Scarborough Issues
Scarborough issues
Both the Philippines and China continue to assert sovereignty over the same area in the South China Sea. We therefore have an “international dispute,” an element necessary before one can go to an international court. We want to settle the dispute through the judicial resolution provision in the United Nations Convention on the Law of the Sea (Unclos); but China does not. That is the bind we are in.
Suppose, however, that China eventually agrees to go to court. Can the Unclos be the source of resolution? If we appeal to the convention, will we be contradicting ourselves, as some claim, by laying claim to an area which is outside the geographical limits of Philippine territory as delineated in the Treaty of Paris?
Indeed, the Treaty of Paris is a good starting point. But the treaty is an 1890 document drafted and entered into on the basis of the understanding of what maritime laws were at that time and their limitations. At that time the division of the law of waters was only between the territorial sea and the high seas. It said nothing beyond territorial waters. However, more jurisdictional divisions beyond territorial waters have developed since 1890.
The territorial sea, as originally conceived, was the body of water which a coastal state could defend with the current range of cannons, a rather short distance. This was later expanded to the present 12 nautical miles. Within the territorial sea a coastal state could exercise certain restricted rights. Beyond the territorial sea were the high seas which were open to use and exploration by all.
Things have changed radically since the early development of international law. The division into territorial sea and high seas is still there. But there have now come to be recognized certain zones of jurisdiction beyond the territorial waters. These developments are functional and resource-oriented and have come to threaten those who rely on traditional maritime rules. Thus, when you read of 22
Both the Philippines and China continue to assert sovereignty over the same area in the South China Sea. We therefore have an “international dispute,” an element necessary before one can go to an international court. We want to settle the dispute through the judicial resolution provision in the United Nations Convention on the Law of the Sea (Unclos); but China does not. That is the bind we are in.
Suppose, however, that China eventually agrees to go to court. Can the Unclos be the source of resolution? If we appeal to the convention, will we be contradicting ourselves, as some claim, by laying claim to an area which is outside the geographical limits of Philippine territory as delineated in the Treaty of Paris?
Indeed, the Treaty of Paris is a good starting point. But the treaty is an 1890 document drafted and entered into on the basis of the understanding of what maritime laws were at that time and their limitations. At that time the division of the law of waters was only between the territorial sea and the high seas. It said nothing beyond territorial waters. However, more jurisdictional divisions beyond territorial waters have developed since 1890.
The territorial sea, as originally conceived, was the body of water which a coastal state could defend with the current range of cannons, a rather short distance. This was later expanded to the present 12 nautical miles. Within the territorial sea a coastal state could exercise certain restricted rights. Beyond the territorial sea were the high seas which were open to use and exploration by all.
Things have changed radically since the early development of international law. The division into territorial sea and high seas is still there. But there have now come to be recognized certain zones of jurisdiction beyond the territorial waters. These developments are functional and resource-oriented and have come to threaten those who rely on traditional maritime rules. Thus, when you read of 22