Friday, September 18, 2015

All Vietnamese must know this: Part VIII of the UN LOS (Law of the Sea)

Part VIII of the UN LOS (Law of the Sea) Convention defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide” (Article 121(1)). It provides that islands have the same entitlements to the foregoing maritime zones as other land territory, except that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf” (Article 121(3)).

Submerged features that do not emerge above water at high tide are not “islands” and are not entitled to maritime zones. They form part of the seabed and subsoil, and are subject to the regime of the maritime zone in which they are found. The Convention also makes clear that “[a]rtificial islands, installations, and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the [EEZ] or the continental shelf” (Article 60(8)). They too are subject to the regime of the maritime zone in which they are located.

In 1958 China made no claim to the entirety of the ocean space within the dashed line.

Submerged features, namely those that are not above water at high tide, are not subject to sovereignty claims and generate no maritime zones of their own. They are subject to the regime of the maritime zone in which they are found.

Artificial islands, installations, and structures likewise do not generate any territorial sea or other maritime zones.

Articles 74 and 83 of the LOS Convention provide with respect to the EEZ and continental shelf that boundary delimitation “shall be effected by agreement on the basis of international law . . . in order to achieve an equitable solution.” Because maritime boundaries under international law are created by agreement (or judicial decision) between neighboring States, one country may not unilaterally establish a maritime boundary with another country. Assuming for the sake of argument that China has sovereignty over all the disputed islands, the maritime boundaries delimiting overlapping zones would need to be negotiated with the States with opposing coastlines—Vietnam, the Philippines, Malaysia, Indonesia, and Brunei. The dashes also lack other important hallmarks of a maritime boundary, such as a published list of geographic coordinates and a continuous, unbroken line that separates the maritime space of two countries.

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