Maritime Disputes & Regional Security

MSR Note: We are delighted to present the following paper, submitted to us by Dionysia Chondrogianni. We have made no corrections or alterations to this paper, and hope that readers enjoy it.

Maritime Disputes and Regional Security: The Case Studies of Black Sea (Romania V. Ukraine) and South China Sea (the Philippines V. China)


Petros Siousiouras, Georgios Chrysochou and Dionysia Chondrogianni⃰

Department of Shipping, Trade and Transport, University of the Aegean, Korai 2a Street, Chios 82100, Greece

*Author to whom correspondence should be addressed; E-Mail: dionisiach@chios.aegean.gr

Abstract: The geographical position of each State is determinative for its strategy. Each State tries to expand its jurisdiction and sovereign rights in the adjacent area over waters, seabed and subsoil. The 1982 United Nations Convention on the Law of the Sea is the constitution of the seas and embodies all the principles that determine the maritime zones, the issues that may come up during their delimitation and the status of the maritime features. The aim of this paper is to analyze the maritime disputes and the impact on regional security by examining two case studies. The first one is the maritime delimitation between Romania and Ukraine, in the Black Sea, and the second one is the arbitration between the Philippines and China due to the status of the maritime features in the South China Sea and the source of maritime entitlements in the wider area. Both regions belong to enclosed or semi – enclosed seas and every single dispute can affect the regional and international stability.

Keywords: Law of the Sea; South China Sea; Maritime Dispute; Maritime Delimitations; Black Sea; Enclosed or semi – enclosed Seas, Regional Security

  1. Introduction

States are the main subjects of international law and international society. Although there is no clear and unanimously accepted definition of States, according to international law and the Montevideo Convention on the Rights and Duties of States, every State should have (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other States [1]. The territory is the substantial principle of the State, because it can exercise its fundamental rights over it. According to the Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua V. United States of America) [2] and the Convention on International Civil Aviation (Chicago – 1944), the territory of a State is combined of the land area, the internal or territorial water, the territorial sea and the airspace above its land and sea [3].

Ownership of territory means that the State has absolute and exclusive sovereignty over it and over its population as well as sovereign rights over other maritime zones, such as the Exclusive Economic Zone (hereafter EEZ) and Continental Shelf (hereafter CS). Moreover, the territorial jurisdiction is one of the most important principles of the States and according to international law no other State can invade their territory or threat their peace by no means [4]. Furthermore, every State should be politically independent, which means that no other State has the right to impose its political authority on it or invade it in order to overturn its government [5].

The territory of a State is acceptable by the international society if its borders are clear and acceptable by other States. Obviously, the State’s borders include the air, land and maritime components, as they have been formed after discovery and occupation, negotiations, treaties, history or utipossidetis [6]. According to international law borders must be acceptable and observed by other States (ergaomnes) [7].

It is common over time that many States do not accept or recognize the borders of their neighboring States. For example, one of the most known unsolved international problems is the determination of Israel’s borders. This is not only a territorial issue, but also a maritime one, as many countries do not accept the delimitation of the maritime zones.

The purpose of this paper is to analyze firstly the context of maritime boundaries disputes, especially the disputes in the region of the Black Sea and the South China Sea, according to the International Law of the Sea and the recent judicial decisions of competent international law courts, namely the International Court of Justice (hereafter the Court) and the Arbitral Tribunal, constituted under Annex VII to the United Nations Convention on the Law of the Sea (hereafter UNCLOS) and secondly the consequences of these disputes in the regional security. Before looking at the Black Sea and the South China Sea, which are the areas of special interest for this study, it is necessary to examine the maritime legal status of the sea. In order to achieve that, it would be prudent to start with a reference to the main tool of this analysis: The International Law of the Sea and especially Part IX of UNCLOS, which refers to enclosed or semi – enclosed seas, as both seas belong to this category.

  1. Enclosed or semi – enclosed Seas

The marine environment represents almost the 71% of the total surface of the earth [8] and until the seventeenth century was free from regulations. During the 20th century, international society tried to codify the rules of international law. The result of this attempt was that in 1982 the states signed UNCLOS, which has arguably been recognized by many academics as the constitution of the seas. The purpose of UNCLOS was to address several complex issues relating to the Law of the Sea, and it has been ratified by 168 parties [9]. UNCLOS embodied all the principles that determine delimitation and jurisdiction over the seas and the zones’ limits, along with rights and duties of the States in the marine environment.

For this paper is important to be mentioned Part IX of the convention. Part IX sets forth rules governing the legal status of the enclosed or semi – enclosed seas. According to UNCLOS “enclosed or semi-enclosed seas means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and EEZs of two or more coastal States” [10]. Worldwide there are a great number of enclosed or semi – enclosed seas such as the Baltic Sea, the Black Sea, the South China Sea, the Mediterranean, the Aegean Sea and the Persian Gulf.

