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Philippines, China, UNCLOS and the South China Seas | Hidden Harmonies China Blog
Recently, we hear a growing chorus how the China – Philippines dispute in the South China Seas ought to be settled by binding arbitration under the United Nations Convention on the Law of the Sea (UNCLOS). 3 We already have dealt with some of the political dimensions of this (see, e.g., our South China Seas tag), and I won't rehash them here. But I do want to bring up a couple of points that seem lost in the current fray.
While UNCLOS does allow nations to claim Exclusive economic zones (EEZs) that extend 200 nautical miles out from a nation's territorial sea, the UNCLOS is not the basis of the dispute between China and the Philippines.
One way to view the dispute is as a dispute over maritime boundary. Since the South China Seas is populated with hundreds of islands and rocks, the question is how to disentangle the overlapping claims to the seas arising from the various claims to the islands. This would clearly be a dispute involving UNCLOS.
The problem with this analysis is that China and the Philippines do not even agree over which islands and/or rocks belong to whom. The UNCLOS might be the appropriate forum to assess extent of various claims over the seas when there exists clearly delineated and accepted claims to land territories, but when it comes to disputes over actual claims over land (islands or rocks), there is little that the UNCLOS provides.
Another problem with appealing to the UNCLOS is that the the UNCLOS is really a red herring, as far as the South China Seas and China and the Philippines are concerned.
Under International Law, nations generally have the right to ratify treaties in parts – by ratifying treaties with reservations. This is the case with UNCLOS. Neither China nor the Philippines ratified the UNCLOS in full. In fact, few of nations that ratified the UNCLOS did so without some sorts of qualifying statements or declarations (see UNCLOS delcarations and statements upon ratification).