Thayer Consultancy Background Brief:

ABN # 65 648 097 123

UNCLOS: The Constitution for
the World’s Oceans
July 28, 2022

We request your assessment about the role of the United Nations Convention on the
Law of the Sea (UNCLOS) in resolving disputes in the South China Sea on the occasion
of the 40th anniversary of this convention.
Q1. How do you assess the role of UNCLOS in settling disputes in the South China Sea?
ANSWER: First, it is important to note that the United Nations Convention on the Law
of the Sea was not designed to settle disputes over sovereignty and maritime
delimitation. These matters are left up the parties directly concerned to resolve. As
the case brought by the Philippines against China demonstrates, UNCLOS resolves
disputes over the interpretation of its provision and their application. The Philippines
sought clarification of their entitlements under UNCLOS.
Second, UNLOS has been termed the Constitution of the World’s Oceans because it
sets out a comprehensive legal framework for ocean governance. UNCLOS was also a
compromise between the littoral states and the major maritime powers. All littoral
states came under the same entitlements for their maritime zones: a 12 nautical mile
(nm) territorial sea and 200 nm exclusive economic zone (EEZ) and continental shelf.
Littoral states were accorded sovereign jurisdiction over the resources in the water
column and sea bed in their EEZ.
UNCLOS thus unified the entitlements of littoral states that had been a hodgepodge
before its adoption. Major maritime powers were given the right of innocent passage
through the territorial sea and transit passage through straits and archipelagic sea
lanes.
UNCLOS, therefore, provided a basis for coastal states to settle disputes over their
overlapping claims through mutual agreement or through binding (or compulsory)
dispute settlement through four mechanisms: International Tribunal for the Law of
the Sea, International Court of Justice, Arbitral Tribunal and Special Arbitral Tribunal.
States that were in dispute were also free to mutually agree on how to settle disputes
outside of UNCLOS, either through direct negotiations or by an arbitral tribunal of their
own choice.
In Vietnam’s case, for example, it used the legal principles in UNCLOS to resolve
overlapping maritime claims with Cambodia, Malaysia and Thailand in the 1990s.
Between 2003-07 Vietnam and Indonesia negotiated and resolved the delimitation of
their continental shelves. Presently they are negotiating the delimitation of their
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claims to overlapping EEZs.

Q2. China emphasizes its position that "UNCLOS does not provide a comprehensive
legal framework for the oceans" and "UNCLOS continues to be developed and
improved", implying that UNCLOS is still subject to change. How do you assess China's
efforts to devalue UNCLOS? What is China's real purpose?
ANSWER: Let me make an analogy to FIFA’s Laws of the Game for football. The original
Laws of the Games have been successively amended over time, such as the
interpretation of the off-side rule. Each and every match under FIFA is decided under
the laws that exist at that time. A team cannot retrospectively attempt to change the
result of a match that has already been played on the basis of future changes in the
law.
UNCLOS contains provisions for binding dispute settlement through an Arbitral
Tribunal. UNCLOS also contains provision for an arbitral process when one of the
partys to a dispute declines to participate, such as China in the case brought by the
Philippines. Under UNCLOS the Award of an Arbitral Tribunal is final, not subject to
appeal, and must be carried out immediately.
China continues to muddy the waters and devalue UNCLOS because it lost. China
suffered a comprehensive defeat because the judges were unanimous. During the
Third Conference on the Law of the Sea China lobbied hard and unsuccessfully for the
recognition of historic rights. Nevertheless, China signed and ratified UNCLOS. China
is being disingenuous by trying to devalue UNCLOS because it is bound by law of the
day which it freely ratified.
In sum, although UNCLOS created a level playing field for all nations both great and
small, China arrogantly believes that might makes right.

Suggested citation: Carlyle A. Thayer, “UNCLOS: The Constitution for the World’s
Oceans,” Thayer Consultancy Background Brief, July 28, 2022. All background briefs
are posted on Scribd.com (search for Thayer). To remove yourself from the mailing list
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.