Is the Rule of Capture countenanced in the South China Sea? The policy and practice of China, the Philippines and Vietnam

Abstract

This article examines the petroleum regimes of China, the Philippines and Vietnam to ascertain whether they countenance the rule of capture in the South China Sea. It concludes that the policy and practice of Vietnam clearly and absolutely do not countenance the application of the rule of capture in regard to potential or actual transboundary petroleum deposits in the South China Sea. On the other hand, China has maintained a 1996 secrecy regulation, which authorises China National Offshore Oil Corporation (CNOOC) to undertake unilateral activities involving transboundary deposits in disputed areas of the South China Sea. At the same time, China has adopted bilateral declarations and agreements that preclude the application of the rule of capture in both delimited and undelimited areas of the South China Sea. As for Philippine policy and practice, there is ambivalence towards the potential or actual presence of transboundary deposits.