Universalizing the Law of the Sea in the South China Sea Dispute

This article argues that a resolution of the maritime disputes in the South China Sea must be based upon a universalist framework where the maritime interests of the world are upheld. The article discusses the universalist framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the universalist approach taken by the Tribunal on 12 July 2016 in the South China Sea Arbitration regarding the extinguishment of a state's “exceptionalist” maritime claims and the adoption of strict criteria for the characterization of features at sea.     

Historic Rights in International Law and in China's Practice

Despite the great expansion of maritime zones of the coastal states, consequent to the 1982 UN Convention on the Law of the Sea, state practice indicates continued attempts at using concepts of historic waters and/or historic rights to assert jurisdiction. The Chinese claim to historic rights in its 1998 Law on the Exclusive Economic Zone and Continental Shelf is a new addition to the whole picture. It is the People's Republic of China's clear intention that the historic claim applies to the water areas in the South China Sea wherever China could not establish its 200-nm exclusive economic zone. This article assesses China's historic claim in the context of international law, state practice, and judicial pronouncements.     

Reflections on the Interpretation and Application of Article 121(3) in the South China Sea Arbitration (Merits)

The 2016 South China Sea Arbitration Award provided a detailed review of the interpretation of Article 121(3) of the U.N. Convention on the Law of the Sea. According to the Tribunal, Article 121(3) performs a preventive function by disabling tiny features from unfairly generating enormous entitlements to maritime space that does not serve the local population. This provision also contributes to safeguarding of the Common Heritage of Mankind. The Tribunal's interpretation seems to reflect development of the law of the sea toward protection of the common interests of the international community. However, since the Tribunal's interpretation is not anchored in state practice and the jurisprudence, whether the interpretation can be generalized needs careful consideration.     

Interpretation and Application of Article 298 of the Law of the Sea Convention in Recent Annex VII Arbitrations: An Appraisal

Article 298 of the UN Convention on the Law of the Sea allows state parties to exclude certain categories of disputes from the compulsory procedures entailing binding decisions. This provision serves as a “safety valve” by excluding sensitive issues mainly related to sovereignty. This article examines the three recent Annex VII Arbitral Awards (the South China Sea Arbitration; the Arctic Sunrise Arbitration; and the Chagos Marine Protected Area Arbitration) that assessed the interpretation and application of Article 298.     

Due Diligence and Overlooked Evidence in the South China Sea Arbitration: A Note

Abstract

In the South China Sea Arbitration, the Tribunal decided that China had not breached the due diligence obligation to protect and preserve the marine environment under Articles 192 and 194(5) of the United Nations Convention on the Law of the Sea concerning Chinese fishers fishing with explosives, but that China had breached the same obligation regarding Chinese fishers harvesting endangered species. This article looks at how the Tribunal interpreted and applied the due diligence obligation and argues, from a Chinese perspective, that there were facts overlooked by the Tribunal that China could have presented to counter the evidence of the Philippines, which might have been enough to affect the decision on destructive fishing had China participated in the Arbitration.     

南海冷泉区深海沉积物中细菌的分离培养及多样性分析

为了认识南海深海冷泉区沉积物中可培养微生物的多样性,本文以冷泉区与非冷泉区两个站点的深海沉积物为样品,通过两种培养基(R2A海水培养基和2216E培养基)直接涂布或富集后平板分离纯化,从9个样品中共得到395株菌株,并通过16SrRNA基因鉴定,分属10个属。发现产芽胞细菌分布最广、丰度最大,包括3个属、15个种。其中芽胞杆菌(Bacillus)无论是在数量还是在种类上都分布最多。并且,随着水深和沉积物深度的增加,分离到的可培养微生物丰富度降低。本研究表明,即使在冷泉区,南海深海沉积物中产芽胞细菌也比较丰富。     

Monitoring of sea surface temperature in the South China Sea

Since the early 1980s, the Malaysian Meteorological Service (MMS) has made concerted efforts to build up adequate meteorological data base for the South China Sea and the Straits of Malacca. Close rapport with local oil companies and universities has enabled MMS to widen its sources of such data.This data base has been used to carry out a study on the influence of the sea surface temperature (SST) variations in the South China Sea on the atmosphere during the northern hemisphere winter. Encouraging results of the study has prompted MMS to initiate real-time monitoring of the SST in the South China Sea. These data are available to local scientists who are interested in studying the effects of such variation on marine life in the Malaysian Exclusive Economic Zone (EEZ).     

