Building a Normative Order in the South China Sea: Evolving Disputes, Expanding Options 178643752X, 9781786437525

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Contents List of contributorsvii Acknowledgementsix Introduction1 John B. Welfield and Le Thuy Trang PART I  THE SOUTH CHINA SEA: GEOECONOMIC AND GEOPOLITICAL DRIVERS OF A CHANGING SEASCAPE  1 Getting beyond slow boil in the South China Sea Andrew Scobell

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 2  Economic (asymmetrical) interdependence and territorial disputes27 Michael Yahuda  3 China’s South China Sea strategy and Sino–US discord Wu Xiangning and You Ji

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 4 The South China Sea: an arena for great power strategic rivalry Leszek Buszynski

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PART II  INTERNATIONAL LAW: LAND, SEA, AIR AND CLAIMS  5  Entitlements of maritime features and the Paracels dispute revisited93 Vu Hai Dang  6  The Exclusive Economic Zone and food security for developing coastal states in the South China Sea James Kraska  7 Constructions at sea: impacts and legal regime Nguyen Thi Lan Anh

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 8  Air defence identification zones: implications for freedom of overflight and maritime disputes Robert Beckman and Phan Duy Hao

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 9  Maritime claims in the South China Sea and freedom of navigation operations Jonathan G. Odom

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PART III  TOWARD A COOPERATIVE MANAGEMENT FRAMEWORK IN THE SOUTH CHINA SEA 10  A regional ocean governance framework for the integrated management of the environment and biological resources in the South China Sea Vu Thanh Ca 11  Post-South China Sea arbitration challenge: toward regional cooperation for the environmental sustainability of the East Asian seas Raphael P. M. Lotilla 12 Energy drivers for offshore cooperation Dylan Mair and Rachel Calvert 13  Different strokes for different folks: a second look at UNCLOS Part XV dispute settlement mechanisms and the South China Sea disputes Jay Batongbacal Conclusion – Tempering the South China Sea slow boil: expanding options for evolving disputes Tran Truong Thuy

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Introduction John B. Welfield and Le Thuy Trang Interstate conflict, in the view of one-third of the global decision-makers and experts assembled to compile the World Economic Forum 2015 Global Risks Report, was the most probable serious danger facing the East Asia-Pacific region over the coming decade.1 A Pew Research Center global opinion poll conducted in the spring of 2014 found that people in eight of the 11 Asian countries surveyed expressed fears about possible military conflict over territorial disputes involving the People’s Republic of China and its neighbors. In China itself, more than six in every ten citizens expressed similar concerns. Two-thirds of Americans in 2014 also feared that intensifying territorial disputes between China and its neighbors could spark an armed conflict.2 Although the World Economic Forum 2017 Global Risks Report considered such conflict as a decreasing risk in terms of likelihood and impact,3 majorities in China, Japan and several other East Asian nations remained concerned about territorial tensions and the strategic drama being played out between the United States and China on land and at sea across the region had begun to fuel fears that the “Pacific century” might be shattered by a new Pacific war.4 For better or for worse, Southeast Asia, the region which has given birth to the most vigorous efforts to construct a regional security architecture designed to ensure long-term peace and stability in Asia and the wider Pacific Basin, is today confronted by a series of intractable problems that may well constitute the greatest tests it has faced since the end of the Cold War. Much has been said about the significance of the South China Sea for the security and development of the Indo-Pacific. This sea offers the shortest route from the Pacific Ocean to the Indian Ocean. About half of the world’s commerce, half of global liquefied natural gas and a third of global crude oil transit through this body of water each year.5 Two-fifths of the world’s tuna are born in the South China Sea, contributing to a multibillion-dollar fisheries industry.6 These statistics, oft-cited, are just a few indicators of the South China Sea’s importance to the region and the world at large. A durable regional security system that can deliver lasting stability and prosperity for the Indo-Pacific cannot be constructed in the 1 John B. Welfield and Le Thuy Trang - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:52:11PM via Sydney University

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absence of a smoothly functioning regional maritime order in this critical area. Yet this body of water, blessed with so many valuable resources and crisscrossed by a network of vital sea-lanes, has become the home to some of the most intractable territorial disputes in Asia and a stage for intensifying great power strategic competition. The longstanding territorial and maritime disputes simmering in the South China Sea and the machinations of great powers have been slowing down the momentum for regional cooperation and frustrating attempts to forge a robust and mutually beneficial security architecture. There is also another troubling dimension of very great significance. While the tempo of regional cooperation has slackened, the rate at which the South China Sea marine environment is deteriorating has accelerated. Forty percent of the South China Sea’s fish stocks have already been exhausted and, according to the United Nations Food and Agriculture Organization, most fish resources in the western part of the South China Sea have been exploited or overexploited.7 Meanwhile, 70 percent of the South China Sea’s coral reefs are reported to be in poor or only fair condition.8 Put simply, while the challenges to the South China Sea marine environment are growing, the capacity of regional mechanisms to effectively address those challenges has been undermined or severely constrained. What, then, can be done to avert the specter of war and better utilize the potential of the South China Sea for the benefit of all stakeholders? If, as many observers have long predicted, the future of the South China Sea will have profound consequences for world politics, how are we to shape that future?9 Those are questions that participants in the annual International scholarly dialogue on “The South China Sea: Cooperation for Regional Security and Development,” organized by the Diplomatic Academy of Vietnam (DAV), the Vietnam Lawyers Association (VLA) and the Foundation for East Sea Studies (FESS), have grappled with over the past several years. The dialogue, first held in 2009, has endeavored to provide a venue for scholars and policymakers to explore possible ways to manage disputes, prevent conflicts, ensure peace and foster development in the South China Sea. The wide array of views and perspectives brought to the dialogue over nearly a decade reflects a breadth and intensity of interest in the South China Sea, both within the region and beyond, that will be much needed if constructive engagement and cooperation on the many complex issues confronting all the parties involved are to be sustained. Yet amid all the differences and uncertainties, there is one encouraging sign that has been appreciated by regular attendees and interested observers of the DAV–VLA–FESS initiated dialogue process. While agreement on a final settlement of the South China Sea issues remains elusive,

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Introduction ­3

participants in this process have arrived at a consensus on at least three points. First, informed policy decisions require deep understanding of recent developments in their historical context, a thorough appreciation of the stakes involved and careful consideration of all possible consequences. Second, given the varied interpretations of history that have contributed to fomenting tensions and disputes in the South China Sea, the functionality of the current rules-based international system demonstrates that international law has a role to play in expediting durable solutions to those disputes. Third, and perhaps most importantly, while the South China Sea issues are far more complicated than many imagine, effective management of the disputes and the search for peaceful solutions to them are worthy of sustained efforts by all concerned. In brief, a common awareness has emerged that the increasingly precarious South China Sea security environment is posing greater challenges to efforts to promote stability and development in the region, and that this predicament is precisely why greater ­commitment and determination are necessary. That, in essence, is what this book is about. A collection of some of the most informative and insightful analyses presented at recent DAV–VLA– FESS dialogues on the South China Sea, this volume is intended to offer a deeper look at the rapid changes sweeping the region, at the impact of these changes on policymakers and at the new security environment emerging as a result of their decisions. “Security,” in this context, includes the vital issues of environmental and food security. The book aims to promote greater awareness of the nexus between international law and enhanced prospects for regional security. If some degree of consensus on the provisions of international law and their relevance to the problems of the region can be realized, the application of international legal principles might help the countries around the South China Sea to mitigate, or perhaps remove altogether, the recurring tensions and persistent disputes that poison their relations. Moreover, as the application of law and the pursuit of order fare better in a constructive atmosphere of mutual trust and forbearance, this volume is also intended to enrich the ongoing global discussion on conflict management as well as to chart potential pathways to improving the security climate in the South China Sea. The structure of this book reflects these objectives. The first section provides some critical appraisals of the current South China Sea situation and the driving forces behind it. Andrew Scobell opens the floor by examining a number of worrisome recent developments, which, in his view, have the potential to undermine regional peace and stability in the short to medium term. He begins by looking at the history of the South China Sea sovereignty disputes and suggests that in view of the small size of the maritime features lying at their heart, the real issues are more about

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maritime jurisdiction and dominance than about territorial control per se. Against this background, developments since the late 2010s seem to represent a new “high simmer” phase in what he describes as a “slow boil” of tensions in the South China Sea. China, portrayed as engaged in a “long game” to advance and consolidate its presence in the South China Sea, is generally seen as the main actor setting the temperature of the boil. Scobell notes, however, that Beijing views its actions in the Sea as a response to the U.S. “pivot to Asia” announced in 2010 and to Washington’s subsequent assertive posture in the region. However this may be, Scobell warns that Beijing’s strategy of “low intensity conflict,” employing many different instruments of national power to wage a protracted struggle characterized by innumerable small skirmishes short of war, could lead to further erosion of trust and confidence in regional cooperation and exacerbate the “security–insecurity paradox,” serving to worsen the security climate and torpedo the fragile process of dialogue and negotiation in the South China Sea. He concludes his chapter with a number of constructive suggestions for deescalating tensions, managing the disputes and, eventually, resolving them. Michael Yahuda, too, seeks to explain the increasingly precarious security situation in the South China Sea, but focuses his analysis on the exploitation of the power imbalances in the region by some of the relevant parties. He argues that the Chinese leadership under Xi Jinping has tried to thwart external interference in regional affairs, advance its territorial and maritime claims and boost Beijing’s centrality and economic clout in Asia by attempting to draw China’s neighbors into an ever-expanding and deepening web of socio-economic links with the PRC. He points out that Beijing’s efforts to push forward its vision for a China-centric huband-spokes system in Asia, however, have met with only a partial success. While the PRC is certainly ASEAN’s major trading partner, and the single most important trading partner of every country in the region, it must contend with the well established position of its principal rivals, the U.S., Japan and the EU, all of which far outstrip it in terms of investment in ASEAN. The impact of Beijing’s “One Belt One Road” initiative on this evolving balance has yet to be felt since it is still in its very early stage of development. China’s own future as an economic power, too, faces many uncertainties. It is China’s superior military strength and its ability to exploit the divisions within ASEAN, Yahuda contends, that perpetuate the power asymmetry between the organization’s member states and the PRC and ensure that it always works to Beijing’s advantage. In Yahuda’s view, ASEAN’s operating principle of consensus, while helping to reduce internal frictions and enable member countries to work together to elevate the organization’s profile over the past several decades, has weakened its

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ability to hammer out an effective response to China’s forceful pursuit of sovereignty claims in the South China Sea. On the other hand, continued Chinese pressure and attempts to undercut ASEAN’s ability to formulate and carry out collective action have encouraged individual ASEAN member states to search for alternative ways to defend their territorial and maritime interests. These measures, Yahuda warns, could well raise the cost of China’s military activism and cause significant shifts in the regional security environment, although recent leadership changes in a number of regional and extraregional states have made prediction even more difficult than usual. Implicitly concurring with Scobell’s description of the South China Sea as a region in “slow boil” but seeking to provide an alternative narrative, Wu Xiangning and You Ji demonstrate how the Chinese leadership under Xi Jinping views the Sea from the vantage point of a rising power enjoying enhanced positional advantages but also confronting an increasing number of constraints. Beginning with a succinct account of the process whereby the South China Sea has come to be defined as one of China’s core interests, Wu and You examine a wide range of issues that have impacted on Chinese strategic thinking and consequently on Beijing’s adoption of a more assertive posture in that body of water. These include Beijing’s perception of the true significance of the U.S. “pivot to Asia” and increased American involvement in the South China Sea disputes, rising nationalism, the perceived tendency on the part of other South China Sea claimants to engage in behavior deemed excessive and detrimental to Chinese interests, civil–military relations and the expanded role of the People’s Liberation Army in Chinese South China Sea policy formulation and execution, public opinion and the need to cultivate the domestic sources of the Chinese leadership’s legitimacy. As they seek to strike a balance between avoiding war and projecting an image of strength in the face of external and domestic pressures, Wu and You contend, the Chinese leadership under Xi has embarked on an assertive South China Sea policy as a way to preempt the eruption of actual military conflict. Beijing has embarked on this course of reactive-assertiveness, even though it may mean further tensions with and alienation from its neighbors, because the South China Sea has emerged as a stage for U.S.–China strategic rivalry, where the ultimate goal of both powers is to write the script of the play. The transformation of the South China Sea from an arena of festering territorial disputes to a theater for great power competition is also the theme of Leszek Buszynski’s chapter. Unlike Wu and You, however, Buszynski considers that Beijing’s shift to an assertive modus operandi in the South China Sea has been a deliberate rather than a reactive choice. He argues that the PRC’s strategic and foreign policy decisions emerge

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within the context of a hierarchical order of priorities which Chinese leaders believe they must respect in order to ensure their country’s security. There is a consensus among the Chinese Communist Party leadership, the Chinese military and the security establishment, regardless of institutional inclinations, that strengthening China’s ability to prevail in a hypothetical Taiwan Straits conflict, guarding the nation’s oil transportation routes through the Malacca Straits and developing a protected area for its nuclear submarines based at Sanya in Hainan to counter U.S. nuclear capability constitute the PRC’s most important strategic interests, which must be upheld at all costs. It is these interests that have dictated China’s efforts to stake out an exclusive claim to the greater part of the South China Sea and to dislodge U.S. and other major powers from it, despite the fact that the 2016 Arbitral ruling on the South China Sea case between the Philippines and China might have opened opportunities for policy recalibration. Observing Beijing’s move to enclose the South China Sea, Buszynski argues, other claimant states as well as the U.S., its allies and partners fear that they have reached a critical juncture where swift and decisive measures are needed to check China’s attempts to gain a positional advantage from which to threaten their maritime interests. Buszynski offers a nuanced description of a classic strategic dilemma that underlies the growing competition and rivalries in the South China Sea. The first part of this volume does not strike a very hopeful note. Such, however, are the realities of the South China Sea at the time of this writing. Buszynski’s concluding suggestion that the 2016 UN Convention on the Law of the Sea (UNCLOS) Arbitral Award on the South China Sea, if accepted and conscientiously upheld by all parties, could create favorable grounds for a positive transformation of the regional security environment serves as a good transition point to the second part of this book, which looks at the evolving South China Sea disputes from the perspective of international law. The focus here is on two closely related issues. First, how the principles enshrined the UNCLOS, which, since its adoption in 1982, has come to be widely (albeit not universally) recognized as the most authoritative manual both on maritime issues and on the management and utilization of marine natural resources, should be applied to the complex situation in the South China Sea. Second, and more specifically, how the UNCLOS Annex VII Arbitral Tribunal’s decision on the Philippines– China case, and the reaction of the various parties to it, might affect the future of this troubled body of water. Vu Hai Dang begins by examining the legal regime of maritime features as defined in the UNCLOS and international jurisprudence as well as in international and regional practice. Pointing out the many differences between the views of Vietnam and China with regard to the historical

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and legal status of the Paracel Islands, which have rarely been discussed at length because of China’s refusal to acknowledge the existence of a dispute over the sovereignty of the archipelago, Vu argues that understanding these differences and carefully studying the actual extent of entitlements that could be conferred on the various features of the island group under international law might not only help dampen perennial tensions but also deter activities that might compound existing tensions, such as the May 2014 deployment of a Chinese oil rig near the Paracels and within Vietnam’s claimed exclusive economic zone. On the basis of a meticulous scrutiny of international law and practice, Vu comes to the conclusion that very few of the features in the Paracels can be regarded as “islands” entitled to archipelagic baselines or capable of generating an exclusive economic zone (EEZ) or continental shelf. Because of this, and because the sovereignty issue is currently impossible to resolve, Vu suggests that Vietnam and China should make joint efforts to “enclose” and “diminish” the Paracels dispute, move forward with delimitation of the area at the mouth of the Gulf of Tonkin, negotiate a fisheries agreement, undertake joint scientific research around the islands as a confidence building measure and draw up a mutually acceptable register of low-tide elevations incapable of generating maritime entitlements, which will effectively eliminate a large number of “disputed” features and pave the way for further beneficial bilateral cooperation. James Kraska extends the discussion on maritime entitlements to examine the legal structure of the exclusive economic zone as codified in the UNCLOS and international legal practice. The points he makes bear great relevance to the heated discussion on the recent Philippines–China Arbitration Award. Tracing the history of the development of the EEZ regime from state practice in the 1950s‒1970s to negotiations during the three United Nations conferences on the law of the sea, Kraska concludes that the EEZ has been one of the most forward-looking concepts in recent international law. Its fundamental purpose has been to override the notion of “historic rights” and establish a new set of principles designed for the optimal management and conservation of the oceans’ resources. By granting coastal states special authority to regulate the exploitation and conservation of natural resources within the 200-nautical mile zone projecting seaward from their coasts, the EEZ regime helps protect the economic needs of coastal communities while allowing other states access to the surplus resources through mutual arrangements with the coastal states that ensure the sustainability of the resources utilized. This, Kraska argues, is a balanced modus operandi that should be observed by all the South China Sea states, regardless of how the various disputes over legal title to the maritime features of the Sea are eventually resolved.

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Kraska’s call for greater commitment to a rules-based order of the oceans opens the way for a wider discussion of the rules and conventions governing state behavior in and above disputed waters, and to the legal and practical implications of that behavior, especially to its potential impact on territorial claims. Two highly controversial contemporary issues are taken up here. The first is examined by Nguyen Thi Lan Anh in her chapter on the question of constructions at sea. The second is the law and practice governing Air Defense Identification Zones (ADIZs) taken up by Robert Beckman and Phan Duy Hao. Nguyen Thi Lan Anh’s exhaustive analysis of both the UNCLOS and international customary law leads her to the conclusion that sufficient legal guidance for the conduct of activities that involve making or installing man-made objects or features in the marine environment already exists. For the advancement of good order at sea, the crux of the debate is not about whether those activities are permissible under international law but about under what conditions they can be carried out. While the rights to construct and operate facilities are bestowed exclusively upon coastal states in the waters landward of the EEZ limit and generally upon every state in high sea areas, Nguyen notes, such rights must be exercised with a view to not impeding the navigation rights of other states or degrading the marine environment. She also points out that the liberty states enjoy in undertaking construction at sea does not include the liberty to claim full maritime zones for man-made features or artificial islands, since the legal status of those features and islands is determined before, not after, construction activities have begun. Using desktop geographic information system software to establish the hypothetical baselines and territorial sea limits of several disputed Spratly features based on their geographical configuration, Nguyen illustrates vividly how the extensive land reclamation works being undertaken in, on and around those features are not only devoid of any capacity to advance maritime claims but are also conducive to stoking tensions and escalating disputes. This, she argues, speaks to the need of promoting interim arrangements and prior consultation with regard to constructions at sea among the concerned parties. China’s declaration of an ADIZ in the East China Sea in November 2013 and subsequent suggestions that it might establish another one in the South China Sea provoked alarm throughout the Asia-Pacific region. Robert Beckman and Phan Duy Hao, in their chapter, examine the legal framework and practice governing ADIZs and seek to place China’s action in its historical and legal context. They also look at the potential impact of ADIZs on territorial/maritime disputes and at the diplomatic and security implications of a possible Chinese ADIZ in the South China Sea. They make a number of significant observations. First, ADIZs are common in

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all parts of the world, including the Asia-Pacific region. Many countries have established and maintained ADIZs, including the U.S., Japan, South Korea, and several others. China’s declaration of an ADIZ, therefore, was not an unusual act for a sovereign state to take. Second, the status of ADIZs in both conventional and customary international law is nebulous. State practice, moreover, is neither uniform nor consistent. Third, the principles of international law governing airspace, particularly the principle concerning freedom of overflight outside the territorial sea, and the fact that ADIZs are unilaterally declared zones, make it clear that ADIZ proclamations cannot help strengthen the proclaiming state’s sovereignty and maritime claims over disputed offshore features and waters. Fourth, precisely because the legal basis of ADIZs is unclear and state practice concerning them is far from consistent, countries should work together to develop “rules of the road” and ensure application of best international practice rather than adopt unilateral measures likely to arouse unease and complicate existing disputes. Fifth, although China might enjoy the right to proclaim an ADIZ in the South China Sea, any attempt by Beijing to establish such a zone there, incorporating either the Paracels alone or both the Paracels and the Spratlys, would be fraught with grave political and strategic dangers, exacerbating Sino–Vietnamese friction, raising tensions with all ASEAN member states and provoking reactions from the United States, Japan, Australia and other countries outside the region. To complete the discussion on some of the legal issues most germane to recent developments in the South China Sea, Jonathan G. Odom examines the legality of freedom of navigation operations (FONOPs) such as those that have been conducted by the United States in the vicinity of the Paracels and Spratlys. After discussing the basis of U.S. freedom of navigation policy, Odom differentiates between four types of claims that lie at the core of the disputes in the South China Sea. Among these, restrictive, or excessive, maritime claims pursued by a coastal state that impose undue limits on the activities of other seafaring nations in that coastal state’s maritime zones are considered most liable to being challenged by FONOPs. After reviewing a number of factors that have complicated the identification of excessive maritime claims and therefore affected the conduct of FONOPs, including the continued lack of clarity on the part of a number of South China Sea claimant states as regards their maritime claims and the increased pace of reclamation activities at many of the Paracel and Spratly features, Odom explains how the 2016 ruling by the Arbitral Tribunal in the Philippines–China case has to a certain extent reduced the potential impact of these factors and helped place the South China Sea FONOPs on firmer grounds. On that premise, and after scrutinizing the justifications for U.S. South China Sea FONOPs in international law and conventional

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state practice as well as examining the policies of other states with regard to FONOPs, Odom makes an emphatic appeal for concerted South China Sea freedom of navigation efforts to delegitimize excessive maritime claims lest they become accepted through continuous enforcement. The various surveys of international law in the second section of this book, no doubt, demonstrate its importance in increasing awareness of the issues involved in the South China Sea disputes and in illustrating how the effective utilization of global rules and regulations might help in managing them. The plain fact is, however, that the legal debate is becoming more and more complex. Rather than moving toward a common understanding of international legal principles governing state practice in the maritime domain, for which the release of the 2016 Arbitral Award on the Philippines–China case might have created auspicious conditions, the parties to the disputes seem to be veering off onto increasingly divergent paths, driven not only by their persistent differences about some of the core aspects of international law itself but also by the temptation to pursue individual agendas that raise new legal issues in the ongoing debate. Since the uniform application of international law requires not only familiarity with global rules and norms but the willingness to work with others to sustain a normative order that can help advance collective interests, the last part of this volume is devoted to presenting some concrete suggestions to elevate the level of mutual trust, prevent conflict and foster a cooperative environment in the South China Sea. In the first chapter of this section, Vu Thanh Ca looks at the potential of environmental conservation and promotion of biodiversity as areas for regional countries both to foster sustainable development and to build mutual trust and cooperation. He begins by examining the current state of the ecological system and the living resources in the South China Sea, notably fish and coral species, which, due to the semi-enclosed nature of the Sea, are inherently vulnerable to environmental stress, man-made or otherwise. Human activities, he notes, are causing irreparable damage to the South China Sea marine environment. This discussion is followed by an assessment of the various existing national laws as well as regional and international mechanisms that have been created to foster better management of the South China Sea marine ecosystem as part of the world’s oceans. These laws and mechanisms, he laments, are in abundant supply but their implementation and functioning is woefully inadequate. They may, to some extent, be effective in coastal areas but the central area of the South China Sea continues to be neglected largely because of the longstanding territorial and maritime disputes there. To solve this problem, Vu puts forward the idea of instituting an integrated regional framework for monitoring and managing the environmental conditions of the entire

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South China Sea, based not only on rigorous application of UNCLOS principles but also on implementation of the July 2016 Hague Arbitral Award. Proceeding in this way, he argues, would help narrow the areas in dispute as well as define the “high sea” area in the South China Sea where different cooperative mechanisms could be established. Raphael P. M. Lotilla, in his chapter, probes more deeply into the UNCLOS and the 2016 Hague Arbitral Tribunal Award to develop a possible concrete legal framework for regional cooperation on environmental issues. Concurring with Vu Thanh Ca’s assessment that the semi-enclosed nature of the South China Sea and the “tragedy of the commons” make it inherently susceptible to environmental threats such as pollution and other human-related hazards, and that the central part of the South China Sea is especially experiencing increasing stress due to the accelerated pace of island reclamation activities there, Lotilla argues that the relevant provisions of the 2016 Hague Tribunal ruling have clarified the legal boundaries of what is acceptable and what is not acceptable under the UNCLOS with regard to resource exploitation and marine environmental preservation. This, he suggests, could serve as the basis for a code of conduct in the South China Sea. Putting forward the concept of “comprehensive, common and cooperative security,” of which environment and resource protection would be a key pillar, Lotilla points out that the rationale for cooperation between regional states, especially with regard to marine environmental preservation, is both fundamental and longstanding: All East Asian states presumably shared a common awareness of the need to ensure the equitable and efficient utilization of the oceans’ resources and the protection of the maritime environment when they acceded to the UNCLOS. That South–South solidarity, Lotilla contends, should continue to undergird regional states’ approach to managing the South China Sea environment. On this basis, he proceeds to make a number of concrete proposals for both the claimant and nonclaimant South China Sea littoral states to display that cooperative spirit more vividly and demonstrate their commitment to the UNCLOS. The next chapter focuses on an economic issue which might, in appropriate circumstances, function as an engine for cooperation and conflict management in the South China Sea. For some time energy experts have differed in their estimates of the scale of the oil and gas reserves in the Sea. Chinese estimates are, on the whole, more optimistic than those of their Western counterparts. Dylan Mair and Rachel Calvert argue strongly in favor of the more conservative assessments and add an important dimension to the debate by examining in detail the accessibility and commercial viability of the remaining hydrocarbons under the seafloor. Their rigorous analysis not only examines the geological features that can impact ­prospectivity but also looks at the technological factors frequently

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assumed to have the potential to transform the face of the region. Despite the fact that technological developments theoretically make possible the exploitation of hydrocarbons that lie mostly in remote, deep-water basins of the South China Sea, the cost of such advanced technologies renders large-scale production commercially unviable in the near to medium term. China, Mair and Calvert note, is now the region’s largest oil and gas consumer. The current and projected capacity of gas hydrates production and the limited capacity of the alternative overland pipelines and shipping routes that supply Beijing’s energy requirements mean that the real strategic significance of the South China Sea stems not from its hydrocarbon resources but from its function as an energy transportation lifeline for China and several other East Asian countries. These realities should dictate more cooperation among regional countries both to avert any disruptions to the shipping lanes and to undertake unconventional oil and gas development projects in the Sea. With regard to unconventional gas production, Mair and Calvert table a proposal for government and private sectors from all interested states to pool their technical expertise and financial capital to develop offshore methane hydrate deposits in the region. Finally, Jay Batongbacal provides a critical assessment of the utility of the litigation approach in expediting the settlement of maritime disputes in the South China Sea in a way that would establish a basis for genuine cooperation. Batongbacal begins with a succinct overview of recent events, in which he notes two distinct trends that seem to have had converse effects on the evolution of the South China Sea disputes: first, the increasing willingness of most of the South China Sea claimant states to clarify and bring their respective claims into conformity with the UNCLOS, which has helped narrow the scope of the waters in dispute and augment the prospects of the litigation approach in addressing maritime conduct deemed in contravention of the Law of the Sea Treaty; second, the continued pursuit of assertive activities by some claimants, many of which introduce new elements of complexity into the already complicated South China Sea disputes due to their unprecedented scope and location close to the mainland of the littoral states. After a careful review of the relevant provisions in the UNCLOS, several of which have been further clarified by the Philippines–China case at The Hague, particularly UNCLOS Part XV on dispute settlement procedures, Batongbacal examines their possible application to a growing number of different incidents relating to resource exploration and exploitation, marine scientific research, and military and construction activities in the maritime zones projected from the mainland of the littoral states as well as those around the disputed features in the South China Sea. While certain provisions in Part XV, namely the oft-invoked and oft-debated Article 297 and Article 298, may restrict the application of the dispute settlement

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mechanisms designated for state parties to the UNCLOS, Batongbacal uses the Philippines–China case at The Hague to show how the South China Sea states can still avail themselves of the compulsory dispute settlement procedures provided for in the UNCLOS and to demonstrate how a creative combination of law and diplomacy could help foster the building of a just and cooperative order in the South China Sea. The perspectives presented in this volume, while by no means representing the whole range of ideas about the South China Sea, do reflect some of the most recent discourses on many salient issues. Like pieces of a mosaic, they should help decision-makers and interested observers of this maritime century (to borrow one Indian strategic thinker’s words) form a more comprehensive picture of the current situation and what is at stake.10 The various assessments and outlooks may reinforce, complement or contradict each other, but the detailed and structured way in which they have been presented gives testimony to the sober contemplation and personal commitment that underpin them. This is an encouraging beginning if the community of nations concerned about the South China Sea in particular and the East Asian seas more generally is to undertake serious dialogues about how they might move forward together in these times of increasing uncertainty and volatility. No matter what specific issues they seek to address, the chapters appearing in this book all point to one essential for the promotion of security and development in the South China Sea. That is the need for a balanced understanding of the views and interests of all the parties concerned, including both the coastal and user states having direct economic and security stakes in the region, as well as other members of the global community who are concerned about the maintenance and further development of the current rules-based international system. A balanced understanding also entails a comprehension of the balance between the rights and responsibilities of the states concerned within the context of international law. A repeated call made by several contributors to this book is for the intensification of intellectual exchanges to deepen the pool of knowledge and stimulate the search for innovative solutions to the South China Sea issues. It is hoped that this book, itself a product of one such exchange process, will make a meaningful contribution to answering that call.

NOTES  1. Ross Chainey, “What Are the Biggest Risks Facing Asia-Pacific?” World Economic Forum,  accessed June 27, 2017, https://agenda.weforum.org/2015/04/what-are-the-­bigg​ est-risks-facing-as​ia-pacific/.

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  2. Pew Research Center, “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image – Many in Asia Worry about Conflict with China,” accessed May 26, 2016, http://www.pewglobal.org/files/2014/07/2014-07-14-Balance-of-Power.pdf, 37‒41.  3. World Economic Forum, “The Global Risks Report 2017, 12th Edition,” Figure 3, accessed December 5, 2018, http://www3.weforum.org/docs/GRR17_Report_web.pdf.  4. Bruce Stokes, “Hostile Neighbors: China vs. Japan,” September 13, 2016, accessed June 27, 2017, http://www.pewglobal.org/2016/09/13/hostile-neighbors-china-vs-japan/; Richard Wike and Bruce Stokes, “Chinese Public Sees More Powerful Role in World, Names U.S. as Top Threat,” October 5, 2016, accessed June 26, 2017, http://www. pewglobal.org/2016/10/05/chinese-public-sees-more-powerful-role-in-world-names-u-s-a​ s-top-threat/; Artyom Lukin, “Imagining World War III – In 2014,” The Huffington Post, last updated October 4, 2014, accessed May 26, 2016, http://www.huffingtonpost. com/artyom-lukin/world-war-iii_b_5646641.html; Tom Batchelor, “Pacific War? China Expanded Naval Bases in Disputed Seas as US Agrees Taiwan Warship Deal,” Express, December 15, 2015, accessed May 26, 2016, http://www.express.co.uk/news/world/627042/ Pacific-war-US-South-China-Sea; Steven Stashwick, “Avoiding Another Pacific War,” The Japan Times, July 22, 2016, accessed June 27, 2017, http://www.japantimes.co.jp/ opinion/2016/07/22/commentary/japan-commentary/avoiding-another-pacific-war/#. WKGIvtJ97cs; Will Worley, “China Military Official: War with US under Donald Trump ‘Becoming Practical Reality’” The Independent, January 28, 2017, accessed June 27, 2017, http://www.independent.co.uk/news/world/asia/china-donald-trump-war-usmilitary-official-practical-reality-president-latest-a7550601.html; Robert Farley, “A War Between the U.S. and China Would Be World War III (And Might Be Hard to Shut Off),” The National Interest, February 2, 2017, accessed June 27, 2017, http://nationalinterest. org/blog/the-buzz/war-between-the-us-china-would-be-world-war-iii-might-be-19287.   5. U.S. Energy Information Administration, “South China Sea,” last updated February 7, 2013, accessed June 26, 2016, http://www.eia.gov/beta/international/regions-topics.cfm​ ?RegionTopicID=SCS.   6. Lucio Blanco Pitlo III, “Fishing Wars: Competition for South China Sea’s Resources,” PacNet 57, July 24, 2013, accessed June 26, 2016, http://csis.org/files/publication/Pac1357. pdf; Nina Hachigian, “The Other Problem in the South China Sea,” The Diplomat, April 8, 2015, accessed June 26, 2016, http://thediplomat.com/2015/04/the-other-problem-in-thesouth-ch​ina-sea/.   7. UN Food and Agriculture Organization, “State of World Fisheries and Aquaculture 2010,” accessed June 26, 2016, http://www.fao.org/docrep/013/i1820e/i1820e.pdf, 39.   8. Hachigian, “The Other Problem.”   9. See, for example, Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven: Yale University Press, 2014), xvii‒xviii; Robert D. Kaplan, Asia’s Cauldron: The South China Sea and the End of a Stable Pacific (New York: Random House Trade Paperbacks, 2014). 10. Arun Prakash, then India’s Chief of Naval Staff, published a book entitled The 21st Century is Going to be a Maritime Century in 2005. David Scott, “India’s ‘Grand Strategy’ for the Indian Ocean: Mahanian Visions,” Asian-Pacific Review Vol. 13, No. 2 (November 2006): 115.

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1.  Getting beyond slow boil in the South China Sea Andrew Scobell The South China Sea has become one of the most important bodies of water in the world in economic and strategic terms.1 About one-half of the world’s maritime trade measured by merchant fleet tonnage passes through it each year, making its sea lanes among the most heavily traveled in the world. Their disruption by pirates or warring powers would affect the economic security of all the surrounding countries as well as that of others, including Taiwan, Korea, Japan, Australia, and their protector, the United States. With modern fishing technology, the sea yields over ten million tons of fish per year, and the technology now exists to begin to exploit the potentially vast, and still unmeasured, reserves of oil and gas that lie under its seabed. A recent book dubbed the South China Sea “Asia’s Cauldron.”2 Does such a label seem apt or excessively provocative? Since at least 2010, the South China Sea has appeared to be on a “slow boil.” Tensions seem to simmer and fluctuate over time. Occasionally, they bubble up, creating turbulent waters in the process. But this turbulence eventually subsides, and the sea returns to a gentle bubble for a while. Then, the cycle repeats itself. How serious are the tensions over this body of water? Does the South China Sea warrant the term “flashpoint” or “hot spot”? The tensions seem serious, but the dangers of escalation appear less severe than those of other flashpoints in the Asia-Pacific, such as the Korean Peninsula, the Taiwan Strait, and the Vale of Kashmir. Like the South China Sea, these geographic locations exhibit chronic tensions, but they seem qualitatively distinct in at least one respect—each faces acute frictions that could plausibly escalate into major military conflicts.3 Indeed, Korea, Taiwan, and Kashmir have each produced serial crises and at least one major military conflict over the past sixty-odd years. In contrast, the South China Sea has merely experienced minor naval clashes and small-scale military confrontations over just the past forty-some years, and none of these incidents threatened to escalate into a larger or wider conflict. 16 Andrew Scobell - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:52:18PM via Sydney University

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So why is the South China Sea different from these other regional flashpoints? The chronic but less acute nature of this Southeast Asian hot spot is partly a result of the nature of the flashpoint—exclusively maritime, and somewhat removed from population centers—and partly because, at least until very recently, none of the disputants has possessed air and naval assets capable of producing horizontal or vertical escalation. This latter condition is starting to change as both the Asia-Pacific and Southeast Asia are experiencing incipient arms races, especially where navies are concerned.4 According to the International Institute for Strategic Studies, “Asian defense spending . . . [is] increas[ing] strongly.”5 Moreover, technological advances in weaponry, communications, and information mean that distances have shrunk. Developments such as ballistic missiles and satellite imagery have transformed once distant areas into accessible and visible locations.6

HISTORY Starting in the 1970s, the surrounding countries gained the naval capabilities to fully chart the region and stake their claims as well as the commercial capability to exploit them.7 Advancing gradually through the region, the Chinese, Vietnamese, and Malaysian navies surveyed the waters; located hundreds of small islands, reefs, and other land formations; and installed observation platforms, meteorological stations, and small harbors. (The Philippine and Brunei navies were not equipped to compete with the others.) Fisheries fleets moved farther from shore, and surrounding countries began to lease offshore oil and gas fields to international companies. All the surrounding countries claimed various territorial rights to portions of the Sea and clusters of its islands. International law gives every country around an international body of water some rights. These range from excluding other countries’ ships except for “innocent passage” (usually within 12 nautical miles of the relevant land body) to the right to exclusive economic exploitation (usually within 200 nautical miles). When countries are close together, as is the case with nations surrounding the South China Sea, the claims overlap. The legal principles give outsized importance to small islands, reefs, and atolls because their owners can claim special rights in large areas of sea around them. There are many different bases for plausible claims to islands, including first discovery, historical possession, and geographical connection to the home country’s continental shelf. Where countries are close together around a body of water, it is not unusual for their claims over islands to overlap. Such is the case in the South China Sea. The Sea contains four main clusters of outcroppings widely scattered across its surface. The Paracel Islands,

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located in the northern part of the South China Sea about equidistant from Vietnam and China, consist of over thirty small islands and other land formations scattered across some 6,000 square miles of water. The Spratly Islands, located farther south some 300 miles from the coast of Vietnam and 700 miles from China’s Hainan Island, consist of over a hundred small bits of land spread over about 160,000 square miles of water. The Pratas Islands, in the northeast part of the South China Sea not far from Hong Kong, consist of three islands. The Macclesfield Bank is a group of rocks close to the Philippines. (The Sea also contains a number of other land features in addition to these.) Taken as a whole, these formations include only about ten square miles of land surface above the water. Few are habitable without outside supplies of food and water. But if countries use them as the basis for claiming their 200-nautical mile exclusive economic zones, then they potentially provide title to large expanses of the South China Sea.

