I. Introduction

Disputes are an inevitable part of international relations1 and it is hardly deniable that, among international disputes, territorial and territorial-related disputes are the most complicated ones. Undoubtedly, these disputes have been the primary source of the growing tension in relations among States which is likely to lead to armed conflicts or eventful wars2 when they are not settled amicably and peacefully. The sanctity of the territorial issue to the peoples in question - nationalism and the associated passions - have made these disputes extremely difficult to resolve. Furthermore, these disputes have been further complicated by historical, cultural, political, military and economic phenomena. Nevertheless, States are required, under international law, to resolve their international disputes by peaceful means and in conformity with the principles of justice and international law so that international peace, security, and justice will not be breached.3

Known to many as the constitution for the oceans,4 the 1982 United Nations Convention on the Law of the Sea (LOS Convention)5 was considered as one of the most successful of the codifications and progressive developments of international law made by the United Nations since the end of the World War II. The LOS Convention has set out an international legal order within which all activities in the oceans and seas must be carried out. As a comprehensive legal framework for the law of the sea, the LOS Convention has elucidated the rights and obligations of all States, including: coastal, land-locked and geographical disadvantaged States and other international actors in various functional maritime areas; the protection of marine environment; marine scientific research; activities in the Area…, as well as settlement of disputes mechanism applicable for disputes that may arise during the implementation and interpretation of the LOS Convention. The settlement of disputes mechanism contained in Part XV of the LOS Convention, which is characterized by the compulsory procedures entailing binding decisions, has made the LOS Convention unique among major lawmaking treaties and “one of an extremely small number of global treaties that prescribe mandatory jurisdiction for disputes arising from interpretation and application of its terms”.6 Since the LOS Convention came into effect it has made preeminent contributions to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights. The LOS Convention has also played an important role in promoting of the economic and social advancement of all peoples of the world, in accordance with the purpose and principles of the United Nations as embodied in the Charter of the United Nations, as well as for the sustainable development of oceans and seas. Such contributions made by the LOS Convention have always been fully recognized and highly appreciated by the States and international community.7

The South China Sea (SCS) dispute is composed of two aspects: the overlapping jurisdictional claims and the territorial dispute over groups of mid-ocean islands. It is regarded as one of the most complex disputes in the East Asia, if not of the world,8 and remains a dangerous source of potential conflict9 which could turn into a serious international conflict10 if it is not properly managed and resolved. Complicated by many factors such as number of claimants, the economic and strategic nature of the area, the SCS dispute of which the dispute over the sovereignty of the Spratly islands is a main problem has long attracted the intention of international community and many attempts have been made to investigate the real causes of the dispute as well as to introduce possible resolutions.11 The complexity of situation has made the SCS dispute more vulnerable to armed conflict. In fact, a number of armed conflicts relating to the SCS and the Spratly islands dispute have occurred.12

The aim of this paper is to examine the relationship between the LOS Convention and the SCS dispute, in particular the effects of the LOS Convention as well as its settlement of dispute mechanism may have or may not have on the SCS dispute. The paper is composed of 3 Parts. Part I  describes the geopolitical context of the SCS region, the origin and development of the SCS dispute. Part II will focus on the settlement of disputes mechanism provided in the LOS Convention, while Part III examines the relationship between the LOS Convention and the SCS dispute as well as the possibility of the application of the settlement of disputes mechanism to the SCS dispute and the latest developments with respect to the SCS dispute. This paper will pay particular attention to the Spratly dispute, where ownership of the islands is claimed wholly or partly by Vietnam, China, the Philippines, Malaysia, Brunei or Taiwan.

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3.23 Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved."