JAHANGIRNAGAR UNIVERSITY

DEPARTMENT OF LAW AND JUSTICE

LL.M. 522 Law of the Sea

Topic: The South China Sea: The Right of Safe Navigation in the view of the United Nations
Convention on the Law of the Sea (UNCLOS)

Submitted by:

Name: Badhon Dola

Roll: 1721 (LL.M.)

Registration No. : 45622

Batch: 46th

Academic session: 2020-21

Submitted to:

Bayazid Hossain

Assistant Prof. of Law, Bangladesh Open University;

Adjunct Faculty, Jahangirnagar University.

Introduction:

The South China Sea is a semi-enclosed body of water which is located in the Southeast Asia.
China, Malaysia, Indonesia, The Philippines, Taiwan, Brunei and Vietnam are the neighboring
states of it. The South China Sea is one of the most significant maritime chokepoints in the world
because of its uses for shipping route for commerce and products surfacing the area of 3,500,000
square kilometers. There is significant number of fisheries zones in the South China Sea which is
also crucial. Due to its strategic location and wealth of natural resources, the South China Sea is
on a focus point of international concern for a long period of time. With conflicting territorial
claims made by various countries, it has become a top priority to protect the right to safe
navigation in that area. According to the United Nations Convention on the Law of the Sea
(herein mentioned as UNCLOS), this article analyzes the right to safe navigation in the South
China Sea considering the difficulties and amiable solutions regarding it.

UNCLOS and Its Relevancy:

The right to safe navigation is a fundamental principle of UNCLOS which enshrines freedom of
ships navigating through seas and oceans without coastal states’ inferences. The UNCLOS is a
comprehensive legal framework which governs almost all the facets of the seas across the world
which was adopted in 1982. It offers a balances perspective on marine issues such as freedom of
navigation, exploration and exploitation of marine resources, delimitation of maritime
boundaries etc. This Convention sets a legal framework for the seas and oceans outlining the
rights and duties of state parties.

Article 17 and 38 of the UNCLOS state the right to safe navigation in the seas. According to
article 17, all ships have right to innocent passage through the territorial waters of coastal states
regardless their flags. This freedom is subject to certain limitations, namely prohibition on the
activities which are not innocent such as fishing or use of force. Article 38 states transit passage
as a broader range of passage in international waters. It allows ships to pass through the straits
from another place, not from territorial waters of bordering countries of the straits.
Freedom of Navigation in UNCLOS:

According to UNCLOS, all states are generally granted a complete freedom of navigation and
overflight in international waters and also in the Exclusive Economic Zone (herein mentioned as
EEZ) of the coastal states. Conflicting territorial claims and disputes regarding maritime
boundaries in the South China Sea have made tensions in the concerning states. Though there are
certain limitations and conditions, freedom of navigation provides the right to innocent passage
into territorial waters of the state parties and high seas.

Challenges regarding to Safe Navigation:

The South China Sea is threatened by a number of challenges which hamper the right to safe
navigation. The biggest obstacle is the overlapping territorial claims by Malaysia, China, Brunei,
Taiwan, The Philippines and Vietnam. Due to these overlapping claims by those states, prompted
some states to impose irrational maritime claims, set up infrastructures and artificial islands and
to militarize the features. These activities have been impeding the freedom of navigation
endangering the stability and security of the states’ regions.

The lack of clarity and more ambiguity in interpreting and executing the UNCLOS provisions
pertaining to the South China Sea is another challenge. UNCLOS sets up a legal framework to
resolve maritime issues but its various interpretations cause obstacles for peaceful resolution. So,
because of these ambiguities, an atmosphere of uncertainty is created which can be cause of
unpredictable collisions at sea.

The right of safe navigation is not absolute. It may be constrained by a variety of circumstances
such as coastal states have authority to make artificial installations or safety zones and also
protect their security interest.
UNCLOS for Resolving Disputes

According to UNCLOS provisions, there is a system built up for peaceful resolution of maritime
disputes including negotiation, mediation, arbitration, adjudication. State parties to the UNCLOS
are urged to use the peaceful measures taken by the UNCLOS for resolving maritime disputes.
This system can be used for the settlement of disputes and promoting safe navigation regarding
the South China Sea.

Concerns over the effective application of UNCLOS provisions, notably with regard to safe
navigation, have been highlighted by disputes in the South China Sea. The breadth of waters that
coastal governments can control is impacted by the definition and delimitation of territorial
waters which is one of the main challenges.

Article 2 of the UNCLOS states that foreign vessels enjoy the right of innocent passage through
territorial seas that extend up to 12 nautical miles from a shoreline. Therefore, any efforts by
coastal states in the South China Sea to restrict this right would be in violation of UNCLOS.

Additionally, coastal states are required by UNCLOS article 43 to guarantee the safety of
navigation and take necessary measures to achieve the goal. International rules and standards for
maritime safety are established by the International Marine Organization (IMO), a specialized
agency of the United Nations (UN). The South China Sea’s coastal states are required to abide
by these rules and take the appropriate measures to protect the safety of navigation, for example,
disseminating information, maintaining navigational aids and working with other states.

Promoting Cooperation

Regional parties should make collaboration and activities for confidence building and give it a
top priority to ensure safe navigation in the South China Sea. These activities may include
adopting a code of conduct, patrolling jointly. Exchanging of maritime information and setting
up communication hotlines. Enhanced collaboration and communication among claimant states
and other interested stakeholders may increase transparency, ease tensions and promote a rules-
based order in the related regions.
Conclusion:

The right to safe navigation in the South China Sea is very crucial for the preservation of
regional peace, security, stability and economic prosperity. UNCLOS provides a thorough legal
framework to resolve maritime disputes and safeguard the freedom of navigation. Despite many
challenges, this remains a fundamental principle of international law. All states should work
together to uphold the right and collaborate for safety and security in the oceans.