Enclosed and semi – enclosed seas are susceptible to human impacts and the bordering States should cooperate with each other to handle effectively the issues in these regions. The main issues concern the resource management among the opposite or adjacent States, the delimitation of the maritime zones, the international navigation and the maritime pollution [11]. The resource management is the one that is given high priority [12] because the majority of the surface of the sea is covered by the EEZ of the coastal States. Resource is referred to both living resources such as fisheries and non–living resources such as oil and gas [13].

Concerning the maritime delimitation among the littoral States the main issue is that the opposite or adjacent States cannot fully utilize the limits of the maritime zones. States bordering an enclosed or semi – enclosed sea have to limit their claims in order not to overlap with the opposite or adjacent States. Lastly, regarding the last two issues, we believe that are inseparable. The enlosed or semi – enclosed seas are open to all States, which means that both coastal and land – locked States, maintain, inter alia, the right of free navigation [14]. These seas operating as transit seas for a great number of ships is sensitive to maritime pollution.

Moreover, although UNCLOS claims that the States bordering an enclosed or semi-enclosed sea should cooperate with each other in order to coordinate the management of the living resources of the sea, to protect and preserve the marine environment, to coordinate their scientific research and to invite other interested States or international organizations to cooperate with them [15], this is not always feasible and affects the relations of the littoral States and the regional stability.

  1. First Case Study: Maritime Delimitation in the Black Sea

The first case study concerns the maritime delimitation in the Black Sea [16] between Romania and Ukraine. In 2004 Romania initiated the proceedings requesting the Court to “draw a single maritime boundary between the CS and the EEZ of the two States” and after five years, on 2009, the Court delivered its Judgment [17].

The Black Sea is an enclosed sea, which is surrounded by six States, namely Romania, Bulgaria, Turkey, Ukraine, Georgia and Russia and holds vast deposits of oil and gas resources. It is connected by the strait of Bosporus with the Marmara Sea, by the strait of Kerch with the Azov Sea and finally by the strait of Dardanelle with the Aegean Sea and consequently with the Mediterranean Sea and covers an area of 432,000 km2 [18]. The Black Sea is an area of utmost geopolitical importance due to its location and its recourses and that is the reason why the littoral States claim sovereignty or sovereign rights in the area over waters, seabed and subsoil.

The dispute between Romania and Ukraine is not the only one but is a complexing dispute and the main issue is the Ukrainian Island of Serpent, which lies 30 to 40 nm from the Ukrainian-Romanian land borders [19] and affects the delimitation of the CS and the EEZ between the two littoral States. Serpent Island is a natural feature which is above water at high tide, and has a surface area of approximately 0,17 km2 [20].

To begin with, the two adjacent States, on 2nd June 1997, signed a Treaty on Relations of Co-operation and Good-Neighborliness and an Additional Agreement, by which the two States committed themselves to find an agreement on the maritime delimitation. According to the Additional Agreement, Serpent Island [21] belongs to Ukraine but no State can locate offensive military devices on it [22]. Moreover, it stresses the principle of the equidistance line and the principle of the median line as delimitation methods and concluded that the disputed States should refrain from exploitation of the mineral resources of the zone submitted to delimitation, until reaching a maritime delimitation [23]. In the last paragraph of Article 4, it is claimed that “If the two States cannot reach a solution concerning the delimitation, the problem will be solved by ICJ” [24]. After 24 rounds of negotiations, without an obtained result or an accomplished maritime delimitation, Romania initiated the proceedings against Ukraine. The two States disagree on the characterization of Serpent Island and the role that plays in the delimitation. The status of the maritime features is important in such cases because it generates different maritime zones and, as a consequence, different rights.

In this part, it is necessery to mention part VIII of the UNCLOS which refers to the definition of islands and the difference from rocks. According to article 121§1 and §2 of UNCLOS “An island is a naturally formed area of land, surrounded by water, which is above water at high tide and is entitled to all maritime zones, thus the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf”.

The main difference between islands and rocks is that rocks, which cannot sustain human habitation or economic life of their own, cannot have neither an EEZ nor a CS [25]. UNCLOS, also, refers to the difference between islands and other features such as artificial islands, installations and structures. These feautures do not possess the status of islands and as a consequence they do not have territorial sea of their own and cannot affect the delimination of maritime zones [26].

Romania filed an application at the Court claiming, first af all, that equitability should govern the delimitation in accordance with the international law [27] and secondly mentions that this natural feature (Serpent Island) is not an island and is just entitled in a 12 nautical miles (hereafter nm) territorial sea. Moreover, Romania claims that Serpent Island is away from Ukrainian coast of Crimea and neither can play a role in delimitation nor can be used as a base point in drawing a delimitation line beyond the 12-mile limit. Furthermore, Romania claims that this feature is a rock incapable of sustaining human habitation or economic life of its own, and therefore has no EEZ or CS [28].