THE SITUATION IN THE LATE 2010s What is the situation in the late 2010s? There are several key ways to characterize the South China Sea flashpoint. First of all, the South China Sea continues to be a chronic hotspot, albeit one that may very possibly become more acute. The disputes between rival claimants and interested outside parties have simmered for decades and appear likely to remain unresolved for the foreseeable future. Furthermore, at the same time as the stakes involved appear to be rising, multiple claimants have significantly increased their military capabilities. The role of individual leaders cannot be ignored—prominent national figures can exacerbate or ameliorate tensions. For example, President Roderigo Duterte of the Philippines, elected to office in 2016, could through his blunt rhetoric and unconventional policies either contribute to an escalation or de-escalation of the South China Sea flashpoint. Second, the disputes are multilateral. That is, they involve more than two states as well as a number of third-party actors. This makes the disputes more complicated, as bilateral agreements cannot produce a comprehensive and sustainable resolution. Third, the disputes are multifaceted in scope and involve not only territory (land or sea), but also ownership of and access to a variety of resources. Most notable are the exclusive economic zones (EEZs) claimed by some countries based upon their claims to islands, reefs and atolls in the South China Sea. Fourth, these disputes are multidimensional. In other words, the disputes encompass multiple dimensions—not just legal issues, but military,

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law enforcement, diplomatic, and economic ones as well. The legal dimension was highlighted by the United Nations Convention on the Law of the Sea (UNCLOS) Annex VII Arbitral Tribunal ruling issued in July 2016.8 While some parties to the dispute, notably China, would prefer to ignore this decision, the multidimensional reality means they cannot. Thus, despite Beijing’s insistence that it does not recognize the ruling, China has nevertheless felt it necessary to respond in other ways, including reaching out bilaterally to the Philippines, and re-energizing a multilateral initiative to devise a code of conduct for the South China Sea.

THE STABILITY–INSTABILITY PARADOX IN THE SOUTH CHINA SEA There are certain common views discernible among the disputing parties. These include a common desire to avoid a major military conflict over the South China Sea. At the same time, most countries also tend to assume that the current tensions and possible future confrontations or crises have very low probabilities of escalation. While the former view is constructive, the latter is not. If disputants believe the escalation potential is very low or even non-existent, they may engage in excessively risky or provocative behavior. Of course the two viewpoints are related—the latter is predicated upon the former. It might be useful to conceive of these two views as constituting a non-nuclear variant of the stability–instability paradox. In the case of the South China Sea, regular confrontations between coastguard or naval vessels and fishing boats from different states and infrequent but periodic small-scale skirmishes between different states’ coastguard and naval ships produce a slow boil, which generates a heated atmosphere that is not conducive to dialogue or cooperation—not to mention negotiating a resolution of the dispute. A common view among claimants other than China is that Beijing has a different timeline and a different strategy from the others. In the view of many countries, China is perceived to be: ●● ●● ●● ●●

Unwilling to compromise Growing stronger Becoming more assertive Having time on its side.

Almost certainly, China has been more active and definitely has displayed greater ambition that the other South China Sea claimants.

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China claims a very large number of the formations in the South China Sea.9 China’s claims overlap in various ways with those of Vietnam (whose claims include the entirety of the Paracel and Spratly islands and are the largest after China’s) and of Malaysia, the Philippines, and Brunei. If China were to make good on all its claims and enforce a 200-mile EEZ around them, it would own the whole Sea except for the small zones just off the coasts of the surrounding states. Indeed, such a claim to the entire Sea was illustrated by a famous map originally published by the Nationalist government in 1947 and republished by the PRC in 1992, called the “ninedash line map” because it showed Chinese claims in a sweeping arc of nine long dashes around the Sea’s perimeter. In 1993, China also published a map seeming to show a claim to areas close to the Natuna Islands in the far south of the South China Sea, which are held by Indonesia, but this claim has not been clarified or repeated. However, in subsequent communications, Beijing has sought to reassure Jakarta that China does not claim the Natunas and, as a consequence, this appears to be virtually a non-issue in bilateral relations.10 Starting in the 1970s, China has pushed steadily forward to consolidate its position with a mix of military, diplomatic, and economic tools, while trying not to frighten its rivals into a united front against it. In 1974, Chinese naval forces clashed with the forces of the Republic of Vietnam (South Vietnam) in the Paracel Islands. Beijing took advantage of the waning months of the Saigon regime to strengthen its hold on these disputed features. The larger PLA Navy (PLAN) flotilla bested the fourvessel Vietnamese force, and China seized the Paracels’ western group, taking control of the entire archipelago. In 1988, PLAN forces fought with forces of the Socialist Republic of Vietnam in the Spratly Islands—a skirmish which escalated from a struggle between rival landing parties on a reef. The PLAN won the main battle, which took place at Johnson Reef, and China went on to occupy six nearby reefs claimed by Vietnam and the Philippines. In 1992, China granted a concession to the Crestone Energy Corporation for work in the southwest corner of the South China Sea, adjacent to the Spratlys. In 1995, the Philippines discovered that the Chinese Navy had moved onto the Mischief Reef, a formation in the Spratly group close to the Philippines, and had built a permanent structure there that was manned with PLAN sailors who drove Filipino fishermen away. In 1997, a state-owned Chinese energy company drilled for gas in contested waters off the coast of Vietnam. Punctuating these events were a series of clashes between Chinese naval vessels and fishing boats from various countries that were encountered in waters China claimed. This pattern of clashes and harassment by Chinese maritime security forces continued into the second decade of the twenty-first century. Beijing reinforced its

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claims in 1988 by upgrading Hainan to provincial status and assigning each of the islets, reefs, and atolls that it claimed in the South China Sea a place in Hainan’s administrative hierarchy. In 1992, the National People’s Congress Standing Committee adopted the Law of the People’s Republic of China on Territorial Waters and Contiguous Territories, which asserted China’s claims to extensive areas of the South China Sea.11 These actions exacerbated longstanding suspicions of China around the region. For many of the states of Southeast Asia, China had a legacy of fomenting revolution. Under Mao, China had supported communist insurgencies verbally and sometimes materially in the Philippines, Indonesia, Singapore, Malaysia, Thailand, and Myanmar. Beijing cut its ties with these insurgencies starting in the late 1970s. In some cases, the insurgencies were heavily ethnic Chinese in composition. Even though the PRC had ceased to claim the sizable ethnic Chinese populations in these countries as citizens starting in 1954, it still called them “overseas Chinese” and gave them the right to return to China to study and settle. Alarm about Beijing’s readiness to use force to achieve policy goals has endured because of Chinese actions. As recently as 1979, China fought a war with Vietnam partly over Hanoi’s closer alignment with Moscow, partly over territorial disputes, and partly over the treatment of the ethnic Chinese there. The 1995‒96 Taiwan Strait Crisis created new fears that China was becoming assertive and threatening. While China was successful in improving its image in Southeast Asia with a “charm offensive” between the 1990s and 2000s, by 2010, Beijing’s assertive steps to exercise sovereignty claims in the South China Sea had resurrected fears in the region that China was reverting to the use of military force and coercion. Beijing recognized that it had an image problem and sought to address it. In 1997, Foreign Minister Qian Qichen gave the first high-level exposition of the “New Security Concept” at the annual meeting of the ASEAN Regional Forum held in Malaysia. The concept echoed the Five Principles of Peaceful Coexistence, which Zhou Enlai had presented at the 1955 non-aligned summit in Bandung. China’s response to the 1997‒98 Asian Financial Crisis also helped soften its image: Beijing played a stabilizing role by not devaluing its currency and by offering low interest loans to countries in the region. In 2002, Beijing signed the Declaration on the Conduct of Parties in the South China Sea, which had been drafted by the Association of Southeast Asian Nations partly at the instigation of Vietnam. The parties pledged to peacefully resolve sovereignty disputes, but the declaration contained no specific provisions to resolve them. In 2004‒05, the China National Offshore Oil Corporation (CNOOC) joined with the Philippine and Vietnamese national oil companies in a Joint Marine Seismic Undertaking (JMSU) to explore portions of the South

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China Sea seabed for energy resources. In 2011, under U.S. prodding, China agreed to push forward with implementing confidence building measures with ASEAN states in the South China Sea. Through none of these actions, however, did Beijing concede any territorial claims. It avoided legalistic debates that would have required it to specify the historical and legal basis of its claims in detail. Instead, Beijing pushed forward to consolidate its physical presence. Incidents continued, with the Chinese navy firing on fishing boats, harassing naval vessels of other Southeast Asian countries, and warning oil companies not to explore for oil in concessions granted by Vietnam. In the early 2000s, Chinese air and naval forces began to challenge U.S. air and sea craft on surveillance and monitoring missions just outside the 12-mile territorial limit. The U.S. considered these missions legitimate in international waters and airspace, while China viewed them as provocative. In 2001, a Chinese fighter plane shadowing an American EP-3 surveillance aircraft about 70 miles off the Chinese coast collided with it, causing the damaged American plane to land in Hainan and triggering a diplomatic standoff that lasted several weeks; meanwhile, the Chinese fighter pilot, who died, was lionized in the Chinese official press. In another incident in 2009, Chinese naval vessels surrounded the USNS Impeccable when it was operating in waters about 75 miles south of Hainan, making navigation dangerous. More recently, in December 2016, a PLA naval vessel seized a U.S. military underwater drone some 50 miles off the coast of the Philippines (the device was later returned). China’s apparent goal was the same in all these episodes: to push back the scope and range of U.S. military activities in the South China Sea. In 2010, some Chinese leaders reportedly informed American officials that the South China Sea was a “core interest,” although the claim was not further articulated. Asian neighbors viewed such actions as part of a larger pattern of Chinese assertiveness around the region, symbolized by China’s overall naval buildup and unprecedented coastguard expansion.12 China’s activism in the South China Sea has continued more recently. In 2012, China displayed its maritime muscle against the Philippines near the Scarborough Shoal. In May 2014, China’s CNOOC installed an oil rig inside the EEZ claimed by Vietnam without any prior notification or explanation. The rig was withdrawn two months later, but Beijing had successfully signaled its resolve. As a result of these activities, other states have concluded that Beijing is engaged in a long game where the South China Sea is concerned. Despite China’s expanding grey hull and white hull presence, there is no near-term prospect that it can achieve its maximum goal of controlling all the island groups and their EEZs without resorting to outright military action. Instead, Beijing seems to be focused on a long term strategy (see below).

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In their attempts to counter China’s “long game,” the other, smaller disputants have looked to outside powers—particularly the United States and Japan—to balance against China’s daunting power.

SLOW INTENSITY CONFLICT IN THE SOUTH CHINA SEA This author has described China’s strategy in the South China Sea as one of “slow intensity conflict (or “SLIC”).”13 SLIC is a stealth-like strategy to lull the other claimants into believing that no conflict exists. SLIC—unlike low intensity conflict or LIC—involves war between the regular armed forces of states but tends to entail primarily minor and infrequent skirmishes between small units. It is a protracted struggle waged with all the instruments of national power—not just military, but also diplomatic, economic, and informational power. SLIC makes it difficult for other claimants to keep attention focused on the issue and coordinate with neighbors. But SLIC might also be used to characterize not only the strategies of a number of disputants, but the general “slow boil” phenomenon that the South China Sea has witnessed over the past two decades as well. Thus, SLIC is chronic. Moreover, while it may be unlikely to escalate, SLIC nevertheless tends to undermine the prospects for meaningful dialogue and negotiation.

ROLE OF THIRD PARTIES China appears convinced that rising tensions in the South China Sea are the result of meddling by third parties. Beijing is particularly irate over what it believes is intervention by Washington in recent years. According to one Chinese academic, speaking in 2011, “[T]he United States was more assertive in 2010, announcing a ‘return to Asia,’ and building up its military posture in the region.” The academic contended that this growing U.S. assertiveness included “. . . increased civilian air and sea intelligence gathering efforts in the South China Sea.”14 Another Shanghai-based analyst noted, “We think that Mrs. Clinton’s remarks [in Hanoi in July 2010] are part of a plot by the US to get involved in an area and set of issues in which it doesn’t belong.” Exhibiting extreme suspicion of U.S. intentions, he argued, “China’s disagreements with Vietnam, its disagreements over claims to the South China Sea . . . have all existed for a long time. Why did they all come together . . . [in 2010]? I

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think external elements played a role, especially Mrs. Clinton’s speech in Hanoi, which confused the issue of transit with the issue of sovereignty disputes and made the problems more serious.”15 The bottom line is that Beijing perceives Washington as threatening and views U.S. actions in the Asia-Pacific with considerable suspicion.16 It is too soon to tell what impact if any the Donald J. Trump administration will have on U.S.–China relations and U.S. policy toward the South China Sea. Under President Trump the climate of bilateral relations might improve, worsen, or perhaps not change at all.

CONCLUSION The challenges of addressing the South China Sea disputes through peaceful negotiations are daunting. While the dangers of escalation may be less than those of other East Asian hot spots, the potential for escalation in the South China Sea may be growing because of the stability–instability paradox and an incipient regional arms race. The most powerful claimant has adopted a SLIC strategy and seeks to exclude third parties becoming involved. Some other states appear to welcome third-party involvement. Under the circumstances, a four-step approach seems sensible: first, to de-escalate tensions; second, to identify appropriate third-party facilitators; third, to manage the disputes; fourth, to resolve the disputes. De-escalate Tensions There are a number of immediate measures disputants could use to de-escalate tensions, build trust, or at least limit the potential for further escalation. For example, all countries could cease construction of permanent structures and artificial islands. Moreover, disputants could agree to demilitarize the South China Sea and refrain from aggressive and dangerous actions. Thus, coastguards would be preferred over navies. Indeed, this is already occurring, as some countries are employing more white hulls. And coastguard vessels from all countries could be instructed not to engage in activities that would endanger human life or damage property. Designate Appropriate Third Parties to Serve as Mediators and Adjudicators As noted, China in particular is opposed to the involvement of third parties in these territorial disputes. This is in part because Beijing views

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some of the prominent third-party states involved, notably the United States, with great suspicion and does not perceive them as neutral actors. Thus, it is necessary to engage external states that would be viewed as impartial by all of the disputants. States such as Sweden or Canada might be ­appropriate candidates. Manage the Disputes with Third-Party Assistance Third-party states can help formulate rules of the road and/or establish enforcement mechanisms in the South China Sea.17 If recent history is any guide ASEAN may not be the most suitable venue in which to hammer out a code of conduct.18 A code of conduct should be approved by all disputants after being formulated either under the auspices of ASEAN or a neutral third party. One avenue worth pursuing is the establishment of a maritime nature park in a portion or portions of the South China Sea. Within the boundaries of the regional nature park no fishing, drilling or constructing of man-made structures would be permitted. A multilateral entity could be formed and charged with responsibility for monitoring and enforcing the sanctity of the maritime nature park. For such an enterprise to have a real chance of success all parties would need to be in agreement and third-party involvement would likely be required. Resolve the Disputes Building on step three, neutral third-party states could help nurture trust among the disputants and/or help to adjudicate the South China Sea dispute. If third parties were able to earn the respect of, and develop trust among disputants, then perhaps the disputants might be willing to commit to abide by a negotiated settlement. All parties would need to be willing to accept common principles and concepts. A logical way to turn is toward UNCLOS even though there are different interpretations of this UN convention. Even more difficult would be how to address the 2016 arbitral ruling in the China–Philippines case. It is extremely unlikely that China would be prepared to consider this legal judgment in any process or dialogue moving forward. In sum, making progress on the South China Sea dispute will be extremely challenging. Building trust is vital but this will be difficult. The most promising way forward lies in making meaningful but incremental steps. And third-party involvement will likely be required if the slow boil in the South China Sea is to be abated.

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NOTES   1. This paragraph is drawn from Andrew J. Nathan and Andrew Scobell, China’s Search for Security (New York: Columbia University Press, 2012).   2. Robert D. Kaplan, Asia’s Cauldron: The South China Sea and the End of a Stable Pacific (New York: Random House, 2014).   3. Andrew Scobell, “An Orderly, Pacific Asia or Asia-Pacific Powder Keg?” Issues and Studies, Vol. 41, No. 1 (March 2005): 244‒50.   4. Andrew T.H. Tan, The Arms Race in Asia: Trends, Causes, Implications (New York: Routledge, 2014). Geoffrey Till contends the region is experiencing a “slow motion arms race.” See Geoffrey Till, Asia’s Naval Expansion: An Arms Race in the Making? (London: International Institute for Strategic Studies, 2012), 35, 241.   5. The International Institute for Strategic Studies (IISS), The Military Balance 2013 (New York: Routledge, 2013), 250.   6. Paul Bracken, Fire in the East: The Rise of Asian Military Power and the Second Nuclear Age (New York: HarperCollins, 1999).   7. The three paragraphs in this section are drawn from Nathan and Scobell, China’s Search for Security (New York: Columbia University Press, 2012).  8. Press Release of The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China, PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016.   9. This paragraph and the five that follow are drawn from Nathan and Scobell, China’s Search for Security. 10. See for example, Bill Hayton, The South China Sea: The Struggle for Power (New Haven: Yale University Press, 2014), 170, 264. 11. For analysis, see Hayton, The South China Sea, 125. 12. See, for example, Lyle J. Morris, “Blunt Defenders of Sovereignty: The Rise of Coast Guards in East and Southeast Asia,” Naval War College Review, Vol. 70, No. 2 (2017): 75‒112. 13. See Andrew Scobell, “Slow Intensity Conflict in the South China Sea,” E-Note (Philadelphia, PA: Foreign Policy Research Institute, distributed August 16, 2000) and Andrew Scobell, “China’s Strategy toward the South China Sea,” in Taiwan’s Maritime Security, ed. Martin Edmonds and Michael M. Tsai (London: Routledge Curzon, 2003): 40‒51. 14. Quoted in Andrew Scobell and Scott W. Harold, “An ‘Assertive’ China? Insights from Interviews,” Asian Security, Vol. 9, No. 2 (2013): 119‒20. 15. Quoted in Scobell and Harold, “An ‘Assertive’ China?”, 120. 16. Andrew J. Nathan and Andrew Scobell, “China Sees America: The Sum of Beijing’s Fears,” Foreign Affairs, Vol. 91, No. 5 (2012): 32‒47. 17. These mechanisms could be structured and function in any number of ways, including the use of clearly marked aircraft, sea craft, and use of satellite photography. It might be possible to draw on the lessons of multilateral cooperation in humanitarian search and rescue efforts such as the hunt for MH370. 18. For discussion of the role of ASEAN and the United States in recent efforts to deal with the South China Sea dispute, see Sheldon W. Simon, “Conflict and Diplomacy in the South China Sea: The View from Washington,” Asian Survey, Vol. 52, No. 6 (2012): 995‒1018.

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2.  Economic (asymmetrical) interdependence and territorial disputes Michael Yahuda Despite being the largest trading partner of ASEAN, China lags behind as an investor and is not as economically dominant as might be expected. It is China’s greater and growing military power that gives China the edge, especially as it has consolidated its position in the South China Sea through extensive land reclamation on the seven reefs it occupies, which have been transformed into military bases. It has also defied a ruling against it by the Arbitral Tribunal in The Hague. For good measure it has taken advantage of divisions within ASEAN to prevent unfavorable statements being issued against it. Clearly, the Chinese government has no intention of retreating from the enlarged “islands,” which in effect provide it with the means to control the Sea—its commercial lifeline. That said, it seems that China’s new leader, Xi Jinping, has developed a strategy to use his country’s economic centrality in Asia to promote its economic advantage to develop trans-border infrastructure especially in transportation, which will benefit neighboring states, but which will also tighten China’s regional economic and security networks. The end result would be for China to become the dominant economic and strategic hub of Asia.

XI JINPING’S ASIAN STRATEGY In a series of speeches from April 2013 to June 2014 China’s new leader, Xi Jinping, sketched out a new vision of China’s international role, which would place it at the center of a hub of intensifying economic integration in Asia.1 Building on China’s long-standing emphasis on China’s need for peace and development he called upon Asian countries to adopt cooperative security instead of Cold War type alliances, which he characterized as based on a zero-sum outlook as opposed to his “win–win” approach. China’s growing economy would lead to more expansive trade with 27 Michael Yahuda - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:52:27PM via Sydney University

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and investment in Southeast Asian countries and the development of a maritime new silk road to accompany the land-based ones that would link China to other parts of Asia and beyond that to Europe (the so-called “One Belt One Road”). Specifically Xi called for “common, comprehensive, cooperative and sustainable security” based on “peace, development and win–win cooperation,” which would leave disputes between states to be resolved through dialogue and negotiations. Xi did not directly address China’s maritime and territorial disputes with neighboring states, but gave the impression that China’s centrality in the economies of the region would discourage neighbors from continuing to oppose Chinese territorial and maritime claims, which have come to be regarded as one of China’s core interests. A common theme running through Xi’s main speeches is that security is achieved through development and that the development of China is indissolubly tied to the development of Asia and especially China’s immediate neighbors. Thus at the Central Committee conference on periphery diplomacy of October 2013 he argued that “the strategic goal of China’s diplomacy with neighboring countries is to serve the realization of the ‘two century goals’” (i.e., to realize “a moderately prosperous society” by the hundredth anniversary of the Communist Party of China in 2021, while Xi is still the leader; and a “prosperous, strong, democratic, culturally advanced, harmonious and modern socialist country” by the centenary of the People’s Republic of China in 2049) and “the great rejuvenation of the Chinese nation . . .” Without explaining exactly what he meant, Xi said that a new situation had arisen in which “great changes have taken place in China’s surrounding environment and China’s relations with neighboring countries,” which required China to be more active in “strategic thinking and overall planning to do a better job in the diplomatic work with ­neighboring countries.”2 It is not clear how far Xi is aware of the antipathy that many of the peoples of Southeast Asia have towards Chinese policies and indeed towards Chinese visitors to their countries. In addition to the historical legacy of military interventions by imperial China in several Southeast Asian kingdoms and sultanates, as well as Maoist support for communist insurgencies in the region in the first few decades of the People’s Republic of China (PRC), suspicion of China’s contemporary great power disregard for their interests was not far below the surface in Southeast Asian countries, even when China ostensibly adopted more friendly diplomacy towards them in the 1980s and 1990s. That is why most of these countries adopted a hedging strategy towards their giant neighbor.3 But his prescription for changes in Chinese diplomacy addressed many of the problems the Chinese government has encountered in managing relations with these

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neighbors. In Xi’s words, “We must strive to make our neighbors more friendly in politics, economically more closely tied to us, and we must have deeper security cooperation and closer people-to-people ties.” He continued, “Only through better integration of China’s interests with neighbors’ can they benefit from China’s development and China benefit from theirs.” Xi then called on regional countries “to promote regional cooperation in a more open mind and with greater enthusiasm.” Implying perhaps that China had fallen short in that regard, Xi demanded that “China itself must embrace and practice these ideas so that they will become the shared belief and norms of conduct for the whole region.”4 In more practical terms, Xi called for “integrating” and “deepening mutually beneficial cooperation” in “economic, trade, scientific technological, financial and other resources” with neighbors. China should also be more proactive in regional groupings, “accelerate infrastructure connectivity,” build land and maritime silk roads (i.e., the much touted “One Belt One Road”), free trade zones, and build a “new pattern of regional economic integration,” including “the establishment of the Asian Infrastructure Investment Bank.”5 Indicating how closely these projected developments were to be tied into China’s domestic economic development, Xi talked up the mutual benefits of cross border economic schemes linking Yunnan and Guangxi with adjacent countries. In his address to CICA (the Conference of Interaction and Confidence Building in Asia) on May 21, 2014, Xi told the representatives of 47 Asian countries and international organizations, “In the final analysis Asian issues are to be dealt with by Asian people.” With obvious reference to the United States, Xi declared, “no country should seek to monopolize regional security affairs, against the legitimate rights and interests of other countries . . . strengthening military alliances against a third party is not conducive to maintaining a common security area.”6 Instead, drawing on previous Chinese proposals for cooperative security, he outlined a vision of “common, comprehensive, cooperative and sustainable security.” That would in effect exclude the United States. On this basis Xi proposed that China would promote a dialogue “to explore the establishment of a new regional security cooperation framework” for the “whole of Asia.” One of the problems with this vision of cooperative security is the impenetrable process of decision-making in China and the general lack of transparency in the conduct of many economic exchanges and especially in China’s military-security affairs. Another problem is the tendency of China’s leaders to use broad headings to assert policy guidelines, which are vague and lack specificity and to use them constantly as if they were self-explanatory. For example Hu Jintao’s concept of “harmonization” applied to the domestic and external arenas, or Xi Jinping’s

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“China Dream.” In comparison the politics and administrative process of neighboring countries are far more open. China’s leaders have sought to take advantage of these among ASEAN member states, notably in the case of the Philippines, but also others.7 Xi’s vision is clearly self-serving and designed to strengthen Chinese interests as he sees them. Despite Xi’s emphasis on the inviolable rights of all states, his remarks at the Seventh Conference for Friendship of Overseas Chinese Associations (of June 5‒8, 2014) attended by more than 500 representatives from 119 countries and regions implied that China might have more exceptional rights. He called on the overseas Chinese to be more united so as to play an “irreplaceable role in realizing the Chinese dream of national rejuvenation as they are patriotic and rich in capital, talent, resources and business connections.” He called on them to “promote Chinese culture, the common gene of the nation.” Xi Jinping was addressing 500 representatives from 119 countries and regions, who could not have all been citizens of the PRC. In other words he was claiming that citizens of other states of ethnic Chinese origin should embrace the “patriotism” of the PRC and contribute to the “Chinese dream” as defined by the leadership of the Chinese Communist Party. Xi either does not know of, or he is indifferent to, the loyalties that ethnic Chinese owe to other states of which they are citizens. In any event only a passing acquaintance with the history of the problems many ethnic Chinese have encountered in neighboring states in Southeast Asia would surely have alerted Xi to the possibility that these words may end up causing more harm to these Chinese overseas and more problems for the PRC, when it may face the dilemma of balancing demands to protect these ethnic Chinese and to cultivate good relations with the states in which they reside. Xi’s speeches all stressed the importance of economic development and connectivity between Asian countries with China at the center of a gigantic web of “silk roads.” The American approach of stressing free trade and the provision of the kind of security which has allowed all the East Asian countries (including China) to develop their economies was ignored as he declared, “no country should seek to monopolize regional security affairs against the legitimate rights and interests of other countries.” Xi’s only reference to disputes over territorial sovereignty and maritime rights was China’s insistence that these be addressed by “peaceful means, through friendly consultations” with “relevant countries” as China has done with 12 of the 14 countries with whom it shares land borders. China’s Foreign Minister Wang Yi presented China’s formal position on its maritime claims in March 2014. The Foreign Minister left no room for the kind of ambiguity Xi Jinping presented in his speeches designed to impress neighbors and other Asian countries with his vision of a new

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Asian order. Thus after saying that China would handle its territorial and maritime disputes in a peaceful manner through “consultations and talks” with neighbors on the basis of equality, Wang affirmed that these should be based on “respecting historical facts and international law,” on which “we will absolutely not change in the future.” He added China will not use its size to bully small countries, but it will “not accept small countries to kick up a row.” While “we do not want an inch of territory that does not belong to us . . . we will protect each inch of territory that belongs to us.”8 It should be noted that Wang Yi’s voice was one of relative moderation in China, especially as compared to the statement of the Ministry of Defense two months later. The Ministry declared, “Our determination and will to defend national territorial sovereignty and maritime rights and interests are unswerving; on this issue there is absolutely no room for bargaining, and any provocative actions will not be tolerated.” The problems raised by “certain periphery countries” about this “are all provoked by other countries and the responsibility is not on China.”9 Perhaps Xi Jinping’s vision for a new Asian order should be understood as an aspiration for the longer term. Beginning with the July 2010 ASEAN meeting which emboldened certain Southeast Asian states to dispute openly and collectively Chinese claims in the South China Sea, China’s leaders have consistently held the U.S. responsible for the challenges by these states to Chinese territorial and maritime claims. They (conveniently) overlooked the fact that Chinese claims and actions had been subjects of disputes years earlier and that these had led to the Sino–ASEAN Declaration of Conduct in 2002, indicating China’s assent to treat aspects of its disputed maritime claims on a multilateral basis. Xi Jinping’s vision included a condemnation of (American-led) alliances in Asia and presumably the implementation of his vision required their ending. The underlying logic of Xi’s position was that the centrality of China’s ever-deepening economic and social relations would stop those “certain periphery countries” from contesting China’s “indisputable” sovereignty and maritime rights in the South China Sea. It was China’s forcible denial of access by Filipino fishermen to their traditional fishing grounds in Scarborough Shoal that was within the Exclusive Economic Zone of the Philippines that led its government to ask in January 2013 for a ruling from the Arbitral Tribunal under Annex VII of the UNCLOS. The Chinese side furiously denied the legitimacy of the exercise and angrily refused to recognize its categorical ruling against China’s maritime claims. Meanwhile, eight months after the Philippines had lodged its legal case, the Chinese side began to build land extensions to most of the rocks and atolls it controlled. Two years later the total area of the new constructions came to over 3,200 acres and by 2015/16 military

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type airfields and port facilities were built on these artificial islands. The changed military geopolitics of the South China Sea strengthened China’s strategic position to the extent that it made the Tribunal’s ruling unenforceable. Nevertheless the Chinese leadership had lost face and that seemed to modify China’s assertiveness in the South China Sea. For example, three months after the ruling of the Arbitral Court was issued, on July 12, 2016, the Chinese had yet to start dredging at Scarborough Shoal in preparation for major construction. The matter was put on hold after the newly elected President of the Philippines, Duterte, angered by Obama’s criticism of him on the grounds of human rights, visited China in October and secured promises of a supply of arms and economic assistance to the value of US$13.5 billion. But China did not retreat from its maritime and territorial claims in the South China Sea or from its capacity to enforce them. As a gesture to Duterte, Filipino fishermen were allowed to fish once again in their traditional fishing grounds of the Scarborough Shoal after being denied access since April 2012. However, their access was no longer based on a legal right, but rather on the grace and favor of the Chinese authorities, who still claimed sovereignty.10

CHINA’S CURRENT ASYMMETRICAL ECONOMIC INTERDEPENDENT RELATIONS IN SOUTHEAST ASIA The intensification of the economic ties between the ASEAN countries and China, and the chains of production that bind the two economies together, has led to an economic interdependence between them that was bound to be asymmetrical. That has been determined by the enormous disparities in size between China and ASEAN. China’s GDP in 2015 (US$10.8 trillion according to the World Bank) was four times bigger. The real significance of these figures may be gauged from the fact that although there had been a significant reduction in trade tariffs between the members of ASEAN, there was no question of their forming a customs union, let alone running their economies as a collective unit. They conducted economic relations as separate states. The Chinese economy was more than ten times greater than Indonesia’s, whose GDP was more than twice as large as the next largest, Thailand. China’s military budget has benefitted from the fast pace of its economic growth and according to SIPRI its military spending in 2016 (US$216 billion) was more than five times that of all the ASEAN countries (circa US$39 billion). Military spending and their respective national security policies were conducted entirely separately by each member state. Singapore, which was credited with the largest military

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expenditure (US$10 billion) among the ASEAN states spent less than China by a factor of twenty. Nevertheless, the statistics of trade and investment suggest a more complex economic relationship than one of predominance by China. It is true that China has emerged in recent years as the leading trade partner of ASEAN, but it lags well behind the EU and Japan as a foreign investor. Moreover it is still well behind the U.S. in terms of cumulative FDI and it should be noted that as part of its “rebalancing” the U.S. and ASEAN agreed in December 2012 to substantially increase their business transactions. According to the ASEAN trade statistics, China has been its leading trade partner every year since 2009. By 2015 the value of trade with China had reached US$346 billion, which was less than the US$380 billion registered in 2014 and well below the target of US$500 billion both sides had set for 2015, projected to reach US$1,000 billion by 2020. China accounted for 15 percent of ASEAN’s total trade in 2015. The value of the trade of the other leading trade partners of ASEAN in 2015 also dropped by a similar rate registering as follows: the EU US$246 billion, Japan US$240 billion, and the United States US$210 billion. Like China, they too had reached agreements with ASEAN to increase their trade significantly in the next few years.11 These figures do not suggest that China has so far exercised economic dominance over its Southeast Asian neighbors. But such a picture can be misleading, as China is the primary external economic influence over its poorest neighbors, Cambodia, Laos and Myanmar. It is also a major player in the economies of Vietnam, Malaysia and Thailand, although the last two, together with Singapore, are China’s largest economic partners in ASEAN, accounting for about 80 percent of members’ trade with China.12 As far as investment in ASEAN was concerned, China ranked as a poor fourth in 2015, with an FDI valued at US$8 billion after the EU’s US$20 billion and Japan’s US$18 billion and the U.S.’s US$14 billion. In the accumulated FDI for the years 2013‒15 (i.e., for the six years after China’s free trade agreement with ASEAN came into effect), China also lagged behind the other three. However, relative economic exchanges between China and its main competitors in Southeast Asia do not give a full account of the extent of China’s asymmetric relationship with the countries of the region. By virtue of the overall size of the Chinese economy and the central controls exercised by its government, China is able to provide economic leadership for the region, for example, in promoting connectivity in the guise of the “One Belt One Road” (as noted above). Moreover, the countries of continental Southeast Asia are also very much aware of the significance of China’s

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geographical control of the upper reaches of the major rivers of Asia. Already its program of extensive dam building has had an adverse impact on the downstream of these rivers, notably the Mekong.13 The Chinese government also arrogates to itself the right to punish those whom (usually lesser powers) it deems to have treated it badly. For example, a shipment of 150 containers of bananas imported from the Philippines was left to rot in Chinese ports and tourism from China was substantially reduced after Filipino vessels arrested Chinese fishermen for alleged illegal fishing in Scarborough Shoal in April 2012.14 By the same token China also seeks to reward those governments whom it deems to have acted correctly by turning to China for assistance in disputes with China’s main adversary, the United States. Thus when the newly elected President Duterte of the Philippines complained of President Obama’s treatment of him he went to Beijing and was offered Chinese investment of US$13.5 billion and military arms after he distanced himself from his American ally.15 China acted with similar generosity towards the Prime Minister of Malaysia, when he too turned to Beijing after accusing the United States of interfering in Malaysia’s domestic affairs.16 It is too early to assess the impact of these developments on the relative strategic weight of China and the United States in the region. First, the erratic President Duterte has softened his rhetoric against the United States and affirmed his support for Japan (America’s closest ally in East Asia), even as he has stopped joint naval patrols with the U.S. Second, the Obama administration and the Commander of American forces in the Pacific repeatedly assert the continuity of the alliance with the Philippines and finally, at this time of writing, five weeks before Donald Trump’s inauguration as the new American President, it is uncertain as to what position his administration will take on these and other issues concerning American priorities and strategy towards the region. Several reasons may be advanced to suggest that the economic relationship between China and the ASEAN countries may become more complex than an overall asymmetry of relations may suggest. In no particular order the following are significant: 1. Japanese companies began to reduce their investments (by over 30 percent) in China in part as a response to the widespread prevalence of anti-Japanese sentiments, which have led to rioting on several occasions and in part by the deliberate attempt by the Japanese government under Abe’s leadership to develop strategic relations with China’s neighbors, which includes a reorientation of Japan’s economic relations to Southeast Asia, with a new emphasis on the emergence of a consumer market in the founding five members of ASEAN with

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their growing middle class.17 ASEAN has benefitted as the value of Japanese investment rose from just over US$9 billion in 2011 to over US$18 billion in each of the following two years. It should be noted that in 2015 global trade and investment was adversely affected by the general economic problems of the economically advanced countries. 2. Labor costs have risen in China as the country seeks to raise its economy up the value chain. Corresponding changes in the economies of the five founding members of ASEAN and Vietnam have changed the character of their economic exchanges to reduce the proportion of raw materials in ASEAN’s overall exports to China and to increase the proportion of manufactured goods in their overall trade. For example, in 2012 the value of the proportion of raw materials in ASEAN exports to China dropped from 48.9 percent to 43.8 percent. This has led to changes in the chains of production lines linking Southeast Asia to China and the merchandise exports to the U.S., the EU and Japan, all of which has begun to reduce the regional significance of the Chinese economy. 3. The demographic factor will be weighted in the favor of ASEAN in the near to medium term, as proportionately fewer young people enter the labor market in China and the proportion of older people continues to rise. ASEAN is yet to reach that point of demographic transition. 4.  Both the Chinese and the ASEAN economies are experiencing a rapid growth of their respective middle classes and there will be greater demand for services, financial and otherwise. The service sector is a relatively weak sector of the Chinese economy at a time when the Chinese government is seeking to reduce the emphasis on infrastructure. Some of the investment flows that used to go to China for assembly processing will be shifted to ASEAN as the latter moves away from mainly the production of parts. 5. China’s investment in ASEAN countries has been a relatively recent development and it is marked to increase sharply. Several of the poorer ASEAN countries offer cheaper alternatives for manufacturing because of the demographic factors already mentioned. ASEAN is also a major target for Chinese investment in infrastructure projects, including rail, roads, power-plants, pipelines, etc., not only for the projected “silk roads,” but also to improve the domestic communications not only in the less developed newer ASEAN members, but also in some of the more established older members. So far the experience of deepening economic relations with China has been mixed in Southeast Asia. A great deal of the exchanges involving

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the government directly and indirectly through state-owned enterprises (SOEs) have benefitted from the speed with which deals can be made and completed. However, these exchanges have lacked transparency, and have often involved corrupt practices. They have also aroused popular opposition in many cases. The experiences of those countries closest to the provinces of Yunnan and Guangxi have been notable for creating degrees of antagonism towards China, mainly because they have involved insensitivity to local views and interests, such as the well-known case of the US$3.6 billion Myitsone Dam in Myanmar, which displaced local people and would have sent 90 percent of its hydroelectricity to China. It was begun in 2007 and suspended in 2011, providing the occasion for political change and for the opening of the country to the West.18 If this was the case where China had overwhelming influence, the Philippines, a U.S. ally and a founding member of ASEAN, provides another damaging example of China’s economic practices. Two instances may be cited: The North Rail Project which was contracted by the Arroyo government to a Chinese SOE only to be canceled by the Aquino government in 2011 because of legal issues and corruption allegations, leaving the government with a bill of US$180 million to settle a loan from China’s Exim Bank.19 The second involves the hugely controversial 2004 agreement between China and the Philippines to carry out survey work in a section of the South China Sea, part of which was not even claimed by China. Vietnam soon joined as well. But the agreement fell apart in 2009 amid accusations of bribery and corruption.20 More broadly, the response in Myanmar to the very close relations established with China in the years before the end of military rule has been very negative. Chinese officialdom is regarded as having bribed its way into grabbing resources without due regard to the interests of Myanmar and its citizens, while Chinese people bordering Myanmar have established unruly havens for themselves inside Myanmar, operating casinos and using their wealth to establish themselves in northern towns to the extent that Mandalay, for example, is often referred to as a Chinese city.21 Although much is made of China’s leading position in trade and in promoting regional economic integration, as well as of its projected future role as the dominant economic hub of Southeast Asia,22 the impact of China’s major power rivals is often overlooked. Japan, as has already been noted, has not only accumulated much investment in ASEAN countries, but its major companies have recently substantially increased their investments, well beyond those of China. Further, just as China is focusing on building infrastructure projects in a north–south direction through Laos, Cambodia, and Thailand to Singapore, and through Myanmar across the Bay of Bengal to Bangladesh and India, so Japan, at the initiative of the Abe government, has focused on building

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similar connectivity in an east–west direction through Vietnam, Cambodia and Thailand to both Singapore and Myanmar. The United States, too, has been active in increasing and deepening its economic and other ties to ASEAN and its member states, as part of the “re-balancing” to the Asia Pacific pursued by the Obama administration. The U.S. played a key role in the opening of Myanmar to the outside world after the end of rule by its military junta in 2011. Two years earlier the U.S. launched the Lower Mekong Initiative aimed at encouraging Cambodia, Laos, Thailand and Vietnam to cooperate on environmental issues and sustainable development. It also accelerated engagement with those countries at a time when they were becoming increasingly concerned by and critical of Chinese dam building along the upper reaches of the Mekong and related rivers, without attention being paid to the negative consequences for those further downstream.23 In November 2012 the U.S. and ASEAN agreed to set up a framework for Expanded Economic Engagement (E 3) that has focused not only on expanding trade and investment, but also on establishing the principles and rules on which these would be based so as to encourage open and transparent environments for SMEs.24 Once established in practice as norms for economic activity, it would be possible to develop the institutions on which a properly ­functioning ASEAN economic community could be based.25 Thus although China has played a significant role in setting up the Chiang Mai Initiative for currency swap arrangements and, more recently, the Asia Infrastructure Investment Bank, Xi Jinping has recognized the need to “learn” from the procedures of the Western- and Japanese-led banks for development, the Asia Development Bank and the World Bank. Otherwise the AIIB would lack a rules-based and transparent means to give credibility to the merits of its loans and to enhance the new bank’s international standing. It would be seen as operating according to political interests rather than genuine financial considerations. Even though these institutions may be seen as evidence of the intention of China’s leaders to reduce the significance of American leadership in the region, the fact that Xi Jinping recognizes the need to copy American rather than doubtful Chinese financial practices, suggests that American norms (and the values that underpin them) might be central to Chinese sponsored financial activities in the region after all.26 In sum, the present writer has argued that China’s asymmetrical economic interdependence with ASEAN as a whole is partial in that it is mainly expressed in terms of trade, but not in terms of investment. Further China does not dominate the external economic relations of ASEAN because Japan and the United States are also important economic actors in Southeast Asia that in some respects exceed in significance China’s

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role. However, China’s separate economic relations with each of the ten ASEAN members place it in a superior position. Moreover, the effects of China’s much heralded “One Belt and One Road,” which is projected to connect China with Europe through Central Asia by road, rail, pipelines, and so on, have yet to be felt in the region. Current proposals include road and rail north to south connections between southern China via Indo-China to Thailand, Malaysia and Singapore; a high-speed rail route east to west in Indonesia and a pipeline linking Yunnan Province through Myanmar to the Bay of Bengal. A maritime route has also been proposed that will link southern China through Southeast Asia to the Indian Ocean and beyond. How many of these vast projects will be established and how soon is debatable as they involve local and regional politics in addition to the economic and technical problems associated with such vast schemes. However, only a country as great and with such huge aspirations as China could conceive the vast scope and ambition of such a gargantuan series of projects.

