States have sovereignty over three kinds of territories. They are land territory, sea territory and air space over the sea territory. And state-parties to the United Nations Convention on the Law of the Sea shall settle disputes between them, concerning the interpretation or application of the convention by peaceful means.
The dispute over the East China Sea between China and Japan, the second and the third biggest economies in the world and the two neighbouring countries in Asia, has remained to be one of the top news items for quite a time. Similarly China’s assertive claims over most of the South China Sea, believed to be rich in oil and natural gas deposits, despite overlapping or rival claims with Vietnam, the Philippines, Brunei, Malaysia and Taiwan, has also been another news item, drawing the entire world’s attention, and drawing its huge interest.
With malice toward none, with charity for all and with firmness in the right, or in other words, with a good-will towards all parties in the dispute, I, a retired civil servant, with some sort of legal background, would like to submit my simple and sincere views on these disputes from international law point of view in general, and from that of the United Nations convention on the law of the Sea in particular. Well, where there is a dispute among states, it should be settled by diplomatic means, in good faith and with good-will. It is a well-established, time-tested and long-lasting doctrine that diplomacy is the first line of defence when it comes to settling a dispute. In other words, any assertion, any claim and any dispute should be settled peacefully and by diplomatic means. It is a universally accepted rule of international law.
Before dealing with the above-mentioned territorial disputes, I would like to present the relevant provisions of the U.N Convention on the law of the Sea as follows.
The sovereignty of a coastal state extends, beyond its land territory and internal waters and in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of the sea, described as the territorial sea.
This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
The sovereignty over the territorial sea is exercised, subject to this convention and to other rules of international law.
As regards the breadth of the territorial sea, Article (3) prescribes that every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles measured from the baselines measured in accordance with this convention. In order for the coastal states to gain economic benefit from areas further off their shores, they can also establish the contiguous zone, and the exclusive economic zone. And the coastal states may exercise some controls inter-alia over such measures so as to prevent infringement of its customs, fiscals, immigration or sanitary laws and regulations within its territory, or territorial sea or in a zone contiguous to its territorial sea. The convention also allows the coastal states certain rights in a zone that shall not extend beyond 200 nautical miles from the breadth of the territorial sea. That zone is called exclusive economic zone. In this exclusive economic zone, the coastal states enjoy certain rights for the purpose of economic advantage notably rights over fishing and exploitation of non-living resources. At the same time, however, neighbouring land-locked and geographically disadvantaged states must be allowed to have access to those resources of the zone that the coastal state does not exploit. As regards this particular zone, there is a very important point we should take note. That is, the coastal state must observe and maintain the traditional freedoms of the high seas in this specific zone.
We should also take note of one crucial point concerning the territorial sea.
Subject to this convention, all states, whether coastal or land locked, shall enjoy the right of innocent passage through the territorial sea. And the coastalstate may exercise the control over a zone contiguous to the territorial sea. Such a zone is called a contiguous zone, and it may not extend beyond 24 nautical miles from the breadth of the territorial sea. As regards the exclusive economic zone, it shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. In exercising the rights and performing its duties in the exclusive economic zone, the coastal state shall have due regard to the rights of other states and shall act in a manner compatible with the stipulations of this convention.
The convention unequivocally stipulates the rights and obligations of a coastal state as explained above. In essence, all states, coastal, land-locked or geographically disadvantaged will have to cherish and respect a very crucial stipulation that the resources of the deep sea-bed or the resources under the sea-bed of the high seas, are the “common heritage of mankind”. And the world community’s interests in the peaceful settlement of disputes and the prevention of use of force in the settlement of disputes between states have been advanced by the mandatory system of dispute settlement in the convention.
In presenting this news analysis, I bear no prejudice and bias against any party in the disputes. And I have also no iota of authority whatsoever to give advice to any of them. I am just presenting this analysis with my own academic interest, pure and simple. If you have any comments to make or point out any mistakes, you are most warmly and respectfully welcome. Thank you.
(1) The Law of the Sea. United Nations Convention on the law of the Sea.
(2) Black’s Law Dictionary BKYAN.A.GARNER.
(3) Oxford Advanced Learner’s Dictionary.
(4) Book of essential quotations.