On the other hand, Ukraine rejects Romania’s claims and suggests a different delimitation method. According to Ukraine the delimitation line employing the Pulkovo datum (i.e., using the Krasovsky ellipsoid) [29] and the Court should take into consideration that Serpent Island is “an island with appropriate buildings and accommodation for an active population” [30], [31] and is entitled to all maritime zones.

The figure below depicts the claims of both States. The red line depicts the boundary claimed by Romania and the blue line depicts the maritime boundary claimed by Ukraine, which considers the natural feature (Serpent Island) as an island.

Figure 1 – The maritime boundary claimed by the two littoral States [32]

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First of all, the Court, indicates that the dispute between the two littoral States concerns the establishment of a single maritime boundary delimiting the CS and EES between them in the Black Sea [33]. Moreover, as for the applicable law the Court claims that “The entry into force of UNCLOS as between the Parties in 1999 means that the principles of maritime delimitation to be applied by the Court in this case are determined by paragraph 1 of Articles 74 and 83 thereof” [34], [35].

In order to deliver its judgment, the Court first stated that the coast of Serpent Island is so short that it makes no real difference to the overall length of the relevant coasts of the Parties [36] and second followed the three – step method. At the first stage, the Court shall establish a provisional delimitation line, using methods that are geometrically objective and appropriate for the geography of the area in which the delimitation is to take place. As for the delimitation between adjacent coasts is concerned, an equidistance line will be drawn unless there are compelling reasons that make this unfeasible in the case [37]. As for the opposite coasts are concerned, the provisional delimitation line will consist of a median line between the two coasts. No legal consequences flow from the use of the terms “median line” and “equidistance line” since the method of delimitation is the same for both [38]. At the second stage, the Court consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result [39]. Finally, at the third stage the Court checks if the line lead to an inequitable result [40].

Figure 2 – The final maritime boundary [41]

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The figure above (Figure No 2) depicts the final boundary between Romania and Ukraine. The Court, using the equidistance principle claims that the line should be drawn from Point 1 to Point 5. The Court unanimously decides that starting from Point 1, as it has been determined in their previous treaties [42], the line of the maritime boundary delimiting the CS and EES of the two littoral States shall follow the 12-nm arc of the territorial sea of Ukraine around Serpent Island until Point 2. From Point 2 the boundary line shall follow the equidistance line through Points 3 and 4 until it reaches Point 5. From Point 5 the maritime boundary line shall continue until it reaches the area where the rights of third States may be affected [43].

Following the three – steps method, the Court claims that Serpent Island is not a special circumstance and has no effect on the delimitation between Romania and Ukraine and is just entitled in a 12-nm territorial sea [44]. What is interesting in the judgment is that the Court does not proceed to legal characterization of Serpent, but it claims it as “natural feature called Serpent Island” [45] without any economic zones.

The Court’s judgment is not only important from the perspective of international law, but geopolitical too. The Black Sea is a geographically and politically strategic zone. As it mentioned before is an enclosed sea, connected with the Aegean Sea and consequently with the Mediterranean Sea by the strait of Dardanelle. This connection is important geoeconomically mainly for two reasons. On the one hand, the Black Sea holds vast volumes of oil and gas. Romania estimated that the disputed CS between Ukraine and itself has about 100 billion cubic meters of natural gas and more than 10 million tons of oil [46] and on the other hand, it is the entrance gate of the Caspian Sea’s oil and gas recourses to Europe [47].

Furthermore, throughout history the region of the Black Sea has been through conflicts, wars and maritime disputes among the surrounding States to achieve the regional hegemony. It is worth mentioning the example of Russia whose biggest desire is to seize control of the straits of Bosporus and Dardanelles [48]. Russia’s irredentist claims over these strategic straits based on its desire to have an exit towards the Mediterranean Sea. Moreover, the Black Sea serves as a crossroads between Europe, Asia and Middle East, affecting their trade, commutation and civilizations [49]. Finally, as the Black Sea connects Europe, Eurasia and Middle East, it is easily understanding that only a tiny change in the region can affect not only the regional stability but international too.

  1. Second Case Study: The South China Sea Arbitration

The case of the South China Sea is the most recent arbitration of the Arbitral Tribunal, constituted under Annex VII to UNCLOS, while the Permanent Court of Arbitration was the registry in the proceedings [50]. The Award was issued on 12th July 2016 and it concerned the maritime dispute between the Philippines and China in the South China Sea.

The South China Sea is an area of utmost geopolitical importance, due to its significant resources and its strategic geographical location. The South China Sea is a semi-enclosed sea, located in the west Pacific Ocean and is encircled by China, the Philippines, Taiwan, Malaysia, Vietnam, Indonesia, Singapore and Brunei.