THE SIGNIFICANCE OF CHINA’S GREATER MILITARY POWER In fact it is China’s military edge over the ASEAN countries, when added to the size of the Chinese economy and its rapid growth, which ensures that their interdependence is and will remain asymmetrical. The divisions within ASEAN based on the members’ divergent security interests, which were evident from the establishment of the Association in 1967, contribute to China’s pre-eminence.27 Notwithstanding China’s cultivation of ASEAN as a multilateral grouping since 1995 and the view that China was being “socialized” into accepting the “ASEAN Way,” what appealed to China’s leaders was that ASEAN and the various groupings it had spawned operated by consensus and that its rulings were not legally binding. In other words it was the loose institutional character of ASEAN, which appealed to China’s leaders and which enabled them to ensure that the Southeast Asians would not combine against China and that they would be able to ensure that ASEAN and its associated bodies would operate in China’s favor. For example, after much deliberation a Declaration of Conduct to mitigate conflict in the South China Sea was signed by China and ASEAN in 2002, yet none of the countries with territorial and maritime claims in the Sea can be said to have observed its key provisions requiring restraint and the avoidance of changing the status quo. This left China in the driving seat with its greater military power and towering economy especially in its ability to conduct separate relations with each of the ASEAN countries.

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However, the weaknesses of ASEAN as a regional organization can also be traced to the terms on which it was founded in the late 1960s. The emphasis on protecting the sovereign independence of member states, which continues to be a major feature of the association, has meant that each of the states conducts its military and economic affairs on a separate independent basis. So far they have agreed collectively on tariff reductions among themselves, but with exceptions for certain merchandise for particular countries. As noted earlier, common institutional arrangements for finance and other services necessary for a real economic community are still lacking. However, of greater concern in managing relations with China is the absence of provisions for common military action. Member states have been unable to combine their armed forces to manage intramural problems in the manner of say the African Union. Not only was the absence of ASEAN contributions to the UN Peacekeeping Force notable during the East Timor crisis (1999‒2002), but also its absence was apparent among the forces which helped different countries in addressing the series of huge natural disasters that hit the region in recent years. All the military exercises involving two or more countries in Southeast Asia have involved the participation of external powers. Such is the distrust among ASEAN governments that none of their territorial or boundary disputes has been brought before the ASEAN mechanism for dispute settlement established in 1976 as part of the Treaty for Amity and Cooperation (TAC). Instead of allowing adjudication by representatives of other ASEAN states, the governments of Malaysia and Singapore were able to settle their disputes over the sovereignty of two rocky outposts in the Straits of Malacca bilaterally, by submitting them to the International Court of Justice in The Hague and by accepting its decision. Consequently, it has been left to individual ASEAN members to respond to Chinese military or para-military assertions of sovereignty and maritime rights. China has found open resistance only from the Philippines and Vietnam. But even these two do not coordinate their responses to China’s claims and forceful assertiveness. The Philippines alone sought a legal adjudication on China’s claims. Vietnam separately presented its claims to the Tribunal without joining the Filipino submission. Nevertheless, Vietnam has reacted forcibly to some of China’s assertive actions, but to a certain extent its Communist Party shares common problems with its Chinese counterpart, such as the difficulties in preserving Communist Party rule while simultaneously reducing Party controls of the economy in the process of carrying out market reforms. The elites in both Vietnam and the Philippines are divided as to how best to respond to China’s rise and its growing assertiveness. These add to their difficulties of acting in concert.

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Another example of problems that can arise in attempts by ASEAN members to take common positions may be seen in the case of Malaysia and Vietnam. In 2009 Malaysia and Vietnam submitted a joint response to the UN request for notification of the limits claimed to the extent of their EEZs in the southern section of the South China Sea.28 The Chinese responded angrily and submitted in their reply a copy of the map delineating the nine-dash line on which they based their claim for control of up to 90 percent of the South China Sea. Thereafter the Malaysian response was confusing, reflecting perhaps divisions within the Malay elite on how to deal with China. When Chinese vessels penetrated waters within Malaysia’s EEZ in March and April 2013 in order to claim sovereignty over James Shoal as China’s most southerly boundary, the Malaysian Foreign Minister and Prime Minister and a leading admiral at first denied or played down the incidents. Moreover it was not pointed out that being fully under water at high tide James Shoal cannot qualify as a maritime object for which sovereignty can be claimed according to the United Nations Convention on the Law of the Sea (UNCLOS) signed and ratified by both countries. However, in October 2013 the Minister of Defense announced that a new naval base would be built in Sarawak, 100 kilometers from James Shoal and that a new marine corps with amphibious capabilities would be set up to protect the country’s offshore oil and gas reserves. The following year it was announced that the American navy would increase its visits.29 In September 2014 it was reported that American spy planes would be invited to fly from Malaysia.30 The Chinese cause was not helped by the rude and condescending way in which its officials treated the Malaysian government in the wake of the disappearance of flight MH370 in March 2014.31 Indonesia, too, has had its maritime claims forcibly denied by the Chinese. On at least three separate occasions (two in 2010 and one in 2013) Indonesian vessels had been forced by China’s most advanced fishery patrol vessel, the Yuzheng 310, to give up Chinese fishermen and their boats, who had been caught fishing within the EEZ of Indonesia’s Natuna Islands. Like Malaysia, the Indonesian government initially played down the incidents and their significance. As the major country in ASEAN, Indonesia professed neutrality over disputes about the Spratlys in the hope that it could act as a mediator.32 But by March 2014 the Indonesian Ministry of Defense indicated that it too disputed China’s maritime claims by formally recognizing that China’s claims to Natuna’s waters (near the southern approaches to the Straits of Malacca) were based on the same nine-dash line used for its other disputed claims in the South China Sea. A senior defense official also complained about the absence of precise coordinates for the Chinese nine-dash line. Earlier Indonesia had announced

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that it was building up its defenses in and around the Natuna Islands “as a preemptive measure against instability in the South China Sea.”33 At China’s behest Cambodia blocked the issuing of a joint ASEAN statement that actually referred to the disputes in the South China Sea in 2012 (when it chaired the annual meeting of the association) and again in 2016 after the Arbitral Tribunal in the Philippines–China case had issued its decision critical of China.34 China has clearly benefitted diplomatically and strategically from the divisions between the ASEAN claimants with whom it is in dispute, as well as from the differences between the claimant and non-claimant states in ASEAN. These divisions enable China to make it more difficult for ASEAN to take up positions openly critical of China’s behavior in the South China Sea and they help China delay movement towards establishing with ASEAN a more binding Code of Conduct for the South China Sea. The absence of coordinated responses by ASEAN members to the Chinese tactic of incrementally changing the status quo in its favor by using fishing boats and coast guard vessels backed by the navy just over the horizon, makes it easier for the Chinese side to expand the areas under its control and to strengthen its growing military deployments in the Sea. In addition the absence of more coordinated approaches by even the ASEAN claimants makes it more difficult for sympathetic great powers such as the United States and Japan to provide effective assistance that might deter the Chinese side from the kind of bullying and ­intimidation cited by Japan’s Prime Minister Abe and America’s Secretary of Defense Hagel at the Shangri-La Dialogue in Singapore in June 2014. However, the moralistic dimensions of American foreign policy and its adherence to legal norms, which President Obama has said is “in the American DNA,” has sometimes contravened ASEAN’s emphasis on its rule of noninterference in members’ internal affairs. Such American behavior had the effect of strengthening China’s position in its relations with Southeast Asian countries, causing them to move away from the U.S. and towards China. As noted earlier, American moralistic and judicial criticisms of the leaders of the Philippines and Malaysia in late 2016 turned them against the U.S. and towards China. Two years earlier Thailand’s new military government had also reacted to American criticism by moving closer to Beijing.35

CONCLUSION The present writer has argued that Xi Jinping has outlined a vision for a new Asian order that would place China at the center of a giant economic web, which would tie ASEAN more closely to China. Since Xi did not mention the territorial and maritime disputes in the South China Sea it

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was possible to draw the implication that these would be settled largely in China’s favor as its predominance in the region became more apparent— especially if they were settled through bilateral rather than multilateral negotiations, as demanded by China. It is ironic, however, that the strengths of ASEAN established over five decades have worked against it in managing the asymmetrical relationship with the newly powerful China, which is challenging the long-standing American predominance in maritime East Asia. Thus the ASEAN Way, which has prized consensus, non-interference, non-binding resolutions and consultation, and which is regarded as having prevented intramural differences from leading to armed conflict, is turning out to be well suited to manipulation by China. It is these strengths which have contributed to ASEAN’s weakness in being unable to act collectively, especially in military matters. That has contributed greatly to the difficulties of responding to the forceful way in which China is pursuing its territorial and maritime claims in the South China Sea. Only the Philippines has taken steps to challenge the legality of China’s claims at an international tribunal. The Chinese government did not accept the legitimacy of the Tribunal’s hearing and it furiously rejected the legitimacy of its findings against Chinese claims. Although China’s rejection may be said to have damaged its prestige, it has not led to a change in its claims or behavior. Arguably, given the strength of Chinese nationalism, it has become more difficult for the government to display flexibility in its disputes with the other claimants in the South China Sea. Although the United States and Japan have endorsed the Tribunal’s judgment, they have not sought to enforce it against Chinese military opposition. So far the Americans have refrained from going beyond sending naval ships near the enlarged Chinese features to assert the right to independent freedom of naval passage as a challenge to Chinese claims to sovereignty. Although the other claimants privately welcomed the Filipino challenge, none has openly done so, presumably because of China’s immense shadow over the region and the fear of being singled out for retaliation by their giant neighbor. Indeed the Philippines itself, whose fishermen have been allowed by China in late 2016 to fish in the waters of Scarborough Shoal from which they had been forcibly excluded for four years, has stopped pressing its case against the Chinese side. Perhaps it is the fear of China that has resulted in the absence of challenges to Chinese claims in the South China Sea by resident scholars, other than those of Vietnam and the Philippines, whose governments have openly disputed them. However, the principal scholars to challenge publicly the validity of China’s “historic claims” in the South China Sea have been people from outside the region.36 Looking ahead, continuing Chinese pressure will challenge the hedging strategy of the members of ASEAN as they seek to balance relations between

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China and the United States. Even Cambodia, which is widely regarded as having become dependent on China, seeks additional options so as to limit that dependency.37 The response of other ASEAN members varies. Most of the claimants in the South China Sea seek to deepen relations with the major powers, especially the United States, Japan and India in order to increase their stake in the region. In other words they will intensify their efforts to “internationalize” the issue. They will likely seek to institutionalize their various bilateral, trilateral and multilateral military exercises with outside powers ostensibly to deal with non-traditional security threats, but also to familiarize their armed forces with the practices of others with the aim of increasing their effectiveness in joint operations should these arise in the hope of deterring China from intruding into their adjacent waters. At the same time the Southeast Asian countries and especially those involved in South China Sea disputes will doubtless continue to increase their military spending in the hope of being able to counter locally China’s current low-level incremental military expansion in the South China Sea. That would have the effect of raising the price for China’s military activism. Were China to heighten the level of its military actions it would risk drawing in a more robust response from the United States in particular. At present none of the resident states want Sino–American relations to descend into military conflict, or for these two great powers to establish a partnership by which they would exercise a condominium. At present their main concern is that America might be unwilling to stay the course, leaving the Chinese to dominate the region. That would result in a hugely consequential change in the international politics of the region as a whole. The determination of that issue will depend on how the uncertainties associated with the Trump administration will be resolved in the coming years.

NOTES   1. a) Xi Jinping, “Full Text of Speech at the Opening Ceremony of the Boao Forum for Asia AC 2013,” Boao Forum for Asia, April 7, 2013, accessed December 12, 2017, http://english.boaoforum.org/mtzxxwzxen/7379.jhtml. b) Xi Jinping, “Let the Sense of Community of Common Destiny Take Deep Root in Neighboring Countries,” Ministry of Foreign Affairs of the People’s Republic of China, October 25, 2013, accessed December 12, 2017, www.fmprc.gov.cn/mfa_eng/ wjb_663308/activities_663312/t1093870.shtml. c) Xi Jinping, “Remarks at the Fourth Summit of the Conference on Interaction and Confidence Building Measures in Asia,” Council on Foreign Relations, May 30, 2014, accessed December 12, 2017, http://www.cfr.org/regional-security/remarks-chinese-­presid​ ent-xi-fourth-summit-conference-interaction-confidence-building-measures-asia/p33637. d) “Xi Calls for Unity, Greater Contribution of Overseas Chinese,” Xinhua, June 6, 2014, accessed December 12, 2017, www.news.xinhuanet.com/English/china/2014-06/06/c_/133​ 389344.htm.

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  2. Xi Jinping, “Let the Sense of Community,” supra note 1(b).   3. This judgment is based on numerous interviews in Singapore, Kuala Lumpur, Chiang Mai, Phnom Penh, Hanoi, Manila and Jakarta in January and February 2014. The author may be consulted for details. See also Ian Storey, ASEAN and the Rise of China: The Search for Security (London: Routledge, 2011). But according to Pew’s opinion polls, the majority of respondents in Indonesia, Malaysia and Thailand had favorable view of China and of the impact of China’s economic growth. The majority of respondents in The Philippines and Vietnam, however, had negative views on both counts (“Global Opposition to US Surveillance and Drones, but Limited Harm to America’s Image—Chapter 2: China’s Image,” Pew Research Center, July 14, 2014, accessed December 12, 2017, http://www.pewglobal.org/2014/07/14/chapter-2-chinasimage/). Yet according to Pew’s polling of the same date a majority of respondents in the same three countries which viewed China favorably also were “concerned” that their territorial disputes could lead to military conflict (“Global Opposition to US Surveillance and Drones, but Limited Harm to America’s Image -- Chapter 4: How Asians View Each Other,” Pew Research Center, July 14, 2014, accessed December 12, 2017, www.pewglobal.org/2014/07/14/chapter-4-how-Asians-view-each-other/).   4. Xi Jinping, “Let the Sense of Community.”  5. It was set up in Beijing with 21 members in late October 2014, with a Chinese chairman, even though its rules and administrative structure remained to be settled. Since then the membership has been increased to 70 (as of March 2017). See “ChinaLed AIIB Approves 13 New Members, Canada Joins,” Reuters, March 23, 2017, accessed December 12, 2017, http://www.reuters.com/article/us-china-aiib-idUSKBN 16U0CG.   6. Xi Jinping, “New Asian Security Concept for New Progress in Security Cooperation,” Remarks at the Fourth Summit of the Conference on Interaction and Confidence Building Measures in Asia, May 21, 2014, accessed December 12, 2017, http://www. fmprc.gov.cn/mfa_eng/zxxx_662805/t1159951.shtml.  7. R.J. Heydarian, “China Splits Philippine Politics,” Asia Times, October 10, 2012, accessed December 12, 2017, http://www.atimes.com/atimes/Southeast_Asia/NJ10Ae02. html. For other examples see the accounts of China’s relations with individual ASEAN states in Ian Storey, Southeast Asia and the Rise of China (London and New York: Routledge, 2013).   8. Michael D. Swaine, “Chinese Views and Comments on Periphery Diplomacy,” China Leadership Monitor, No. 44, accessed December 12, 2017, http://www.hoover.org/sites/ default/files/research/docs/clm44ms.pdf, 4‒5.   9. Michael D. Swaine, “Chinese Views and Comments on Periphery Diplomacy,” 6. 10. “Xi Tells Duterte that Scarborough Shoal Will Stay Open to Philippine Fishermen,” South China Morning Post, November 21, 2016, accessed March 28, 2017 at http:// www.scmp.com/news/china/diplomacy-defence/article/2047747/xi-tells-duter​te-scarb​or​o​ ugh-shoal-will-stay-open. 11. The statistics are taken from the ASEAN, “ASEAN Statistical Yearbook 2013,” accessed December 12, 2017, http://www.asean.org/storage/images/resources/Statistics/2014/Stati​ sticalPublications/asean%20stattistical%20yearbook%202013%20(publication).pdf. 12. Calculated from the figures in tables V. 31 and v. 32 of the ASEAN Statistical Yearbook 2013, p. 86. 13. Brahama Chellaney, Water: Asia’s New Battleground (Washington, D.C.: Georgetown University Press, 2011). 14. Anders S. Corr and Priscilla A. Tacujan, “Chinese Political and Economic Influence in the Philippines: Implications for Alliances and the South China Sea Dispute,” Journal of Political Risk, Vol. 1, No. 3 (July 2013), accessed December 12, 2017, http://www. jpolrisk.com/chinese-political-and-economic-influence-in-the-philippines-implicationsfor-alliances-and-the-south-china-sea-dispute/. 15. Emily Rauhala, “Duterte Renounces U.S., Declares Philippines Will Embrace China,” The Washington Post, October 20, 2016, accessed March 28, 2017 at https://www.washington-

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16. 17. 18. 19. 20.

21. 22.

23. 24. 25.

26. 27. 28.

29. 30.

Economic (asymmetrical) interdependence and territorial disputes ­45 post.com/world/­phili​ppines-duterte-saysgoodbye-washington-and-helloto-beijing/2016/ 10/20/865f3cd0-9571-11e6-9cae-2a3574e296a6_story.html?utm_term=.7a4028518949. James Hookway, “China-Malaysia Summit Marks New Test for U.S. Sway in Asia,” The Wall Street Journal, November 2, 2016, accessed December 12, 2017 https://www.wsj.com/ articles/china-malaysia-summit-may-mark-another-blow-to-u-s-influence-1477984216. Aaron Sheldrick and Jacqueline Wong, “Japanese Investment in Southeast Asia Surges amid China’s Slump,” Reuters, April 18, 2014, accessed December 12, 2017 http:// uk.reuters.com/article/uk-japan-china-investment-idUKBREA3H08Q20140418. See Yun Sun, “China, Myanmar Face Myitsone Dam Truths,” Asia Times, February 19, 2014, accessed December 12, 2017, http://www.atimes.com/atimes/Southeast_Asia/ SEA-01-190214.html. Mick Basa, “Northrail Project up for NEDA-ICC Approval Soon,” Rappler, August 21, 2014, accessed December 12, 2017, www.rapler.com/business/ industries/208-­infrastructu​ re/​66861-aquino-admin-revives-$400m-northrai-project. Some of the faults in the agreement were first exposed by Barry Wain, “Manila’s Bungle in the South China Sea,” The Far Eastern Economic Review, January/February 2008, which became instrumental in its collapse. See Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven and London: Yale University Press, 2014). Thant Myint U, Where China Meets India: Burma and the Closing of the Great Asian Frontier (London: Faber and Faber Limited, 2011). See for example, Bruce Alter, “New Era of China-Asean Trade and Investment Ties Ahead,” The Nation, December 18, 2013, accessed December 12, 2017, www.nationmul​ timedia.com/business/New-era-of China-Asean-trade-and-investment ties-a-30222322. html. For more details, see Ian Storey, Southeast Asia and the Rise of China (London: Routledge, 2013), especially pp. 82‒85. See “Association of Southeast Asian Nations (ASEAN),” Office of the United States Trade Representative, accessed December 12, 2017, www.ustr.gov/countries-regions/ southeast-asia-pacific/association-southeast-asia-nations-asean. For an argument that the projected economic community to be set-up by 2015 would be without appropriate institutions see the comment by Tan Chin Tiong, director of the Singapore-based Institute of Southeast Asian Studies, cited in Jeremy Grant, “ASEAN: Long on Optimism,” Financial Times, July 22, 2014, accessed December 12, 2017, https://www.ft.com/content/65ccb69a-0b4f-11e4-ae6b-00144feabdc0: “While the ASEAN vision of [an economic community] is far-sighted, courageous and ambitious, too much political opposition and inadequate institutional infrastructure lie in the way of their effective implementation.” “Reversion to the Mean,” The Economist, September 26, 2015, accessed December 12, 2017, http://www.economist.com/news/asia/21667964-chinas-new-infrastructure-bankhas-gained-wide-support-lending-will-be-tougher-reversion. See, for example, Michael Leifer, ASEAN and the Security of South-East Asia (London: Routledge, 1989). “Commission on the Limits of the Continental Shelf (CLCS), Outer Limits of the Continental Shelf beyond 200 Nautical Miles from the Baselines: Submissions to the Commission: Joint Submission by Malaysia and the Socialist Republic of Vietnam,” United Nations, updated on May 3, 2011, accessed December 12, 2017, www.un.org/ depts/los/clcs_newsubmissions_files/submission_mysrvm-33-2009-htm. Carl Thayer, “Speak Softly and Carry a Big Stick: What is Malaysia Playing at?” The Diplomat, February 28, 2014, accessed December 12, 2017, http://thediplomat. com/2014/03/speak-softly-and-carry-a-big-stick-what-is-malaysia-playing-at/. Jane Perlez, “Malaysia Risks Enraging China by Inviting U.S. Spy Flights,” The New York Times, September 13, 2014, accessed December 12, 2017, https://www.nytimes. com/2014/09/14/world/asia/malaysia-risks-enraging-china-by-inviting-us-spy-flights.html​ ?_r=0.

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31. Tom Phillips, “China Tells Victims’ Families, ‘Do Not Let Anger Prevail over Facts’,” The Telegraph, December 14, 2016, http://www.telegraph.co.uk/news/worldnews/asia/ mal​aysia/10733840/MH370-China-tells-victims-families-do-not-let-anger-prevail-ov​erfacts.html. 32. Scott Bently, “Indonesia’s ‘Global Maritime Nexus’: Looming Challenges at Sea for Jokowi’s Administration” and other articles by him in The Strategist, September 2014, accessed December 12, 2017, www.aspistrategist.org.au/author/scott-bently. 33. Neil Chatterjee, “Indonesia Seeks China Clarity on South China Sea Intentions,” Bloomberg, April 7, 2014, accessed December 12, 2017, https://www.bloomberg.com/news/ articles/2014-04-07/indonesia-seeks-china-clarity-on-south-china-sea-intentions-1-. 34. Earnest Z. Bower, “China Reveals Its Hand on ASEAN in Phnom Penh,” July 20, 2012, accessed December 12, 2017, https://www.csis.org/analysis/china-reveals-its-handasean-phnom-penh; K. Yhome, “The ‘ASEAN Way’ or the Chinese Way,” Observer Research Foundation (ORF), July 27, 2016, accessed December 12, 2017, http://www. orfonline.org/expert-speaks/the-asean-way-or-the-chinese-way/. 35. Prashanath Parameswaram, “Thailand Turns to China,”The Diplomat, December 20, 2014, accessed December 12, 2017, http://thediplomat.com/2014/12/thailand-turns-to-china/. 36. These include, Bill Hayton, “South China Sea Disputes: Still No Evidence of Historical Chinese Claims,” RSIS Commentary, No. 169, August 26, 2014, accessed December 12, 2017, https://www.rsis.edu.sg/rsis-publication/rsis/co14169-south-china-sea-disputesstill-no-evidence-of-historical-chinese-claims/-.WL1uNhKGMb0; J. Bruce Jacobs, “China’s Frail Historical Claims to the South China and East China Seas,” June 26, 2014, accessed August 18, 2016 at http://www.aei.org/wp-content/uploads/2014/06/-ch inas-frail-historical-claims-to-the-south-china-and-east-china-seas_144030612659.pdf.; Philip Bowring, “Beijing’s Dangerous Arrogance in the South China Sea,” South China Morning Post, May 18, 2014, accessed December 12, 2017, www.scmp.com/comment/ insight-opinion/article/1514360/beijings-dangerous-arrogance-south-china-sea?page=all. 37. My interview with a senior Cambodian minister in February 2014.

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3.  China’s South China Sea strategy and Sino–US discord Wu Xiangning and You Ji Since 2010 worsening sovereignty disputes in the South China Sea have given rise to a number of standoffs among claimant countries. Each has had the potential of causing open-ended escalation and accidental exchanges of fire.1 The Sino–Vietnamese clash over Oil Rig 981 was indicative of how quickly territorial disputes can become dangerously confrontational. The Pentagon’s dispatch of naval vessels inside the 12 nautical mile limit of Chinese-held reefs in the South China Sea has triggered a new round of militarization, as the People’s Liberation Army Navy (PLAN) has pointed to the US move to justify deployment of more troops and defense facilities in the islets.2 The militarization of the South China Sea disputes has ascended to new heights to acquire all the elements of potential combatization. The South China Sea disputes have been structured into a grand geostrategic conflict between the major powers and as a result almost dominated China–US bilateral relations during the Obama administration, apart from economic and trade disputes. This seems likely to continue under the Trump administration and beyond. The rapidly rising tension between the two countries reached a climax in July 2016, when the Arbitral Tribunal established under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) handed down its decision on the South China Sea arbitration case brought by the Philippines. Both Washington and Beijing have tried to strike a subtle balance between maintaining a broadly based bilateral relationship and continuing their uncompromising stance over the South China Sea disputes. The former demonstrates the strategic necessity for formulating crisis management measures to avoid an irreversible free-fall in bilateral ties with a grave regional impact. The latter reflects their resolve in protecting their vital interests. However, as this chapter argues, this subtle balance, achieved as a result of the efforts of Xi Jinping and Obama, is under mounting stress, and has been shifting towards breaking point since Trump’s assumption of the US presidential office. The clash of personalities, and, more 47 Wu Xiangning and You Ji - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:52:34PM via Sydney University

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i­mportantly, the deepening structural conflicts of interests in bilateral relations, will increasingly escalate Sino–US strife in the South China Sea, against the background of rising tensions induced by the changing regional order. Clearly the South China Sea disputes have been absorbed into a broader Sino–US rivalry that has rendered the bilateral relationship more fragile and unpredictable. This chapter aims to specify how the South China Sea disputes affect the core interests of China and the US in the region. It argues that a proper management of the South China Sea disputes can be maintained when bilateral relations are handled steadily; however, this will become increasingly difficult when the Sino–US relationship is deteriorating. The Trump team seems likely to heighten the uncertainty. The first year of the Trump presidency was crucial as Beijing and Washington attempted to find a new pattern of engagement in the form of confrontational co-existence in the context of Washington’s toughening hostility towards China and Beijing’s hardened response under an assertive Party leader.

CHINA’S CORE INTERESTS IN THE SOUTH CHINA SEA There was a debate on whether China should define the South China Sea as one of its core interests around 2011. Zhu Feng once argued that “it is not Chinese policy to declare the South China Sea as a core interest.”3 Previously, in 2010, high-ranking Chinese officials were reported to have expressed such an idea during a private meeting with two visiting US dignitaries, Deputy Secretary of State James Steinberg and the Senior Director for Asian Affairs at the National Security Council, Jeffrey Bader.4 After Secretary Clinton’s statement in Hanoi affirming that the US has a “national interest” in preserving freedom of navigation and upholding international law in the South China Sea,5 the Global Times published an article arguing that China should not waive its right to protect its core interests by military means. A survey made by the People’s Daily also revealed that 97 percent of the 4300 respondents supported the idea that China should put the South China Sea as a “core interest.” The general concept of “core interest” was explicitly defined in the 2011 White Paper “China’s Peaceful Development.” According to the White Paper, China’s core interests included: (1) state sovereignty; (2) national security; (3) territorial integrity; (4) national reunification; (5) China’s political system established by the Constitution and overall social stability; (6) basic safeguards for ensuring sustainable economic and social development. A broader definition of “core interest” was given by a senior official

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of the National People’s Congress: “the political system; the sovereignty, unity, and territorial integrity of the nation; and the people’s livelihood, the sustainable economic development of society, and other major interests.” For a long time only Tibet, Taiwan and Xinjiang had been identified as core domestic interests, the protection of which defines the legitimacy of the Chinese government and where the use of force might be permissible in certain circumstances. The South China Sea issue now came to be included in the category of “core interests” as its management also met the key criteria of the definition of the concept: sovereignty, territorial integrity and the people’s perception of the Chinese Communist Party’s (CCP) legitimacy (the stability of the political system). More importantly, as the dispute is military by nature, it is regarded as an issue of war and peace and, therefore, a matter of national security. With China’s rising economic and military power, the country has become more capable of defending its “core interests.” Admiral Wu Shengli, China’s Naval Commander, categorically depicted the Spratlys as a Chinese core interest in his talk with his US counterpart Admiral Richardson in July 2016, even going so far as to declare that the South China Sea issue impacted the very foundation of CCP rule in China.6 Clearly the concept of core interests has emerged as one of the defining principles of China’s South China Sea strategies and policies.7 The South China Sea disputes have worsened regional instability and, paradoxically, damaged China’s regional core interests. The ruling by the Arbitral Tribunal established under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) on the dispute with the Philippines over sovereignty claims stated that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the “nine-dash line” and that China has no “historical title” over rights in the South China Sea.8 Liu Xiaoming, China’s ambassador to the UK, in an op-ed in The Telegraph entitled “Stop Playing with Fire in the South China Sea,” argued that “the tribunal has no jurisdiction over the  case at all.” He noted, “The submissions made by the Philippines appear to be related only to the classification of maritime features and fishery disputes, but are in essence inseparable from territorial sovereignty and maritime delimitation.” Beijing’s rejection of the Arbitral Tribunal’s judgment indicates that China will not make concessions on sovereignty, which is regarded as a crucial component of China’s core interests. Indeed, the concepts of “state sovereignty,” “national security” and “territorial integrity” may lay the groundwork for even greater Chinese assertiveness, in the sense that a broader definition of core interests provides more flexibility for the government in underlining the importance of some sensitive issues.9 Any conceptual ambiguity creates a larger space for more policy options to confuse the United States and put pressure on the ASEAN

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claimants. The message appears to be that China may resort to military threats, or even to military action, over the South China Sea disputes if forced to do so. Currently, however, China has restricted itself to strong rhetorical condemnations and economic sanctions to convey its determination to stand firm against any provocation from the other Spratly claimants. The Chinese government will face severe domestic pressure at the slightest sign of weakness on the South China Sea disputes if other claimants are perceived to be pushing the envelope. Depicting the South China Sea as one of China’s core interests ensures that Beijing’s current assertive posture will further toughen with the increase of PLA capabilities to protect national sovereignty. The objective is to maintain stability through capability, which matters greatly for China’s economic development and national security, even though widening the scope of core interests to include the South China Sea disputes could heighten the possibility of an armed clash. At the same time, when Daniel Kritenbrink, Senior Director for Asian Affairs of the US National Security Council, characterized the South China Sea as one of Washington’s top national interests to be protected by naval FONOPs in the disputed areas, an additional level of militarization was injected into the issue. This required China to adopt a calibrated South China Sea strategy to meet the challenges posed by US efforts at military intervention there.10

CHINA’S SOUTH CHINA SEA STRATEGY UNDER THE XI LEADERSHIP The US “pivot to Asia” and perceived envelope pushing by some South China Sea claimants galvanized Xi to rebalance his predecessor’s low profile in maritime “rights protection.” Assertiveness has now come to inform Xi’s leadership style and the stance of the PLA. While upholding the principle of avoiding any confrontation, Xi sees value in displaying a measure of assertiveness to enhance CCP legitimacy at home and promote China’s interest maximization abroad. A civil–military consensus has emerged that passivity would further damage Chinese claims.11 Xi has struck a new balance between being resolute on sovereignty issues and maintaining effective crisis control (war avoidance). The Immediate Causes for the Recent Round of South China Sea Tension Specifically Beijing’s South China Sea policy adjustment is a response to the changed security environment there, which is a result of the factors listed below:

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1. The claimants’ demarcation of their exclusive economic zone (EEZ) boundaries, requested by the United Nations in 2009, eliminated the space of ambiguity that had helped them maintain a precarious status quo in the previous decade; 2. The US “pivot to Asia,” which has taken the form of “picking sides” in the South China Sea disputes in a way that encourages some claimants to stand up to China; 3. The emergence of a new government in Manila in 2010, which visibly altered the Philippines’ approach to Beijing vis-à-vis the Spratly dispute; 4. Mounting territorial nationalism, which has narrowed policy choices for all claimants and made it difficult for them to accommodate their differences; 5. The continued rise of China, which has, perhaps, made some claimants feel compelled to push the envelope now, in the belief that time is not on their side;12 6. China’s political succession in 2012, which paved the way for its South China Sea policy change from a measure of passivity to proactive maneuvering; 7. Military law enforcement by some countries has been stepped up to enhance their claims, which has increased the chances of standoffs.13 The nature of the South China Sea disputes has also changed. Territorial (island) disputes have evolved into maritime disputes reflected in controversial EEZ demarcations and resources exploration. While unilateral changes of the status quo on South China Sea features (new occupation) are hard to realize, the “war zone” has shifted to the EEZ, where oil/gas extraction leads to the erection of permanent features that allow de facto control of areas in dispute. In turn de facto control of the waters in the EEZ might later be translated into legal possession. In such circumstances China would practically lose its claims. Currently the maritime security challenge, that is, law enforcement and standoffs in overlapping EEZs, has become of more acute concern to Beijing than issues of purely territorial security. It is this fear that underlies Beijing’s firm response to the commercial pursuits by Vietnam and the Philippines in disputed waters, as these countries are seen as more concerned about sovereignty than oil. The same can be said about the Vietnamese ramming of China’s oil exploration rig 981 in the Paracels in 2014. It seemed to Beijing that the Vietnamese government was determined to block the project at all costs. Thus, while the status quo of island occupation has been maintained, the struggle on the new battlefield in the disputed EEZs has intensified. This is especially the case regarding the battle waged against China’s “nine-dash line” by the United States through its Asian partners and legal arbitration at The Hague.

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This evolution of disputes has been towards a zero-sum game and has backed Beijing into a corner. Beijing has calculated that if this trend deepens, the use of force might eventually become inevitable although it would also be detrimental to China’s rise to great power status. Yet if assertiveness is able to deter further moves on the part of other claimants, it might prove to be a cost-effective way of crisis management, helping to avoid actual military action by an early release of accumulated tension.14 Thus Beijing’s assertiveness is being pursued in a retaliatory manner and calibrated in proportion to perceived provocations. The cost, however, has been high and the contradiction with China’s “charm diplomacy” sharp.15 Asymmetric but Proportional Push-Back Strategy Under Xi China’s South China Sea policy has undergone a major adjustment. His predecessor’s passive adherence to the South China Sea status quo has been abandoned and China’s core interests are being stressed more vigorously.16 Generally speaking this means taking selective actions to consolidate China’s sovereignty claims. Xi’s new approach is assertive in response to the changed South China Sea security environment: heavier intervention from outside powers, more coordinated ASEAN support for its claimants and mounting international pressure on China to follow the UNCLOS rules and norms. The “strategic patience” policy of the previous leadership that prioritized maintenance of the “strategic opportunity period” over that of protecting maritime sovereign rights had only encouraged other claimants to push envelopes.17 If this had been continued Beijing would eventually have been forced to take military actions in the South China Sea, contrary to its own long-term self-interest. Through pre-emptive actions, the policy adjustments have been designed to unleash bit by bit the accumulated explosive energy so that the employment of hard power can be eschewed. A civil–military consensus has emerged in guiding Beijing’s South China Sea policy making, which the present writers characterize as a Xi dialectic: being firm on sovereignty on the basis of confrontation–aversion. This convergence highlights the PLA role in managing South China Sea affairs under an overarching civilian guidance. More concretely the Xi dialectic has dictated a number of South China Sea policy guidelines for Beijing. First, Beijing has to strike a subtle balance between confrontation–aversion and making bold moves to shift the status quo in favor of China’s claims. Second, in view of the fact that other claimants see time on Beijing’s side, so that there is a need to push envelopes, China must take pre-emptive measures to prevent their further encroachment. These measures, however, must incorporate well

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t­hought-out pre-designed “red lines” to de-escalate tension in times of crisis. Third, the fundamental guiding principle of Beijing’s South China Sea policy remains both reactive and retaliatory. In practice, for instance, airport building in the Spratlys has been a reactive act to rectify the miserable reality that China was the only country among the claimants that did not have an airport there. Beijing will ensure that while it does not itself initiate provocations it should not be constrained from responding strongly if a perceived provocation takes place.18 Beijing’ status quo preference is designed for the Chinese leadership to handle more urgent domestic and international challenges but Xi’s readjustment calls for tactical changes in the status quo when opportunity arises. This is largely because Beijing sees the current Spratly status quo as being disadvantageous to its claims. Fourth, in readjusting its positions, Beijing has been careful not to initiate any moves that might stimulate a collective ASEAN response and decisive intervention from outside the region, especially in the form of categorical US support for the South China Sea claims of China’s opponents.19 On the other hand, Beijing can take advantage of US reluctance to confront China militarily and ASEAN divisions on the South China Sea dispute to gain leverage from being a “major power.” Under enormous constraints China has designed a South China Sea policy and strategy that is not irredentist, confrontational and zero-sum. The strategy is meant to serve China’s domestic political needs (e.g., leadership legitimacy) and national interests on the one hand and to address Asian concerns about Chinese behavior on the other. From the perspective of Chinese leaders, these dialectical, and even self-contradictory, policy options may have achieved certain gains vis-à-vis the other claimants, that is, the control of Huangyan/Scarborough Shoal and the realization of land reclamation projects. However, the cost has been tremendous. Most damaging have been the direct US challenge to China’s sovereignty through the 12-nautical mile patrols and an international arbitral decision that undermines the legal foundation of China’s South China Sea claims. China’s reactive assertiveness was concretely reflected in its response to the Philippine navy’s attempt to arrest Chinese fishermen in April 2012. The subsequent standoff led to China’s effective patrol of the Huangyan/ Scarborough Shoal area, a reversal of past practices. When Vietnam promulgated its National Law on the Sea in July 2012, Beijing quickly responded by activating the Sansha Municipality in charge of South China Sea affairs, a government office that China had established five years previously but had never made official for fear of escalating Spratly tensions.20 China’s response to land reclamation in the Spratlys by the Filipinos and Vietnamese has been to reclaim land on a much larger scale and at a faster pace.21 The PLA has been simultaneously building up all its seven

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reefs in the Spratlys. The Yongshu Reef (Fiery Cross Reef) has been turned into a large islet with the size of the next 13 biggest islets in the Spratlys combined. Three airstrips have been constructed to handle medium-sized civilian passenger planes. These airfields are automatically capable of landing fixed-wing combat aircraft. While initiated as a response to similar work by the Filipinos and Vietnamese, the scale and pace of China’s reclamation has made a very visible difference, which US Defense Secretary Carter characterized as a “provocation” at the 2015 Shangri-La Dialogue, although he selectively omitted the crucial question of which party had first begun reclamation in the Spratlys. It is debatable, however, whether the placement of Oil Rig 981 in the Paracels area in May 2014 was really a reactive move. From Beijing’s perspective it was a response to ExxonMobil’s oil exploration in Block 143 on behalf of Vietnam, an operation which began in 2011. At that time Beijing had merely protested, without taking any action, as it had to focus on more urgent Japanese challenges centering around the Diaoyus/ Senkakus nationalization issue and on the standoff with the Philippines over Scarborough Shoal. The 981 deployment was also viewed as a preemptive measure against Vietnamese oil exploration in Block 188 and Block 189 planned for late 2014.22 The case of the 981 standoff showed that in many cases it is impossible for a subtle balance to be struck between assertiveness that is reactive and assertiveness that is aggressive. The line between asymmetric and proportional response is often a thin one. China’s marine deployment in the South China Sea, enhanced patrols and fishery administration are perceived by other claimants not as being reactive by nature but aggressive enough to arouse concerns.23 “Assertiveness” has become a blanket term to describe Chinese South China Sea behavior. However, it is used in a non-nuanced manner to blur the larger picture. What is less frequently discussed are Beijing’s selfimposed red lines to avoid standoffs. The following cases are worthy of note in this regard: ●●

Serious law reinforcement is only executed in areas where China’s boundary baseline has been announced. This differentiates Chinese law enforcement in the Paracels and in the Spratlys. In the former expulsion has been the standard approach. Under a Sino–Vietnam mutual self-restraint agreement signed by top Party leaders of both countries,24 Beijing has stopped resorting to arrest as a way of enforcement. In the Spratlys enforcement is largely rhetorical against foreign ships which have ventured into Chinese claimed areas, the preferred method being to call out to infringers and broadcast ­warnings from China’s coast guard vessels.25

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●● ●●

●●

The Hainan Provincial Maritime Law has not been applied to enforcement in the Spratlys, where China has not promulgated a maritime baseline and points.26 Not a single Chinese oil well has been drilled in disputed waters. The PLAN has not been used in the handling of stand-offs, although “the Navy is behind the civilian ships that hold the first line of defense.”27 Beijing has withdrawn its oil exploration vessels three times in order to de-escalate tensions with Vietnam in the South China Sea, in 1994, 2007 and most recently in 2014.28

This asymmetric but proportional assertiveness can be further demonstrated by reference to a few specific situations. After the Chinese gained de facto control over the Huangyan/Scarborough Shoal area, PLA officers suggested that permanent structures should be erected on the reef.29 The civilian leadership vetoed this proposal to avoid a major escalation of the standoff. In the absence of any buildings on the reef no real human occupation took place, despite Chinese control of the surrounding waters. Beijing has been cautious in dealing with the Philippines’ effort to consolidate its beached landing ship in the Renai/Second Thomas Shoal. The beaching act in 1999 was Manila’s move to take control of the uninhabited reef, with soldiers constantly stationed in the ship. This was the last act of human occupation in the Spratlys. Yet the occupation remains incomplete, with no permanent structure built on the reef to support a de jure presence. Manila’s attempt to build a civil-engineering foundation for the sinking vessel is an attempt to not only consolidate the ship itself but also to create a de jure presence. Beijing has believed that this would constitute a unilateral change of the status quo. The question of what would constitute a proportionate response naturally arose. Blockading ships carrying building materials to the area might be defined as proportional for status quo maintenance but pulling the beached ship away, or Chinese occupation of the shoal, might not. At the height of the “cat and mouse” games in May 2014 over the Philippines’ dispatch of ships with building materials on board, Chinese public pressure, demonstrated by millions of posts in China’s social media, was mounting on the PLA to arrest the Filipino sailors in the beached ship. PLA officers made it clear that this would be an act of war and had to be avoided.30 It would be more cost-effective to let the rotting ship collapse of its own accord. Beijing’s decision to allow logistical supplies to the soldiers living in the beached ship was appropriate. It struck a subtle balance between upholding sovereignty claims and humanitarian considerations. Yet avoiding standoffs in the Renai/Second Thomas Shoal area does not depend entirely

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on Beijing. Manila has to decide on the best choice possible for it as well: building permanent structures on the reef may back both parties into a corner and initiate a zero-sum game. Beijing’s opposition to the US proposal to suspend activities in the Spratlys is partially due to Washington’s reference to the year 2002 as the starting point for the freeze, which would legitimize the Philippines’ 1999 beaching.31 The Civil–Military Dimension The PLA has followed Beijing’s overall South China Sea strategy defined by assertiveness/war-aversion dynamics in formulating its South China Sea action plans under strict civilian guidance. This means that the PLA is politically subordinate to the CCP in overall foreign policy formulation but militarily relatively autonomous in performing combat tasks such as standoff prevention and control. The PLA’s South China Sea strategy has three salient characteristics: (1) It is a strategy of retaliation rather than pre-emptive strike;32 (2) It is not irredentist, entailing no operational plans to eject other claimants from their islets; and (3) It is integral to the PLA’s overall defense strategy, especially to the Navy’s preparations to fight a war simultaneously in the Pacific and Indian Oceans. Fundamentally it provides military support for Xi’s determination “not to lose any inch of the national territories left to us by our ancestors.” At the same time, it also conforms with the state policy preference of maintaining the current map of occupation in the South China Sea, which is the primary defining feature of the status quo, while seeking to regain initiatives lost during the years of Beijing’s “strategic patience.”33 This strategy has been integrated into a flexible civil-military formula of crisis management. In pursuing this multi-faceted strategy the PLA stresses the importance of basing status quo maintenance on deterrence through strength. In exercising directional leadership of China’s frontline crisis management, it strives to ensure that South China Sea disputes remain militarily tactical by averting a major armed clash despite standoffs, and it backs the civilians’ diplomatic moves towards tension de-escalation.34 The PLA has been instrumental in devising and executing the civil–military “1.5 strategy” to protect Chinese claims. Under this strategy, in the game of envelope pushing, if an opponent moves 1 inch China will react by moving 1.5 inches; if an opponent moves 2 inches, China will respond by moving 2.5 inches, and so on. For instance, the placement of Oil Rig 981 in the Paracels in 2014 sent signals to other claimants that if they exercise self-restraint, China will reciprocate. However if they are insistent on unilateral oil extraction, China will retaliate by following suit.35

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The US position that “no one should undertake such unilateral resources exploration in disputed waters” is in fact more advantageous to China than it is for other claimants: China has no concrete production plan for oil/gas extraction in the South China Sea. The 981 standoff also provided Beijing with a case study of how to engage in similar future disruptive actions against oil exploration by other claimants in areas claimed by China. It will be interesting to observe how the US responds to Chinese moves similar to those undertaken by Vietnam, such as ramming and blockading. The PLA’s South China Sea strategy is an integral part of China’s overall national defense strategy designed to “win a limited regional war under informationized conditions” on the basis of detailed knowledge of potential adversaries and likely modes of combat engagement, with specific weapons programs developed accordingly. This approach guides the formulation of concrete service strategies, in this case naval strategy, to provide well-defined countermeasures against maritime threats.36 The nexus between the PLA’s defense strategy/naval strategy and China’s overall maritime security endeavors is governed by a number of principles and factors: ●●

●●

●●

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Due to emerging and worsening maritime threats the PLA has shifted the center of gravity of its defense preparations away from the northern regions towards China’s eastern and southern flanks, especially towards the South China Sea.37 The PLA’s strategic guidance for war preparation is now geared to long range oceanic power projection rather than homeland defense. In this context, the South China Sea has become crucial to securing China’s sea lanes of communication (SLOCs) through the Malacca Strait. Facing maritime security threats from multiple directions, the PLA national defense strategy stipulates that while the PLA should try its utmost to avoid a simultaneous war against Taiwan, Vietnam and the Philippines, with Japan and the US in the background, it must be prepared to meet such a situation effectively. It is likely that an armed conflict with one of these hypothetical antagonists will cause a chain reaction on the part of the others. Therefore the PLA should be prepared to resolutely fight with more than one enemy at a time, if this is unavoidable.38 The PLA will be obliged to pay careful attention to timing in undertaking any operations in the South China Sea. A situation might arise when a move has to be made, despite possible grave consequences, for example in a case where inaction might entail

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permanent loss of territory, or make the future cost of recovering such lost territory inhibitory.39 It is crucial to set priorities correctly. Protecting maritime interests is highly sensitive, as it involves multiple players and strategic challenges at different levels. Priority should be given to those issues that affect CCP governing stability, PLA prestige and China’s vital geopolitical interests. The sequential treatment of various challenges should be based on an assessment of PLA capabilities, the possibility of a collective ASEAN response and the level of US willingness to intervene militarily.

South China Sea contingencies are particularly important for the PLAN to develop its long-term strategy. China’s increased dependence on SLOCs for economic growth substantially increases the Navy’s responsibility for protecting the country’s strategic waterways. In the short to medium term it is the Indo-Pacific regions that hold the key to China’s economic lifeline. The PLA’s national defense strategy has thus targeted these two great oceans as the most likely area of hypothetical future combat operations.40 The South China Sea constitutes the critical link between these potential battlefields.

THE IMPACTS ON SINO–US RELATIONS Chinese and US Structural Conflict of Interests Until recently the South China Sea disputes simply revolved around territorial issues among six claimants. As a result of deep US involvement the problems have become geostrategic, as mentioned earlier. The dispute has been structured into the framework of major power rivalry, as more key regional players, such as Japan and Australia, have also become involved, either as a result of US pressure or out of self-interest. There is heated debate about whether US intervention was the result of assertive Chinese actions in the South China Sea or whether Washington has successfully leveraged the disputes to back China into a corner through vigorous coalition building efforts. However, what is not in question is that the Sino–US “cat-and-mouse” game reflects the structural conflict of interests between the world’s two leading powers, in the manner of the Thucydidean Trap. The bilateral relationship has fluctuated in recent decades. The events of September 11, 2001 marked one significant turning point. Tensions were defused between the two countries; China gained valuable strategic opportunities and entered a golden period of development. The 2008 global

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financial crisis was another turning point. America’s national interests required the existence of a strong China that would share the responsibilities of promoting international economic recovery. The two economic powerhouses had to cooperate. China came to be seen in Washington as a responsible international stakeholder and was given a reasonable space for development. This provided the opportunity for China to gradually mature from a regional power to a global power. However, post-financial crisis bilateral relations were characterized by more competition and confrontation. Scarcely a year after the financial crisis, the US announced its “pivot to Asia.” In response, China initiated the negotiation process for the Regional Comprehensive Economic Partnership (RCEP), put forward the “One Belt One Road” initiative and set up the Asian Infrastructure Investment Bank (AIIB). All this increased anxiety among Asian countries. Beijing’s moves caused great concern in Washington, where China was now seen as challenging the existing US-led global order. Utilizing the South China Sea disputes has been a key feature of the US “pivot to Asia.” It has effectively struck a blow at China’s Achilles Heel. It is from this perspective that China sees the US Pivot as the real trigger of the escalation of South China Sea tensions. Even so, Beijing is seriously puzzled as to why the US has challenged China in the South China Sea in such a confrontational manner, given that both sides have no inherently incompatible claims there. The US has officially declared its neutrality in the territorial disputes and has made it clear that it welcomes a strong and prosperous China. The US has also called on all claimants to resolve the existing disputes peacefully and in compliance with international law, by which peace, stability, and freedom of navigation can be guaranteed. For its part, China has reiterated its commitment to upholding regional peace and stability, expressed support for the US presence in the Asia-Pacific region and indicated its appreciation for America’s unique and vital role in maintaining regional stability. In response to US concerns, China has stated many times that it has no intention to hamper freedom of navigation in the South China Sea. However, the deep-seated mistrust in each country regarding the other’s strategic intentions, objectives and motivations has undermined the foundations of their efforts at South China Sea dispute management. China sees US statements and actions as being aggressive and reflecting its desire to contain China, which, if successful, will inevitably destroy the regional balance of power. In Beijing’s view, Washington’s rhetorical neutrality in the South China Sea disputes has been clearly negated by its actions of military intervention, such as the 12-nautical mile entry. Behind the US reversal of its South China Sea position have been its concerns about Asian countries being drawn ever more closely into

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Beijing’s orbit, as the Chinese market and Chinese capital continue to create relationships of asymmetric economic interdependence throughout the region. Here the US may have benefitted from similar fears among some regional states that also believe that a stronger China will threaten their ability to compete both in the region and beyond. Given their deeply ingrained strategic mistrust of China, these countries believe that Beijing will inevitably inflict damage on regional stability and threaten their national security. Some are worried that cultivation of closer relations with China might alienate the United States, on which they have long depended for security. Although these fears are undoubtedly real, many Chinese believe that the US has played the role of director of the unfolding regional drama from behind the curtain. All this dovetails exactly with the 2010 “pivot to Asia,” which has profoundly affected China’s maritime strategy and its efforts to promote a harmonious peripheral environment. In the United States, China is vividly depicted as an aggressive rising great power, which will intimidate its smaller neighbors and possibly damage the American alliance system in the region. This is despite the fact that China has repeatedly emphasized that its intentions and actions are benign. Mutual mistrust resulting from continuous miscalculations and misperceptions has become more severe, and has not been mitigated by increased levels of dialogue and communication. The United States has become aware that China is unwilling to risk confrontation but will also resolutely protect its core interests. China, for its part, has become conscious that the sphere of influence established by the United States after the Second World War will be further consolidated, a trend which is welcomed by America’s allies in the region. China has seemingly lost the stable security environment around its borders, which it enjoyed during the previous decade. The South China Sea disputes demonstrate that Sino–US relations will in the coming years be fraught not only by trade friction, other economic conflicts and human rights issues, but also by even more severe strategic mistrust resulting from geopolitical conflicts. For both parties the South China Sea disputes pose a series of critical challenges. For Washington, US credibility to protect its allies and to retain its pre-eminence in the region is at stake. For Beijing, the central issue is China’s resolve and capability to protect its sovereignty and national interests. The international community is watching to see if China will attempt to achieve these goals at the price of sacrificing its long-standing and deepening ties of friendship and cooperation with its neighbors. The question for Beijing is what alternative it has after Washington made itself a key stakeholder in the South China Sea disputes. The United States has changed the rules of the game by shifting from its previous position of ambiguity to one of clarity against China’s claims. Washington

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has urged the ASEAN claimants to take a collective approach vis-à-vis China and instigated the lawsuit against the “nine-dash line.” The US role as a game changer in the South China Sea conflict has galvanized some states to confront China and has fully internationalized the disputes. Increasingly, the South China Sea disputes have transcended their original territorial scope to acquire the critical elements of a larger geostrategic rivalry between major powers. Without a firm response to this new situation, Beijing believes that it will lose the battle for setting the rules, above all, over the contents of any code of conduct (COC) that might restrict Chinese behavior in the future. Impacts on Sino–US Relations: Subtle, Cautious and Fragile The South China Sea will greatly influence the direction in which the current regional order will evolve. The essence of regional order is about the changing power balance and what kind of international mechanisms should guide the countries concerned. That is to say, the South China Sea disputes are about who has the capabilities to dominate the region at present, who is likely to dominate the region in the future and how the regional order will develop. Given China’s overall strength, it is reasonable to assume that the country will come to play a significant role as a responsible international and regional power, as expected by the United States itself at the time of the 2008 financial crisis. South China Sea tensions between Washington and Beijing have been rising for years. The current South China Sea disputes and their future development are at bottom profoundly linked to the policies of the United States, despite the fact that it is not one of the claimants. The US has been in control of the SLOCs in the South China Sea since the end of the Second World War, which has helped it maintain its hegemonic leadership in the Asia Pacific region. The “pivot to Asia” strategy has strengthened the American position. This strategy also provides Washington with a litmus test to check the loyalty of Southeast Asian countries, forcing them to take sides on very sensitive issues, above all on the South China Sea disputes. The Philippines, Vietnam, Malaysia, Brunei and Taiwan, all claimants in the South China Sea, have strongly welcomed the involvement of the United States. The South China Sea disputes have come to highlight the profound differences in the perceived strategic interests of each individual country. They also provide hints about which country is likely to eventually dominate the regional order after the strategic games between the United States and China have run their course. After the Arbitral Tribunal’s decision on July 12, 2016, the Chinese government stated that the judgment is “an abuse of law” and “ill-founded.”

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Former State Councilor Dai Bingguo called the ruling “a piece of waste paper” at a South China Sea conference hosted by the Washington-based Center for Strategic and International Studies (CSIS) on July 5, 2016. All this has made it clear that China is prepared to endure harsh international criticism to protect its core interests. The US tacit support for the lawsuit has enraged Chinese popular opinion. The Global Times stated in an editorial that “Beijing should deal with Washington tactfully and prepare for the worst in the face of US harassment . . .”41 The hope is that Beijing can convince the White House that China, despite its unwillingness, is not afraid to fight a war with the US in the region, and is determined to safeguard its national interests and dignity. Regretful as it is, the South China Sea disputes indicate the depth of the mistrust between the two countries. The arbitral ruling has further strengthened Chinese antagonism towards the United States. As noted previously, very large numbers of Chinese people believe that the US is the most significant “black-hand” manipulating the disputes from behind the scenes. The resultant nationalist upsurge has exacerbated anti-Americanism in China and deepened Sino–US mistrust. Under these circumstances, the fragile red lines and subtle balances that the two countries have negotiated, such as the tacit agreement that China will not deploy offensive facilities in the reclaimed islands and that the US will not escalate the 12-nautical mile entry beyond the current symbolic level,42 might be difficult to maintain in the future, especially, perhaps, under the new master in the White House. To avoid a dangerous naval confrontation in the South China Sea, China and the US must move to establish rational, precise and sophisticated strategies of crisis management now. The United States desires a stable East Asia but is unwilling to accept China’s rise as a regional leader. It is not willing to see new mechanisms of international and regional cooperation established and led by China. The US and many of its allies seem convinced that China will eventually strive to take control of the regional and global order. Economic and trade disputes aside, the South China Sea issue has almost dominated China–US bilateral relations over the last few years. The tension between the two countries has rapidly ratcheted up. For the United States, China’s perceived South China Sea assertiveness has confirmed the view that efforts to shape China’s behavior through engagement have not been successful. Sino–US confrontation seems to be unstoppable and risks unraveling both the South China Sea and even the broader Asian status quo. All relevant stakeholders will therefore be obliged to make strategic readjustments to reach a new balance. China’s approach to handling the South China Sea disputes shows that Beijing has made every effort to avoid a direct and severe confrontation, while pressing for gains in the dispute management process.

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Traditionally, the US has combined coercion and containment as its favored strategy to prevent the emergence of a peer competitor in Asia. China is now the target of this strategy. The United States has viewed China’s increasing military and economic pressure on other South China Sea claimants as a direct challenge to its own regional leadership and to the existing security order centered around it. From this perspective, it is logical for Washington to interpret China’s actions in the South China Sea in a wider framework. They are seen as having far greater significance than mere involvement in local territorial disputes. In the future, it can be expected that the South China Sea tensions will become more serious. A turn-around will only be achieved when China and the US finally come to realize the dangers of military confrontation and then work out institutionalized mechanisms of crisis prevention and management.

CONCLUSION Since 2012 Beijing has come to place greater emphasis on the notion of “core interests.” These focus on regime stability, national sovereignty and vital national security concerns. Xi’s statement that no country should “expect China to swallow bitter fruit over issues of its core interests” encapsulates Beijing’s application of this concept in the South China Sea context and symbolizes the policy adjustments that have taken place there since 2012. China’s South China Sea behavior has indeed become more assertive. The fact that the South China Sea has been identified as one of China’s core interests will now guide Beijing’s responses to US intervention in the region. There will be less room for compromise in the face of US pressure, which is becoming more and more military in nature. At the same time China has to strike a proper balance between the demands of domestic politics and the maintenance of its international reputation.43 Beijing’s more pro-active tone and its actions in the South China Sea have been stimulated by Asia’s changing security environment precipitated by the US pivot. China is now mentally and materially prepared to contain the armed confrontations that have developed as a result of continuing standoffs. However, Beijing’s overall maritime policy has remained fundamentally unchanged. It is essentially non-irredentist and non-confrontational, since the government has to meet other more urgent challenges at home and from other maritime disputes, notably in the Taiwan Straits. This dictates that Beijing’s South China Sea objectives will remain basically oriented towards crisis management rather than any major expansion of occupation. In this context, Beijing’s calculated assertiveness serves a number of purposes: it is primarily for domestic consumption; it is

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intended to deter further moves by other disputants; and it is designed so as to leave space for political negotiations with other claimants to restore the status quo. Using a controlled retaliatory and escalatory strategy to pre-empt further perceived provocations is meant for crisis prevention. However, it may run counter to its original purpose if reactive assertiveness becomes disproportional or opposing parties simply react with even greater determination, as shown in the Oil Rig 981 incident. Beijing, in general, is in no hurry to resolve the sovereignty disputes.44 As this chapter has argued, Beijing is confident that it has enough leverage in the South China Sea tug-of-war, although it is conscious of the dangers of overreacting. This subtle game is likely to continue to play out in the years ahead. Standoffs are always a possibility. Yet in the absence of a large-scale armed confrontation these will remain basically tactical and manageable. However, the South China Sea disputes will be a major test of the region’s ability to deal with security challenges cooperatively. They will also test the capacity of China and the US to overcome the strategic strife that has further muddied the waters of their already troubled bilateral relations. The biggest challenge for Beijing in realizing its objective of maintaining the status quo in the South China Sea is the deepening US involvement aimed at containing China’s rise through manipulating a territorial dispute. The US strategy is subtle. The South China Sea is one of China’s most vulnerable points. If Beijing reacts too harshly, it will alienate ASEAN as a whole. If its response is too soft, the domestic backlash will mount and others will further challenge China’s sovereignty claims. The United States has seen this clearly and will continue to push the envelope to back China into a corner, for example, through the 12-nautical mile entry issue. In this sense, the South China Sea disputes have come to represent the very essence of bilateral relations: China has to be firm but non-confrontational, and must act very cautiously in any steps taken for the purpose of avoiding direct confrontation. However, this will be increasingly difficult, as the new administration in Washington will not ease its pressure on Beijing in the South China Sea. In his Senate confirmation hearing, then US Secretary of the State-designate Rex Tillerson even talked about blockading China’s access to its islands in the South China Sea.45 If this were to be implemented, prospects of military confrontation between the two nuclear powers would then loom large. This would not only exponentially worsen the Spratlys disputes but also put at a risk a broad spectrum of strategic interests of all parties concerned. A sound strategy of dispute control is thus of crucial importance for all actors involved, and for Washington and Beijing in particular.

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NOTES  1. The Chinese Academy of Social Science, Global Political and Security Report (The Yellow Book) (Beijing: China Social Science Publishing House, 2013).   2. Comments by Admiral Yin Zhou, News in Focus Today, CCTV-4, January 31, 2016.   3. See Feng’s comment as quoted in Edward Wong, “China Hedges over Whether South China Sea Is a ‘Core Interest’ Worth War,” The New York Times, March 30, 2011, accessed December 13, 2017, http://www.nytimes.com/2011/03/31/world/asia/31beijing.html.  4. Edward Wong, “Chinese Military Seeks to Extend its Naval Power,” The New York Times, April 23, 2010, accessed December 13, 2017, http://www.nytimes.com/2010/04/24/ world/asia/24navy.html.   5. Mark Landler, “Offering to Aid Talks, U.S. Challenges China on Disputed Islands,” The New York Times, July 23, 2010, accessed December 13, 2017, http://www.nytimes. com/2010/07/24/world/asia/24diplo.html.   6. “Admiral Wu Meets His US Counterpart,” The PLA Daily, July 15, 2016.   7. In the Wu Shengli-Richardson talks, Wu categorically named the Spratlys as one of China’s core interests, which influences the foundations of CCP rule in China. Such a depiction caught many Chinese analysts by surprise. “China to Continue Construction Work in S. China Sea,” Xinhua-Global Times, July 21, 2016, accessed December 13, 2017, http://www.globaltimes.cn/content/995099.shtml.  8. Lianhezaobao (United Morning News, Singapore), July 21, 2016.   9. “China’s Strategists Reject the Arbitration Case,” Global Times, July 22, 2016. 10. In Kritenbrink’s talk to the Center for Strategic and International Studies (CSIS) on July 14, 2016 he mentioned four countermeasures against China’s moves in the South China Sea. At the top of the list was frequent demonstration of military strength in the South China Sea. 11. “Xi’s Speech to a Meeting of the CCP Central Leading Group on Protecting China’s Maritime Rights,” in On Deepening PLA Reform on Organizational and Leadership Structure, ed. Major General Li Changquan (Beijing: Changzheng Publishing House, 2015). 12. The unanimous view of ASEAN participants at the conference Security Outlook of the Asia Pacific Countries, National Institute for Defense Studies, Tokyo, January 15‒16, 2013. 13. The killing of a Taiwanese fisherman by the Filipino Coastal Guard in May 2013 was the latest serious incident to have had a profound impact on the maritime dispute in the region. 14. Major General Qin Tian, “Military Analysis and Policy Calculation in the Process of China’s Peaceful Development,” China Military Science, No. 2 (2013): 61. 15. Irene Chan and Li Mingjiang, “New Chinese Leadership and New Policy in the South China Sea,” Journal of Chinese Political Science, Vol. 20, No. 1 (2015): 35‒50; Joshua Kurlantzick, Charming Offensive: How China’s Soft Power is Transforming the World (New York: Yale University Press, 2007): 129‒32. 16. Xue Li, “The Maritime Silk-Road and the Situation in the South China Sea,” in China’s Regional Security Environment Review 2015, ed. Zhang Jie (Beijing: China Social Science Publishing House, 2015), 219. 17. Interview with a PLA delegate to the 2015 Shangri-La Dialogue in Singapore, June 1, 2015. 18. The Strategy Research Department of the PLA Academy of Military Science, The Science of Military Strategy (Beijing: The PLA Academy of Military Science Press, 2013). 19. However, Beijing has no control over what Washington does. Admiral Harris’ remarks in a CSIS meeting in January 2016 that “in [his] view the Spratlys do not belong to China” indicated major changes in US South China Sea policy that the PLA has taken very seriously. Center for Strategic and International Studies, “A Presentation by Admiral Harry B. Harris, Commander, U.S. Pacific Command: Strategic Opportunities

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20. 21.

22. 23. 24. 25. 26. 27. 28.

29. 30. 31. 32. 33.

34.

35. 36. 37. 38. 39. 40. 41.

Building a normative order in the South China Sea in the Indo-Asia-Pacific,” January 27, 2016, accessed December 13, 2017, http://csis.org/ event/strategic-opportunities-indo-asia-pacific-admiral-harry-b-harris. Major General Jin Yinan’s comments in “National Defense Skyline,” The Voice of China, August 9, 2012. The Philippines announced in January 2014 that it would launch major land reclamation projects in its occupied islands, especially in Feixin Island, the second largest island in the Spratlys, where an airstrip already in existence would be strengthened to permit take-offs and landings of military transports, such as the C-130. Oral sources from cadres of the China Coast Guard Bureau, Beijing, July 12, 2014. For instance, see US Secretary of Defense Chuck Hagel’s speech at the 2014 Shangri-La Dialogue on May 31, 2014, accessed December 13, 2017, http://www.cfr.org/asia-and-paci​ fic/remarks-secretary-hagel-shangri-la-dialogue/p33053. See, for instance, the “Six-Point Agreement of Sino-Vietnam Summit in Beijing,” The People’s Daily, January 12, 2017, 1. This is a commentary by the Deputy Commander of the Xisha Maritime Surveillance General Detachment under the Hainan Maritime Surveillance Bureau, July 2013. Rear Admiral Zhang Zhaozhong’s comments in “Focus in the News Today,” China Central TV-4, November 25, 2012. Major General Xu Yan, “Several Decades of Sino-Filipino Disputes in the South China Sea,” Study Times, May 21, 2012. In 1994, China withdrew its exploration ships in the Paracel area to maintain a positive environment for the second round of territorial negotiations. Tang Jiaxuan, Strong Storms and Gentle Breezes (Beijing: World Knowledge Publishing House, 2009), 250. In 2007, a Chinese oil exploration vessel and its escorts confronted Vietnamese naval ships in the Spratlys for a few days. Beijing subsequently ordered the Chinese ships to leave the scene. The 981 case followed such a pattern. Rear Admiral Yin Zuo’s comments to News in Focus Today, CCTV-4, May 21, 2012. Senior Colonel Shao Yongling’s comments to New Horizon, Yunnan TV, July 13, 2014. Cui Tiankai, “China’s Ambassador to the US Questioned the Motives of the Freeze Proposal and the Determinants for Deciding on the Commencement Year and Duration of its Application,” China Daily, August 5, 2014. Minister Zhang Zhijun’s speech to The 8th Blue Hull Forum in Beijing on December 27, 2012. General Qi Jiangguo reiterated official Chinese military policy toward the South China Sea disputes at the 2013 Shangri-La Dialogue on June 1, stating that Beijing would not use force to settle the Spratlys disputes but would undertake necessary measures to roll back others’ provocations. Former Vice Foreign Minister Fu Ying’s opinion that “the military cannot expect the diplomats to recover the lost territory by words when the PLA cannot do it with guns” best captures the nexus between diplomatic and military endeavors in dispute resolution. Her remarks greatly stimulated the PLA to enhance war preparation. See the relevant quotation in “The Drivers for PLA Empowerment in Its New Historical Path,” The PLA Daily, July 28, 2014. Senior Colonel Shao Yongling’s comments to New Horizon, Yunnan TV, July 13, 2014. The Strategic Research Department of the PLA Academy of Military Science, The Science of Military Strategy. Zhang Yingli, China’s National Security Strategy in the New Era (Beijing: The PLA National Defense University Press, 2014). Interviews with PLA officers in Beijing, May 2014. The Strategic Research Department of the PLA Academy of Military Science, The Science of Military Strategy. You Ji, “The Chinese Navy, Its Regional Power and Global Reach,” Strategic Analysis, Vol. 36, No. 3 (2012): 477‒88. “After the Show, It’s Time for US Destroyer to Leave,” Global Times, October 27, 2015, accessed March 1, 2017 at http://www.globaltimes.cn/content/949261.shtml.

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42. You Ji, “Sino–US ‘Cat-and-Mouse’ Game Concerning Freedom of Navigation and Overflight,” Journal of Strategic Studies, Vol. 39, No. 5 (2016): 637‒61. 43. Xu Yan, “How to Rank Our National Interests,” Journal of the PLA National Defense University, No. 1 (2000): 14. 44. General Qi Jianguo conveyed this message at the 12th Shangri-La Dialogue on June 1, 2013. He echoed Deng’s remark that the dispute could be left to future generations to handle, which remains Beijing’s official policy. 45. David Brunnstrom and Matt Spetalnick, “Tillerson Says China Should Be Barred from South China Sea Islands,” Reuters, January 13, 2017, accessed December 13, 2017, http:// www.reuters.com/article/us-congress-tillerson-china-idUSKBN14V2KZ.

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4. The South China Sea: an arena for great power strategic rivalry Leszek Buszynski The South China Sea has become an arena for indirect great power rivalry which prevents any effort to negotiate a resolution of the issue. The area has become important for China’s wider strategic interests in the Western Pacific as it attempts to challenge America’s military presence there. China has ambitions to extend its maritime and naval power and to acquire the visible attributes of Great Power status, to which its nationalists aspire. As a mark of that status China requires a naval capability including carriers that can reach out into the Pacific and Indian Oceans and hold off the American navy from interdicting its sea lanes, or intruding into what it regards as its “core interests” in the Western Pacific. China has been attempting to enforce a maritime enclosure policy in the South China Sea which would turn it into national territory. China’s actions have alarmed the ASEAN claimants, Vietnam, the Philippines and also Malaysia, who have sought support from external powers, the US and Japan, in varying degrees. Neither the US nor Japan can allow China to dominate the area in view of its strategic significance and have resisted its moves there. China’s maritime ambitions in the area have stimulated American and Japanese responses giving rise to a rivalry, which may escalate in the future.

