Weighing the Sources of International Law: The Arctic, Antarctica and the South China Sea

There is a long-standing debate on the weight or preference given to different sources of international law in jurisprudence. Treaties, custom, and principles of law are sometimes referred to by lawyers with a common law background as “primary sources” of international law, while judicial decisions and scholarly writings are sometimes referred to as “secondary sources”, or evidence of international law rules. The scholarly debate is more focused on the weight given to treaty law or customary international law implicit through the generally accepted practices of nation states. Some hold the view that rules established by treaties will take preference if such an instrument exists. Others argue that international treaties and international customs are equally valid sources of international law. There are three pairs of relationships regarding the sources of international law that often give rise to heated debates:  treaty law vs. custom, new treaties vs. old treaties, and established treaties vs. emerging treaties. The interplay of these three pairs of sources of international law are reflected in the context of three regions which are featured with typical maritime-related issues that have attracted much attention, internationally and regionally, particularly in three regions: the South China Sea, the Arctic and the Antarctic.

Although many important legal issues exist over the South China Sea (i.e., island regime), the major legal issue is the relationship between UNCLOS as a treaty law and historic rights as customary international law. The South China Sea Arbitral Tribunal discussed the relationship between UNCLOS and historic rights—which is essentially a question on the relationship between treaties and customary international law. The scope and contemporary relevance of historic claims were significantly restricted by the Tribunal which ruled in 2016 that UNCLOS supersedes any previous historic titles or rights apart from those explicitly recognized in Articles 10 and 15 of UNCLOS. Historic rights, relating to a particularized regime, reflects a continuous, long-established, and undisturbed situation. They should be assessed on a case-by-case basis according to the historical particularities and realities of the claim. What matters most for China and other claimants in the South China Sea is how to balance between new maritime regimes, such as Exclusive Economic Zones (EEZs) stimulated by the UNCLOS as a treaty law, and historic concepts, such as historic waters, historic title, or historic rights recognized as customary international law.

The Tribunal also rules out the possibility of treating the geologically defined archipelago of Nansha Qundao (Spratly Islands) as a single unit that China seems to claim as having the status of an archipelagic regime. China argues that, under its administration, the four archipelagos have been a single unit and should enjoy the status of an archipelagic regime. One of China’s arguments depends on the belief in an established customary rule relating to the application of straight baselines to continental States’ outlying archipelagos. States possessing archipelagos (i.e., Ecuador, Spain, Greece, India, China, Argentina, Portugal, France, Canada, Australia, and Honduras) sponsored and supported proposals for the extension of the archipelagic regime to archipelagos forming part of a continental State. It is still debatable whether application of straight baselines to continental States’ outlying archipelagos is an established or an emerging custom given the two criteria of state practice.

Unlike the South China Sea as an international hotspot, the Arctic, though also facing pending maritime delimitation and minor conflicts on territorial disputes, is considered as a region hosting more cooperation than conflict. However, contentions do exist between Norway and other Arctic States (such as Denmark and Russia) and, potentially, with other non-Arctic stakeholders in the future regarding Norway’s policy on the Svalbard. The first component of the holistic international legal framework includes general international treaties and customary international law, both of which are applicable to the Arctic. Rules of customary international law that are applicable to the Arctic are diverse and range from the acquisition of insular territories to State responsibility. As for general international treaties, the UN Charter and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) constitute the basis and core of the Arctic legal framework. The other important law that govern the Arctic affairs is the 1925 Svalbard Treaty. In the Arctic region, the 1925 Svalbard Treaty and the 1982 UNCLOS become the sources of conflicts or different legal positions between Norway and some other States who are parties to both treaties. The disagreement between Norway and other Svalbard Treaty member states is rooted in their differing perspectives on preferences given to either the 1982 UNCLOS or the 1925 Svalbard Treaty. Under the UNCLOS, Norway is entitled to 200 nautical miles of EEZ and a continental shelf, which will give the member states of the Svalbard Treaty disadvantage. Norway’s jurisdiction will be limited by the 1925 Svalbard Treaty, which will benefit these member states.

The ongoing negotiations on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) is currently the most significant of processes within the development of international law of the sea. Some international institutions, such as the International Maritime Organization (IMO) and the International Seabed Authority (ISA), are concerned about whether the BBNJ will impact other established international treaties or regulations under their respective legal framework.  This begs a complex question: how will its creators make sure the emerging treaty will not interrupt the jurisdiction of established treaties?

The Antarctic Treaty System (ATS) may potentially be influenced by new instrumental arrangements made by BBNJ negotiations. Signed in 1959 and having come into force in 1961, the Antarctic Treaty is the primary international law concerning Antarctica. The Antarctic Treaty and its related agreements, collectively known as the ATS, regulate international relations with respect to Antarctica. The Antarctica Treaty Consultative Meeting (ATCM) only acknowledges the ATS as the appropriate framework to regulate the activities in Antarctica. The solution now needed is a way to harmonize the relationship between those two entities—the BBNJ working group and the ATCM in areas beyond national jurisdiction—that deal with the same issues regarding bioprospecting activities. The complexity also derives from the difficult relationships the ATS holds with non-ATS instruments and the international community as a whole.

The long-standing debate on the weight or preference given to different sources of international law in jurisprudence remains unsolved and will continue to stay so. There is not a clear-cut answer or inclinations to suggest a preference for one over another. Different sources of international law are often used simultaneously and are becoming increasingly connected. The divergent patterns of implication in these three cases suggest that there is not a universal doctrine for decision making and conflict resolution.