IN HIS response to our joint commentary, published in these pages on Feb 18, Professor Raul "Pete" Pedrozo of the United States Naval War College gives six reasons why our proposal "will not work".
The first two points raised are the assertion that China has no legitimate claim to sovereignty over the islands in the South China Sea, and that our proposal "rewards Beijing for its illegal occupation of the Paracel and Spratly islands".
We intentionally left issues of territorial sovereignty out of our proposed formula for a paradigm shift in the South China Sea disputes. Thus, we did not address the merits of China's claim (or those of any other claimant state) to sovereignty over any disputed islands in the South China Sea. Nor did we suggest that any of the other claimants should acquiesce to China's claim to sovereignty over the islands.
Rather, it is our contention that the sovereignty disputes are intractable and will not be resolved at any time in the near or medium term.
Against this longstanding, complex and contentious backdrop, we believe that the only viable option is to set aside the sovereignty disputes and focus on cooperation and joint development in the areas of overlapping claims.
Our commentary was written on the understanding that at present, there is no agreement on the areas of overlapping claims in the South China Sea.
This is to a large extent due to the fact that China appears to base its maritime claims at least in part on the nine-dashed line map, while the other claimants do not accept as legitimate any claims to maritime space that are not made from land territory (including islands).
What we suggest is that all claimants, including China, bring their maritime claims into conformity with international law and the United Nations Convention on the Law of the Sea (Unclos).
At no point did we suggest that other claimants need accept China's revised maritime claims.
Consequently, under this approach, although areas of overlapping maritime claims would still exist in the South China Sea, their spatial scope would be significantly narrowed, and they would be more clearly defined in a manner that is consistent with the rules and principles in Unclos.
Accordingly, in our view, such remaining overlapping claims areas are likely to be more readily subject to "provisional arrangements of a practical nature", including joint development, as provided for by Unclos.
In his third point, Prof Pedrozo criticises our position that the larger islands in the Spratlys could be entitled in principle to an exclusive economic zone (EEZ) of their own. He quotes article 121(3) of Unclos, which provides that only features that can "sustain human habitation or economic life of their own" are entitled to claim an EEZ. This is correct as far as it goes, but Prof Pedrozo fails to state any test for when this condition is satisfied.
When article 121 of Unclos was drafted, numerous proposals were made regarding the tricky issue of distinguishing between "islands" capable of generating a continental shelf and EEZ of their own, and mere"rocks" entitled only to a territorial sea.
Many of these proposals focused on criteria related to size and the presence of vegetation or water sources. But no consensus was reached, and subsequently, no definitive position has been determined through state practice or by virtue of an authoritative ruling from an international judicial body.
Nonetheless, we have taken island size, coupled with the presence of vegetation, as useful, though not necessarily definitive, indicators of islands that may, in principle, be capable of generating continental shelf and EEZ rights.
In the past, relatively small islands have been considered to be capable of generating the full suite of zones of maritime jurisdiction available under Unclos. For example, the United States claims hundreds of thousands of square miles of EEZ around tiny uninhabited and arguably uninhabitable islets in the Pacific Ocean, some of which may not even be vegetated.
Fourthly, Prof Pedrozo suggests we are advocating that features which are not islands could somehow be upgraded to "full" island status through land reclamation. This is not our position, and we do not believe there is anything in our commentary to suggest this.
The final two points of Prof Pedrozo's commentary reveal that he believes China intends to assert sovereignty and jurisdiction over all of the South China Sea, notwithstanding the rules and principles of international law, and that the only solution is for Asean and other states to stand up to China's brinkmanship.
He is entitled to that viewpoint, but it is one that we neither share nor find especially helpful.
Instead, we are suggesting a way in which China's maritime claims can be brought into conformity with Unclos at relatively limited cost but potentially substantial benefit to itself and to the other South China Sea claimant states.
Our proposal necessarily assumes that China's long-term interests are to have a relationship with its neighbours based on trust, mutual respect, cooperation and the rule of international law.
We believe that our proposal potentially provides a platform for constructive discussions on cooperation and joint development in the areas of overlapping claims defined on the basis of Unclos, which would benefit all parties.
Robert C. Beckman is the director of the Centre for International Law at the National University of Singapore and an Adjunct Senior Fellow at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University. Professor Clive Schofield is the director of research at the Australian Centre for Ocean Resource and Security, University of Wollongong, Australia.
This article first appeared in RSIS Commentaries.