THE IMPORTANCE OF THE SOUTH CHINA SEA FOR CHINA China has various interests in the South China Sea including access to the area’s oil and gas reserves which attracted attention in the late 1960s and early 1970s. China’s interest in the oil reserves of the South China Sea was stimulated by the Philippine exploration in the area in the late 1970s, and also by a 1976 United Nations Economic Commission for Asia and the Far East (ECAFE) geologic survey which indicated sizable reserves in the area. The Chinese have habitually exaggerated the hydrocarbon reserves of the area and the Chinese National Offshore Oil Company (CNOOC) 68 Leszek Buszynski - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:52:41PM via Sydney University

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estimated that the area holds around 125 billion barrels of oil and 500 trillion cubic feet of natural gas in undiscovered resources.1 The Chinese have warned Vietnam and the Philippines to desist from oil exploration in what they regard as their claim zone and have also issued similar warnings to foreign oil companies, threatening consequences for their business dealings with China. In 2007, Chinese warnings prompted BP to abandon exploration with Vietnam Oil & Gas Group in Blocks 5-2 and 5-3 close to the Vietnamese coast. Chinese oil companies have been preparing for deep-water drilling further afield and in May 2011 CNOOC completed the construction of its most advanced drilling platform CNOOC 981 at a cost of about $925 million. In May 2014 this rig was moved into Vietnam’s EEZ, provoking alarm amongst the Vietnamese which was not entirely settled by the rig’s withdrawal in the following July. Exploitation of the area’s fishing stocks is another interest for the fishing communities of China’s littoral provinces, Hainan, Guangxi and Guangdong in particular. There have been regular incidents in the South China Sea as Chinese “fishery patrol” vessels have resorted to harassment tactics to ward off Vietnamese and also Philippine fishing vessels from socalled “Chinese waters.” China has deployed new maritime capabilities, the Yuzheng 311, 202, 302, the Haixun 21 and China’s largest patrol vessel the 1,500 tonne Haixun 3, to boost its maritime presence there. These vessels do not carry heavy weapons though some have helicopter landing pads and high pressure water cannon which can be used against the fishing and maritime vessels of the ASEAN claimants. China is expected to increase its maritime surveillance forces from 200 to 350 vessels and is building a 10,000-tonne maritime surveillance vessel which will be the world’s largest. In July 2013, China announced the integration of its maritime surveillance agency, the coast guard and customs, into an expanded State Oceanic Administration (SOA) which was expected to conduct more frequent patrols in the North, East and South China Seas.2 This agency will be able to deploy a force which will be well beyond the ability of the ASEAN claimants to match, allowing Beijing to apply graduated pressure against them without triggering escalation, and a possible response by external powers. In this way, China can maintain control over the situation while warning the ASEAN claimants to desist from their activities in the Chinese claim zone.

STRATEGIC PRIORITIES IN DECISION MAKING In the decision making process strategic interests are promoted by the security agencies, those associated with defence, intelligence and public

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security, which have the ear of the leaders on issues that affect them. Where the interests of these security agencies have been clearly identified and expressed they are given a higher priority in decision making, and are then imposed upon the other agencies and ministries. When the policies and interests of these other agencies clash with the strategic priorities as promoted by the security establishment they will be made to conform to these priorities in the process of policy coordination. The higher priority given to those strategic interests has a constraining effect upon the other ministries and brings their policies into line with them. When policy coordination is incomplete, or ongoing, it appears that the different ministries and agencies speak with difference voices. Nonetheless, in the coordination process there will be indicators and signs that point to the higher priority of these strategic interests and the constraining effect they demonstrate in the decision making process. In the 1990s, China pursued the diplomatic goal of maintaining good relations with the region to prevent the US from extending its influence over regional institutions and ASEAN in particular.3 Towards the end of the Hu Jintao era strategic interests became prominent in Chinese behaviour and China shifted to greater assertiveness, subordinating the above diplomatic goals and marginalizing the Foreign Ministry.4 The strategic interests that are supported by the Party leadership, the People’s Liberation Army (PLA) and the security establishment through the Politburo Standing Committee and the Central Military Commission relate to rivalry with the US in the Western Pacific.5 China’s main strategic priority in this respect is to gain space for itself in the Western Pacific as a defence against the American alliances with Japan, South Korea and the Philippines and also US military deployments. In this respect the objective is to gain positional benefits and advantages against the US military presence in the Western Pacific by extending a maritime and naval presence there, and into the South China Sea in particular.

THE STRATEGIC SIGNIFICANCE OF THE SOUTH CHINA SEA The strategic significance of the South China Sea for China can be understood in this context. Though China’s interest in the oil and gas reserves and fishing stocks are important, they are not the whole story. If those interests alone explained the Chinese claim to the South China Sea, the dispute would have been resolved on the basis of legality with the ASEAN claimants and there would not have been an escalation of tensions there since 2009. Chinese representatives have been regularly invoking “joint

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development” as a resolution mechanism and this could have been applied in the South China Sea to allow common exploitation of the hydrocarbon reserves there. Similarly, the Sino–Vietnamese Agreement on Fishery Cooperation that was concluded in 2004 over the management and conservation of fishery resources in the Tonkin/Beibu Gulf may well have been applied to the wider South China Sea to defuse disputes over fisheries and to prevent clashes. The fact that a resolution of these issues still eludes the claimants in the South China Sea points to the strategic priority in Chinese decision making, and its role in effecting policy coordination around China’s strategic interests. This strategic priority has intensified Chinese activities in the South China Sea and has motivated the effort to exclude the ASEAN claimants and keep at bay external powers such as the US and Japan. The South China Sea provides China with certain positional advantages as it develops its maritime ambitions in the Western Pacific. Strategy is a positional concept whose execution is facilitated by certain geographical advantages which are identified as essential or critical. First, the South China Sea allows China’s navy access to the Bashi Channel between Taiwan and the Philippines enabling it to enforce a naval blockade of Taiwan or to confront an American naval effort to relieve a Chinese blockade of the island. The Pentagon’s annual report to Congress of 2014 noted that preparing for potential conflict in the Taiwan Strait is China’s “main focus” which includes deterring US intervention there.6 The second objective is to secure the Malacca Straits in the South through which an estimated 80 per cent of China’s imported oil flows to refineries and storage depots in the southern provinces, and to protect China’s oil lifeline through the Indian Ocean to the Middle East. Chinese sources have often commented on the security of their energy supplies through the Malacca Straits and the South China Sea in what they have called the “Malacca Dilemma.”7 The Chinese fear that should the US and China come to conflict over Taiwan, the Malacca Straits and China’s oil import lifeline in the Indian Ocean could be blocked or interdicted by the US and Indian navies, in which case they would have a stranglehold over the Chinese economy.8 This vulnerability worries the Chinese and is an incentive for them to develop a naval capability with an ocean going capacity sufficient to prevent the interdiction of these critical straits and lifelines. China’s third objective is to obtain access to a protected area for its missile carrying submarines (SSBNs) that would form the basis of a second strike nuclear capability against the US. China’s SSBNs require deployment areas which can be protected against American ASW attacks and the most immediate are the deep areas of the South China Sea, where depths reach down to 2,000 metres. In 2008 China deployed a Jin-class (Type 094) bal-

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listic missile submarine in Sanya base in Hainan Island in the north of the South China Sea as part of China’s second strike nuclear capability. The Jin class SSBN will carry at least twelve JL-2 SLBMs which have a range of 8,000 km and may be equipped with multiple independently targetable re-entry vehicles (MIRVs) with three nuclear warheads. With this range the missile would be able to strike Hawaii, Guam, Alaska and any ports in the Western Pacific where American naval vessels may be stationed.9 This range is insufficient to hit the West Coast of the US, so the Jin class SSBN would have to venture into the Pacific Ocean to launch its missiles to strike the US mainland, running the gauntlet of America’s extensive anti-submarine warfare capability (ASW). China is developing a longer range submarinebased missile (JL-3) which could target the US mainland, in which case the submarines carrying them could be deployed in zones protected by the Chinese navy, where the US would not be able to threaten them.10 The South China Sea would be one such deployment zone. China is enlarging the existing SSBN base at Yalong Bay on Hainan by adding piers and underground facilities where three Jin class SSBNs have been deployed.11 The South China Sea is shaping up as China’s protected area in this respect which requires air power based in the Spratly Islands to control and defend the approaches. With this protection the South China Sea will also become a defensible bastion for the deployment of China’s second strike nuclear capability and Sanya will become a home base for China’s SSBNs. Sanya is capable of expansion to accommodate additional deployments of SSBNs and has extensive underground facilities that would protect them from aerial strikes. It also has a submarine demagnetization facility which is the only one of its kind in China. Demagnetization is necessary before submarines can move into the open sea to remove magnetic fields that would facilitate detection by the ASW capability of an adversary.12 China intends to develop an ocean going naval capability including large-scale carriers but the plans are still in their formative stages. China’s first aircraft carrier is the 53,000-tonne Liaoning. It has a ski jump for aircraft take-off and is a refurbished and refitted version of the ex-Soviet carrier Varyag which was purchased in 1998. It was commissioned on 25 September 2012 and based in Qingdao on the Shandung Peninsula, a location which is most likely temporary as repairs and modifications to the engines and equipment can be undertaken there. China has developed the Shenyang J-15 as a carrier-based fighter aircraft based on the Russian Su-33 but equipped with locally developed engines and electronics. A second carrier built entirely in China was launched in April 2017. As an extended version of the Liaoning, it is similar in design and also comes with a ski jump to assist carrier aircraft to take off, which limits the load the aircraft could carry and reduces their range. To venture further afield

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in the Pacific Ocean China is obliged to move to larger carriers with steam or electro magnetic catapults that would increase the range of its carrierbased aircraft. Reports indicate that China plans to construct at least three carriers in the formation of several carrier battle groups that would ply the high seas.13 The third carrier may be a nuclear-powered equivalent of a large American carrier, such as those of the Nimitz class at 100,000-tonnes. It would require several decades for China to develop carrier groups to match those of the US, as China has very limited experience of the technology and construction techniques involved. Moreover, accompanying escort and refuelling vessels with electronic countermeasures would have to be developed – a considerable investment. These carrier groups would have to be deployed in areas according to their tasks, and if the intention is to protect China’s sea lanes and oil lifeline in the Indian Ocean, Sanya is the obvious choice. Carrier groups are vulnerable to counter attack and Chinese carriers will require a protected area for their home base. They will require effective defences against air and missile strikes launched by intruding submarines or carrier-based aircraft from an adversary fleet. For Sanya to develop as an important base for China’s ocean going naval ambitions and also for its SSBNs the South China Sea has to be secured and made defensible.

CHINA’S MARITIME ENCLOSURE MOVEMENT Effective protection would demand control of the approaches to the South China Sea area and the exclusion of external powers. As the Chinese leadership becomes responsive to these strategic priorities and devises plans for home bases complete with protected zones, it prepares the ground by promoting an exclusive claim to the South China Sea. It gives maritime agencies the green light to enforce fishery regulations and enables oil companies such as CNOOC to deploy their largest oil rig in the Vietnamese EEZ. China is currently engaged in an effort at maritime enclosure which is essentially an attempt to convert the South China Sea into Chinese maritime territory from which the fishing fleets of the ASEAN claimants, and the maritime activities of external powers, would be excluded. Since 2009 China has become more assertive over the South China Sea issue, and more willing to resort to measures to enforce its claim to the area. China’s effort to appropriate the South China Sea is not just intended to seize the fishery stocks there, though that may be important for the coastal provinces and their fishing communities, and not just to obtain access to the area’s oil and gas reserves, however important this objective may be for China’s state-owned oil companies. This maritime enclosure movement

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is complementary to its naval modernization and expansion effort whose objective is an ocean-going navy to meet the objectives discussed above. Indeed, the two have been developing together. Despite current Chinese claims that the South China Sea is “ancient” Chinese territory it was never so. In dynastic times it was a maritime frontier, not part of the Chinese empire proper, which was in recent history elevated by the popular media to become Chinese maritime territory. Chinese historical records do not support this claim; they mention the Paracels but there are no unambiguous references to the Spratlys with which China had little contact. Chinese trade routes in the South China Sea skirted the Spratlys area; two major trade routes connected Southern China with Southeast Asia, the western route went along the Vietnamese coast while the eastern route connected Guangdong and southern China with Luzon and the Philippines. These two routes were well documented in Chinese sources but neither traversed the Spratlys which were known to be dangerous for navigation. Indeed, there is little historical evidence of Chinese interest in the Spratlys until the 1930s.14 The British were the first to navigate and survey the islands over 1762‒1802, and in 1802 the Admiralty published a map of the South China Sea with many of the features named. China’s first maritime border in the South China Sea was drawn by the cartographer Hu Jinjie in December 1914 which included the Pratas and Paracel Islands within this border line; this was the extent of China’s interest at that time.15 Guangdong province formed a commission headed by Shen P’eng-fei who travelled to the area and reported that “the Paracel archipelago is our nation’s southernmost territory. However, our people have paid it little attention.”16 Only later did China’s interest shift further south towards the Spratly Islands when the French and Japanese competed for dominance over the area. French action was intended to exclude the Japanese, and on 26 July 1933 France announced the occupation of nine islands and the annexation of the Spratly Islands. In response to these events the Kuomintang (KMT) government arranged for a Land and Water Maps Inspection Committee to publish a map of the South China Sea in April 1935. This was not a revival of an old claim but the declaration of a new one and indicated that China’s interest in the area had been extended from the Paracels to the Spratly Islands which it had not claimed before. Based on the committee’s report, the KMT government in 1947 declared a U-shaped line with eleven dashes which was inherited by the People’s Republic and became the basis of China’s claim. Two dashes were removed in 1953, according to the Chinese as a concession to Vietnam in the Gulf of Tonkin area. The nine-dash line is insufficient as a legal basis for the Chinese claim since its exact coordinates have not been identified, nor is it clear as to whether it is

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a claim to islands or sea territory. The commonly accepted view is that it is a claim for islands and surrounding waters within the line and represents China’s “traditional maritime boundary” in the South China Sea.17 If this is the case how would the “surrounding waters” be defined? Other Chinese interpretations are that the nine-dash line represents ownership of islands and not a claim to the waters within the line, and that it is “not a maritime boundary in the conventional sense.”18 Still other interpretations of the nine-dash line insisted that it represents China’s claim over all the waters within it including transportation, fishing, and mineral extraction rights.19 Some suggest that it is “not a boundary line of territorial waters and is non-exclusive,” and that it does not prevent freedom of flight or navigation and does not conflict with EEZs or continental shelves.20 The nine-dash line is indeed confusing. Despite its lack of definition, it was used in an official communication in May 2009 when China attached a map to its diplomatic note to the UN Commission on the Limits of the Continental Shelf in protest against the joint Vietnamese and Malaysian submission.21 Despite the recent origins of their claim the Chinese insist not only that the South China Sea is “ancient” Chinese territory but that they have “indisputable sovereignty” over the area. As a result of the ruling party’s public relations effort combined with an upsurge of nationalism, the Chinese are led to believe that the South China Sea has always been Chinese territory. Chinese scholars attending international conferences assume for the most part that the South China Sea was somehow lost to China and should be rightfully recovered. History can be remade to conform to the dominant narrative as formulated by the ruling party. In this vein the Chinese media has identified the South China Sea as a “core interest” and as a Xinhua commentary noted “by adding the South China Sea to its core interests, China has shown its determination to secure its maritime resources and strategic waters.”22 Chinese leaders have referred to Tibet and Taiwan as “core interests” but the South China Sea is not publicly so regarded.23 Nonetheless, it has a strategic value for China which has been supported by a virulent nationalism deliberately stoked by the leadership placing it in a similar class. Chinese leaders have created an image for the benefit of domestic Chinese audiences that the South China Sea was Chinese territory on the same level as Taiwan or Tibet. In April 2012 the U-shaped line appeared on new Chinese passports as part of a map of China to buttress the conviction that China had ancient and historic title over the area. In January 2013 the Chinese media published maps which included the South China Sea and Taiwan in a ten-dash line with the mainland and made them indistinguishable to the Chinese public. Taiwan and the South China Sea were placed in the same category.

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Popular maps intended for the media are a way of demonstrating the leadership’s nationalist credentials before domestic Chinese audiences who have accused the government of weakness in pressing China’s territorial claims in the South China Sea and the Senkaku/Diaoyu Islands. By stoking nationalism in this way the Chinese leadership is placing severe constraints on its policy towards the issue and making any alternative to Chinese appropriation of the area much more unlikely. Within ASEAN circles it was often assumed that the Chinese intention was to negotiate, and that the pragmatic Chinese were strengthening their bargaining position and would eventually come around to an agreement which would take into account ASEAN interests. However, once cast as Chinese territory in the public mind the Chinese leadership is compelled by the nationalism that gives it legitimacy to seek fulfilment of its claim. It may have been possible for China to negotiate the issue with ASEAN in a previous decade, but now the maritime enclosure movement has been triggered, and nationalism invoked, negotiating flexibility for Chinese leaders has been lost. China has engaged in reclamation projects in the Spratly Islands which represent the most prominent effort to secure control over the South China Sea. Since August 2014, the Chinese have been dredging sand from the ocean floor and extending the size of seven reefs they have occupied.24 On Fiery Cross Reef, China has constructed a 3,000-metre runway which would support China’s Su-27SKs, Su-30MKKs, H-6 bombers and large transport aircraft.25 On Subi Reef, only 25 kilometres from the Philippines occupied feature called Pagasa, China has constructed a military base and another 3,000-metre runway.26 A third airstrip is being constructed on Mischief Reef at 2,600 metres, which is all that the reef will allow.27 On Johnson South Reef, a multi-storey building has been built as a radar facility for tracking and monitoring the movement of aircraft in the area. As a result of these activities, China has three airfields on reclaimed features of extended length, berthing facilities for transport vessels, as well as radar and signals monitoring facilities which will enhance China’s capacity to track the movement of shipping and aircraft in the area. The strategic significance of the reclamation projects should not be overlooked. With these airfields in the Spratly Islands, China would have air cover for its activities, a tactical advantage which it has previously lacked. China’s Su-27SK fighters are based in Woody Island in the Paracels where a runway that was first constructed in 1990 at 400 metres has been extended to 3,000 metres.28 The Su-27SK has a combat range of 1,500 kilometres with drop tanks which would allow it to reach the northern part of the Spratlys and return without venturing much further. As a consequence of China’s reclamation activities, these fighter aircraft could be moved to the Spratlys on rotation giving China air cover for most of the South China Sea and a permanent footprint in the area.

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CHINESE PRESSURE ON THE ASEAN CLAIMANTS China’s maritime enclosure efforts have resulted in greater pressure upon ASEAN to recognize its dominant position in the South China Sea, and to endorse its claim. In past decades when China pursued a good neighbour policy towards ASEAN it was important to prevent its members from gravitating to the US and to forestall American involvement in the South China Sea. In Chinese policy a united and autonomous ASEAN which maintained a balance between the great powers served the purpose of keeping the US at bay, from which China benefited. While this was a diplomatic priority for China its leaders were careful to maintain good relations with ASEAN, concluding the Declaration on the Conduct of the Parties (DoC) with it on 4 November 2002, the first multilateral initiative China accepted with ASEAN. However, since that time China has readjusted its position as the need to maintain a united and autonomous ASEAN became less important, and China searched for allies within the organization that would support its position over the South China Sea. China was willing to see the organization fragment in an effort to gain a dominant position in the South China Sea, which was indicative of a shift of priorities in Beijing as strategic interests assumed greater importance. China seized Scarborough Shoal from the Philippines in April 2012 when two Chinese maritime surveillance vessels prevented a Philippine coast guard vessel from arresting Chinese fishermen who were poaching in the Philippine claim zone. China’s Ambassador to ASEAN, Tong Xiaoling, insisted that the reef had been Chinese since “ancient times,” and that the waters around the island were traditional fishing grounds for Chinese fishermen.29 Chinese attention then moved to Second Thomas Shoal, also in the Philippine claim zone where the Philippines had maintained a detachment of marines in a sunken vessel. In March 2014, Chinese coast guard vessels prevented two Philippines cargo vessels from delivering supplies to these troops claiming that these vessels were bringing construction material to build structures there to strengthen the Philippine presence.30 It was the Scarborough Shoal event which prompted the Philippines to turn to the Arbitral Tribunal of the Law of the Sea in January 2013 to seek legal adjudication of the issue. The Philippine Department of Foreign Affairs issued a statement on 22 January 2013 saying that it had exhausted “almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China.”31 ASEAN has been divided over the South China Sea. Vietnam and the Philippines have persistently demanded support for their claims in the South China Sea while Cambodia has openly sided with China. The other members such as Thailand have been either indifferent to the issue or, like

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Malaysia, unwilling to risk exacerbating relations with Beijing. Cambodia prevented the Philippines from raising the issue of China’s occupation of Scarborough Shoal in April 2012. China had ejected the Philippines from the shoal and when Manila lobbied hard for ASEAN support Cambodia was opposed. Cambodia was the ASEAN chair in that year and kept the issue out of the communiqué of the 20th ASEAN summit over 3‒4 April 2012.32 Before the ASEAN summit Hu Jintao visited Phnom Penh in March and pressed Cambodia not to “internationalize” the issue. China had by this time become an important economic partner for Cambodia and its main investor. Chinese FDI in the country reached $1.19 billion in 2011.33 Cambodia also prevented Philippine Foreign Minister Albert del Rosario from raising the issue of Scarborough Shoal in the 45th Annual Ministerial Meeting of ASEAN Foreign Ministers (AMM) in July 2012. The result was that no communiqué was issued from this meeting for the first time in the organization’s history. Indeed, the meeting was described as “acrimonious.”34 Vietnam has come under strong pressure from China in the South China Sea. Its leaders have stressed the importance of the relationship with China in the hope that ties between the two communist parties would constrain Chinese actions against it. However, Vietnamese leaders have been disappointed as Chinese pressure has increased in their claim zone prompting them to search for external support from the US in the hope that it would constrain the Chinese. When CNOOC deployed the Haiyang Shiyou 981 oil rig in the Vietnamese EEZ on 2 May 2014, considerable distress within Vietnam was stimulated as it seemed that the party-to-party relationship with China had failed. The rig was deployed some 17 nautical miles from Triton Island, the southernmost extremity of the Paracel Islands which are occupied by China, and 120 nautical miles east of Vietnam’s Ly Son Island. According to the Chinese pronouncements the rig had been moved into “Chinese waters” and was to stay in position until 15 August. Ships were prohibited from entering a three-mile radius around the drilling area. China had previously deployed the Kan Tan 111 oil rig into Vietnam’s EEZ in 1997 and 2004 but on both occasions the rig was withdrawn after vigorous Vietnamese protests. On this occasion, the Haiyang Shiyou 981 oil rig was moved into position after it seemed that Vietnamese relations with China had improved. When Party Secretary Nguyen Phu Trong met Hu Jintao in October 2011, a sixpoint agreement was signed which was to govern their maritime relations. Vietnamese President Truong Tan Sang visited Beijing in June 2013 when according to Xinhua Xi Jinping stated that “We should proceed from the Chinese–Vietnamese friendship and the development of both countries, so the issue does not affect bilateral ties.”35 Relations were improving and in

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this situation no one expected the oil rig move. The apparent intention was to explore the gas reserves in the Song Hong Basin in the belief that the area was Chinese anyway. The Chinese probably assumed that the bilateral relationship and Vietnamese eagerness to preserve it would constrain their reactions and they would realize that they had few means of redress. China in this sense exploited the improved relationship with Vietnam and expected the Vietnamese to be constrained by it. In any case, the Chinese seemed surprised by the vehement Vietnamese reaction and withdrew the rig starting on 15 July 2014 and before the typhoon season had begun, averting a further deterioration of relations. Subsequent Chinese efforts to repair relations with Vietnam suggested that they may have overreached themselves as Vietnam sought external support for its position in the South China Sea. Chinese State Councillor Yang Jiechi visited Hanoi in October 2014 and was quoted as saying that “At present, Sino–Vietnam relations are at a crucial stage of improvement and development.”36 China’s actions have disturbed the other members of ASEAN which have been on the sidelines of this dispute, revealing that its extensive claim in the South China Sea and its attempt to enforce it does not just concern Vietnam and the Philippines. Why China would alienate Malaysia and Indonesia in this dispute requires some explanation. The fact that the Chinese coast guard has increasingly intruded into their EEZs indicates that Beijing has become less concerned about their possible responses and that gaining control of the South China Sea is of higher priority. Beijing retains tight control of its maritime agencies and the coast guard in particular, so it would be unlikely that these activities are the result of agency autonomy alone, without central government direction. Both countries have pursued non-aligned policies and have avoided open identification with the US, but Chinese pressure induces forbearance of an upgraded American presence in the region, and stimulates the development of limited security cooperation with the US. The risks that Beijing is prepared to take in this respect point to the strategic priority in Chinese policy and the downgrading of the diplomatic goal of preventing the US from extending its influence in the region. Until recently, Malaysia had avoided the dispute and its leaders maintained a public indifference towards it. The Malaysian leadership has pursued a policy of bandwagoning with China, hoping that protestations of friendship would spare it from Chinese enforcement activities in the South China Sea. For several decades Malaysia professed a special relationship with China but in recent years it has become uneasy over Chinese assertiveness in the South China Sea. In March 2013 a Chinese naval expedition consisting of four ships, a landing ship with marines and a hovercraft with escort vessels, toured the South China Sea and visited

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James Shoal, which the Chinese regard as the southernmost point of their claim. This shoal is only 60 kilometres from East Malaysia and clearly within the Malaysian claim. The Malaysians were troubled and Defence Minister Hishammuddin Tun Hussein on 10 October announced that a naval base would be established at Bintulu on the Sarawak coast facing James Shoal. This base would cater for amphibious operations involving all three services. Defence officials also announced the establishment of a marine corps with American assistance, which Malaysia had lacked.37 Another Chinese expedition consisting of an amphibious landing craft and two destroyers visited James Shoal on 26 January 2014 when soldiers and sailors reportedly swore an oath to defend Chinese maritime territory.38 The number of Chinese intrusions into the Malaysian claim area has been publicly understated by the Malaysian press to avoid complications with China.39 Navy Chief Admiral Abdul Aziz Jaafar said that intrusions by Chinese vessels had been occurring daily since 2014, particularly around Luconia Shoal well inside Malaysia’s EEZ, and only 84 kilometres from Sarawak.40 Indeed it seemed that Malaysia was no special exception for the Chinese and that it would come under the same pressure from China as the other claimants. Indonesia regarded itself as a non-claimant over the issue but now finds that it is increasingly drawn into the dispute as Chinese fishing vessels intrude into the waters around the Natuna Islands. Indonesian apprehensions have been stimulated by Chinese maps of the South China Sea which show the Chinese claim line cutting across Indonesia’s EEZ around the Natuna Islands. The issue first arose in 1993 when these maps were published, prompting the Indonesian military to organize naval exercises in the area in 1995 and 1996 to signal a determination to defend its claim. The Indonesian Foreign Ministry at that stage was managing workshops involving China in a dialogue with the ASEAN claimants and the issue was downplayed. The problem erupted again in 2012 when the Chinese included the U-shaped line on their passports which had the Indonesians worried. On 19 March 2016 Chinese fishing vessels once again intruded into these waters and one vessel was arrested by the Indonesian Navy. Two Chinese coast guard ships attempted to release the vessel creating a diplomatic incident.41 Jakarta is indeed troubled by these developments. Armed Forces Chief General Moeldoko announced that military forces would be strengthened around the Natuna Islands with the addition of an Army battalion, fighter aircraft and the upgrading of the naval base there.42 The editorial of The Jakarta Post noted that Indonesia had no territorial or border problems with China but its “national strategic interests are also at stake with China’s new military posture.”43

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EXTERNAL POWERS AND THE SOUTH CHINA SEA Chinese pressure against the ASEAN claimants in the South China Sea has had the effect of moving them closer to external powers, either in an overt or restrained way. The exclusive claim that China has promoted, its harassment of ASEAN claimants, and its effort to obtain their recognition of Chinese sovereignty over the area, all reinforce the interpretation that China’s objective is to control the South China Sea and to exclude others. Both the US and Japan are concerned that China’s control of the South China Sea would allow it to challenge America’s position in the Western Pacific and push it further back into the Pacific. However, in pressing the ASEAN claimants in this way, China has given the US and also Japan the opportunity to strengthen their positions there by developing security ties with them. China has brought Japan into the dispute and made possible the extension of the US–Japan alliance into the South China Sea. Nonetheless, the US faced a new dilemma as a consequence as to whether and to what extent it would support the ASEAN claimants and meet their expectations in the face of the Chinese challenge. US alliance ties with the Philippines were strengthened during the presidency of Benigno Aquino who left office in 2016. In the past, the US was careful to separate the South China Sea from its alliance obligations under the 1951 mutual defence treaty on the basis that it was committed to the defence of the Philippines according to the territory as defined by the 1898 Treaty of Paris, well before the Philippines staked out a claim to part of the South China Sea. US obligations have been extended as US Chief of Naval Operations Admiral Jonathan Greenert in February 2014 assured the Philippines that the US would support it in the event of conflict with China over the South China Sea.44 When President Obama was in Manila in April 2014, he assured his Filipino hosts that “our commitment to defend the Philippines is ironclad and the United States will keep that commitment, because allies never stand alone.”45 The US signed a ten-year Enhanced Defence Cooperation Agreement (EDCA) with the Philippines in the same month, allowing American forces to be rotated in Philippine military facilities. US troops trained with Philippine forces and conducted exercises on maritime security, providing humanitarian assistance and disaster relief as well.46 Japan also became involved. When Japanese Foreign Minister Fumio Kishida met his counterpart Albert del Rosario in May 2013 the Japanese agreed to provide ten patrol boats to the Philippines under the ODA program. The Philippine Coast Guard is notoriously under-equipped with a total force of nine vessels of which only seven are currently operational.47 However, with the election of Rodrigo Duterte as Philippine president in June 2016 relations with the US became troubled. Duterte turned against

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the US because of American criticism of his extrajudicial killings and personal pique at how he had been treated by the Americans in the past. He visited Beijing in October 2016 to express his irritation at the US while expecting that closer relations with China would constrain its assertiveness in the South China Sea. In Beijing he declared a “separation” from the US and a “realignment” with China and Russia, and stated that he would review the EDCA and “halt” military exercises with the US.48 Defense Secretary Delfin Lorenzana said that the 28 military exercises that are conducted with the US annually would be put on hold. He did not say halted.49 When he returned to the Philippines, Duterte said that he would not cut ties with the US and that his intention was simply to chart “another way” in foreign policy.50 Duterte’s aides and department heads stepped in to interpret his remarks to the press as he became increasingly confusing. Presidential spokesperson Ernesto Abella confirmed that the Philippines would not break any established alliances, least of all with the United States, while Foreign Affairs Secretary Perfecto Yasay declared that “separation” did not mean breaking diplomatic ties with the US.51 Duterte’s so-called reorientation to China raised expectations in the Philippines that Beijing would soften its position and respect the Arbitral Tribunal’s ruling of July 2016 which supported Philippine rights to its EEZ in the South China Sea. China has continued to ignore the ruling and those hopes were unfulfilled. The Philippine defence establishment has been critical of the President’s move towards China so that a break with the US is very unlikely since the US alliance has been institutionalized in Philippine politics. The US security relationship with Vietnam has slowly developed, constrained however by Vietnamese concerns not to alarm China and by the concerns of human rights organizations in the US. The US has conducted various security dialogues with Vietnam including the Political, Security, and Defence Dialogue (PSDD) which brought together State Department and Vietnamese Foreign Ministry officials when it was initiated in 2009. In 2011, the US Department of Defence and the Vietnamese Defence Ministry signed an MOU for a Defence Policy Dialogue to promote bilateral defence cooperation. This dialogue has been ongoing since then. When US Defence Secretary Ashton Carter visited Hanoi in June 2015 he concluded an agreement with his Vietnamese counterpart Phung Quang Thanh for equipment purchases and the co-production of defence equipment.52 President Obama visited Vietnam in May 2016, the second American President to visit that country after Bill Clinton in November 2000. While in Hanoi, Obama announced the lifting of the US arms embargo which had been imposed on Vietnam in 1975. This was a necessary step to facilitate a new arms agreement. The US navy was interested in using Cam Ranh Bay for rotational visits and for its repair

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facilities. Though US Military Sealift Command ships have visited the port for repairs, it was off limits for active American naval vessels until October 2016. Then, two US naval vessels, the Arleigh Burke-class destroyer USS John S. McCain and the submarine tender USS Frank Cable, visited Cam Ranh Bay. In August 2014 Japan announced that it will supply six used naval vessels to Vietnam to boost its patrols and surveillance in the South China Sea.53 In April 2016 two Japanese guided-missile destroyers visited Cam Ranh Bay as Japan edged towards closer involvement in the South China Sea. However, Vietnam allowed three Chinese naval vessels to call at Cam Ranh Bay the following October, which revealed the extent to which Vietnam’s search for external support will remain limited and restrained by its concern about China. American security cooperation with ASEAN’s non-aligned members has also developed but predictably at a low level and with little fanfare. The Malaysian military has declared that it will conduct amphibious training exercises with the US, a capability in which the Malaysians have been deficient.54 Japan has also been seeking to enhance maritime cooperation with Malaysia and when Abe met Malaysian Prime Minister Najib he offered assistance in capacity building and HRD through exchanges between coast guards and defence authorities.55 The Indonesian navy announced that it wanted to conduct regular military exercises with the US around the Natuna Islands, but because of the lack of facilities there they had to be held elsewhere.56 For many years Indonesia had attempted to assume the role of a mediator in the dispute by bringing China and ASEAN together in a dialogue but Chinese actions could indeed tilt Jakarta closer to Vietnam and the Philippines and motivate closer military ties with the US. When President Jokowi visited Washington in October 2015 the relationship with the US was elevated to a “strategic partnership.” Jokowi revealed interest in security cooperation with the US and obtaining American assistance to modernize Indonesia’s maritime capabilities.57 The move by the ASEAN claimants towards external powers may act as a constraint upon China and a hindrance to its efforts to control the South China Sea but this is leverage that they would be hesitant to apply, unless the Chinese resort to open force to seize some of the features there to expand their presence. At present that seems unlikely as it would provoke a crisis that would rebound to the benefit of the US and Japan.

AMERICA’S DILEMMA The US has resorted to “freedom of navigation” (FONOP) patrols in the South China Sea which indicate how the American strategists assess the

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importance of the South China Sea for the US geopolitical position in the Western Pacific. These patrols have been promoted by the US Navy and in particular by PACOM Admiral Harry Harris who has publicly criticized China’s reclamation projects there. They were conducted close to the features the Chinese have claimed and their purpose was to demonstrate that the US would not accept Chinese domination of the area, and that it would oppose any Chinese effort to claim maritime zones from the features they have occupied. They were also intended to reassure America’s allies and security partners in the Western Pacific that America would not retreat from the region under Chinese pressure and would make a stand in the South China Sea. They were intended to boost the resolve of the ASEAN claimants and prevent them from capitulating to Chinese demands. The first such patrol was conducted in October 2015 when the Arleigh Burkeclass guided missile frigate the USS Lassen moved within 12 Nautical miles of Chinese occupied Subi Reef.58 Under the Obama administration four such FONOPs were executed close to Chinese claimed features. As an additional demonstration of American resolve the aircraft carrier John C. Stennis moved into the South China Sea in March 2016 and spent seven months on patrol there returning in August. In June it joined a second carrier USS Ronald Reagan when both conducted flight operations in the South China Sea.59 However, contesting China’s moves in the South China Sea in this way would risk conflict with an increasingly powerful and ambitious China. The freedom of navigation patrols initiated during the Obama administration will heighten that risk as Chinese airpower is deployed in the Spratly Islands and the installations there become fully operational. With strengthened military power in the Spratly Islands the Chinese would be more confident, and also more aggressive in defending what they consider to be their territory. Chinese fighters have buzzed American surveillance aircraft and may take greater risks in the future which may result in a crisis for US–China relations similar to that of the EP-3 incident in April 2001. Then, a mid-air collision occurred between an American reconnaissance aircraft and a Chinese fighter close to Hainan.60 Recognition of this risk stimulated some criticism of these freedom of navigation patrols within the Obama administration and also from the ASEAN claimants who fear that they might be embroiled in a conflict with China. Within the US there has been a search for an alternative that carries less risk.61 Some Americans have called for an accommodation with China in a balance of power which would bring stability to the region and avoid the prospect of conflict with a rising power. The idea of an accommodation varies significantly. Some call for an American withdrawal from a forward position in the Western Pacific to an offshore maritime position.62 This

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would consign Taiwan and the South China Sea into a Chinese “sphere of influence” while leaving the Korean Peninsula open to both. Others think that an accommodation could be arranged on the basis of the existing status quo, though it is difficult to imagine that this would be acceptable to the Chinese.63 When Vice President Xi Jinping visited the US in February 2012 he indicated a possible basis for an accommodation when he said that the two countries should respect each other’s “core interests.” The idea of respecting “core interests” may be the basis of China’s notion of a cooperative relationship with the US but it is unclear what those interests are. Chinese naval strategy extends Chinese interests well beyond what has been interpreted as “core,” and demands the exclusion of the US military presence from the South China Sea as well as from the sea area around Taiwan. The weight of Chinese strategic interests ensures that the Western Pacific including the South China Sea has a high priority similar to a “core interest.” What this means is that in any accommodation with the US the Chinese would expect American recognition of a de facto sphere of influence in the Western Pacific, and though they may not say so publicly they will expect American leaders to respond accordingly. Apart from the Korean Peninsula, President Trump shows a disinterest in the region which is a product of his fixation with the insular domestic interests that brought him into office. His decision to withdraw from the Trans Pacific Partnership (TPP) in January 2017 was motivated by these domestic concerns, as was the launching of a tariff war with China. While the Trump administration focuses on these issues it could avoid contesting the South China Sea. The Arbitral Tribunal of the Law of the Sea on 12 July 2016 ruled that the Chinese claim to the South China Sea had no legal foundation which supported the American demand that law be respected in this area. However, proponents of accommodation of China located in the State Department and the American academic community regard the ruling as a hindrance to good relations with China and want to downplay it, while the Trump administration is simply indifferent to it. This could tilt the US towards a de facto accommodation of China in the South China Sea if only to evade trouble, though it would conflict with America’s promotion of law and a rules-based order in the Asia Pacific. It would also cast the ASEAN claimants adrift and destroy their expectations of support against Beijing. Moves in the region to come to terms with China as the dominant regional power would be stimulated, allowing Beijing to set its own terms. America’s alliance relationships with Japan, South Korea and the Philippines would be significantly impaired and the US would be obliged to accept a position as a much reduced regional player. However, the US may avoid this scenario if it reaffirmed its presence in the Western Pacific and made a stand in the South China Sea to provide

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a ­counterweight to China. The US would then continue with freedom of navigation patrols and would more vigorously pursue maritime coalitions involving Japan, Australia and the affected ASEAN claimants to demonstrate its resolve.

