The International Law of the Sea and the South China Sea Disputes

Abstract

The development of the law of the sea in the second half of the 20th century – and in particular the extension of coastal State jurisdiction beyond the territorial sea through the regimes of the exclusive economic zone and the continental shelf – has radically transformed the geopolitics of the ocean. Until the middle of the 20th century, the law of the sea was mainly characterized by the dichotomy between the territorial sea and the high seas. While the sovereignty of the coastal State extended over the territorial sea, the high seas beyond the outer limit of the territorial sea were open to all States on an equal basis under the principle of the freedom of the high seas. Due to the limited extent of the territorial sea – major maritime powers insisted on a maximum breadth of 3 nautical miles, while other states claimed a territorial sea of 4 or 6 nautical miles and in some instances 12 nautical miles – the large majority of the ocean was subject to the regime of the high seas. Currently, about half of the ocean is subject to coastal State jurisdiction. The South China Sea is a key example of the way in which the development of the law of the sea has impacted on the geopolitics of the ocean.1 This development has been accompanied by competing interpretations of the law of the sea that have radically diverging implications for the legal and political division of the South China Sea. In addition, the South China Sea is characterized by a number of territorial disputes that add to the complexity of its geopolitical seascape.