Dispute settlement and international law: Verifying the legality and reconciling the conflicting claims over the Spratly Islands

• Main Authors: Kang, Pawanjeet, Ngo, Perpetua Calliope
• Format: text
• Language: English
• Published: Animo Repository 2011
• Subjects: Commercial Law
• Online Access: https://animorepository.dlsu.edu.ph/etd_bachelors/17793
• Institution: De La Salle University

Recent events in the Spratly Islands have caught the attention of the international community as the different states who claim all or parts of Spratly Islands compete in establishing their territorial rights over the Spratly Islands. Currently, the most active claimant states are China, Taiwan, Vietnam, Brunei, Malaysia, and the Philippines, which were dubbed as the Spratly Six. The Spratly Six uses both treaty and custom as the legal bases for their respective claims. Vietnam, Malaysia, and the Philippines have the strongest legal bases as to their respective claims, since their claims are supported by the concept of effective occupation under Customary International Law and the 1982 UNCLOS whereas China and Taiwan only have legal title as to the islands they have occupied before the UNCLOS took effect, and cannot, by virtue of the EEX, claim any other island in the Spratlys as their without violating the provisions of UNCLOS. Although Brunei has legal basis as to its claims, its lack of exercise of such rights demonstrate its lack of intent to act as sovereign in those islands and weakens its claims of territoriality. With this, it seems that dispute settlement methods must be employed since current international law, including the UNCLOS, fails to reconcile the claims of Vietnam, Malaysia, and the Philippines and to consider the concept of effective occupation under Customary International Law. Dispute settlement methods, such as negotiation, arbitration, or adjudication by the International Court of Justice, would have to be explored in order to determine the most suitable dispute settlement mechanism to the Spratly Islands dispute.