The sea covers an area of 3.3 million km2 and sometimes is referred to as the “Asian Mediterranean” [51], due to its length and importance of its location or as “the second Persian Gulf”, due to its significant oil and gas resources. It is estimated that the sea has about 23 to 30 billion tons of oil and 16 trillion cubic meters of natural gas [52]. Additionally, it is an important international trade route; every day through the Strait of Malacca, which is a key chokepoint in Asia and connects Indian and Pacific Ocean [53], is transferred nearly 1/3 of global crude oil and over ½ of LNG trade [54] and every year 120,000 ships funnel through it [55].

As we mentioned before, the South China Sea is a semi – enclosed sea and the bordering States should cooperate with each other. The cooperation is not always efficient as the opposite and adjacent States claim sovereignty or sovereign rights in the surrounded sea over waters, seabed and subsoil. The disputes in the region are many and due to the complexity of the claims and the number of the involved States, the South China Sea is called “the mother of all territorial disputes” [56]. In this paper, we will analyze the maritime dispute between the Philippines and China.

This dispute is not recent but exists over the centuries and it mainly concerns three matters: a) the source of maritime entitlements in the South China Sea, b) the status of the maritime features in the area and c) the legality of China’s certain actions such as fishing and construction actions on artificial islands [57].

The Arbitration started on 22nd January 2013, when the Philippines served China a Notification and Statement of Claim “with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea” [58]. Almost a month later, on 19th February 2013, China presented a Note Verbale to the Philippines rejecting the arbitration. Its claim was that the Tribunal had not got the jurisdiction of the case because this was a case concerning sovereignty [59]. The Tribunal continued the proceedings according to article 9 of Annex VII of UNCLOS [60], which confirms that the absence of a party is not a reason for not continuing the arbitration [61], and in its Award held that: “This dispute does not concern sovereignty over any land features within the South China Sea and does not concern maritime boundary delimitation” [62].

To begin with, China’s claims over the islands can be said that they started in the mid -1940s, when China published a map in 1947, and claimed almost the entire sea. Nowadays, China claims mainly the Paracel and Spratly Islands and the Chinese government has openly declared that “its right to the area goes back centuries to when the Paracel and Spratly island chains were regarded as integral parts of the Chinese nation” [63]. That map was published by the Boundary Department of the Ministry of Interior of the Republic of China and was incorporated as China’s domestic law [64].

Vietnam and the Philippines, the second important claimant in the region, oppose this, supporting that this is beyond the international law and UNCLOS. The Philippines claim that China never had “historic rights” in the area and the activities interfering with its petroleum exploration are illegal under the international law provisions. Moreover, the Philippines claim that China referred to its “historic rights” for the first time in 2009, when it presented the “nine – dash line” map [65].

Figure No 3 below depicts that map as it was attached in China’s Note Verbale in 2009, and the next figure (Figure No 4) depicts a map of the South China Sea and the features that are claimed by the disputed States. It is important to be mentioned that because the map No 3 was published by China all the features have Chinese names, not English [66].

The largest portion of the territory is claimed by China, including Paracel, Spratly and Pratas Islands and Scarborough Shoal. It is obvious from the figures below, that China claims territories that are far away from its mainland and too close to other countries such as the Philippines. For example, China claims Mischief Reef and Second Thomas Shoal, which are both coral reefs, located 104.0 nm away from the archipelagic baseline of the Philippines and 616.2 nm away from China’s baseline [67]. The “nine – dash line” map makes China the dominant of the South China Sea, as it gives China the right to have approximately 3/4 of the Sea [68]. If China expands its “sea boundaries”, expands its control over all water resources and trade and it can also reduce, or at least control, other States’ influence in Southeast Asia and Pacific Ocean, such as Japan and USA.

The rest of the countries’ claims are closer to their coastlines. For example, Vietnam claims Paracel and Spratly Islands, while the Philippines claim Spratly Islands and Scarborough Shoal, which is about 100 miles away from the Philippines and about 500 miles away from China [69]. Finally, Brunei and Malaysia claim only Spratly Island and Taiwan claims all islands and other features just like China does.

Figure 3 – “Nine – dash line” map [70]

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Figure 4 – The South China Sea [71]

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According to China, the “nine – dash line” is based on their historic rights and claims in the South China Sea. In 1958, China issued the “Declaration on China’s Territorial Sea” and claimed a 12-nm territorial sea to be measured from straight baselines, for both mainland and its coastal islands [72]. In paragraph two of the Declaration, China specifically mentions that “its baseline composed of the straight lines connecting basepoints on the mainland coast and on the outermost of the coastal islands” and asserted ownership titles to all islands in the wider region [73]. The same fact was repeated in 1992’s “Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone” [74] as well as in 1996 Declarations, with which ratified UNCLOS. In the ratification document, China mentioned that it “shall enjoy sovereign rights and jurisdiction over an EEZ of 200 nm and the CS”, and moreover that it “reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 [75] of the Law of the People’s Republic of China on the territorial sea and the contiguous zone” [76].