A Code of Conduct for Human and Regional Security Around the South China Sea

In the past decade, there have been calls for a regional code of conduct for the South China Sea to ensure peace and stability in a region replete with conflicting territorial claims over offshore geographical features. This paper will distinguish between the process of codification of rules and principles in one document, on the one hand, and the process of implementing existing rules and principles, on the other hand. It will be argued that rules and principles governing conduct for human and regional security around the South China Sea already exist in many forms and that the South China Sea states are obligated by international law to implement them without waiting for their consolidation in one document.     

Genetic structure and diversity of green sea turtle (Chelonia mydas) from South China Sea inferred by mtDNA control region sequence

We analyzed 88 control region sequences of green sea turtle (Chelonia mydas) from around Hainan Island in the South China Sea. These sequences had a length of 489 bp and revealed 8 mtDNA haplotypes of which four haplotypes (CMC1, CMC4, CMC7, and CMC8) had not been discovered before. Haplotype diversity (h) and nucleotide diversity (π) were 0.45 ± 0.054 and 0.0035 ± 0.0014, respectively. Neighbor-Joining tree based on control region sequences revealed that genetic relationship between green sea turtles from the South China Sea and from Japan Sea were very close. Clustering relationship based on control region sequences indicated that the South China Sea is an important breeding site and feeding habitat for green sea turtles, which connects with the Middle East Pacific, the Southwest Pacific and the Indian Ocean.     

The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China Sea Arbitration: A Critique

The interpretation of Article 121(3) of the 1982?U.N. Convention on the Law of the Sea (UNCLOS) was a key part of the Sino-Philippine Arbitration on the South China Sea Award issued in July 2016. This article uses the principles of treaty interpretation codified in Article 31 of the 1969 Vienna Convention on the Law of Treaties to evaluate the interpretation process. The Tribunal paid little attention to the text such as “rocks” in the plural form and overlooked the context of Article 121(3). The travaux préparatoires identified by the Tribunal was based on materials of doubtful weight.     

Distribution and Diversity of Microbial Eukaryotes in Bathypelagic Waters of the South China Sea

Little is known about the biodiversity of microbial eukaryotes in the South China Sea, especially in waters at bathyal depths. Here, we employed SSU rDNA gene sequencing to reveal the diversity and community structure across depth and distance gradients in the South China Sea. Vertically, the highest alpha diversity was found at 75‐m depth. The communities of microbial eukaryotes were clustered into shallow‐, middle‐, and deep‐water groups according to the depth from which they were collected, indicating a depth‐related diversity and distribution pattern. Rhizaria sequences dominated the microeukaryote community and occurred in all samples except those from less than 50‐m deep, being most abundant near the sea floor where they contributed ca. 64–97% and 40–74% of the total sequences and OTUs recovered, respectively. A large portion of rhizarian OTUs has neither a nearest named neighbor nor a nearest neighbor in the GenBank database which indicated the presence of new phylotypes in the South China Sea. Given their overwhelming abundance and richness, further phylogenetic analysis of rhizarians were performed and three new genetic clusters were revealed containing sequences retrieved from the deep waters of the South China Sea. Our results shed light on the diversity and community structure of microbial eukaryotes in this not yet fully explored area.     

Seasonal and spatial diversity of microbial communities in marine sediments of the South China Sea

This study was conducted to characterize the diversity of microbial communities in marine sediments of the South China Sea by means of 16S rRNA gene clone libraries. The results revealed that the sediment samples collected in summer harboured a more diverse microbial community than that collected in winter, Deltaproteobacteria dominated 16S rRNA gene clone libraries from both seasons, followed by Gammaproteobacteria, Acidobacteria, Nitrospirae, Planctomycetes, Firmicutes. Archaea phylotypes were also found. The majority of clone sequences shared greatest similarity to uncultured organisms, mainly from hydrothermal sediments and cold seep sediments. In addition, the sedimentary microbial communities in the coastal sea appears to be much more diverse than that of the open sea. A spatial pattern in the sediment samples was observed that the sediment samples collected from the coastal sea and the open sea clustered separately, a novel microbial community dominated the open sea. The data indicate that changes in environmental conditions are accompanied by significant variations in diversity of microbial communities at the South China Sea.     

Archaeal Diversity and Spatial Distribution in the Surface Sediment of the South China Sea

Archaea represent a significant portion of biomass in the marine sediments and may play an important role in global carbon cycle. However, the identity and composition of deep sea sediment Archaea are unclear. Here, we used the archaeal 16S rRNA gene primers to determine the diversity and community structure of Archaea from shallow water (<100 m) and deep water (>1500 m) sediments in the South China Sea. Phylogenetically the archaeal community is separated between the shallow- and deep sea sediments, with the former being dominated by the Thaumarchaeota and the latter by the Marine Benthic Group B, E and the South African GoldMine Euryarchaeotal Group as well as Thaumarchaeota. Sand content showed significant correlation with Thaumarchaeota, suggesting that the porous media may create an oxic environment that allowed these aerobic organisms to thrive in the surface sediments. The carbon isotope composition of total organic carbon was significantly correlated to the distribution of archaeal groups, suggesting that Archaea overall may be constrained by the availability or sources of organic carbon in the sediments of the South China Sea.     

