Edited by S. Jayakumar, Tommy Koh and Robert Beckman
Chapter 8: UNCLOS Part XV and the South China Sea
The fundamental legal dispute in the South China Sea is about which claimant has the better claim to sovereignty over the disputed offshore features. Brunei Darussalam, China, Malaysia, the Philippines and Viet Nam claim some or all of the features in the Spratly Islands; China and the Philippines claim the features in Scarborough Shoal; and China and Viet Nam claim the Paracel Islands. In addition, Taiwan claims the same features as China. The sovereignty disputes over features in the South China Sea are governed by customary international law on the acquisition of territory and not by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Even if agreement could be reached on which State has the better claim to sovereignty over the disputed islands, many complex legal disputes concerning the ‘maritime claims’ of the claimants would remain. One of the most difficult legal issues that would have to be addressed is how to delimit the maritime boundaries between the offshore islands and the mainland of the bordering States. This is not only a complex legal issue in and of itself, but is also likely to raise other issues concerning the interpretation and application of the provisions of UNCLOS, including whether particular islands are entitled to an exclusive economic zone (EEZ) of their own, whether the baselines from which the maritime zones have been measured are lawful, and what is the legal effect of an extended continental shelf claim by one or more of the claimants.
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