Settlement of disputes under the 1982 United Nations Convention on the Law of the Sea:
The case of the South China Sea dispute
by Nguyen Manh Dong
UN-Nippon Foundation
Fellowship on the Law of the Sea
New York, December 2005
I.
Introduction
Disputes are an
inevitable part of international relations1 and it is hardly deniable
that, among international disputes, territorial and territorial-related
disputes are the most complicated ones. Undoubtedly, these disputes
have been the primary source of the growing tension in relations among
States which is likely to lead to armed conflicts or eventful wars2 when they are
not settled amicably and peacefully. The sanctity of the
territorial issue to the peoples in question - nationalism and the associated
passions - have made these disputes extremely difficult to resolve.
Furthermore, these disputes have been further complicated by historical,
cultural, political, military and economic phenomena. Nevertheless, States
are required, under international law, to resolve their international
disputes by peaceful means and in conformity with the principles of
justice and international law so that international peace, security, and
justice will not be breached.3
Known to many
as the constitution for the oceans,4 the 1982 United Nations
Convention on the Law of the Sea (LOS Convention)5 was considered
as one of the most successful of the codifications and progressive
developments of international law made by the United Nations since
the end of the World War II. The LOS Convention has set out an
international legal order within which all activities in the oceans and seas must
be carried out. As a comprehensive legal framework for the law of the sea,
the LOS Convention has elucidated the rights and obligations of
all States, including: coastal, land-locked and geographical disadvantaged
States and other international actors in various functional maritime areas;
the protection of marine environment; marine scientific research;
activities in the Area…, as well as settlement of disputes mechanism
applicable for disputes that may arise during the implementation
and interpretation of the LOS Convention. The settlement of disputes
mechanism contained in Part XV of the LOS Convention, which is
characterized by the compulsory procedures entailing binding decisions, has
made the LOS Convention unique among major lawmaking treaties and “one
of an extremely small number of global treaties that prescribe
mandatory jurisdiction for disputes arising from interpretation
and application of its terms”.6 Since the LOS
Convention came into effect it has made preeminent contributions
to the strengthening of peace, security, cooperation and friendly
relations among all nations in conformity with the principles of justice and
equal rights. The LOS Convention has also played an important role
in promoting of the economic and social advancement of all peoples of
the world, in accordance with the purpose and principles of the United
Nations as embodied in the Charter of the United Nations, as well as for the
sustainable development of oceans and seas. Such contributions
made by the LOS Convention have always been fully recognized and
highly appreciated by the States and international community.7
The South China
Sea (SCS) dispute is composed of two aspects: the overlapping
jurisdictional claims and the territorial dispute over groups of
mid-ocean islands. It is regarded as one of the most complex disputes in the
East Asia, if not of the world,8 and remains a
dangerous source of
potential conflict9 which could turn into a serious international conflict10 if it is not
properly managed and resolved. Complicated by many factors
such as number of claimants, the economic and strategic nature of the
area, the SCS dispute of which the dispute over the sovereignty of
the Spratly islands is a main problem has long attracted the intention of
international community and many attempts have been made to investigate
the real causes of the dispute as well as to introduce possible
resolutions.11
The
complexity of situation has made the SCS dispute more
vulnerable to armed conflict. In fact, a number of armed conflicts
relating to the SCS and the Spratly islands dispute have occurred.12
The aim of this paper is to examine the relationship between the LOS Convention and the SCS dispute, in particular the effects of the LOS Convention as well as its settlement of dispute mechanism may have or may not have on the SCS dispute. The paper is composed of 3 Parts. Part I describes the geopolitical context of the SCS region, the origin and development of the SCS dispute. Part II will focus on the settlement of disputes mechanism provided in the LOS Convention, while Part III examines the relationship between the LOS Convention and the SCS dispute as well as the possibility of the application of the settlement of disputes mechanism to the SCS dispute and the latest developments with respect to the SCS dispute. This paper will pay particular attention to the Spratly dispute, where ownership of the islands is claimed wholly or partly by Vietnam, China, the Philippines, Malaysia, Brunei or Taiwan.
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