In 1998, China adopted the “EEZ and CS Act” mentioning in article 14 that “The provisions of this Act shall not affect the historical rights of the People’s Republic of China” [77] and in 2009, China presented to the Commission on the Limits of the Continental Shelf the “nine – dash line” map, to show its sovereignty in the South China Sea [78]. Two years before the arbitration, in 2011, China repeated once again that “it has indisputable sovereignty over the South China Sea Islands and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. China’s sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence” [79].

Nevertheless, according to the Tribunal’s Award China has no legal basis to claim “historic rights” to the living and non-living resources in the waters of the South China Sea within the “nine-dash line”. Characteristically, the Award states that “such rights were extinguished to the extent they were incompatible with the EEZs provided for in the Convention”. As we notice, the Tribunal agrees with the Philippines’ opinion and claims that China’s statement for sovereignty rights over maritime the features in the South China Sea, such as the Spratly Island and the Scarborough Shoal, or even for navigation and fishing activities beyond its territorial sea, has nothing to do with the existence of its “historic rights” and they are not an evidence that China has historically exercised exclusive control over the waters or their resources [80].

The second issue in this longstanding territorial dispute between the Philippines and China is the status of the maritime features in the South China Sea. As we mentioned before, in the case study of the Black Sea, the status of the maritime features is important in such cases because it generates different maritime zones and, as a consequence, different rights.

As we stated earlier, China claims many maritime features in the South China Sea such as Parcel, Spratly and Pratas Islands and Scarborough Shoal. China’s position about these features has constantly been that they could generate all the maritime zones. Therefore, it treats them like islands.

On the other hand, the Philippines claims that many of these features are low-tide elevations and therefore they cannot have the same rights as a land territory. Moreover, they claim that many of them are “rocks” according to UNCLOS and they are not entitled in an EEZ or a CS. Last but not least, they continue saying that no control can be established or any sovereignty over such features. On the contrary, China claims that these maritime features are high-tide features and are entitled in territorial sea at least. Furthermore, it repeats its position about Spratly Islands [81], as in the Note Verbale of 2011 [82], to be fully entitled in all maritime zones [83].

The difference between low – tide elevation and high – tide elevation is crucial, because they generate different maritime zones and the Tribunal always takes this into serious account. According to article 13§1, a low-tide elevation is “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide”. Consequently, this area does not generate a territorial sea of its own, if it does not fall within the breadth of a territorial sea from the mainland or an island [84]. This means that, in order to generate at least a 12 nm territorial zone, it must be a high – tide elevation.

The Tribunal in its Award took into consideration all the evidence of both states and decided that many of these features are not permanent and they can be affected by adverse weather conditions. It claims that some of the features are low – tide elevation such as Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef, Second Thomas Shoal and some others are high – tide elevation such as Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan Reef, and Gaven Reef (North) [85]. Moreover, it clarifies that none of these features is considered as island according to the article 121 of UNCLOS. The Award considers them as rocks that are incapable of sustaining human habitation or an economic life of their own. Furthermore, the Tribunal states that Mischief Reef and Second Thomas Shoal are part of the Philippines’ EEZ and CS, rendering arguably all the Chinese activities in that area not legally according to UNCLOS provisions. Finally, the Court claims that all features in the Spratly island, including Itu Aba which is the largest feature in that area having a size of 110 acres [86], are rocks and cannot generate neither an EEZ nor a CS [87], not even collectively as a unit as it is claimed by China. The third part of this maritime dispute is the lawfulness of Chinese actions in the South China Sea. During all these years, the Philippines claim that the Chinese actions are illegal and many of them have violated their sovereign rights over their EEZ and CS. Many times, there has been a conflict between them over natural gas deposits in the South China Sea. For example, according to Council on Foreign Relations, a conflict occurred when Chinese vessels harassed oil survey ships from the Philippines in the area of the Reed Bank, which is located eighty nm from Palawan, which belongs to the Philippines [88]. Moreover, China has built three airstrips on the Spratly Islands to extend its presence in disputed waters and to establish its “historic rights” in the area [89]. Regarding this claim by the Philippines, the Tribunal states that China has violated the Philippines’ sovereign rights over the non-living resources of its CS in Reed Bank by interfering with Philippines petroleum exploration, by constructing artificial islands and by failing to prevent Chinese fishermen from fishing in the zone [90]. Moreover, the Award is referred to the harmful Chinese actions affecting the marine environment, like the construction of artificial islands in the South China Sea with allegations of causing severe harm to the coral reef environment [91].