Then and Now: Reappraising Freedom of the Seas in Modern Law of the Sea

The principle of freedom of the seas remains the governing paradigm of the high seas in modern law of the sea. Although the principle, as embraced by the UN Convention on the Law of the Sea (LOSC), is no longer an absolute norm, it continues to present fundamental challenges for achieving effective conservation on the high seas as it stands in direct contrast to the conservation duty imposed on states by LOSC. The recent UN General Assembly resolution calling for the adoption of a further Implementing Agreement under LOSC to address conservation on the high seas, highlights the need to build a new ethos for management of the high seas, which will require states to loosen their firm grip on the Grotian doctrine. This article seeks to contribute toward shifting attitudes in relation to the principle of freedom through an examination of the nature and scope of the principle in its historic context and in contemporary law of the sea.     

The Salish Sea Boundary Straits: “Historic Internal Waters” or Territorial Seas?

The legal classification of the boundary straits of the Salish Sea between the western United States and Canada as either historic internal waters or territorial seas, subject to a right of innocent or transit passage, has been the subject of periodic debate within the U.S. government since the United States and Great Britain entered into the 1846 Oregon Treaty. As neither state has made an express public claim of historic title to the waters, any evidence for such a claim must be sought in less explicit and sometimes conflicting sources. This article applies the United States' legal test for a historic waters claim, recently set out in the U.S. Department of State's analysis of China's claims in the South China Sea, and concludes that the boundary waters of the Salish Sea would not meet that test. Accordingly, the waters of the Salish Sea boundary straits on the United States' side of the international boundary must be considered a territorial sea.     

The Dotted Line on the Chinese Map of the South China Sea: A Note

In 1947, the then-Chinese government produced The Location Map of the South China Sea Islands (Nanhai zhudao weizhi tu, in Chinese). A discontinuous dotted line was on this map. This contribution looks at both the history of the creation of the dotted line and the opinions that have been expressed concerning the juridical status of the dotted line. Special attention is given to the historic title assertion.­     

Cochlodinium polykrikoides blooms and eco-physical conditions in the South Sea of Korea

Eco-physical conditions for the initiation and termination of Cochlodinium polykrikoides blooms in the South Sea of Korea are examined in this paper. The C. polykrikoides blooms generally occur in the sea near Naro-Do in late August every year. The submarine canyon near Naro-Do plays an important role in surface water intrusion from the open ocean driven by northeasterly winds. In late August, the monsoonal wind system in Korea changes from southwesterly to northeasterly winds, causing Ekman transport of warm, fresh Changjiang Diluted Water (CDW) into the sea near Naro-Do and creating a front between inland sea water and CDW. Along the front, aggregation of single C. polykrikoides cells in the CDW and downwelling yield favorable eco-physical conditions for development of C. polykrikoides blooms. When typhoons and strong northeasterly winds bring vertically well-mixed East China Sea water into the sea near Naro-Do again in September, the eco-physical conditions favor diatom growth and lead to the termination of C. polykrikoides blooms.     

The mass coral bleaching event of inshore corals form South China Sea witnessed in 2020: insight into the causes,process and consequence

Coral Reefs - In August to September 2020, severe sea surface temperature anomalies were recorded for Hainan Island and the Beibu Gulf from South China Sea (SCS) and at the same time an...     

末次冰期南海巽他陆架上的植被和气候——17962孔孢粉记录

提供了南海大陆坡上17962孔深海沉积物的孢粉记录。该孔长8m,底部^14C年龄为30000aBP,跨越了深海氧同位素3期,末次初期,冰消期和全新世几个地质历史阶段。孢偻记录显示末次冰期低海面时南海南部出露的陆架上了低地雨林。同时,在邻近的岛屿上山地雨林扩张,表明气候比较在凉,但是没有变干的迹象,冰消期植被和气候都经历了快速变暖的变凉的波动。全新世时,红树林和低地雨林的扩及孢粉沉积率的明显降低均表明气候变暖,海面上升,大陆架被淹没。     

Vietnam and the Code of Conduct for the South China Sea

This article portrays and characterizes the Vietnamese position toward the settlement of the island disputes in the South China Sea. The situation in the South China Sea has become more complicated since 1988 when China made its steps toward the Spratlys. After analyzing the situation in the South China Sea, the author emphasizes the need to have a code of conduct for this disputed area.