CONCLUSION The South China Sea maritime dispute has acquired a strategic dimension as it has become the focal point for US–China strategic rivalry. China’s efforts to strengthen its military presence in the area are an extension of its naval strategy which requires an outlet into the wider Western Pacific and Indian Oceans and a protective maritime stronghold from which the US would be excluded. Control over the South China Sea is required to implement this strategy which has become a major priority in Chinese decision making. China, indeed, seems to be willing to risk conflict with the US to secure that control. In July 2014 Xi Jinping said that confrontation with the US would be “disaster” and that it was necessary to “break the cycle of conflict and set an example for their future.”64 However, China continues with activities that stimulate that cycle obliging the US and Japan to respond. The US cannot withdraw from the South China Sea for the sake of an accommodation with China without abnegating its geopolitical position in the Western Pacific, activating a scramble within the region to accept China as the dominant power there. The US can respond to China’s moves in the South China Sea in less risky ways and can redirect its FONOPs to prevent possible conflict. It could also sponsor the formation of maritime coalitions linking its allies, Japan as well as Australia, with India and the ASEAN claimants in various cooperative security relationships. The Law of the Sea Arbitral Tribunal in July 2016 laid down the legal basis for an eventual resolution of the South China Sea issue which would demand its detachment from US–China rivalry and effective neutralization. The ruling removed two obstacles to the formation of a South China Sea maritime regime which has been often proposed by scholars in the past. The Tribunal decided that China’s claim had no legal basis and as a result it would be limited to those features it has occupied in the Paracels and the Spratly islands. Second, it declared that there are no islands that can generate maritime zones within the meaning of Article 121 of the UNCLOS which removed the problem of overlapping claims to EEZs. If China accepted international law and UNCLOS in the determination of its legal rights, it could negotiate a cooperative maritime regime with the ASEAN claimants. The anxieties of the external powers would be consid-

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erably eased and the cycle of conflict that Xi Jinping referred to would be broken, and China would indeed “set an example for the future.” China would gain the moral high ground and give credence to its declarations of being a responsible stakeholder of international order. It would gain the respect that its leaders crave and the gratitude of the region that seeks an end to the tensions created by the dispute. Unfortunately, China’s strategic interests have overridden these diplomatic considerations and great power rivalry will continue to characterize the South China Sea, bringing the possibility of conflict that much closer.

NOTES   1. “South China Sea,” US Energy Administration, accessed 13 December 2017, http:// www.eia.gov/countries/regions-topics.cfm?fips=scs.   2. “China’s Restructured SOA Goes into Official Operation,” Xinhua, 22 July 2013, accessed 13 December 2017, http://news.xinhuanet.com/english/china/2013-07/22/c_132562297. htm; “New China Coast Guard Expected to Do More Patrolling,” Taipei Times, 24 July 2013, accessed 13 December 2017, http://www.taipeitimes.com/News/front/archives/2013/0​ 7/24/2003568020.  3. This was called China’s “good neighbour policy,” see David Shambaugh, “China Engages Asia: Reshaping the Regional Order,” International Security, Vol. 29, No. 3 (Winter 2004/05): 64‒99.  4. Michael Swaine, “China’s Assertive Behavior Part Three: The Role of the Military in Foreign Policy,” Carnegie Endowment for International Peace, 28 November 2011, accessed 13 December 2017, http://carnegieendowment.org/search/?qry=China%E2%80 %99s+Assertive+Behavior+Part.   5. “It also has become every analyst’s first instinct to highlight the U.S. factor in almost any national security challenge China faces. This tendency has become an institutional habit, directing analyses toward thorough, sometimes paranoid, investigations of any evidence of U.S. involvement,” see Yun Sun, “Chinese National Security DecisionMaking: Processes and Challenges,” The Brookings Institution, 6 May 2013, accessed 13 December 2017, www.brookings.edu/wp-content/uploads/2016/06/chinese-nationalsecurity-decisionmaking-sun-paper.pdf.   6. “Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2014,” Office of the Secretary of Defense, accessed 13 December 2017, http://www.defense.gov/pubs/2014_DoD_China_Report.pdf.   7. ZhongXiang Zhang, “China’s Energy Security, the Malacca Dilemma and Responses,” Energy Policy, Vol. 39, No. 12 (2011): 7612‒15.   8. ZhongXiang Zhang, “China’s Energy Security.”   9. USNI News Editor, “China Will Deploy Subs That Could Nuke Alaska or Hawaii This Year,” USNI News, 2 February 2014, accessed 13 December 2017, http://news.usni. org/2014/02/05/china-will-field-subs-nuke-alaska-hawaii-year. 10. Hans M. Kristensen and Robert S. Norris, “Chinese Nuclear Forces,” Bulletin of the Atomic Scientists, Vol. 67, No. 6 (2011): 81‒87; Andrew S. Erickson and Lyle J. Goldstein, “China’s Future Nuclear Submarine Force: Insights from Chinese Writings,” Naval War College Review, Vol. 60, No. 1 (2007): 54‒79. 11. “Hainan’s Yalong Bay: China’s New Nuclear Submarine Base,” Want China Times, 18 February 2014, accessed 13 December 2017, http://www.wantchinatimes.com/newssubclass-cnt.aspx?id=20140218000017&cid=1101. 12. Hans M. Kristensen, “New Chinese SSBN Deploys to Hainan Island,” Federation of

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American Scientists, 24 April 2008, accessed 13 December 2017, https://fas.org/blogs/ security/2008/04/new-chinese-ssbn-deploys-to-hainan-island-naval-base/. 13. On China’s carrier program see Ronald O’Rourke, “China Naval Modernization: Implications for U.S. Navy Capabilities – Background and Issues for Congress,” Congressional Research Service, 17 June 2016, accessed 13 December 2017, http://fas.org/ sgp/crs/row/RL33153.pdf; Andrew Scobell, Michael McMahon and Cortez A. Cooper III, “China’s Aircraft Carrier Program: Drivers, Developments, Implications,” Naval War College Review, Vol. 68, No. 4 (Autumn 2015): 65‒79. 14. Marwyn S. Samuels, Contest for the South China Sea (London and New York: Routledge, 1982), 47‒51. 15. Zou Keyuan, “The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands,” The International Journal of Marine and Coastal Law, Vol. 14, No. 1 (1999): 27‒55. 16. Samuels, Contest for the South China Sea, 53, 54, 56, 57. 17. Li Jinming and Dexia Li, “The Dotted Line on the Chinese Map of the South China Sea: A Note” Ocean Development and International Law, Vol. 34, No. 3‒4 (2003): 287‒95. 18. Zhiguo Gao, “The South China Sea: From Conflict to Cooperation?” Ocean Development and International Law, Vol. 25, No. 3 (1994): 345‒59. 19. Deputy Director of the National Institute of South China Sea Studies in Hainan Liu Feng reportedly made such comments. Jane Perlez, “China Asserts Sea Claim with Politics and Ships,” The New York Times, 11 August 2012, accessed 13 December 2017, http://www. nytimes.com/2012/08/12/world/asia/beijing-reasserts-its-claims-in-south-china-sea.html. 20. Tang Qifang “On the Dotted Line; Law and History Support China’s Claims over the South China Sea,” Beijing Review, 21 February 2013, accessed 13 December 2017, http://www.bjreview.com.cn/print/txt/2013-02/17/content_518022.htm. 21. Zou Keyuan, “China’s U Shaped Line in the South China Sea Revisited,” Ocean Development and International Law, Vol. 43, No. 1 (2012): 18‒34. 22. Modernizing Navy for Self-Defense, Xinhua, 13 July 2010, accessed 13 December 2017, http://news.xinhuanet.com/english2010/indepth/2010-07/13/c_13397060.htm. 23. Michael D. Swaine, “China’s Assertive Behavior – Part One: On ‘Core Interests’”, China Leadership Monitor, No. 34 (2011). 24. They were Fiery Cross, Johnson South, Subi, Quaterton, Gaven, Mischief, and Hughes reefs. “China’s Reclamation on Mabini Reef Republic of the Philippines,” Department of Foreign Affairs, Republic of the Philippines, 15 May 2015, accessed 13 December 2017, http://www.dfa.gov.ph/index.php?option=com_content&view=article&id=2871: china-s-reclamation-on-mabini-reef&catid=78:dfa-releases&Itemid=589. 25. James Hardy, “China completes runway on Fiery Cross Reef,” Jane’s Defence Weekly, 25 September 2015, accessed 13 December 2017, http://www.janes.com/article/54814/ china-completes-runway-on-fiery-cross-reef. 26. James Hardy, “China’s First Runway in Spratlys under Construction,” Jane’s Defence Weekly, 15 April 2015, accessed 13 December 2017, http://www.janes.com/article/50714/ china-s-first-runway-in-spratlys-under-construction. 27. “Airstrips Near Completion,” Asia Maritime Transparency Initiative, accessed 13 December 2017, http://amti.csis.org/airstrips-near-completion/; Jane Perlez, “China Is Building Airstrip on 3rd Artificial Island,” The New York Times, 15 September 2015, accessed 13 December 2017, https://www.nytimes.com/2015/09/16/world/asia/ china-building-airstrip-on-3rd-artificial-island-images-show.html. 28. Hardy, “China’s First Runway in Spratlys.” 29. Xu Tianran, “Manila Moves to Quell Spat,” Global Times, 15 May 2012, accessed 13 December 2017, http://www.globaltimes.cn/content/709457.shtml. 30. “China Expels Philippine ships from Ren’ai Reef,” Xinhua, 11 March 2014, accessed 13 December 2017, http://www.globaltimes.cn/content/847524.shtml. 31. “DFA Statement on the UNCLOS Arbitral Proceedings against China,” Department

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The South China Sea: an arena for great power strategic rivalry ­89 of Foreign Affairs, Republic of the Philippines, 22 January 2013, accessed 13 December 2017, https://www.dfa.gov.ph/newsroom/unclos. “Chairman’s Statement of the 20th ASEAN Summit Phnom Penh, 3‒4 April 2012,” ASEAN, accessed 13 December 2017, http://www.asean.org/archive/documents/20th%20 summit/FINAL%20Chairman%20Statement1330.pdf. “Cambodia Reassures China over Regional Maritime Row,” Yahoo News, 1 April 2012, accessed 13 December 2017, https://sg.news.yahoo.com/cambodia-reassures-china-overregional-maritime-row-165640705.html. Prak Chan Thul and Stuart Grudgings, “SE Asia Meeting in Disarray over Sea Dispute with China,” Reuters, 13 July 2012, accessed 13 December 2017, http://www.reuters.com/ article/2012/07/13/us-asean-summit-idUSBRE86C0BD20120713. “China and Vietnam Should Seek South China Sea Solution: Chinese President,” Xinhua, 20 June 2013, accessed 13 December 2017, http://news.xinhuanet.com/english/ china/2013-06/20/c_124880874.htm. An Dien, “Vietnam, China Seek to Repair Ties Ruptured by East Sea Dispute,” Thanh Nien News, 27 October 2014, accessed 13 December 2017, http://www.thanhniennews.com/ politics/vietnam-china-seek-to-repair-ties-ruptured-by-east-sea-dispute-33197.html. “Malaysia to Establish Marine Corps, Naval Base Close to Shoal,” Malaysia Today, 18 October 2013, accessed 13 December 2017, http://www.malaysia-today.net/malaysia-toestab​lish-marine-corps-naval-base-close-to-shoal/. Jeremy Page, “Chinese Ships Approach Malaysia,” Wall Street Journal, 27 March 2013, accessed 13 December 2017, https://www.wsj.com/articles/SB100014241278873246851045 78386052690151508; “Chinese Ships Patrol Southernmost Territory,” Xinhua, 26 January 2014, accessed 13 December 2017, http://news.xinhuanet.com/english/china/2014-01/26/ c133075742.htm. Interview sources, 31 October 2015, Kuala Lumpur, Malaysia; see also Dzirhan Mahadzir, “Malaysian Maritime Claims in the South China Sea,” in Entering Uncharted Waters? ASEAN and the South China Sea, ed. Pavin Chachavalpongpun (Singapore: Institute of Southeast Asian Studies, 2014), 220. Raul Dancel, “China’s Intrusion into Malaysia More Extensive than Reported: Analyst,” Straits Times, 20 June 2015, accessed 13 December 2017, http://www.­straitstimes.com/ asia/se-asia/chinas-intrusion-into-malaysia-more-extensive-than-reported-analyst; Jenifer Laeng, “China Coast Guard Vessel Found at Luconia Shoals,” The Borneo Post, 3 June 2015, accessed 13 December 2017, http://www.theborneopost.com/2015/06/03/china-coast​ -guard-vessel-found-at-luconia-shoals/. Haeril Halim, Anggi M. Lubis and Stefani Ribka, “RI Confronts China on Fishing,” The Jakarta Post, 21 March 2016, accessed 13 December 2017, http://www.thejakarta​ post.com/news/2016/03/21/ri-confronts-china-fishing.html. “Indonesia’s Military Flexes Muscle as S. China Sea Dispute Looms,” Jakarta Globe, 13 March 2014, accessed 13 December 2017, http://jakartaglobe.beritasatu.com/news/ indonesia-military-flexes-muscle-s-china-sea-dispute-looms/. “Editorial: Facing China’s Claim,” The Jakarta Post, 24 January 2014, accessed 13 December 2017, http://www.thejakartapost.com/news/2014/01/24/editorial-facing-chinas-claim.html. Manuel Mogato, “U.S. Admiral Assures Philippines of Help in Disputed Sea,” Reuters, 13 February 2014, accessed 13 December 2017, http://www.reuters.com/article/2014/02/13/ us-philippines-usa-southchinasea-idUSBREA1C0LV20140213. “Remarks by President Obama to Filipino and U.S. Armed Forces at Fort Bonifacio,” The White House Office of the Press Secretary, 28 April 2014, accessed 13 December 2017, http://www.whitehouse.gov/the-press-office/2014/04/28/remarks-president-obamafilipino-and​-us-armed-forces-fort-bonifacio. Luis Ramirez, “US–Philippines Defense Deal to Improve Asia Security,” Voice of America, 28 April 2014, accessed 13 December 2017, http://www.voanews.com/content/ obama-in-philippines-after-signing-of-new-military-accord/1902441.html; “Philippines, US Sign Defence Pact as Barack Obama Continues Asia Tour,” ABC News, 28 April

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Building a normative order in the South China Sea 2014, accessed 13 December 2017, http://www.abc.net.au/news/2014-04-28/an-philippi​ nes2c-us-to-boost-defence-ties/5415166. “Patrol Boats from Japan to Start Arriving in 2015,” Philippine Daily Inquirer, 31 March 2014, accessed 13 December 2017, http://newsinfo.inquirer.net/590453/patrol-boats-fromjapan-to-start-arriving-in-2015; “With Eye on China, Japan to Provide Patrol Boats to Philippines,” Asahi Shimbun, 23 May 2013, accessed 13 December 2017, http://ajw.asahi. com/article/behind_news/politics/AJ201305230042. Gabriel Dominguez, “Philippine Leader Announces ‘Separation’ from US,” Jane’s Defence Weekly, 21 October 2016, accessed 13 December 2017, http://www.janes.com/ article/64834/philippine-leader-announces-separation-from-us. Lorenzana also said that the 107 US troops involved in operating surveillance drones against Muslim militants would be asked to leave the southern part of the country once the Philippines acquires those intelligence-gathering capabilities in the near future. Jim Gomez, “Philippines, US Halt Plans on Joint South China Sea Patrols,” Philstar, 7 October 2016, accessed 13 December 2017, http://www.philstar.com/headlines/2016/10/07/1631266/ philippines-us-halt-plans-joint-south-china-sea-patrols. Ana Marie Pamintuan, “Incoherent,” Philstar.com, 24 October 2016, accessed 13 December 2017, http://www.philstar.com/opinion/2016/10/24/1636759/incoherent. Elena L. Aben, “PH Allays US Fears, Says Treaties Will Remain in Place,” The Manila Bulletin, 25 October 2016, accessed 13 December 2017, http://www.mb.com.ph/ph-allaysus-fea​rs-says-treaties-will-remain-in-place/. “Secretary of Defense Ashton Carter Visited Vietnam,” Embassy of the Socialist Republic of Vietnam in the United States of America, 1 June 2015, accessed 13 December 2017, http://www.vietnamembassy-usa.org/news/2015/06/secretary-defenseas​hton-carter-visited-vietnam. “Japan Offers Vessels to Vietnam to Boost Its Sea Strength,” Reuters, 1 August 2014, accessed 13 December 2017, http://uk.reuters.com/article/uk-vietnam-japan-id­ UKK​ BN0G13DY20140801; “Hanoi to Receive Japan Coast Guard Ships Next Year,” The Japan Times, 1 June 2014, accessed 13 December 2017, http://www.thanhniennews.com/ politics/japan-offers-vessels-to-vietnam-to-boost-its-sea-strength-29404.html. Stuart Grudgings, “Insight – China’s Assertiveness Hardens Malaysian Stance in Sea Dispute,” Reuters, 26 February 2014, accessed 13 December 2017, http://uk.reuters. com/article/uk-malaysia-china-maritime-insight-idUKBREA1P1Z020140226. “Japan, Malaysia to Cooperate in Stabilizing South China Sea,” Kyodo, 5 May 2014, accessed 13 December 2017, http://www.japanbullet.com/news/japan-malaysia-to-coope​ rate-in-stabilizing-south-china-sea. Kanupriya Kapoor and Randy Fabi, “Indonesia Eyes Regular Navy Exercises with US in South China Sea,” Reuters, 13 April 2015, accessed 13 December 2017, http://www.reuters. com/article/2015/04/13/us-indonesia-us-southchinasea-iduSKBN0N40O320150413; “Indonesia eyes regular navy exercises with US in South China Sea,” The Straits Times, 13 April 2015, accessed 13 December 2017, http://www.straitstimes.com/asia/se-asia/ indonesia-eyes-regular-navy-exercises-with-us-in-south-china-sea. “The US–Indonesia Expanded Strategic Partnership: Post President Jokowi’s US Visit,” Remarks from US Ambassador to Indonesia Robert O. Blake to The Pacific Forum CSIS – Honolulu International Forum, 30 October 2015, accessed 13 December 2017, https://csisprod.s3.amazonaws.com/s3fs-public/legacy_files/files/attachments/151030_AmbRobertB​ lake.pdf. Helene Cooper and Jane Perlez, “White House Moves to Reassure Allies with South China Sea Patrol, but Quietly,” The New York Times, 27 October 2015, accessed 13 December 2017, https://www.nytimes.com/2015/10/28/world/asia/south-china-sea-usslassen-spratly-islands.html. David Larter, “The U.S. Sends Another Strong Message to China,” The Navy Times, 20 June 2016, accessed 13 December 2017, http://www.navytimes.com/story/ military/2016/06/20/stennis-south-china-sea-patrol-wraps-up/86155488/. For the EP-3 incident see Simon Shen and Ryan Kaminski, “From the EP-3 Incident

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The South China Sea: an arena for great power strategic rivalry ­91 to the USS Kitty Hawk-Song Class Submarine Encounter: The Evolution of Sino-US Management Communication Mechanisms,” in Conflict and Cooperation in Sino-US Relations, ed. Jean-Marc F. Blanchard and Simon Shen (London: Routledge, 2015), 225‒47. Luke Hunt, “China’s Aggression over South China Sea Exposes Rift between Obama, Top Navy Advisors,” The Washington Times, 14 April 2016, accessed 13 December 2017, http://www.washingtontimes.com/news/2016/apr/14/chinas-aggression-over-south-chinas​ea-exposes-rif/. Lyle Goldstein, “Chinese Naval Strategy in the South China Sea: An Abundance of Noise and Smoke, but Little Fire,” Contemporary Southeast Asia, Vol. 33, No. 3 (2011): 320‒47. Michael D. Swaine, “The Real Challenge in the Pacific: A Response to ‘How to Deter China’”, Foreign Affairs, May/June 2015, accessed 13 December 2017, https://www. foreignaffairs.com/articles/asia/2015-04-20/real-challenge-pacific. “News Analysis: Xi’s Speech Delivers Key Message to US, World,” Xinhua, 11 July 2014, accessed 13 December 2017, http://news.xinhuanet.com/english/china/201407/11/c_133475367.htm.

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5. Entitlements of maritime features and the Paracels dispute revisited Vu Hai Dang The Paracel Islands (Figure 5.1) (Hoàng Sa entrance in Vietnamese and Xisha in Chinese) are a group of islands lying at the entrance of the Gulf of Tonkin, situated between the coast of Central Vietnam and China’s Hainan Island at 16°‒17°N and 111°‒113°E. The group comprises around 30 islets, sandbanks and reefs spread across 15.000 km2 of the ocean surface. The features are divided into two sub-groups: the Amphitrie group and the Crescent group. Triton Island, the southwestern limit of the Paracel Islands is about 120 nautical miles (nm) from Vietnam’s Ly Son Island while North Reef, the northernmost feature is about 140nm from Hainan Island.1 Except for some low-tide elevations and submerged

Source:  Created by the author using Google earth, 2014.

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banks,2 most features in the Paracels are very small. Woody Island (about 2 km2), Lincoln Island (1.62 km2), Triton Island (1.2 km2) and Pattle Island (about 0.32 km2) are the largest features in the Paracels.3 The Paracel Islands are a disputed territory between Vietnam and China. This dispute not only poses a serious obstacle to the development of bilateral relations, but it also has the potential to lead to conflict between these two neighbors. Occasionally, Vietnamese fishermen venturing near the islands are caught, attacked, beaten, or even fired upon and arrested by Chinese forces.4 However, the most serious friction between Vietnam and China to date in this area was provoked by the deployment of the oil rig Haiyang Shiyou 981 by China near the islands in May 2014.5 Despite being a well-known cause for instability, there is very little chance for the Paracels dispute to be resolved in the near future. There are two reasons for this conclusion. First, China refuses to recognize that there is a dispute over the sovereignty of the Paracels. Second, China refuses to use international dispute settlement mechanisms to peacefully resolve international disputes over sovereignty and maritime delimitation. Because of this there is an urgent need for Vietnam and China to figure out a way to manage this dispute so that it does not negatively affect the bilateral relationship. This chapter seeks to determine the entitlement of the Paracel Islands based on the current state of the law of the sea and relevant international and regional practice. It also suggests some possible approaches to help manage or “diminish” the Paracels dispute between Vietnam and China. In order to achieve these objectives, the chapter first explores the differences in view between the two countries with regard to the Paracels. It then examines current international rules and practice (both worldwide and in the region) relating to the entitlement of islands in maritime delimitation and how these might apply to the Paracels. The chapter concludes with some suggestions for more effective management of the Paracels dispute. This analysis includes the impact of the July 12, 2016 final award of the Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) concerning the case brought by the Philippines against China.

THE PARACELS DISPUTE OR DISPUTES? There are several differences between Vietnam and China regarding the Paracel Islands. In addition to the question of sovereignty, the two countries hold different views on the legal status of these islands as a whole, the legal effects of their features, as well as the disputed status of the Islands

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themselves. This section examines these differences and the evolution of the Paracels dispute on a chronological basis. Sovereignty over the Paracel Islands is claimed both by Vietnam and China based on historical grounds. Vietnam claims that it was the first country to have discovered, occupied and administrated these Islands in a continuous and peaceful manner. Based on the evidence provided by Vietnam, Vietnam seems to have discovered the Paracels in the fifteenth century at the latest and began to exploit and administer them as a sovereign State in the seventeenth century.6 China claims that China was the first to discover, develop, exploit and exercise jurisdiction over the Paracels, going back as far as the Eastern Han Dynasty (23‒220ad). Evidence from China shows that China seems to have known about some islands in the South China Sea since ancient times and began to claim title over the Paracels officially since 1909.7 China has occupied these islands in their entirety since 1974 after taking them by force from the former South Vietnam, which was a violation of the Charter of the United Nations Article 2(4) rule against the aggressive use of force.8 In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, the territory of a State resulting from the threat or use of force, and territorial acquisitions resulting from the threat or use of force, shall not be recognized as legal.9 Thus, the occupation of these islands by China cannot change their legal status. In 1996, China drew a system of baselines connecting the outer features, including submerged banks around the Paracels.10 The Vietnamese government protested against this the same year, reiterating Vietnam’s sovereignty over these islands and stating “Furthermore, the People’s Republic of China correspondingly violated the provisions of the UNCLOS by giving the Hoang Sa archipelago the status of an archipelagic State to illegally annex a vast sea area into the so-called internal water of the archipelago.”11 China also claims that there is no dispute over the sovereignty of the Paracels12 and that it will not negotiate the issue with Vietnam.13 Vietnam, while affirming its sovereignty over the islands, seems to be willing to conduct negotiations.14 From the perspective of international law there is a de jure dispute between the two countries regarding the sovereignty over the Paracels. According to the International Court of Justice (ICJ), a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between Parties. In order to establish the existence of a dispute, it must be shown that the claim of one Party is positively opposed by the other.15 Whether there exists an international dispute is thus a matter for

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objective determination. As stated earlier, both Vietnam and China claim that they are the sole owners of these islands and positively protest the other’s claim to them by words and by deeds. It is therefore quite clear that there is a dispute between the two countries over the sovereignty of the Paracels. The fact that one Party denies that a dispute exists does not make these islands a non-disputed territory. During the HYSY-981 crisis in 2014, Vietnam and China also exchanged a number of letters at the General Assembly of the United Nations to state their positions and protest against each other.16 In these letters, China and Vietnam not only reaffirmed their claims to sovereignty over the Paracels but also expressed their respective views about the legal status of the islands. For example, China stated in its letter dated May 22, 2014 that “The area where the HYSY 981 rig operates is 17 nautical miles from Zhongjian (Triton) Island of the Xisha Islands and nearly 150nm from the coast of Vietnam. The relevant operation falls well within China’s sovereignty and jurisdiction.” In its letter dated June 9, 2014 China said, “The two locations of operation are 17nm from both Zhongjian (Triton) Island of China’s Xisha Islands and the baseline of the territorial waters of the Xisha Islands, yet approximately 133 to 156nm from the coast of the Vietnamese mainland” and: [t]he waters between China’s Xisha Islands and the coast of the Vietnamese mainland are yet to be delimited. The two sides have not yet conducted the delimitation of the exclusive economic zone and continental shelf in those waters. However, those waters will never become the exclusive economic zone and continental shelf of Vietnam, no matter which principle is applied in the delimitation process.17

In its letter dated July 24, 2014 China asserted that “the drilling activities of China’s oil rig are located 17 nautical miles off the baseline of the territorial waters of the Xisha Islands.”18 So China seems to claim an exclusive economic zone and continental shelf from both Triton Island and the Paracel’s “archipelagic baseline.” Besides, China seems to suggest a potential delimitation between the Paracels and the coast of Vietnam. In response, Vietnam has stated repeatedly in its letters to the United Nations that the location of the oil rig was completely within Vietnam’s exclusive economic zone and continental shelf, 130‒150nm from the Vietnamese coast, and that the baseline drawn by China around the Paracels is illegal. Vietnam also seems to distinguish between the HYSY981 incident and the issue of sovereignty over the Paracels.19 So, there are many differences in the positions of Vietnam and China with regard to the Paracel Islands. The next section tries to determine

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the entitlement of the Paracels based on the application of current ­international law and practice, including regional practice.

INTERNATIONAL LAW RELATING TO THE ENTITLEMENT OF SMALL ISLANDS This section examines the current rules of international law relating to the entitlement of small islands under the United Nations Convention on the Law of the Sea and in the context of the decisions of international courts and tribunals. The United Nations Convention on the Law of the Sea, 1982 UNCLOS20 distinguishes three types of insular features in the ocean: low-tide elevations, rocks and islands. Each of them is accorded a different level of entitlement: ●●

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A low-tide elevation is defined as a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.21 An island is a naturally formed area, surrounded by water, which is above water at high tide. The territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in a similar way to a land territory.22 Islands which cannot sustain human habitation or economic life of their own are considered to be “rocks,” and therefore have no exclusive economic zone or continental shelf.23

The Convention also distinguishes between an archipelago, that is “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such,” and an archipelagic State, that is “a State constituted wholly by one or more archipelagos and [which] may include other islands.”24 According

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to UNCLOS, only an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and dry reefs of the archipelago.25 International Jurisprudence Concerning the entitlement of islands, decisions of international courts and tribunals may be useful on two points: first, they consider entitlement as the pre-requisite condition for maritime delimitation and, second, they define the effects of islands in such delimitation. First, international courts help in clarifying the role of entitlement as the pre-requisite condition for maritime delimitation. According to the ICJ, maritime delimitation is defined as the process of establishing lines separating the spatial ambit of a coastal State’s jurisdiction over maritime space where the legal title overlaps with that of another State.26 In the North Sea Continental Shelf cases, the ICJ considered the process of delimitation as “one of drawing a boundary line between areas which already appertain[ed] to one or other of the States affected.”27 In the Aegean Sea Continental Shelf case, the ICJ considered the question of how: . . . to establish the boundary or boundaries between neighbouring States, that is to say, to draw the exact line or lines where the extension in space of the sovereign powers and rights of Greece meets those of Turkey. Whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same.28

The Court stated that in accordance with the principle that “land dominates the sea,” it is solely by virtue of the coastal State’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law29 and that the capacity to engender a continental shelf right derives from the sovereignty over the landmass.30 Sovereign title over land territory generates the maritime entitlement.31 Second, it could be stated that there is a trend among international courts and tribunals to give small islands from zero to reduced effect in maritime boundary delimitation, particularly in cases where the islands are located at a considerable distance offshore and opposite to mainland coasts. Many cases could be cited to support this argument: ●●

Territorial and Maritime Dispute (Nicaragua v. Colombia), 2012: The ICJ considered that small islands which are many nautical miles apart cannot be treated in the same way as a continuous mainland coast stretching for over 100 nautical miles, especially when these

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islands can cause a cut-off effect blocking the seaward projection from the coast;32 Dispute Concerning the Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), 2012: The ITLOS decided to ignore the effects of St Martin’s Island, although it is an important feature, in the drawing of the maritime delimitation line to avoid an unwarranted distortion of the delimitation line;33 Maritime Delimitation in the Black Sea (Romania v. Ukraine), 2009: The ICJ decided that the presence of Serpents’ Island does not call for an adjustment of the provisional equidistance line between Romania and Ukraine because any possible entitlement generated by the Island would be subsumed by the entitlements generated by the coast of Ukraine;34 Arbitration between Newfoundland and Labrador and Nova Scotia Concerning Portions of the Limits of their Offshore Areas as Defined in the Canada–Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada–Newfoundland Atlantic Accord Implementation Act, 2002. Although this was an inter-provincial dispute, it was resolved based on the principles of international law on maritime boundary delimitation: The Arbitral Tribunal gave Sable Island only half effect in the adjustment of the provisional equidistance line because of its remote location and lack of population;35 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 2001: The ICJ decided to give Qit’at Jaradah Island a very reduced effect in adjusting the delimitation line;36 Maritime Delimitation (Eritrea v. Yemen), 1996: The Arbitral Tribunal refused to accept that mid-sea islands and islets could have some effect on the median line;37 The Delimitation of Maritime Areas between Canada and France: Decision in case concerning Delimitation of Maritime Areas, 1992: The ICJ only awarded a limited entitlement for the French islands of Saint Pierre and Miquelon in the direction facing the Canadian coast to avoid the encroachment and cutting off of the Canadian seaward projection;38 Continental Shelf (Libyan Arab Jarnahiriya/Malta), 1985: The ICJ did not take into account the uninhabited islet of Filfla in the calculation of the provisional median line between Malta and Libya to eliminate the disproportionate effect of certain “islets, rocks and minor coastal projections”;39

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Continental Shelf Case (Tunisia v. Libya), 1982: The ICJ did not give full effect to the Kerkennah Islands in the adjustment of the delimitation line;40 Case Concerning the Delimitation of Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of June 30, 1977: The ICJ decided to enclave the Channel Islands in the direction facing the French coast because these Islands are located “in the wrong side” of the median line;41 and North Sea Continental Shelf Case (Federal Republic of Germany v. Netherlands), 1969: The ICJ stated that the continental shelf between opposite States could only be delimited by a median line, which ignores the presence of rocks, islets and minor coastal projections.42

PRACTICE RELATING TO THE ENTITLEMENT OF ISLANDS This section first provides an overview of international practice relating to the entitlement of islands in international maritime delimitation and then focuses on the South China Sea region by analyzing the most relevant case: the delimitation of the Gulf of Tonkin between Vietnam and China. International Practice State practice seems to be extremely variable, from giving islands full effects, applying partial effect to islands, enclaving or partially enclaving islands to completely ignoring them in the construction of the delimitation line.43 The size and location of the relevant islands are important factors in determining the equity of a maritime delimitation, i.e. in calculating the effects of the islands;44 for instance: ●●

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Islands located in proximity to the mainland coast, to the extent that they could be considered as representative of the mainland coastal configuration, or geographically integrated to it, have been awarded full effects;45 Islands in the median zone, detached islands, or disputed islands would have no effect in delimitation; Islands which may have disproportionate effects on the median line may have a reduced effect; and Islands on the “wrong side”46 of the equidistance line would be enclaved.47

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Practice in the South China Sea Region: the Case of the Gulf of Tonkin In the South China Sea, the regional practice relating to the entitlement of islands in maritime delimitation seems to give a reduced effect to islands in maritime boundary delimitation.48 The most relevant case that merits to be studied in more detail is the delimitation of the Gulf of Tonkin between Vietnam and China. Vietnam and China successfully concluded a maritime boundary delimitation agreement on the Gulf of Tonkin in 2000. This agreement involved the consideration of island entitlement.49 There are two Vietnamese islands that have some effects on the boundary line, namely Bach Long Vy Island and Con Co Island (Figure 5.2). Con Co Island is a near shore island50 with an area of 2.5 km2 and a permanent population of about 500 people.51 According to the result of the delimitation, the Island received 50 percent effects. Bach Long Vy Island, located in the middle of the Gulf,

Source:  Created by the author using MapInfo and Paint, 2014.

Figure 5.2 Bach Long Vy and Con Co Islands in the Gulf of Tonkin maritime boundary delimitation

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has an area of 3.05 km2 and a permanent population of 1,000 people.52 According to the result of the delimitation, it received 25 percent effects.53

APPLICATION TO THE PARACEL ISLANDS On the basis of the above survey of international law and practice relating to the entitlement of islands, the following remarks could be made about the Paracel Islands: ●●

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The Paracels do not fulfill the necessary conditions to have an archipelagic baseline: Even though the Paracels could be considered a geographic archipelago, they cannot form an archipelagic State in accordance with Article 46 of UNCLOS.54 Consequently, it is unlawful for either Vietnam or China to draw an archipelagic baseline around these islands. In fact, China’s 1996 baseline has received criticism from international analysts for being an excessive or illegal claim.55 According to the Limits in the Sea, published by the United States’ State Department, even in the case where the Paracels became an independent archipelagic State, the necessary conditions of ratio between the area of the land and the sea would still not be fulfilled.56 In the current context, one should not call for a boundary delimitation either between the Paracels and Vietnam or between the Paracels and China: As seen earlier, the sovereignty over a territory defines its entitlement and an inter-state maritime boundary delimitation can only be undertaken between the waters generated from two territories of different ownership. For the moment, the sovereignty over the Paracels is under dispute between Vietnam and China. Therefore, a boundary drawn between either the Paracels and Vietnam or the Paracels and China may entail the risk of becoming a boundary between two territories under the same ownership in the future. In that case, it would not be an inter-state maritime boundary but a national one, which would undermine the nature of the delimitation process itself. Not all features of the Paracels can generate maritime entitlement: Pursuant to UNCLOS, only features permanently above water can generate maritime entitlement. Many features of the Paracels are submerged banks and/or below water at high tide. These features, except when they are located less than 12 nm from an “island-like” feature, cannot be entitled to have maritime zones and are not even entitled to be appropriated. Figure 5.3 provides an estimated

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i­llustration of the 12-nautical-mile maritime zones of the “islandlike” features of the Paracels. The Paracels should not be considered basepoints but as a relevant circumstance in the construction of an equidistance line for the potential delimitation between China’s Hainan Island and the coast of Central Vietnam (in addition to the delimitation completed in the Gulf of Tonkin in 2000): In the decisions from the ICJ and ITLOS relating to maritime delimitation, small islands located between two coasts at a distance less than 400 nm are often considered as relevant circumstances to adjust the provisional equidistance rather than as basepoints to determine the equidistance itself. In this case, it does not matter to whom the Paracels belong. They could not be considered as basepoints for the determination of the equidistance line for a maritime delimitation between Vietnam and China in this area but as a relevant circumstance for the adjustment of this line, which should be measured from the coasts of Central Vietnam and China’s Hainan Island. Considered only as a relevant circumstance, the Paracels will have very minimal impact in shifting the equidistance line in such a delimitation: Except for those low-tide elevations, which have no maritime entitlement at all, all island-like features of the Paracels are very tiny and most of them would possibly be considered as “rocks”

Source:  Created by the author using MapInfo, 2014.

Figure 5.3  Entitlement of “island-like” features of the Paracels

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under Article 121(3) of UNCLOS.57 In any case, under whatever ownership, they cannot have the effect of changing significantly the course of the potential equidistance line between Central Vietnam and China’s Hainan Island.

APPROACHES TO “DIMINISH” THE PARACELS DISPUTE This section suggests some approaches for Vietnam and China to manage the Paracels dispute in a way that could diminish its negative effects on the development of the bilateral relationship, without affecting the positions of the Parties, until a final solution can be reached: ●●

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“Segregating” the Paracels dispute: As discussed earlier, there seems to be more than one disagreement between Vietnam and China relating to the Paracels, namely the issue of sovereignty over these Islands, their legal status and the effect of their features. Except for the disagreement over sovereignty, which is difficult to resolve at the present time due to the refusal by China to acknowledge that there is a dispute, the existence of the other issues have not been denied by either of the Parties. So for now, Vietnam and China could focus on the resolution of these other disagreements while waiting for a better time to solve the sovereignty question. Negotiating a fisheries agreement in the Paracels: This is an option which has been adopted in a number of similar disputed territories in the region such as the Japan–Korea Fisheries Agreement in 199858 and the Japan–Taiwan Fisheries Agreement in 2013.59 The negotiation of such an agreement between Vietnam and China was also suggested by the author of this chapter in an article published in 2013.60 Ideas and experiences for a Paracel fisheries agreement could be taken from the Fisheries Agreement between Vietnam and China in the Gulf of Tonkin mentioned above. The transitory character of such an agreement could be a strength as the Parties could amend it whenever there is a change in the situation. Establishing a common list of low-tide elevations in the Paracels: As stated earlier, many features in the Paracels are submerged banks and low-tide elevations. These entities are not allowed to be appropriated and to have maritime entitlement.61 Consequently, if their location could be determined and their status agreed upon between Vietnam and China, many “disputed features” of the Paracels could be removed from the scene.