From the view of geopolitics, the South China Sea is an area of utmost importance not only for the bordering States but for the third States too. The region of South China Sea is a crucial part of global energy due to the high volume of oil traded through it. Moreover, the hostilities among the littoral States and the disputed affect the international stability and not only regional. China seeks regional hegemony and thinks that the South China Sea disputes should not be internationalized, but the disputes can be solved by bilateral negotiations and agreements. On the other hand, if China expands its control over all the area of South China Sea, it can reduce or at least control, other States’ influence in Southeast Asia and Pacific Ocean, such as Japan and USA.

Moreover, energy efficiency is vital for China and the control of the South China Sea is an important asset for the Middle Kingdom. The main issue in the area is that many of the States have not complete the delimitation with the opposite and adjacent States and the disputes are still on alert. The South China Sea seems to be the new central theater of conflicts [92] and until now it confirms its reputation.

Conclusion

Since the beginning of the 21st century, the political and security environment has changed considerably. States, by shaping their foreign policy, seek reginal hegemony. The management of the maritime disputes in the Black Sea and the South China Sea determines the regional and international stability. Both regions are areas of utmost geopolitical importance, due to its significant resources and its strategic geographical location and, as we mentioned before, only a tiny change in the regions can affect not only the regional stability but international too.

As it derives from the analysis above, the presence of natural resources in both regions has led to hostilities among the coastal States. The first case study concerns the maritime dispute in the Black Sea between Romania and Ukraine and the role that a maritime feature called Serpent Island plays in the delimitation. The Court following the three – step method determined the maritime boundary as the equitable solution between them. Notwithstanding the view that equidistance should provide the starting point, this does not necessarily mean it will finally be the finishing line. The whole field of formulations of that rule suggests that it can be modified to take into account certain other factor1s. Among the relevant factors whose categories may vary accordingly to the specific case, close attention is usually paid to setting clear that areas appertaining to each state are not disproportionate to the ratio between the lengths of their relevant coasts adjoining the area. In addition, the existence of islands that can generate claims to maritime economic zones of sovereign rights, such as the CS or the EEZ, constitutes a complicated factor and their impact upon the equidistance line can be reduced or discounted in numerous ways. On the contrary, the geological factors, which used to be considered relevant when the distance between the coasts was more than 400 nm, for distances less than this limit are not considered relevant lately, whereas the economic factors tend lately to be considered irrelevant by courts and tribunals in their decisions, although they had been considered to be a relevant circumstance in the past. Moreover, the Court in the judgment does not proceed to legal characterization of Serpent, but it claims it as “natural feature called Serpent Island” without any economic zones.

The second case study concerned the source of maritime entitlements in the South China Sea and the status of the maritime features in the area. First of all, the Tribunal in its Award stated that this dispute does not concern neither sovereignty over any land features within the South China Sea nor maritime boundary delimitation. Furthermore, it stated that China had no legal basis to claim “historic rights” over the living and non-living resources in the waters of the South China Sea within the “nine-dash line”. Moreover, the Tribunal, taking into consideration the article 121 of UNCLOS, stated that none of the maritime feautures possesses the status of islands and, as a consequence, they are not entitled to EEZ and CS of their own and cannot affect the delimination of the maritime zones. Last but not least, it concluded that China had violetated the Philippine’s sovereign rights over the non-living resources of its CS and harmed the environment by its actions.

Concluding, it is important to highlight the importance of the judicial decisions on the different and perplexed issues derived from the conventional and customary international Law of the Sea, although the evolution of the delimitation process through the international courts was not always successful. It is undoubtedly a fact that in most cases it is not easy for States to reach an agreement for this sort of issues, rendering the contribution of the international law courts and tribunals a determinant factor.

Acknowledgements

The authors of this article would like to acknowledge the contribution of the recent ICJ and Arbitral Tribunal decisions regarding the maritime delimitation and the status of the maritime features.

Conflicts of Interest

The authors declare no conflict of interest.

