THE PRINCIPLE THAT THE LAND DOMINATES THE SEA IN THE CONTEXT OF SOUTH CHINA SEA DISPUTES: A CRITICAL APPRAISAL

Abstract

According to the principle that the land dominates the sea, the land is always the basis for any claim of maritime entitlements. Without a land with a coastline or coastal front under its sovereignty, no state can claim any maritime entitlement. The land here includes not only the continental mainland but also islands which may generate the same maritime entitlements.  Nonetheless, certain claimants of the South China Sea have rejected or tried to bend the principle in furtherance of their respective claims. The main objective of the present paper, therefore, is to assess the status of the principle as customary international law and its application to the nine-dash-line claim of China and other claims based on maritime features such as atolls, coral reefs, shoals, and the like. The paper reviews the decisions of the international courts and tribunals on one hand and analyses the relevant provisions of the UNCLOS on the other. The paper also applies interpretative tools to reaffirm the meaning of Article 121 of the UNCLOS: the regime of islands. The paper concludes that the claim of historic rights in the nine-dash-line is not squarely in accord with the principle and that most of the claims on the South China Sea that are based on artificially built structures and land reclamation defeat the letter and spirit of the regime of islands, which is a manifestation of the principle that the land dominates the sea.