Sovereignty vs. Sovereign Rights

"Sovereignty Vs. Sovereign Rights: De-escalating Tensions in the South China Sea

24 June 2022

PRATNASHREE BASU

https://www.orfonline.org/research/de-escalating-tensions-in-the-south-china-sea/?amp



X x x.


Decoupling Sovereignty and Sovereign Rights

The disputes discussed in the previous sections are multidimensional. However, the critical distinction is between a state's absolute ‘sovereignty’ and its ‘sovereign rights’. Sovereignty, as applied to states, comprises “rights and power over a territory, responsibility and accountability over a population, general and specific authorities, and recognition by other sovereign states”; sovereign rights, meanwhile, as utilised by UNCLOS, “pertains to the entitlements or privileges of a state to a defined area of a sea called the exclusive economic zone” and thus “represents the limited rights of a state over its exclusive economic zone.”[19] Every state's right to exclude external actors from its area of jurisdiction, as conceptualised in the principle of Westphalian[c] sovereignty, assumes great significance in the context of the SCS.[20] This principle, if applied to the SCS dispute, raises questions on the validity of concepts such as ‘innocent passage’ and ‘cooperative maritime boundary settlement’ as envisioned in international law on marine administration. The conflict is mostly due to differences in the understanding of historical and modern sovereignty. It is not surprising, therefore, that administering a mutually acceptable framework of sovereign rights in the maritime zone is highly complex and challenging.

There is a rethinking of the idea of sovereignty, from an absolutist notion of complete non-interference in a state’s domestic affairs to ensuring the state discharges its responsibility to protect the rights of its citizens, especially human rights. This has provided space for limited interventions by the international community on legitimate grounds. It has made sovereignty partly conditional on a state's performance in fulfilling its obligations.[21] The question is whether this reassessment of sovereignty can be extended to a state's obligation in the maritime domain under international maritime law. The UN’s Declaration on Principles of International Law creates a responsibility for states to duly acknowledge equal sovereignty of all and the sovereign rights inherent therein. Suppose it is established that China is leveraging its economic and political heft to violate the sovereignty of coastal states of the region. Can this be a legitimate ground for intervention by external players such as the US and its allies, international and regional bodies such as the UN and ASEAN, or even multi-nation associations such as the QUAD (the Quadrilateral Security Dialogue of Australia, India, Japan, and the US) and the AUKUS (a trilateral security pact between Australia, the United Kingdom and the US)?

Sovereignty is often inflated by attaching a sense of divinity to its character. However, in its application, sovereignty is not absolute.[22] In international politics, there are continuous negotiations over the extent to which a ‘sovereign’ nation needs to restrain itself while exercising its sovereign rights in exchange for its association with international, regional, or supranational entities. Similarly, the signatories of UNCLOS are subject to specific restrictions in the exercise of sovereignty in their maritime jurisdictions. Articles 207 to 212 of the UNCLOS provide that states must adopt regulatory policies to prevent, reduce, and control marine pollution. Article 17 says states enjoy the right of ‘innocent passage’ through the territorial sea of other states. This provision is the most critical distinction between sovereignty over territorial land and territorial sea. This is also perhaps why it is vehemently opposed by countries such as China.

Article 56 of the Convention confers sovereign rights on states for the exploitation, exploration, conservation, and management of living and non-living resources in the waters of their EEZs and continental shelves. Article 73 also enables states to take necessary punitive measures to ensure compliance with the Convention's provisions. In the M/V Virginia G case, a dispute over Guinea-Bissau’s arrest of a Panama coastal tanker in 2009, the International Tribunal for the Law of the Sea addressed the restrictions on the exercise of sovereign rights by coastal states. It declared that in the exercise of such rights, the state must respect the rights of other coastal states, considering the UNCLOS's relevant provisions.[23]

The restrictions on sovereign rights are institutionalised in the rules and regulations of various international treaties. These rules are constantly evolving according to the socio-political context. Changes in restrictions on sovereign rights give such rights a dynamic character, while sovereignty is a far more concrete concept. Sovereign rights are the parts, and sovereignty is the whole of an interactive system of the jurisdictional power of the states. The whole, however, cannot be reduced to the sum of the mechanical properties of the parts. The transfer or delegation of certain sovereign rights to an external entity does not dilute the state's sovereign integrity.[24]

There is another distinction between sovereignty and sovereign rights that pertains specifically to maritime jurisprudence. Maritime boundaries only separate sovereign rights that are functional and limited in character. Possession of sovereign rights over a marine space does not imply sovereignty over it; albeit sovereign rights are contingent on sovereignty over the ‘baseline’.[d] In land administration, delimitation of territory also implies demarcation of exclusive rights. However, in the maritime domain, two or more states may have equal and valid entitlements to a given territory, and reasonable sacrifices are required by both for a mutually acceptable resolution to the boundary question.[25]

China’s refusal to acknowledge these crucial distinctions is one of the primary reasons for the tensions in the SCS. Any assertion of sovereign rights by other coastal states is perceived as a challenge to its sovereign integrity. The SCS’s resources—existing and potential—and its own significance in global maritime trade may also have prompted China to conveniently ignore these distinctions.

To be sure, however, the distinction between sovereignty and sovereign rights is only part of the problem. Another aspect is that of China claiming sovereignty over almost all the major island groups in the region. The other littoral states consider these claims untenable as per international norms.

The first reference to ‘sovereign rights’ in international maritime law was made in the 1970s, around the same time that the third UN Conference on the Law of the Sea was held (which eventually led to the signing of the UNCLOS in 1982). The term has come to govern the rights of coastal states over resources in their continental shelves and EEZs, as well as their energy resources, since the 1990s. However, sovereignty is not automatically conferred because a state possesses sovereign rights over resources in its EEZ. The sovereign rights (a limited set of rights and powers) of a coastal state do not correspond to the right to exercise sovereignty (i.e., supreme political authority) over the area.

Thus there is divergence between international maritime law and China’s view of its authority.[26] Beijing regards the SCS as its adjacent and relevant waters.[27] But these terms are not spelt out in international law. China’s maritime understanding is consequently an extension of its ‘historical rights’ over the SCS. From China’s perspective, its activities in these waters—whether the construction of artificial islands or the passing of its new coast guard law—are entirely justified. They are, however, in contravention of international maritime law as laid out by the UNCLOS.

X x x."