References and Notes

  1. Montevideo Convention on the Rights and Duties of States, 1933, Article 1
  2. Military and Paramilitary Activities in and against Nicaragua (Nicaragua V. United States of America), Judgment, ICJ Reports, June 1986, Paras. 212-214
  3. Convention on International Civil Aviation, 1944, Articles 1-2
  4. The UN Charter
  5. Robert Beckman and Dagmar Butte, Introduction to International Law, The International Law Student Association, (2009):2
  6. Uti possidetis means that each new state was entitled to the territory formerly under the jurisdiction of the colonial administrative area from which it was formed. This happened mainly in Latin America and Africa
  7. Emmanouil Roukounas, International Law, Vol. II, Athens – Komotini 2006, pp. 31-33 (in Greek)
  8. Theodore C. Kariotis, The case for a Greek Exclusive Economic Zone in the Aegean Sea, Marine Policy, (1990): 9
  1. For an analytical view on the historical perspective see the Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements, Available online: http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm (accessed on 1 August 2016)
  1. UNCLOS, 1982, Part IX, Article 122
  2. Grigoris I. Tsaltas, Marianthi Kladi-Efstathopoulou, The International Status of the Seas and Oceans: International policies – International law – International organization, Vol. I, Athens 2003, pp. 413 – 418 (in Greek)
  3. For an analytical view see the Food and Agriculture Organization (FAO) of the United Nations, Available online: http://www.fao.org/docrep/003/T0708E/T0708E01.htm (accessed on 20 March 2017)
  4. UNCLOS, 1982, Part V, Article 56
  5. UNCLOS, 1982, Part VII, Article 87
  6. UNCLOS, 1982, Part IX, Article 123
  1. For the maritime delimitations in the Black Sea see P. Siousiouras, The delimitations of Exclusive Economic Zone in the Black Sea: Law and Geopolitical Dimensions, in the proceedings of the Conference Αegean and South-Eastern Mediterranean. Contemporary Challenges and Perspectives of Sub-Sea Energy Natural Resources Exploitation, Panteion University, European Centre of Environmental Research and Training, Hellenic Centre of Maritime Research, Athens, 19-20 November 2010, (in Greek)
  2. Maritime Delimitation in the Black Sea (Romania V. Ukraine), ICJ, Press Release, February 2009
  3. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 14
  4. Petros Siousiouras and Georgios Chrysochou, Delimiting Maritime Economic Zones in Greece in The Context of International Jurisprudence, Middle East Forum, Issue 12, December 2013, p.14
  5. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 16
  6. Treaty mentions it as the Island of Snakes
  7. Additional Agreement between Romania and Ukraine, 1997, Article 3
  8. Article 4§b to§g
  9. If these negotiations shall not determine the conclusion of the above mentioned agreement in a reasonable period of time, but not later than 2 years since their initiation, the Government of Romania and the Government of Ukraine have agreed that the problem of delimitation of the continental shelf and the exclusive economic zones shall be solved by the UN International Court of Justice, at the request of any of the parties, provided that the Treaty on the regime of the State border between Romania and Ukraine has entered into force. However, should the International Court of Justice consider that the delay of the entering into force of the Treaty on the regime of the State border is the result of the other Party’s fault, it may examine the request concerning the delimitation of the continental shelf and the exclusive economic zones before the entry into force of this Treaty.
  1. UNCLOS, 1982, Part VIII, Article 121§3
  2. UNCLOS, 1982, Part V. Article 60§8
  3. Romania, in the written proceedings, states that “The Court should draw a single maritime boundary dividing the continental shelf and the exclusive economic zones of the two States”
  4. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 179 – 182
  5. From the point identified in Article 1 of the 2003 Treaty having the coordinates of 45° 05′ 21″ N; 30° 02′ 27″ E, the delimitation line extends in a south-easterly direction to Point 2, having the coordinates of 44° 54′ 00″ N; 30° 06′ 00″ E, and thence to Point 3, having the co-ordinates of 43° 20′ 37″ N; 31° 05′ 39″ E, and then continues along the same azimuth, until the boundary reaches a point where the interests of third States potentially come into play.”
  6. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 183 -184
  7. The population of the Serpent Island is about a hundred people, mostly frontier guard servicemen with their families, technical personnel, and researchers
  8. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, p. 69
  9. Ibid. para.17-19
  10. Ibid. para. 31-42
  1. Romania ratified UNCLOS on 1996 and Ukraine ratified it on 1999. For an analytical view on the historical perspective see the Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements, Available online: http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm (accessed on 20 March 2017)
  1. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 77-105
  2. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua V. Honduras), Judgment, ICJ Reports, October 2007, para. 281
  3. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 115-116
  4. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon V. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports, 2002, para. 288
  5. Maritime Delimitation in the area between Greenland and Jan Mayen (Denmark V. Norway), Judgment, ICJ Reports, June 1993, para. 64 and Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 117-122
  6. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, p.133
