovereignty over an island group the right to exploit its natural resources, and an entire part containing dispute resolution mechanisms to aid in the resolution of conflicts over disputed territories and their resources. There are few places in the world that provide a greater challenge to the dispute resolution mechanisms of the Law of the Sea than the South China Sea's Spratly Islands.
The islands were first mapped by the British in the 1880's,(2) and are now claimed by six nations: The People's Republic of China (PRC), The Republic of China (Taiwan), Vietnam, Malaysia, Brunei, and the Philippines.(3) Although all of these claims have a historical basis, the primary reasons for the claims are the islands strategic location and their potential oil and gas reserves.(4)
Considering the amount of attention they have received from nearby countries, the islands themselves are small and physically insignificant by any standard. The total area of the 100 or so islets that comprise the Spratlys is less than five square kilometers,(5) the largest of the islands being only .43 kilometers square.(6) Bearing in mind that the islands are spread over a 200,000 square mile area (518,000 square kilometers), it seems clear that these islands, despite their strategic importance, are actually very small, and that the dispute over them is driven by the desire on the part of the various parties to profit from potential oil reserves and control the South China Sea.(7)
The goal of this paper is to examine the claims on the Spratly Islands that are made by the PRC and Vietnam in light of the signing of the Convention on the Law of the Sea by both countries. The scope of the paper will be limited to the claims made by the PRC and Vietnam because, of the claimants, they are the two nations between whom tensions over the Spratlys are highest. In addition, they are the nations who are most actively pursuing their goals of possessing and economically exploiting the islands. Finally, this paper will discuss the impact of the dispute resolution provisions contained in the Law of the Sea on the possible resolution of the disagreement between the PRC and Vietnam over the Spratly Islands.
II. CUSTOMARY INTERNATIONAL LAW
Article 293(1) of the Law of the Sea states that when a territorial dispute is being settled using the Law, "[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention" when settling the dispute.(8) This language clearly indicates that previously existing international law is to be taken into account when settling territorial disputes under the Law of the Sea.
Since the turn of the century, there have been three cases that have demonstrated what courts base their decisions on in cases involving territorial disputes over islands.(9)
In The Island of Palmas, the United States and the Netherlands agreed to arbitrate their conflicting claims of ownership of islands in the southern part of the Philippines. The United States claimed that the islands had been given to it by the Spanish at the end of the Spanish-American War. In effect, the claim was based on Spain's claim to the islands by their discovery in the 16th century.(10) The Dutch claimed that the islands had been given to the Dutch East Indies Company as tribute by native princes.(11)
After examining the competing claims, the arbitrator ruled in favor of the Dutch on the grounds that although Spain has discovered the islands, they had not taken sufficient steps to protect against their use by the Dutch. …