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Cooperative undertakings of marine scientific research near these Islands: Pursuant to Article 241 of UNCLOS,62 marine scientific research activities do not constitute the legal basis for any claim to any part of the marine environment and its resources. Under the Workshops on Managing Potential Conflicts in the South China Sea,63 proposals have been developed for the undertaking of biodiversity studies in the northern area of the South China Sea.64 This is an opportunity for participants in the Workshop from Vietnam, China and Chinese Taipei to jointly develop a marine scientific research project near these Islands. Besides, the two countries could also cooperate to undertake geological surveys in order to determine precisely which are the low-tide elevations in the Paracels. Enclaving the Paracels while proceeding to the delimitation of the sea area at the entry of the Gulf of Tonkin: The sea area at the entry of the Gulf of Tonkin is currently the subject of negotiations between Vietnam and China for delimitation and joint development.65 As noted above, the features of the Paracels would have a very limited effect on the establishment of a boundary delimitation line between Hainan Island and the coast of Vietnam. For this reason, the two countries could consider enclaving the “island-like” features of

Source:  Created by the author using MapInfo, 2014.

Figure 5.4 The Paracels and the equidistance line between Vietnam and Hainan Island

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the Paracels within a reasonable sea area while proceeding to the construction of a provisional equidistance line between the relevant coasts (Figure 5.4). With all the enclaves being left aside, other sea areas could be delimited in accordance with the international law on maritime delimitation. In the opinion of the present author, based on the principles of jurisprudence of the ICJ and ITLOS, as well as on international and regional practice, all island-like features of the Paracels could be reasonably enclaved or semi-enclaved within a 12-nautical-mile distance (see Figure 5.3). If such delimitation could be undertaken, the area of the disputed waters between Vietnam and China would be vastly “diminished.”

IMPLICATIONS OF RECENT DEVELOPMENTS IN THE SOUTH CHINA SEA Since late 2014, two new important developments in the South China Sea have occurred that could impact the Paracel disputes. These are: the land reclamation undertaken by China in some Paracel features and the issue of the award by the Arbitral Tribunal in the South China Sea case. This last section provides an overview of these developments and analyses their implications on approaches to manage the Paracels dispute between China and Vietnam. Relevant Recent Developments This sub-section provides a brief overview of two important recent developments that could have impacts on the Paracel disputes. Along with the massive reclamation works in the Spratlys,66 China has also recently undertaken extensive land reclamation in some features in the Paracels. According to the satellite images released by The Diplomat in February 2016, China has been dredging and land filling near the North Cay and Tree Island, features belonging to the Amphitrite group, in order to expand their area. These works are believed to have been started in December 2015. In addition, China has extracted sand from the bottom of the sea to increase the area of Duncan Island in the Crescent group by 50 percent, expanding a protected harbor and currently building a helicopter base there.67 On July 12, 2016, the Arbitral Tribunal constituted under the Annex VII of the UNCLOS issued its award with regards to the arbitration instituted by the Philippines against China relating to the South China Sea in 2013.68 The arbitration concerns the role of historic rights and the source of mari-

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time entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements that they are capable of generating, and the lawfulness of certain actions by China in the context of UNCLOS. From the beginning of the proceedings, China had repeatedly stated that it would neither participate in the arbitration “unilaterally” initiated by the Philippines nor accept the decision of the Tribunal.69 Some important points of the award are as follows: ●●

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On the question of jurisdiction, the Arbitral Tribunal found that it has jurisdiction to consider the Parties’ dispute concerning historic rights and the source of maritime entitlements in the South China Sea. On the status of features, the Tribunal ruled that none of the Spratly Islands is capable by itself of generating an exclusive economic zone and that the Spratly Islands cannot generate a maritime zone collectively as a unit. And having found that none of the features was capable of generating extended maritime zones, the Tribunal was able, without delimiting a boundary, to declare certain sea areas within the exclusive economic zone of Philippines, because they are not overlapped by any possible entitlement of China. On the lawfulness of Chinese actions, the Tribunal judged that China had violated Philippines’ sovereign rights in its exclusive economic zones by, inter alia, interfering with Philippine fishing and petroleum exploration and unlawfully creating serious risks of collision while physically obstructing Philippine vessels with its law enforcement vessels. On the issue of damage to the environment, the Tribunal ruled that large-scale Chinese land reclamations had caused severe harm to the coral reef environment and that China had violated its obligation to preserve and protect fragile marine ecosystems and the habitat of depleted, threatened or endangered species. On the question of aggravation of the dispute, the Tribunal found that China’s actions since the commencement of the arbitration had aggravated the dispute between the Parties. In particular, China’s land reclamations and construction of artificial islands were incompatible with the obligations of a State during dispute resolution proceedings, insofar as China had inflicted irreparable harm to the marine environment and destroyed evidence of the natural condition of features forming part of the dispute.

Pursuant to Article 296 of UNCLOS and Article 11 of its Annex VII, the arbitral award is final and legally binding on all Parties to the dispute,70

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although the Chinese Ministry of Foreign Affairs subsequently declared that “the award is null and void and has no binding force” and “China neither accepts nor recognizes it.”71 The next sub-section analyzes the implications of these two developments, in particular the findings of the Arbitral Tribunal, on the management of the Paracel disputes between Vietnam and China. Implications for the Management of the Paracel Dispute between Vietnam and China The above-mentioned developments could have many important implications on approaches to managing the Paracel disputes between Vietnam and China. First, they reinforce the author’s idea that Vietnam and China could “segregate” the Paracel dispute into several different types of disputes of which some could dealt with right away, such as the status of Paracel features. In the Philippines v. China case, the Arbitral Tribunal accepted that there could be many issues that are under dispute between the Philippines and China such as the sovereignty over the features, the maritime boundary delimitation, the status/entitlement of the features, and the sources of maritime entitlement. Most importantly, the Arbitral Tribunal stated that the issues of the sources of maritime entitlement and the status/ entitlement of features could be considered independently from those of sovereignty and maritime boundary delimitation.72 Second, they provide support for the author’s position that few, if any, features of the Paracels can be considered as islands capable of generating full maritime entitlement in accordance with Article 121(2) of UNCLOS. In the Philippines v. China case, the Arbitral Tribunal concluded that none of the high-tide features in the Spratly Islands are capable of sustaining human habitation or an economic life of their own. Thus, they are legally considered rocks and do not generate entitlements to an exclusive economic zone and continental shelf.73 The features of the Spratly Islands are quite similar to those of the Paracel Islands both in terms of size and the capacity to support human life (based on the examination by the Arbitral Tribunal of conditions such as the presence of potable fresh water, vegetation and soil with agricultural potential).74 Thus, one can reasonably suppose that the Arbitral Tribunal would reach the same conclusion if it were requested to decide on the Paracel Islands. Furthermore, the Arbitral Tribunal stated that an archipelagic baseline could be not declared in the Spratlys by either China or the Philippines due to, inter alia, the non-fulfillment of the condition of ratio of water to land.75 This provides strong support for the author’s argument that

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the Paracels do not fulfill the legal conditions to have an archipelagic baseline. Third, various activities currently being undertaken by China in the Paracels could be considered violations of international law. In the Philippines v. China award, the Arbitral Tribunal ruled that the following activities of China in the Spratlys constituted violations of international law: ●● ●● ●● ●●

●● ●● ●●

Preventing petroleum exploration by the Philippines in the South China Sea within 200nm of the Philippines’ baselines; Restricting fishing by Philippine nationals in areas within 200nm of the Philippines’ baselines; Tolerating fishing by Chinese vessels in areas located within the Philippines’ exclusive economic zone; Occupying and building facilities on low-tide elevations located within the Philippines’ exclusive economic zone and continental shelf; Destroying the marine environment, as a result of land reclamation and construction activities on occupied features; Using harmful fishing practices and harvesting endangered species; and Operating law enforcement vessels in a dangerous manner.

According to the Arbitral Tribunal, the above-mentioned acts of China have violated various rules of international law: the respect for the sovereign rights of the Philippines in its exclusive economic zone and continental shelf; the duty to protect and preserve the marine environment; and the rules with regard to the safety of navigation under the Convention on the International Regulations for Preventing Collisions at Sea, 1972.76 All the activities mentioned earlier have also been carried out by China in the Paracels. Thus, if Vietnam takes China to an international tribunal with regards to the Paracels on these grounds, there will be a high probability that a similar judgment will be handed down. Consequently, China might want to consider placing a moratorium on these activities to avoid such a contingency occurring.

CONCLUSION Based on the determination of the entitlement of the Paracels, the suggestions put forward earlier for managing the Paracels dispute between

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Vietnam and China could “diminish” the complexity of the dispute ­without affecting the official positions of both countries. It has been shown that many ideas suggested in the chapter have received support from the recent award rendered by the Arbitral Tribunal constituted under Annex VII of the UNCLOS with regard to the arbitration instituted by the Philippines against China relating to the South China Sea. In particular, it has now become quite clear that except for resolving the issue of sovereignty, there are many initiatives that the two countries could undertake in order to decrease the tension and enhance cooperation over these Islands. The Paracels disputes have been a cause of tension between Vietnam and China for a very long time. If these disputes could be successfully managed or “diminished,” this could contribute greatly to the development of the bilateral relationship, benefiting both parties.

NOTES   1. See Monique Chemillier-Gendreau, La Souverainté sur les îles Paracels and Spratlys (Paris: l’Harmattan, 1996), 20 [in French]; Vu Phi Hoang, The Two Archipelagoes Hoang Sa and Truong Sa, Territories of Viet Nam (Hanoi: People’s Army Publisher, 1988), 6 [in Vietnamese]; Tran Nam Tien, Paracels and Spratlys: Questions and Answers (Ho Chi Minh City: Youth Publishers, 2013), 28 [in Vietnamese].   2. Such as Bremen Bank, Dido Bank, Jehangire Reefs, etc. See United States National Geospatial-Intelligence Agency, Sailing Directions En Route: South China Sea and the Gulf of Thailand, 14th ed. (Springfield, VA: United States National GeospatialIntelligence Agency, 2013) for details.   3. See United States National Geospatial-Intelligence Agency, Sailing Directions En Route and Vu Huu San, Địa lý Biển Đông với các quần đảo Hoàng Sa và Trường Sa [Geography of the South China Sea including the Paracel and Spratly Archipelagos] (Fremont, CA: Quê Hưõng, 1995) for details.  4. See, for example, David Tweed, “Vietnam Says Chinese Vessels Attacked Fishermen near Paracels,” Bloomberg, September 10, 2014, accessed October 26, 2016, http://www. bloomberg.com/news/2014-09-10/vietnam-says-chinese-vessels-attacked-fishermen-nearparacels.html.   5. In early May 2014, China deployed a sophisticated deep sea mega oil rig, the Haiyang Shiyou 981 to the location of coordinates 15°29’N/111°12 E, south of the Paracel Islands, near Triton Island. The oil rig remained there until July when China suddenly announced that the exploration works had been completed before schedule and it would be withdrawn to a location near Hainan Island. During this time, almost daily confrontations occurred between, on one side, around 30 Vietnamese Coast Guard and Fishery Surveillance vessels and, on the other side, more than 100 vessels and aircraft from China’s navy and coast guard. The Chinese vessels continually pursued, rammed and fired water cannon at Vietnamese vessels trying to approach the oil rig or fishing nearby. The result was the injury of several Vietnamese Fishery Surveillance agents and the sinking of a Vietnamese fishing boat. See Adam Taylor, “The $1 billion Chinese oil rig that has Vietnam in flames,” The Washington Post, May 14, 2014, accessed October 26, 2016, https://www.washingtonpost.com/news/worldviews/wp/2014/05/14/ the-1-billion-chinese-oil-rig-that-has-vietnam-in-flames/.

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 6. Luu Van Loi, The Sino–Vietnamese Differences on the Hoang Sa and Truong Sa Archipelagos (Ha Noi: The Gioi Publishers, 1996), 31 and Hong Thao Nguyen, “Vietnam’s Position on the Sovereignty over the Paracels & the Spratlys: Its Maritime Claims,” Journal of East Asia International Law V, No. 1 (2012): 169.  7. See “Historical Evidence to Support China’s Sovereignty over Nansha Islands,” Ministry of Foreign Affairs of the People’s Republic of China website, November 17, 2000, accessed June 30, 2014, http://www.fmprc.gov.cn/eng/topics/3754/t19231.htm. See also “China’s Sovereignty Claims over the Nansha Islands: Historical Evidences,” in Wu Shicun, Solving Disputes for Regional Cooperation and Development in the South China Sea (Oxford: Chandos Publishing, 2013), 15 and Jianming Shen, “China’s Sovereignty over the South China Sea Islands: A Historical Perspective,” Chinese Journal of International Law 1, No. 1 (2002): 95‒157. It should be noted that China apparently uses the same arguments and evidence for both the Paracels and Spratlys.   8. On January 19, 1974, a short naval battle occurred between the forces of the People’s Republic of China and the now defunct Republic of Vietnam (known as the “Battle of the Paracels”) which resulted in the loss of all the features controlled by the latter in the Paracels to the former. For more details concerning the Battle of the Paracels, see “The Paracels Operation,” in Chi-kin Lo, China’s Policy towards Territorial Disputes: The Case of the South China Sea Islands (London: Routledge, 1989), 53.  9. “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations,” UNGA OR, 25th session, Doc. A/Res/2625 (1970), United Nations, October 24, 1970, accessed June 30, 2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/ RES/2625(XXV). 10. “Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea,” United Nations, May 15, 1996, accessed November 10, 2014, http:// www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/CHN.htm. 11. “Objections to the Statement of May 15, 1996 Made by the Government of the People’s Republic of China on the Baselines From Which the Breadth of China’s Territorial Sea is Measured,” communicated by the Permanent Mission of the Socialist Republic of Vietnam to the United Nations in Note Verbale dated June 6, 1996. 12. “Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on May 12, 2014,” Ministry of Foreign Affairs of the People’s Republic of China, May 12, 2014, accessed October 26, 2016, http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/ s2510_665401/t1155154.shtml. 13. “State Councilor Yang Jiechi Holds Telephone Talks with Deputy Prime Minister and Foreign Minister Pham Binh Minh of Vietnam at Request,” Ministry of Foreign Affairs of the People’s Republic of China, May 6, 2014, accessed October 26, 2016, http://www. fmprc.gov.cn/mfa_eng/zxxx_662805/t1153919.shtml. 14. “Vietnam Demands China Withdraw from Territorial Waters,” Vietnamplus, May 6, 2014, accessed October 26, 2016, http://en.vietnamplus.vn/vietnam-demands-chinawithdraw-from-territorial-waters/60007.vnp. 15. See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Preliminary Objections, Judgment, [2002] I.C.J. Rep. 303, para. 87; Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11; Northern Cameroons, Judgment, [1963] I.C.J. Rep. 27; and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, [1988] I.C.J. Rep. 27, para. 35; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99‒100, para. 22; South West Africa, Preliminary Objections, Judgment, [1962] I.C.J. Rep. 328; and Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, [1950] I.C.J. Rep 74. 16. See “Letter dated 7 May 2014 from the Permanent Representative of Vietnam to the United Nations addressed to the Secretary-General,” UNGA OR, 68th session, Doc. A/68/870 (2014); “Letter dated 22 May 2014 from the Chargé d’Affaires a.i. of the

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Permanent Mission of China to the United Nations addressed to the Secretary-General,” UNGA OR, 68th session, Doc. A/68/887 (2014); “Letter dated 28 May 2014 from the Chargé d’Affaires a.i. of the Permanent Mission of Vietnam to the United Nations addressed to the Secretary-General,” UNGA OR, 68th session, Doc. A/68/897 (2014); “Letter dated 6 June 2014 from the Permanent Representative of Vietnam to the United Nations addressed to the Secretary-General,” UNGA OR, 68th session, Doc. A/68/906 (2014); “Letter dated 9 June 2014 from the Chargé d’Affaires a.i. of the Permanent Mission of China to the United Nations addressed to the Secretary-General,” UNGA OR, 68th session, Doc. A/68/907 (2014); “Letter dated 3 July 2014 from the Chargé d’Affaires a.i. of the Permanent Mission of the Socialist Republic of Viet Nam to the Secretary-General on China’s Illegal Placement of Haiyang Shiyou 981 Oil Rig in the Exclusive Economic Zone and Continental Shelf of Viet Nam,” Doc. A/68/943 (2014); “Letter dated 3 July 2014 from the Chargé d’Affaires a.i. of the Permanent Mission of the Socialist Republic of Viet Nam to the Secretary-General on the Sovereignty of Viet Nam over the Hoang Sa Archipelago,” Doc. A/68/942 (2014); “Letter dated 24 July 2014 from the Permanent Representative of China to the United Nations addressed to the Secretary-General,” UNGA OR, 68th session, Doc. A/68/956 (2014); “Papier de Position du Viet Nam Sur le Placement Illégal de la Plate-forme Pétrolière Haiyang Shiyou 981 par la Chine dans la Zone Économique Exclusive et sur le Plateau Continental du Viet Nam,” Letter dated August 22, 2014 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General, UNGA OR, 68th session, Doc. A/68/980 (2014); and “Papier de Position du Viet Nam sur la Souveraineté du Viet Nam sur les Hoang Sa, Letter dated August 22, 2014 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General,” UNGA OR, 68th session, Doc. A/68/981 (2014). 17. “Letter dated 22 May 2014 from the Chargé d’Affaires a.i. of the Permanent Mission of China to the United Nations addressed to the Secretary-General” and “Letter dated 9 June 2014 from the Chargé d’Affaires a.i. of the Permanent Mission of China to the United Nations addressed to the Secretary-General,” ibid. 18. “Letter dated 24 July 2014 from the Permanent Representative of China to the United Nations addressed to the Secretary-General.” 19. See supra note 16. 20. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, December 10, 1982, 1833 U.N.T.S. 3 [UNCLOS]. 21. UNCLOS, Article 13. 22. UNCLOS, Article 121 (1) and (2). 23. UNCLOS, Article 121 (3). Both rocks and islands are hereafter called “island-like” features. 24. UNCLOS, Article 46. 25. UNCLOS, Article 47. 26. Yoshifumi Nakata, Predictability and Flexibility in the Law of Maritime Delimitation (Oxford: Hart Publishing, 2006), 7. 27. North Sea Continental Shelf Case (Federal Republic of Germany/Netherlands), [1969] I.C.J. Rep. 4, para. 20. 28. Aegean Sea Continental Shelf (Turkey/Greece), Judgment, [1978] I.C.J. Rep. 3, para. 85. 29. Aegean Sea Continental Shelf, para. 86. 30. Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, [1985] I.C.J. Rep. 13, para. 49. 31. Nuno Marques Antunes, Towards the Conceptualization of Maritime Delimitation: Legal and Technical Aspects of a Political Process (Leiden: Martinus Nijhoff Publishers, 2003), 132. 32. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Rep. 2012, p. 624, paras. 215‒16. 33. Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) [2012], ITLOS Case No.16, paras. 298‒319.

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34. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J Reports 2009, p.61, paras. 179‒88. 35. Arbitration between Newfoundland and Labrador and Nova Scotia concerning portions of the limits of their offshore areas as defined in the Canada–Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act, Award of the Tribunal in the Second Phase, Ottawa, March 26, 2002, paras. 5.13‒5.15. 36. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment [2001] I.C.J. Rep. 40, paras. 219‒20. 37. Maritime Delimitation Arbitration Award (Eritrea v. Yemen), October 3, 1996, paras. 115‒32. 38. “The Delimitation of Maritime Areas between Canada and France,” June 10, 1992, 31 International Law Materials, 1145 (1992), paras. 66‒74. 39. Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judgment, I.C.J. Rep. 1985, p. 13, para. 64. 40. Continental Shelf Case (Tunisia v. Libya), [1982] I.C.J Rep. 18, para.128. 41. Case concerning the delimitation of continental shelf the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of June 30, 1977, Reports of International Arbitral Awards XVIII, p. 3, paras. 189‒203. 42. North Sea Continental Shelf Case (Federal Republic of Germany/Netherlands), [1969] I.C.J. Rep. 4, para. 57. 43. Clive Schofield, “Islands or Rocks? Is that the Real Question? The Treatment of Islands in the Delimitation of Maritime Boundaries” in Myron H. Norquist et al., eds, The Law of the Sea Convention: US Accession and Globalization (Leiden: Martinus Nijhoff Publishers, 2012), 333. 44. Hiran W. Jayewardene, The Regime of Islands in International Law (Dordrecht: Martinus Nijhoff Publishers, 1990), 351. 45. Schofield, “Islands or Rocks?” 334. 46. That is, an island belonging to State A but located in State B’s half of the equidistance line. 47. Jayewardene, The Regime of Islands, 359. 48. For example, Natuna Island in the delimitation of the continental shelf between Malaysia and Indonesia, see Agreement between the Government of Malaysia and the Government of Indonesia on the Delimitation of the Continental Shelves between the two countries, October 27, 1969, Department of Ocean Affairs and the Law of the Sea (UNDOALOS), accessed October 26, 2016, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/TREATIES/MYS-IDN1969CS.PDF; the Tho Chu Islands in the maritime boundary delimitation between Vietnam and Thailand, see “Agreement between Governments of the Socialist Republic of Viet Nam and Kingdom of Thailand relating to the Maritime Boundary Delimitation in the Gulf of Thailand,” National Boundary Committee – Ministry of Foreign Affairs of Viet Nam website, August 9, 1997, accessed November 12, 2014 http://biengioilanhtho.gov.vn/vie/hiepdinhgiuachinhphunuoc-nd52e32388.aspx; Miangas Island in the delimitation of the exclusive economic zone between Philippines and Indonesia, see “Agreement between the Government of the Republic of the Philippines and the Government of the Republic of Indonesia concerning the Delimitation of the Exclusive Economic Zone Boundary,” The Government of the Philippines, May 23, 2014, accessed October 26, 2016, http://www.gov.ph/downloads/2014/05may/20140523PH-RI%20Agreement.pdf. 49. “Agreement between the Socialist Republic of Vietnam and the People’s Republic of China relating to the Delimitation of the Territorial Sea, Exclusive Economic Zone and Continental Shelf in the Tonkin Gulf,” National Boundary Committee – Ministry of Foreign Affairs of Vietnam website, December 15, 2000, accessed June 30, 2014, http:// biengioilanhtho.gov.vn/eng/maritimeboundary-nc-a84f2f41.aspx. 50. Con Co Island is about 15 nautical miles from Vietnam’s coast and is basepoint no. A11 of Vietnam’s baseline declared in 1982. See “Statement of 12 November 1982 by the

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51.

52. 53.

54. 55.

56. 57.

58. 59. 60. 61. 62. 63.

64. 65.

Building a normative order in the South China Sea Government of the Socialist Republic of Viet Nam on the Territorial Sea Baseline of Viet Nam,” UNDOALOS, November 12, 1982, accessed October 26, 2016, http://www. un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/VNM.htm. See “Con Co Island,” Province of Quang Tri Online Portal, accessed October 26, 2016, http://gioithieu.quangtri.gov.vn/index.php?language=vi&nv=news&op=Tuyen-dung/ Dao-Con-Co-25 [in Vietnamese] and “Youth Islands,” Đại Đoàn Kết, June 28, 2014 [in Vietnamese]. See “Island District of Bach Long Vy,” Province of Hai Phong Online Portal, accessed October 26, 2016, http://haiphong.gov.vn/Portal/Detail.aspx?Organization=HDBLV& MenuID=1095&ContentID=56590 [in Vietnamese]. See “Agreement between the Socialist Republic of Vietnam and the People’s Republic of China relating to the Delimitation of the Territorial Sea, Exclusive Economic Zone and Continental Shelf in the Tonkin Gulf ” and Hong Thao Nguyen, “Vietnam’s Position on the Sovereignty over the Paracels & the Spratlys: Its Maritime Claims,” 28. UNCLOS, Article 46. See for example United States State Department, “Straight Baseline Claim: China (1996)” in Limits in the Sea, No. 117 accessed March 8, 2017, https://www.state. gov/documents/organization/57692.pdf; Erik Franckx and Marco Benatar, “Straight Baselines in the South China Sea: An International Legal Perspective,” presented at 2013 ILA-ASIL Asia-Pacific Research Forum on International Law and Dispute Resolution: Challenges in the Asia Pacific, May 15‒16, 2013, Taipei, Taiwan; and Nguyen Hong Thao, “International Law and Sovereignty over the two Archipelagoes Paracels and Spratlys,” Thanh Nien, August 18, 2011, accessed October 26, 2016, http://www.thanhnien.com.vn/ pages/20110818/luat-quoc-te-va-chu-quyen-tren-hai-quan-dao-hoang-sa-truong-sa-ky16-duong-luoi-bo-phi-ly.aspx. Limits in the Sea, footnote 21. And this despite the many efforts made by China to expand these areas, see “China Builds Military Airstrip on Disputed Island,” Channel NewsAsia, October 8, 2014, accessed November 10, 2014, http://www.channelnewsasia.com/news/asiapacific/chinabuilds-military/1403638.html. Thang Nguyen-Dang, The Functions of Joint Zones from the Perspective of Maritime Delimitation (PhD Thesis, University of Cambridge, 2013), 203. See Shih Hsiu-chuan, “Taiwan, Japan Ink Fisheries Agreement,” Taipei Times, April 11, 2013, accessed October 26, 2016, http://www.taipeitimes.com/News/front/archives/2013​ /04/11/2003559323. Hai Dang Vu, “A Bilateral Network of Marine Protected Areas between Vietnam and China: An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?” Ocean Development & International Law 44, No.2 (2013): 145‒69. Minquiers and Ecrehos (England v. France), [1953], I.C.J Rep. 47 at 53. UNCLOS, Article 241. The Workshops on Managing Potential Conflicts in the South China Sea are a series of informal workshops organized by Indonesia since 1990 with the participation of all the five claimants in the Paracel and Spratly Islands disputes and other ASEAN States. The purpose of the workshops is to develop confidence-building measures in the SCS and to promote cooperation activities between the littoral States. The participants to the meetings include government and military officials, academics and scientists from the region. See Vu Hai Dang, Towards a Network of Marine Protected Areas in the South China Sea: Charting a Course for Regional Cooperation (Leiden: Martinus Nijhoff Publishers, 2014), 143. “Statement of the 14th Workshop on Managing Potential Conflicts in the South China Sea,” Batan, Indonesia, November 24‒26, 2004, para. 32. The negotiations have at the time of writing reached the 7th round at the expert level. See “Viet Nam, China Continue to Discuss Delimitation of Mouth of the Gulf of Tonkin,” Dan Tri, June 5, 2015, accessed October 26, 2016, http://dantri.com.vn/chinhtri/viettrung-tiep-tuc-dam-phan-phan-dinh-ngoai-cua-vinh-bac-bo-1434199686.htm [in Vietnamese].

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66. Since December 2013, China has undertaken massive land reclamation projects on the seven features under Chinese occupation in the South-Eastern South China Sea (namely Subi Reef, Fiery Cross Reef, Mischief Reef, Gaven Reef, Hughes Reef, Johnson South Reef, and Cuarteron Reef). According to the Pentagon, a total of at least 3,200 acres (equivalent to 12.94 km2) of artificial land has been built up in less than two years. Currently, China is focusing on constructing facilities on these man-made islands, including large airfields on three of them (Subi, Firery Cross, and Cuarteron). See “China has Reclaimed 3,200 Acres in the South China Sea, Says Pentagon,” The Guardian, May 2016, accessed October 16, 2016, https://www.theguardian.com/ world/2016/may/13/pentagon-report-china-reclaimed-3200-acres-south-china-sea. 67. Victor Robert Lee, “Satellite Images: China Manufactures Land at New Sites in the Paracel Islands,” The Diplomat, February 2016, accessed October 16, 2016, http:// thediplomat.com/2016/02/satellite-images-china-manufactures-land-at-new-sites-in-theparacel-islands/. 68. It should be noted that before this award, an award on the admissibility and jurisdiction was issued on October 29, 2015. See Award on Jurisdiction and Admissibility of The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, October 29, 2015. 69. Award of The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016. For a summary of the award, see Press Release of The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016. 70. UNCLOS, Article 296 and 11 of Annex VII. 71. “Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines,” Ministry of Foreign Affairs of the People’s Republic of China, July 12, 2016. 72. Award on jurisdiction and admissibility, 125‒40. 73. Award on jurisdiction and admissibility, 260. 74. For the details of the principles that the Arbitral Tribunal employed to examine and determine the status of the Spratly features, see Award on jurisdiction and admissibility, 238‒45. For a description of the Paracel features, see Vu Huu San, Địa lý Biển Đông với các quần đảo Hoàng Sa và Trường Sa [Geography of the South China Sea including the Paracel and Spratly Archipelagos], 13. 75. Award on Jurisdiction and Admissibility, 237. 76. See Award of The South China Sea Arbitration, 261‒435.

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6.  The Exclusive Economic Zone and food security for developing coastal states in the South China Sea James Kraska The rationale for the establishment of the Exclusive Economic Zone (EEZ) in the United Nations Convention on the Law of the Sea (UNCLOS) has profound implications for the maritime disputes in the South China Sea. The EEZ was created to ensure that coastal subsistence fishing communities had access to offshore fish stocks adjacent to their coast. Developing States joined with a handful of artisanal fishing States such as Iceland to propose a 200-mile zone to protect living marine resources from distant water fishing nations, such as Japan, the Soviet Union, and the United States. As 90 percent of all fish stocks are within 200 miles of shore, the EEZ was designed to safeguard a basic human right to food security. The human right to food security is the lost dimension of the maritime boundary disagreements in the South China Sea. The legal structure of the EEZ informs the disputes between China on the one hand and the Philippines, Vietnam, Malaysia, Brunei, and Indonesia over sovereign rights and jurisdiction in the South China Sea. In these disputes China plays the role of a distant water fishing nation, as the southern tip of Hainan Island is some 1,200 kilometers from the farthest extent of Beijing’s claims in the South China Sea. The maritime zones in UNCLOS are predicated on the concept that the land dominates the sea, so coastal States are entitled to a 12 nautical mile (nm) territorial sea over which they exercise sovereignty, a 24nm contiguous zone for customs purposes, a 200nm EEZ for exclusive access to living and non-living resources, and a continental shelf of 200nm or more, over which the coastal State has rights to seabed oil minerals. Each of these zones was codified from customary international law, except the EEZ, which emerged from the mood of decolonization and national sovereignty that permeated the negotiations as well as the drive for food security and economic development. First, the coastal States surrounding the South China Sea enjoy sovereign rights to the marine resources of their EEZ based on the legal theory 116 James Kraska - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:52:55PM via Sydney University

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of construction of the zone. The EEZ was produced during UNCLOS negotiations that spanned nine years principally to give coastal States competence to protect subsistence coastal fishing populations, rather than as a zone of national aggrandizement or offshore industrial development. The large coastal populations of Vietnam, the Philippines, and the other States in close proximity to the seashore of the South China Sea are in contrast with China’s physically remote population and distant coastline. Although China has a southern coastline on the South China Sea, its EEZ fishing rights extend no more than 200 nm due south of Hainan Island. Even if one were to accept China’s claims to the various islets, shoals, rocks and other features of the Paracel or Spratly Islands, these rocks and lowtide elevations do not generate an EEZ for China. In this respect, China is a distant water fishing nation in the South China Sea in the same way that the United States is a distant water fishing nation in the Western Pacific. The United States does have an EEZ in the Pacific Ocean—along the West coast of the United States and Hawaii and other mid-Pacific islands, such as Guam. But beyond 200 nm of these claims, the United States has no special fishing rights or jurisdiction. Similarly, beyond 200 nm from Hainan Island, China has no such right in the South China Sea. Second, despite physical occupation of selected land features, such as rocks, islets, reefs and cays in the South China Sea, China does not enjoy legal title to territories located there, and therefore lacks concomitant maritime rights to an EEZ generated by them. Regardless of the resolution of the disputes over legal title to the insular rock and island features, however, the five coastal States with large populations in proximity to and adjacent to the South China Sea are entitled to a normal 200-mile EEZ to fulfill the rationale for the origin and purpose of the zone.

THE EMERGENCE OF THE EEZ The process of creation of the EEZ in the United Nations Convention on the Law of the Sea (UNCLOS) provides a unique vantage point from which to evaluate the disputes in the South China Sea.1 China relies on the theory of discovery and historic title over the water and land features that dot the seascape to lay claim to over 90 percent of the South China Sea. These claims incorporate vast areas of the Exclusive Economic Zone (EEZ) of five neighboring States—Vietnam, the Philippines, Malaysia, Indonesia, and Brunei—approximately 1.2 million square miles of 1.4 million square miles. China and its five antagonists are party to UNCLOS. The construction of the regime of the EEZ in the travaux préparatoires of UNCLOS, however, suggests that the EEZ was created principally to

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protect coastal subsistence fishermen from distant water fishing fleets. Yet the founding purpose and function of the regime of the EEZ has been virtually ignored in the South China Sea disputes, to the detriment of the human rights and subsistence of coastal fishing communities. This chapter reintroduces the key motivation for creation of the EEZ and places it in the context of contemporary disputes in the region. It concludes that large parts of the EEZs of Vietnam, the Philippines, Malaysia, Indonesia, and Brunei are at risk of being stripped away, circumventing subsistence rights of coastal fishing communities in Southeast Asia and diminishing the regime of the EEZ worldwide. After the Second World War, industrial fishing from distant water fleets grew tremendously. Global catch was only 15 million tons in 1938, but by 1989 it had grown to 86 million tons. Beginning in the late 1950s, distant water fishing fleets from the USSR, Japan, and the United States expanded substantially. Large fishing vessels roamed the seas far from their native shores and began to land catch on an industrial scale. Fish stocks declined as factory fleets swept distant coastlines, driving some species to extinction.2 Factory ships displaced local fishermen around the world, undermining the human right of food security.3 Armadas of factory-fishing vessels capable of staying at sea for months at a time were constructed around enormous deep freezers. Fish catch was brought on board, cleaned, and frozen to market—all from the ship. These commercial vessels incorporated sophisticated technology, including sonar, to search the depths for schools of fish. The degradation of fish stocks prompted some coastal States to combine efforts to resist encroachment by distant water fleets.4 In 1952, Chile, Ecuador and Peru signed the Santiago Declaration to preserve local fish stocks as sustenance for their coastal populations. This regional declaration affirmed that governments had an “obligation” to “ensure for their peoples the necessary conditions of subsistence. . ..” The coastal States acknowledged a duty to prevent exploitation of marine resources within and beyond their jurisdiction. The States accepted that by virtue of their long coastlines, fish stocks were an “irreplaceable means of subsistence” to their coastal communities. In light of these needs, the governments of Chile, Ecuador, and Peru proclaimed a new norm that coastal States should have exclusive competence to manage living resources seaward to a distance of 200 miles. The Santiago Declaration formed the intellectual and philosophical underpinning for the 200 nm EEZ, which was incorporated into UNCLOS during years of multilateral negotiations in the 1970s. Before UNCLOS, the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas recognized the coastal State’s superior interest in the resources adjacent to its coast.5 The agreement defined conservation of living resources as “the aggregate of

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the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products.” The special interest of coastal States in the conservation and management of fisheries in adjacent waters was incorporated into the text, allowing them to take “unilateral measures” for conservation on high seas adjacent to territorial waters. It required that if six months of negotiations with foreign fishing nations to divide the catch on the adjacent high seas had failed to reach a formula for sharing, the coastal State unilaterally could impose terms on foreign-flagged fishing vessels. It was never clear, however, whether coastal States could prescribe and enforce such rules, which in any event were never broadly implemented by coastal States.6 Without specific authority to ensure food security, the 1958 treaty was ineffective and, like the other 1958 Geneva Conventions on the law of the sea, largely a disappointment. The Convention on the Territorial Sea and Contiguous Zone, for example, had its own shortcoming in that it failed to delimit the breadth of the territorial sea or specify the meaning of “innocent passage.”7 The problem of distant water fleets was particularly acute for smallisland developing States. Foreign-owned distant water fishing fleets from Japan, the United States, the Soviet Union, and other flag States were taking massive amounts of fish from the waters surrounding small-island developing states such as Fiji.8 If the waters near these islands became depleted, distant water fleets would move elsewhere, but the inhabitants could not. Exploitation and abuse by States with huge fishing fleets led directly to the establishment of the EEZ.9 Industrial fishing from these fleets generated some amount of envy, as well as anger, among coastal States in the developing world. Furthermore, the “Cod Wars” of the 1950s and 1970s illustrate that such feelings were present in developed States as well. In the Cod Wars, the United Kingdom and West Germany resisted efforts by Iceland to progressively expand its fishing zone, resulting in a series of confrontations over fishing rights in the waters surrounding Iceland. In three major iterations, 1958, 1972‒73, and 1975, Iceland increased its claimed exclusive fishing zone from 4 to 12, then to 50 and finally to 200 miles offshore, pushing out distant water fleets from the United Kingdom and West Germany. The population of Iceland was at the time almost entirely dependent on fishing as a source of income. The conflict ended only after the United Kingdom accepted a 200-mile Icelandic fishing zone. Similarly, by the early 1970s, the United States had accepted the efforts by South American States to exclude U.S. fishing fleets from tuna fishing in their offshore areas. A discussion on the “tuna war” between Henry Kissinger and Richard Nixon in the White House in 1971 captures the sentiment at the time:

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Kissinger: We have other technical [unclear] connected with Latin America. The Brazilians have established a 200-mile limit, and they want to start enforcing it as of June 1st [1971]. Nixon: [unclear] Kissinger: Now, our problem is that unless we get them—unless we tell them that we’re willing to negotiate the fisheries issue with them, they will have to start enforcing it. We’ve already agreed to negotiate, but we don’t have a formal position yet. And so there’s some debate. The State Department wants to negotiate now, but the Defense Department wants to have a showdown. They’re not so concerned about fisheries, but they’re concerned about law of the seas [sic]. I would recommend that we tell them that we’re willing to negotiate this fall. That if we—because if we don’t do it on fisheries, the Latin Americans will oppose us on the more important issues of navigation, which comes up on the law of the sea conference later this year. While if we can settle Brazil, it’s not basically a hostile country to us [sic]. Nixon: I don’t give a damn about fisheries anyway. Let everybody have 200 miles to fish. They’re all poverty-stricken down there anyway. Kissinger: If we dig in on fisheries, we’ll lose on navigation – Nixon: Navigation we want. Let them fish if they want. That’s my view. Kissinger: Well, that’s my recommendation, Mr. President.10

The pressure to preserve national fishing resources was no less powerful in the United States, which adopted a 200-mile zone under the Magnusson Fishery Act in 1976—six years before the EEZ was adopted by the Conference.11 The United States acted even against the advice of the Pentagon, which correctly warned that a unilateral announcement of a fishery zone would weaken the U.S. hand in negotiations to ensure high seas freedoms in the zone, as well as transit passage through straits used for international navigation. Between 1974 and 1979 alone there were some 20 other disputes over cod, anchovies, tuna and other species among the United Kingdom and Iceland, Morocco and Spain, and the United States and Peru. As longutilized fishing grounds began to show signs of depletion, and as longdistance ships came to fish waters local fishermen claimed by tradition, competition increased; so too did conflict.