  7. Article 1 of the 2003 State Border Régime Treaty
  8. Maritime Delimitation in the Black Sea (Romania V. Ukraine), Judgment, ICJ Reports, February 2009, para. 219
  9. Ibid. para. 188
  10. Ibid. p. 16
  11. For an analytical view on oil and gas resources in Serpent Island see World Court Decides Ukraine-Romania Sea Border Dispute, Available online: http://www.rferl.org/a/World_Court_Decides_Ukraine_Romania_Sea_Border_Dispute_/1378615.html (accessed on 20 March 2017)
  12. Anda Nicoleta Onețiu, Geopolitical and Geostrategic dimensions within the Black Sea Basin, International Journal of Academic Research in Accounting, Finance and Management Sciences Volume 2, Special Issue 1 (2012), p. 239
  13. Boris Toucas, The Geostrategic Importance of the Black Sea Region: A Brief History, Center for Strategic and International Studies, CSIS, February, 2017
  14. Alexandros Petersen, Regions in Between: Europe, NATO and the Geopolitics of Shifting Frontiers, Turkish Policy Quarterly, Volume 7, Number 2, 2008, p. 60
  15. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), PCA Press Release, August 2013
  16. Brian Morton and Graham Blackmore, South China Sea, Marine Pollution Bulletin, Vol.12, (2001):1236
  17. Su Hsing, China and Territorial Claims in the South China Sea, Policy Paper Series, Issue 2, (2012):3
  18. For an analytical view on the world oil transit chokepoints see the U.S. Energy Information Administration (EIA), Available online:                   https://www.eia.gov/beta/international/regions-topics.cfm?RegionTopicID=WOTC (accessed on 17 July 2016)
  19. Bert Chapman, China’s Nine-Dashed Map: Maritime Source of Geopolitical Tension, Purdue University, (2014):9
  20. Karsten von Hoesslin, The Economics of Piracy in South East Asia, the Global Initiative against Transnational Organized Crime, May 2016, p. 5
  21. Erik Beukel, China and the South China Sea: Two Faces of Power in the Rising China’s Neighborhood Policy, DIIS Working Paper, July 2010, p. 9
  22. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), PCA Press Release, July 2016
  23. Filipino name of the South China Sea
  24. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), PCA Press Release, December 2014
  25. If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.
  26. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016 para. 117
  27. Ibid, Para. 170
  28. For an analytical view see “Why is the South China Sea contentious?”, Available online: http://www.bbc.com/news/world-asia-pacific-13748349 (accessed on 17 July 2016)
  29. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016, p. 75
  30. Ibid. paras. 188-195
  31. Nansha Qundao is the Chinese name of the Spratly Island Group, Zhongsha Qundao is the Chinese name of the Macclesfield Bank, Xisha Qundao is the Chinese name of the Paracel Islands and Dongsha Qundao is the Chinese name of the Pratas Islands
  32. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016, paras. 284-290
  33. Su Hsing, China and Territorial Claims in the South China Sea, Policy Paper Series, Issue 2, p.2
  34. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016 para.63
  35. Ibid. p. 77
  36. Ibid. p.123
  37. Straight Baselines: People’s Republic of China, International Boundary Study, Series A, Limits in the Sea, No. 43, (1972):2
  38. Ibid
  39. Law of the People’s Republic of China on the territorial sea and the contiguous zone, 1992, Article 2
  40. The land territory of the People’s Republic of China includes the mainland of the People’s Republic of China and its coastal islands; Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands belonging to the People’s Republic of China.
  41. For an analytical view see the declarations and statements, Available online: http://www.un.org/depts/los/convention_agreements/convention_declarations.htm (accessed on 22 July 2016)
  42. Exclusive Economic Zone and Continental Shelf Act, 1998, Article 14
  43. CML/18/2009
  44. CML/8/2011
  45. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016 paras. 270-278
  46. Spratly Islands is Nansha Qundao in Chinese and Kalayaan Island Group Filipino
  47. CML/8/2011
  48. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016 paras. 289-301
  49. UNCLOS, 1982, Part II, Article 13§2
  50. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016 paras. 327-383
  51. For an analytical view see “South China Sea: Itu Aba might be key to Philippines v. China”, Available online: http://thediplomat.com/2016/04/south-china-sea-itu-aba-might-be-key-to-philippines-v-china/ (accessed on 23 July 2016)
  52. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), Award, PCA, July 2016, paras. 643-647
  53. For an analytical view see the Council on Foreign Relations, Available online: http://www.cfr.org/asia-and-pacific/armed-clash-south-china-sea/p27883 (accessed on 23 July 2016)
  54. For an analytical view see the Council on Foreign Relations, Available online: http://www.cfr.org/global/global-conflict-tracker/p32137#!/conflict/territorial-disputes-in-the-south-china-sea (accessed on 23 July 2016)
  55. For an analytical view see “Beijing rejects tribunal’s ruling in South China Sea case”, Available online: www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china (accessed on 23 July 2016)
  56. The South China Sea Arbitration (The Republic of the Philippines V. The People’s Republic of China), PCA Press Release, July 2016
  57. For analytical view see “The South China Sea is the future of conflict”, Available online: http://foreignpolicy.com/2011/08/15/the-south-china-sea-is-the-future-of-conflict (accessed on 20 July 2016)

 

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