Asia’s Maritime Disputes 101: A Legal Primer
Editor's Note: This is the first installment in a series of primers produced in partnership with the Center for International Maritime Security (CIMSEC).
“Words have meanings.” It’s easy to dismiss this statement as a truism. But words – and their meanings – do hold particular import in the multi-layered realm of maritime territorial disputes, where the distinction between a rock and an island can mean the difference between hundreds of square miles of Exclusive Economic Zone. At times, usage of words has itself opened new fronts in conflicts, as nationalist fights over names of bodies of waters in textbooks have shown. Those wishing to understand and accurately describe maritime Asia’s long-standing territorial disputes must wade through a colorful and evolving vocabulary. So, in an effort to help bring clarity to the lexicon we offer this guide to common terms in use.
U.N. Convention on the Law of the Sea (UNCLOS): UNCLOS is the international agreement that resulted from the Third UN Conference on the Law of the Sea from 1973-1982. It establishes the maritime zones that divide the modern seas, and the rights and sovereignty of states within them. It also provides means for determining sovereignty within disputed areas. The United States has neither signed nor ratified UNCLOS but regards all but several clauses relating to the International Seabed Authority as customary international law that it therefore follows. Several additional key international terms below are defined in UNCLOS. A full reading of the Convention is highly recommended for any serious student of international affairs to gain a better appreciation of the nuances of the terms than can be spelled out here:
Territorial Waters: Extends 12 nautical miles (nm) from a country’s internationally agreed upon baseline. A coastal state has full sovereignty over its territorial waters, but other states’ vessels (including military, but not aircraft) enjoy the Right of Innocent Passage through these waters so long as their passage is “continuous and expeditious,” and not “prejudicial to the peace, good order or security of the coastal State.” For example naval vessels cannot engage in spying during the transit and submarines must transit surfaced. A similar concept is that of Transit Passage, enabling the “continuous and expeditious” passage of all ships and aircraft through most international straits, as well as archipelagic states’ sea-lane passages (straits formed by two islands of the same state).
Contiguous Zone: Extends from 12nm out to 24nm from a country’s baseline. Coastal states’ rights here are limited to “customs, fiscal, immigration [and] sanitary laws and regulations.”
Exclusive Economic Zone (EEZ): Extends 200 nm out from the baseline, wherein a state enjoys exclusive rights to natural resources such as fish and oil. States may also enjoy some resource exploitation rights in the seabed and subsoil beyond the EEZ depending on the lay of the Continental Shelf.
In ratifying UNCLOS, China made a number of qualifying statements, the first of which read, in part: “the People's Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.” According to Bernard Cole, only fifteen of the 192 UNCLOS signatories take the same position as China on this issue.
Artificial Islands: Within its EEZ, a state has the “exclusive right to construct and to authorize and regulate the construction, operation and use of” artificial islands. However, “Artificial 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 exclusive economic zone or the continental shelf.” Artificial islands have come to prominence in recent months due to China’s extensive reclamation projects in the South China Sea.
High Seas: Anything beyond a state’s EEZ. “No State may validly purport to subject any part of the high seas to its sovereignty.” The high seas are sometimes also referred to synonymously as International Waters, but this latter term is not well defined as it can also be used for everything outside a nation’s territorial waters. Note: Per UNCLOS, Piracy can technically occur only on the high seas or “in a place outside the jurisdiction of any state,” such as the waters of a failed state. This is why reporting of piracy statistics can be inaccurate unless it uses the term Piracy and Armed Robbery to capture piracy occurring within a nation’s EEZ.