THE THIRD UNITED NATIONS CONFERENCE Consequently, the concept that every coastal State was entitled to management and exploitation of an exclusive fishing zone was a major impetus for negotiations on UNCLOS. Soon after the opening of the Third UN

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Conference on the Law of the Sea in 1973, Nigerian representative J. D. Ogundere stated that the high rate of world population growth, especially in Africa, meant that developing States were turning to the sea to feed their populations and earn foreign exchange.12 African nations were strong proponents of the zone. Somalia, for example, argued that only a 200 nm territorial sea could protect the coastal State fisheries from distant water fleets.13 During UNCLOS negotiations, Indonesian Ambassador Hasjim Djalal stated that from the view of adjacency or coastal proximity, coastal States have a superior right to the resources of the EEZ than distant countries.14 Many States benefited from wider coastal zones, including a majority of seafarers and fishermen in coastal States, for whom such zones represented more food, more jobs and higher standards of living.15 Fishing States proposed that the right of distant water nations to access coastal State fisheries be included in the terms of the Convention. In rejecting this approach, Mr. Akyamac of Turkey objected to “. . . ­proposals . . . that the traditional distant-water fishing States should be granted fishing rights within the economic zones of ocean States. The creation of such a privileged club would be highly detrimental to the developing States,” as they too would have to turn toward distant-water fishing to sustain economic and social development.16 By the beginning of the Second Session of the Third UN Conference on the Law of the Sea in the summer of 1974, most of the major distant water fishing countries had accepted the idea of the 200-mile zone in which fish stocks would be managed by the coastal State. Valencia Rodriguez of Ecuador recalled, “No one now denied that the 200-mile limit was the only means of relieving the acute and growing subsistence problems of the developing world.”17 Distant water fishing nations conceded that coastal States that depended on coastal fisheries had a right to establish exclusive rights over the resources located there. Poland, for example, recognized that despite its distant water fishing interests, developing coastal States and States dependent mainly on coastal fisheries should have the right to establish a zone within which they could exercise special rights with respect to living marine resources.18 The needs of distant water fishing countries and of other states interested in fishing in the EEZs were taken into account in the final text. These interests flowed from a joint Australian–New Zealand fisheries paper submitted to the Seabed Committee in 1972 that made its way into the UNCLOS negotiations.19 The paper provided that the portion of total allowable catch (TAC) not taken by the coastal State would be available for the fishing vessels of third countries. By the time the UNCLOS negotiators

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picked up the issue of the EEZ at the 21st session of the Second Meeting on July 31, 1974, most distant water States already had accepted this approach.20 Sponsors of the working paper recognized the need for equitable rights of access for developing States to EEZ resources of neighboring coastal States.21 Access could be negotiated on the basis of regional, sub-regional or bilateral agreements. Most importantly, coastal States had a duty to accommodate the interests of other States that had historically fished in waters adjacent to their coastline, but no longer were entitled to because of the creation of the EEZ. China is such a distant water State in the areas beyond its 200 nm EEZ in the South China Sea, and as such, it has certain but very circumscribed rights to request access to surplus catch in the EEZs of its neighbors in which its fishing vessels had “habitually” operated. Coastal States such as Vietnam and the Philippines have a duty to “take into account” the request for a right of access of other States, and in particular, “States which have habitually fished in the zone.”22 If China seeks to fish in the EEZs of the coastal States of the South China Sea, it must do so through the process developed in UNCLOS. This approach firmly rejected colonial, imperialist or foreign domination of the EEZ. “It should also be made clear that such rights could not be exercised, profited from or in any way infringed by a metropolitan or foreign power administering or occupying such a territory.”23 As a matter of statutory construction of UNCLOS, the origin and purpose of the Treaty suggests that outside States may not encroach on the EEZ or continental shelf of a coastal State.24 Also, China’s negotiating behavior during the Third UN Conference on the Law of the Sea is consistent with this finding. Both preceding and during the negotiations for UNCLOS, China never advanced a claim of historic rights to the waters of the South China Sea, even as it contested Philippine and Vietnamese claims over the Spratly Islands.25 In fact, during the debates over UNCLOS, Japan and some other distant water fishing nations sought to retain a right of historic fishing in the EEZ—a position resolutely opposed by China.26 By joining UNCLOS, China relinquished its former high seas freedom to fish in areas now enclosed within other States’ EEZs, while it acquired exclusive rights in its own EEZ.27

THE REGIME OF THE EEZ The outer limit of the EEZ extends a maximum of 200 nm from the baselines from which the territorial sea is measured. More than 150 coastal States have an EEZ. Unlike the continental shelf, which was an inherent

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part of the coastal State, the EEZ was based on a claim through proclamation or declaration. Most coastal States lack the ability to enforce their resource jurisdiction. They will “obtain the full benefit of their EEZ only if . . . more powerful States respect them”.28 The EEZ is a generous grant of community ocean space to the coastal State; the zone, indeed, was cut out of the high seas and ceded willingly. Coastal States also seemed willing now to accept the obligation to allow fishermen from other countries to enter the 200-mile zone on reasonable terms and conditions to take the balance of the allowable catch not ­harvested by the local industry.29 Coastal States have sovereign rights in the EEZ with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection. All other States enjoy freedom of navigation and overflight in the EEZ, as well as freedom to lay submarine cables and pipelines. Most ocean activities are located in EEZs, which encompass 36 percent of the total area of the sea.30 Ninety percent of commercially exploitable fish stocks are located in the zones because the richest phytoplankton pastures lie within 200 miles of the continental masses.31 Phytoplankton, the basic food of fish, is brought up from the deep by currents and ocean streams at their strongest near land, and by the upwelling of cold waters where there are strong offshore winds. The area also has almost all of the major shipping routes and a high proportion of marine scientific research. The continental shelf under the EEZs contains over 80 percent of the known offshore oil and gas deposits. The EEZ is a sui generis regime—neither a territorial sea nor residual high seas, but a distinct third type of zone established in Part V. The Law of the Sea Convention governs the rights and jurisdiction of the coastal State and the rights and freedoms of other States in the zone.32 The treaty also contains a formula for attribution of rights and jurisdiction that do not fall within those of either coastal or other States.33 The coastal State enjoys in the EEZ sovereign rights—but not ­sovereignty—over resources and economic activities, sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources and with regard to other activities for the economic exploitation and exploration of the zone, sovereign rights with regard to the seabed and subsoil.34 Coastal States also have sovereign rights to establish rules aimed at the conservation of the living resources in their EEZs,35 at the utilization of those living resources,36 special rules for shared and straddling stocks, highly migratory species, marine mammals, anadromous stocks, catadromous species, and sedentary species,37 rules to protect the right of land-locked and geographically disadvantaged States,38 and to

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conduct marine enforcement of the laws and regulations of the coastal State.39 The International Tribunal for the Law of the Sea recognized these authorities in the M/V Virginia G case.40 Because of their adjacency or proximity, coastal States were afforded special authority to develop and manage a conservation regime in the EEZ. The coastal State has a duty to determine the total allowable catch (TAC) for EEZ fisheries that “takes into account” the “best available” scientific information.41 Coastal States also shall adopt measures to prevent “overexploitation” of the fishery, and maintain or restore stocks at levels that can produce “maximum sustainable yield” (MSY), “as qualified by relevant environmental and economic factors.” These factors include the economic needs of coastal fishing communities and the special requirements of developing States. Management measures must consider “effects on species associated with or dependent upon harvested species” to ensure such species do not become “seriously threatened.” The objective of the management regime is to optimize utilization of the fishery “without prejudice” to the coastal State’s rights in Article 61.42 The coastal State is obligated to promote the “objective of optimum utilization” of fisheries in its EEZ. Toward that goal, Article 62 of UNCLOS requires each coastal State to determine its capacity to harvest the catch. In cases in which it does not have the capacity to harvest the total allowable catch (TAC), it shall afford other States access to the surplus. If, after negotiations, Chinese fishing vessels were permitted to fish in the EEZs of neighboring countries, they would do so pursuant to the laws and regulations issued by the coastal State. Such laws may license fishermen and vessels and equipment, require the payment of fees, specify appropriate species and size and age of fish to be landed and fix quotas, open and close fishing seasons to maximize the harvest, specify the type and size of vessels that may be used; and require foreign fishing vessels to submit reports on vessel position, size and type of catch, and to participate in coastal State marine science programs. All of these efforts are subject to coastal State enforcement measures. As coastal States, Vietnam, the Philippines, and Malaysia should accommodate neighboring States, such as China, with access to surplus catch in the fishery, but only after transparent negotiations. Surplus catch (SC) is determined by TAC minus the capacity to harvest (CTH), with TAC qualified by maximum sustainable yield (MSY). Thus, TAC (based on MSY) – CTH = SC. To fulfill its obligations, Vietnam should acknowledge the significance of living resources of the area to the economy of southern China and China’s “other national interests,” the requirements of developing States in the sub-region or region, and the need to minimize economic dislocation

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Table 6.1  Historic fishing rights in UNCLOS Maritime Zone

Historic Fishing

Archipelagic Waters

Protected by Art. 51(1) for “immediately adjacent neighboring States” Extinguished except for Art. 62(3) Continued without change

EEZ Territorial Sea

in States whose nationals historically have fished in the zone (Vietnam also must consider the provisions regarding geographically disadvantaged and land-locked States in Articles 69 and 70 of UNCLOS, but these do not apply vis-à-vis China and Vietnam). If Vietnam opens access to Chinese distant water fishermen, these guests have a duty to comply with the conservation measures and other terms and conditions established in Vietnamese law.43 Even if one accepts the validity of China’s claim to historic fishing grounds off the coast of Vietnam, these overlapping grounds apply only to the territorial seas or internal waters. The Arbitration Tribunal held that historic fishing rights are preserved only in archipelagic waters—which might only apply with regard to Indonesia or the Philippines—or internal waters and territorial seas.44 Any historical rights in the EEZs were extinguished by UNCLOS. This analysis is illustrated by Table 6.1. The problems occurring offshore emanate from a reversal of roles between the two States. In this regard, China’s attempt to impose annual fishing bans from April to August and fishing management regimes in areas throughout the South China Sea that are distant from its coastline— and in fact within the EEZs of its neighbors—are unlawful, ineffective, and perverse.45 The EEZ is one of the most revolutionary features of UNCLOS, and it has had a profound impact on the management and conservation of the resources of the oceans. The regime of the EEZ recognizes the right of coastal States to jurisdiction over the resources of some 38 million nm2 of ocean space. The coastal State enjoys an inherent right to exploit, develop, manage and conserve all resources—fish or oil, gas or gravel, nodules or sulfur in the waters, on the ocean floor and in the subsoil of an area extending 200 miles from its shore.

CHINA AS A DISTANT WATER NATION In 1980, China had the fourth largest fishing catch in the world, behind Japan, the USSR, and the United States.46 Today, China has the third

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largest merchant marine fleet in the world47 and it is the world’s top fishing nation, currently taking nearly 20 percent of the total world catch.48 China has almost 300,000 motorized fishing vessels and approximately eight million fishermen.49 With a total take of over 17 million tons in 2007,50 China lands four times the catch of its nearest competitor, and far exceeds the catch of Japan, the United States and other major Pacific maritime powers. The largest catch is from the East China Sea, followed by the South China Sea and the Yellow Sea. The catch is increasing, however, only in the South China Sea. Chinese fishermen predominately catch fin-fish, species such as anchovy, Japanese scad, hairtail and small yellow croaker, and also harvest large amounts of shrimp, crab and squid. They use trawlers, purse seines, gill nets, set nets, and line and hook. Chinese fleets are located mostly in Guangdong and Shandong provinces, with Fujian and Zhejiang also major regions for fishing. As waters close to home become depleted, Chinese fishermen have moved farther south to exploit the waters of the South China Sea. China seized the Paracel Islands from Vietnam, which inherited title from France, and laid claim to the waters surrounding them. The features of the Paracel Islands do not generate zones of sovereignty or sovereign rights and jurisdiction for China since it does not have valid title to them. Legal title may be obtained through accretion, cession, conquest, occupation, or prescription. Under the Charter of the United Nations, after 1945 conquest is not a lawful means to acquire territory. Consequently, China’s military capture51 of the Hoàng Sa/Paracel Islands in January 1974 is devoid of legal effect.52 China has not perfected any claim through one of these five methods in a manner that would confer legal title. Similarly, prescriptive title to territory is effected through long-term occupation of another state’s territory, but it requires a display of governmental authority that is continuous, peaceful, public, and ­uninterrupted—criteria that China also does not meet. China’s reliance on ancient discovery is similarly lacking in legal effect, and cannot be the basis for EEZ rights. Even if China discovered regional rocks and islands in the vicinity of Vietnam, mere inchoate title is incomplete without subsequent acts of effective occupation that evidence an intention and will to act as sovereign. In December 2014, Beijing renewed its claims53 to virtually all of the South China Sea, but it does not have a valid legal claim to sovereignty over either the disputed features or waters. Yet China is increasingly using its fishing fleet for strategic purposes to control the region. Beijing will continue to use the Chinese strategy of “defeating harshness with kindness” (yi rou ke gang) and thus deploy unarmed fishing vessels or fisheries enforcement vessels to confront foreign vessels operating in its EEZ and

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claimed waters. In March 2009, for example, several Chinese fishing vessels operated in coordination with Chinese state vessels in the South China Sea to harass and impede the USNS Impeccable, a special mission military survey ship. In the incident that occurred 120 km from Hainan, the fishing vessels were accompanied by two maritime law enforcement ships and at least one Chinese naval vessel. Shortly thereafter, Yu-zheng 311, China’s largest fishery enforcement vessel, deployed off the coast of the Philippines after that country passed legislation to formalize its off-shore claims to several islets in the South China Sea. In June 2009, Vietnam protested about abusive treatment of its fishermen by Chinese fishery enforcement authorities. That same month, the Indonesian Navy seized eight Chinese fishing vessels and detained 75 Chinese fishermen, who were fishing illegally in the country’s EEZ.54 Fifty-nine of the fishermen were released to China the following month. The exercise of Chinese jurisdiction in its neighbors’ EEZs is incompatible with the original design and structure of UNCLOS to protect food security for developing coastal States. This lost dimension of the maritime disputes has not been recognized, but it completely upends Chinese claims. The dispute should be settled in light of the food security impetus that drove the initial UNCLOS negotiations. China’s fishing activities in the South China Sea are permissible only to the extent that they have been authorized by the relevant coastal States to land surplus catch (SC). Chinese distant water fishing in the South China Sea not only interferes with national rights of its neighbors. It also adversely affects the subsistence and artisanal fishing of nearby States, including Vietnam. While the EEZ flows from the rights of States, surely some of the fishing offshore also is artisanal fishing by Malaysians, Filipinos, and Vietnamese. Thus, I suggest that the EEZ is a zone of both national rights, as well as private rights, which vindicate individual human rights. “Artisanal fishing” is a term that is used in contrast to “industrial fishing.” Artisanal fishing does not exclude improvements in powering small boats, navigational techniques, improvements in communication or advances in techniques of fishing, but it excludes large-scale commercial or industrial fishing.55 The World Trade Organization and the constituent agencies of the United Nations, such as the Food and Agricultural Organization, the International Labour Organization, and the UN Environment Programme, have focused on protection of artisanal fishing of developing States.56 Protection of the right of artisanal fishing is based on vested rights over an extended period of time, through generations of fishermen who have acquired and passed on a nominal right of property. Equity requires that these legal rights, which have been exercised “continuously through the ages,” be upheld and protected.57

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CONCLUSION Today, the benefits brought by EEZs are evident. Ninety-nine percent of the world’s fisheries are conducted within some coastal State’s jurisdiction. Archipelagic States and large nations endowed with long coastlines naturally acquire the greatest areas under the EEZ regime. Among the major beneficiaries of the EEZ regime are the United States, France, Indonesia, New Zealand, Australia and the Russian Federation. Using normal baselines for calculation, Vietnam has an EEZ of 210,000 m2 or more than 417,000 km2. With exclusive rights come responsibilities and obligations, and Vietnamese law provides for foreign access to the country’s EEZ based on treaties concluded between Vietnam and “interested parties.”58 When China negotiated delimitation of the boundary in the Gulf of Tonkin, it barred thousands of fishermen from Guangxi province from their historic fishing areas. In doing so, Beijing recognized that compromise may displace traditional fishing, which will have to be addressed through assistance or remuneration to the affected fishermen. Each coastal State is to determine the total allowable catch for each fish species within its EEZ, and estimate its harvest capacity and what it can and cannot catch. These States should give access to other States, particularly neighboring States and land-locked countries, to the surplus of the allowable catch. In the South China Sea, Vietnam should consider whether it has jurisdiction over surplus catch that might be shared with the Chinese fishing community. Such access must be granted in accordance with the conservation measures established in the laws and regulations of Vietnam. In turn, Vietnam is obligated to manage the fisheries, adopt measures to prevent and limit pollution and to facilitate marine scientific research in its EEZs. This balanced structure should govern the relationship between coastal fishermen of Vietnam and distant water fishermen from China.59 The issue of subsistence fishing is one element of a broader mosaic of thinking in terms of human security, rather than purely national security. In this respect, the push by developing countries during UNCLOS negotiations for creation of the EEZ was prescient, as it foretold the rise in the 1990s of human security as a basis for policy.60 For its part, China has a legal obligation to comply with the terms of UNCLOS, including regulations by Vietnam, Malaysia, Brunei, the Philippines, and Indonesia, within their respective EEZs. The doctrine of pacta sunt servanda (“agreements must be kept”) is a cornerstone principle of international law, and is reflected in Article 26 of the Vienna Convention on the Law of Treaties.61 The Philippine–China Arbitral Tribunal ruled on July 12, 2016, that the construction of the EEZ supersedes any prior historic rights a State such as China may have enjoyed in areas that are now

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within the EEZ of a coastal State.62 For all its fanfare, the rise of the New China is incomplete without commitment to a rules-based order of the oceans that respects the legacy of the EEZ for developing coastal States.

NOTES  1. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, December 10, 1982, 1833 U.N.T.S. 3 [UNCLOS].   2. “Summary records of meetings of the Second Committee—27th meeting,” UN Doc. A/ CONF.62/C.2/SR.27, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982.   3. United Nations Economic and Social Council, “The Right to Adequate Food,” UN Doc. E/C.12/1999/5, May 12, 1999.   4. “Declaration on the Maritime Zone (Chile, Ecuador, and Peru),” August 18, 1952, 1006 U.N.T.S. 326.   5. “Convention on Fishing and Conservation of the Living Resources of the High Seas,” April 29, 1958, 559 U.N.T.S. 285.   6. Richard A. Falk and Hilary Charlesworth, International Law and World Order, 4th ed. (St Paul: West Academic Publishing, 2006).   7. “Convention on the Territorial Sea and Contiguous Zone,” April 29, 1958, 516 U.N.T.S. 205.  8. “Summary Records of Plenary Meetings—29th plenary meeting,” UN Doc. A/ CONF.62/SR.29, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982.   9. “Statement by the delegation of Canada dated 16 April 1982,” UN Doc. A/CONF.62/ WS/23, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 10. “Conversation between President Nixon and his Assistant for National Security Affairs (Kissinger),” Washington, May 29, 1971, No. 395, Foreign Relations of the United States, 1969–76, Vol. E–1, accessed March 14, 2017, https://history.state.gov/ historicaldocuments/frus1969-76ve01/d395. 11. “An Act to provide for the conservation and management of the fisheries, and for other purposes,” Fishery Conservation and Management Act of 1976, 16 U.S. Code 1801 note, accessed December 13, 2017, http://www.gpo.gov/fdsys/pkg/STATUTE-90/pdf/STATUTE90-Pg331.pdf. 12. “Summary records of meetings of the Second Committee—31st meeting,” UN Doc. A/ CONF.62/C.2/SR.31, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 13. “Summary records of meetings of the Second Committee—26th meeting,” UN Doc. A/ CONF.62/C.2/SR.26, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 14. “Summary records of meetings of the Second Committee—26th meeting.” 15. “Summary records of meetings of the Second Committee—30th meeting,” UN Doc. A/ CONF.62/C.2/SR.30, Third United Nations Conference on the Law of the Sea 1973–82 concluded at Montego Bay, Jamaica on December 10, 1982. 16. “Summary records of meetings of the Second Committee—27th meeting.” 17. “Summary records of meetings of the Second Committee—27th meeting.” 18. “Summary records of meetings of the Second Committee—26th meeting.” 19. Satya Nanda, “The Exclusive Economic Zone: A Historical Perspective,” in Essays in memory of—Mélanges à la mémoire de—Ensayos en memoria de Jean Carroz, Food and Agricultural Organization, accessed December 13, 2017, http://www.fao.org/docrep/ s5280t/s5280t00.htm#Contents, accessed March 14, 2017.

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20. “Summary records of meetings of the Second Committee—21st meeting,” UN Doc. A/ CONF.62/C.2/SR.21, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 21. “Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand and Norway: Working paper,” UN Doc. A/CONF.62/L.4, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 22. “Belgium, Denmark, France, Germany (Federal Republic of), Ireland, Italy, Luxembourg, and Netherlands: draft articles on fisheries,” UN Doc. A/CONF.62/C.2/L.40 and Add.1, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 23. “Summary records of meetings of the Second Committee—21st meeting.” 24. “Vienna Convention on the Law of Treaties,” Article 30(2), United Nations, May 23, 1969. 25. In challenging the Philippines claim to the Spratly Islands in the UN Seabed Committee, and in similar discussions with Vietnam during the UNCLOS negotiations, China never advanced a claim of historic rights. Award of The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016, para. 252. 26. Award of The South China Sea Arbitration, para. 252. 27. Award of The South China Sea Arbitration, para. 271. The Tribunal followed previous international cases in distinguishing between historic fishing rights and historic titles. Award of The South China Sea Arbitration, para. 224; “Qatar v. Bahrain” (historic pearl fishing was not the same as quasi-territorial right to fishing grounds themselves or superjacent waters) and “Continental Shelf Tunisia v. Libya,” para. 224 (historic rights were not equivalent to the continental shelf regime). 28. “190th Plenary Meeting,” UN Doc. A/CONF.62/SR.190, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 29. “Summary records of meetings of the Second Committee—21st meeting.” 30. Marco Colazingari, Marine Natural Resources and Technological Development: An Economic Analysis of the Wealth from the Oceans (London: Taylor & Francis Group, December 11, 2011), Reprint edition. 31. “The Division for Ocean Affairs and the Law of the Sea, its functions and activities,” Office of Legal Affairs, United Nations, The United Nations Convention on the Law of the Sea, 2012, accessed December 13, 2017, http://www.un.org/depts/los/­convention_agreements/ convention_historical_perspective.htm. (A historical perspective.) 32. UNCLOS, Articles 55, 56, 58. 33. UNCLOS, Article 59. 34. UNCLOS, Article 56. 35. UNCLOS, Article 61. 36. UNCLOS, Article 62. 37. UNCLOS, Articles 63‒68. 38. UNCLOS, Article 69‒70. 39. UNCLOS, Article 73. 40. “The “M/V Virginia G” Case (Panama/Guinea-Bissau),” ITLOS Case No. 19, April 14, 2014, paras. 209‒13. 41. UNCLOS, Article 61. 42. UNCLOS, Article 62. 43. UNCLOS, Article 62. 44. Award of The South China Sea Arbitration, para. 804. 45. Robert Tofani, “Vietnamese Fishermen Left out to Dry,” Al Jazeera, July 3, 2014, accessed December 13, 2017, http://www.aljazeera.com/indepth/features/2014/07/vietnamese-fisher​ men-left-out-dry-201463014425913533.html. 46. “1980 Yearbook of Fishery Statistics. Catches and Landings. V. 50. [1981],” FAO Fisheries Series, No. 16.

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47. “CIA World Factbook 2010,” accessed December 13, 2017, https://www.cia.gov/library/ publications/the-world-factbook/rankorder/2108rank.html#. 48. “World fisheries production, by capture and aquaculture, by country (2014),” accessed December 13, 2017, ftp://ftp.fao.org/FI/STAT/summary/a-0a.pdf. 49. Bernard D. Cole, The Great Wall at Sea: China’s Navy in the Twenty-first Century (USA: Naval Institute Press, 2001). 50. “World fisheries production, by capture and aquaculture, by country (2014).” 51. James M. Markham, “Saigon Reports Clash with China,” The New York Times, January 19, 1974 and David K. Simpler, “Saigon Says Chinese Control Islands, But Refuses to Admit Complete Defeat,” The New York Times, January 21, 1974. See also, “The World: Storm in the South China Sea,” Time Magazine, February 4, 1974. 52. In some cases, it appears that the seizure of territory later is validated by international acceptance, such as the Indian annexation of Goa and the incorporation of Sikkim. 53. “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,” Ministry of Foreign Affairs of the People’s Republic of China, December 7, 2014, accessed December 13, 2017, http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/ t1217147.shtml. 54. Zhang Jin, “Indonesia Told to Release Chinese Fishermen,” China Daily, June 29, 2009, accessed December 13, 2017, http://www.chinadaily.com.cn/cndy/2009-06/26/­content_832​ 4525.htm. 55. “Eritrea v. Yemen, Award of 17 December 1999,” RIAA Vol. XXII, p. 335 at p. 360, para. 106. 56. Artisanal fishing has also been addressed by the World Trade Organization. See, e.g., World Trade Organization, “Definitions Related to Artisanal, Small-Scale and Subsistence Fishing: Note by the Secretariat,” TN/RL/W/197 (November 24, 2005). See also “Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries: In the Context of Food Security and Poverty Eradication (2015),” accessed December 13, 2017, http:// www.fao.org/3/a-i4356e.pdf; M. Ben-Yami, “Risks and Dangers in Small-Scale Fisheries: An Overview,” International Labour Office, Sectoral Activities Programme, Doc. SAP 3.6/WP.147 (2000); and, D.K. Schorr, “Artisanal Fishing: Promoting Poverty Reduction and Community Development through New WTO Rules on Fisheries Subsidies: An Issue and Options Paper,” UN Environment Programme, November 2015, pp. 12‒18. 57. “Eritrea v. Yemen, Award of 17 December 1999,” RIAA Vol. XXII, p. 335 at p. 359, para. 104. 58. “Government Decree on Foreign Fishing Ships Operating in Vietnamese Maritime Zones (Decree No. 31-CP),” Socialist Republic of Vietnam, 1980, reprinted in FBISAPA, March 19, 1980, at K1. 59. “185th Plenary Meeting,” UN Doc. A/CONF.62/SR.185, Third United Nations Conference on the Law of the Sea 1973‒82 concluded at Montego Bay, Jamaica on December 10, 1982. 60. Louise Doswald-Beck, “Human Security: Can It Be Attained?” in Proceedings of the Annual Meeting (American Society of International Law) Vol. 97 (April 2‒5, 2003), pp. 93‒95. 61. See also Hans Wehberg, “Pacta Sunt Servanda,” The American Journal of International Law, Vol. 53, No. 4 (October 1959), pp. 775‒86 (deep moral and religious influence of the principle in ordering international society). 62. Award of The South China Sea Arbitration, paras. 246‒47, p. 247.

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7.  Constructions at sea: impacts and legal regime Nguyen Thi Lan Anh Features at sea are products of nature. The tide serves as an indicator to classify features into submerged features, low-tide elevations or islands. These features, however, are subject to change in either height or area or both, due to natural movements of the seabed and also the artificial interference of human beings. Coastal States tend to conduct artificial interference in numerous ways including land reclamation, building structures, or using obsolete oil platforms to change the features at sea, making outposts for resource exploitation, maritime scientific research and security purposes, and generating maritime spaces. Who owns the rights to build structures, installations and artificial islands and how will such rights be exercised in case of maritime and territorial disputes? Building constructions and installations, to some extent, may cause changes to the structure of the features and of the seabed. It may also impact on the marine environment. Inevitably, these changes also raise legal questions regarding the status of the features and their capacity to generate maritime zones after the construction. It seems to be the hope of many States to advantageously extend their maritime zones by means of such construction projects. All too frequently, claimant States in a dispute with each other compete in using artificial constructions to fortify their claims. This chapter will first analyze the legal regime of constructions at sea in different maritime jurisdictional zones on the basis of the provisions of the 1982 Convention on Law of the Sea (UNCLOS). It will then assess the legal implications of constructions on features in terms of legal status, environmental protection obligations and navigation rights. It will also examine the possible impacts of constructions in the context of a territorial and maritime dispute, with special focus on their potential to enhance one Party’s claims and on the prospects for dispute settlement. It will end by making some reference to the recent developments regarding constructions in the South China Sea.

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CONSTRUCTIONS AT SEA UNDER THE INTERNATIONAL LAW OF THE SEA Scope of the Term “Constructions at Sea” The term “constructions at sea” is not defined under UNCLOS. There are only a few articles dealing with artificial islands and structures at sea. Articles 60 and 80 address the legal regime of artificial islands, installations and structures in exclusive economic zones and on the continental shelf. Article 147 deals only with installations in the context of activities carried out in the international seabed (the seabed and subsoil beyond the continental shelf of coastal States, prescribed in UNCLOS as the Area). Article 194 refers to installations and devices when stipulating measures to prevent, reduce and control pollution of the marine environment.1 Also in the context of marine environment protection, Article 209 additionally lists installations, structures and other devices. In Part XIII, installations and equipment are mentioned in the context of scientific research in the marine environment.2 These various expressions, without definitions, have raised concerns about inconsistency and ambiguousness. During the negotiation of UNCLOS, there were a number of attempts to define and harmonize these terms. For example, it was suggested that “installations include artificial islands and structures.”3 These attempts, however, did not succeed. Later, in scholarly discussions, definitions for several terms were suggested. For example, the term “artificial island” was defined as referring to constructions created by the dumping of natural substances like sand, rocks and gravel; the term “installation” was defined as referring to constructions resting upon the seafloor by means of piles or tubes driven into the bottom and to concrete structures.4 These suggestions and the references in various parts of the UNCLOS seem to indicate that different terms might be used to indicate different methods of construction and different functions and usages of the man-made features. In general, they can all be considered as man-made objects in the marine environment.5 Therefore, in this chapter, the term “constructions at sea” is used to refer to all kinds of activities directed towards the construction of man-made objects or features in the marine environment. The rights to conduct constructions at sea depends on the legal regime of the maritime zones where the man-made features are constructed. Constructions at Sea in the Internal Waters and Territorial Sea In the internal waters and territorial sea, constructions can be carried out in the form of land reclamation or building upon low tide elevations. Under

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the UNCLOS and international customary law both internal waters and territorial seas are subject to the exclusive sovereignty of the coastal State.6 The coastal States, therefore, are entitled to construct and operate whatever installations, artificial islands or structures in their internal waters or territorial sea they deem necessary. Notwithstanding the sovereignty of coastal States, in the territorial sea, other States still indiscriminately enjoy the right of innocent passage. Because of this, the building of constructions and artificial islands in the territorial sea must be undertaken with due regard to the innocent passage rights of foreign ships. In cases where two coastal States are adjacent or opposite at a close distance, constructions at sea by one Party also need to bear in mind the impacts of the constructions on the territory of the other State. In the Corfu Channel case,7 the International Court of Justice declared that every State has the obligation not knowingly to allow its territory to be used for acts contrary to the rights of other States.8 In a similar vein, the award of the Trail Smelter arbitration9 also specified that no State has the right to use or permit the use of its territory, including the territorial sea, in such a manner as might cause injury in or to the territory of another State.10 Given this principle, coastal States need to carefully examine the possible harmful impacts that their constructions may cause to neighboring States. It is the duty of the coastal State to negotiate with other States in question to take precautionary measures to reduce negative impacts, to set the degree of acceptable negative effects and to compensate for any damages caused by the constructions.11 In the Land Reclamation case between Malaysia v. Singapore,12 Singapore, which had been brought to arbitration by Malaysia after presenting that country with a fait accompli regarding land reclamation works in Pulau and Tuas View Extension, assured Kuala Lumpur that it would notify and consult Malaysia before proceeding to construct any transport links between Pulau Tekong, Pulau Ubin and the main island of Singapore “if such links could affect Malaysia’s passage rights.”13 Construction at Sea in the Exclusive Economic Zone and Continental Shelf In the exclusive economic zone (EEZ) and the continental shelf, coastal States possess exclusive rights “to construct and to authorize and regulate the construction, operation and use” of artificial islands, installations and structures.14 This is to say that the rights to construct artificial islands, installations and structures within the EEZ and continental shelf of coastal States are subject to authorization by the coastal States concerned. These rights, however, are defined differently for the three types of man-

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made features listed under Article 60, namely artificial islands, installations and structures. Regarding artificial islands, the wording of Article 60 (1) (a) states no specific limitation as to the purpose of the construction. This means that coastal States will have exclusive right to construct all kinds of artificial islands, irrespective of size or purpose.15 In contrast, with reference to installations and structures, the exclusive rights of coastal States are only limited “for the purposes provided for in Article 56 and other economic purposes” or when they “may interfere with the exercise of the rights of the [other?] coastal States in the zone.”16 This limitation leads to the argument that installations not serving economic purposes and not interfering with the rights of other coastal States in the EEZ fall outside the application scope of Article 60. This argument is particularly well founded since during the negotiation process, a suggestion to adjust the wording of the article to make all installations for any purposes subject to the coastal State’s jurisdiction, with special emphasis on requiring the consent of the coastal State for military installations or devices, was not accepted.17 As a result, one can make an assumption that a State has the right to construct an installation or structure for military purposes in the EEZ of another State, so long as the installation or structure does not interfere with the exercise of the rights of the coastal State in the zone.18 In addition, constructing an installation or structure for military purposes may be argued to be in line with other internationally lawful uses of the sea related to the freedoms of other States in the EEZ and continental shelf.19 This provision indicates that the placement of military devices related to these freedoms and in accordance with the relevant provisions of the UNCLOS and other rules of international law is lawful. The placement of military devices arguably would also be covered by Article 59, which provides the basis for the resolution of conflicts regarding the attribution of rights and jurisdiction where this convention does not attribute such rights and jurisdiction to the coastal State or other States.20 These presumptions may not perhaps be justified, however, given the fact that ultimately the man-made features are constructed on the seabed of the continental shelf, so that the rights to construct artificial islands, installations and structures in the EEZ must be read together with the ipso ab initio rights of the coastal States in the continental shelf. In this connection, first, an artificial island may be built in the form of a huge, dredged island, with the extent and measure of permanence. The use of sand and clay from the seabed in the construction is itself a form of exploitation of the riches of the shelf for which a license of the coastal State certainly will be required. In the case of constructing installations or structures, interference with the seabed and subsoil of the continental shelf also needs

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to be made for anchoring the installations and structures. Second, the coastal State enjoys on its continental shelf the monopoly of construction of artificial islands to promote the exploration and exploitation of its resources. Third, for other installations, the consent of the coastal States will be necessary as they have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. Only emplacement outside the shelf is unrestricted unless the intention is to exploit the resources of the seabed.21 In addition, cross referencing of the rights to construct installations and structures for marine scientific research purposes suggests that construction for marine scientific research, although not provided within the scope of economic purposes, is still subject to the authorization of coastal States. Articles 60 and 80 on the exclusive rights of coastal States to construct artificial islands, installations and structures are also incorporated in Article 246. Accordingly, Article 246 provides that a coastal State may withhold its consent to the conduct of a marine scientific research project by another State or competent international organization within the EEZ or on the continental shelf if that project “involves the construction, operation or use of artificial islands, installations and structures referred to in Articles 60 and 80.”22 Article 80 is further incorporated within the provision concerning the deployment and use of scientific research installations, the legal status of the scientific research installations, the safety zone around those installations, and non-interference with shipping routes.23 That is to say, despite the different wording of points a, b and c in Article 60(1), the coastal States still enjoy exclusive rights to construct and exercise jurisdiction over artificial islands, installations, or structures within their EEZ and on the continental shelf. The construction of artificial islands, installations or structures by one State in the EEZ and on the continental shelf of another state for any purpose is subject to the consent of the coastal States.24 Notwithstanding the exclusive rights of coastal States over constructions in the EEZ and on the continental shelf, other States enjoy full freedom of navigation. Therefore, the exclusive rights of coastal States on building artificial islands, installations and structures must be conducted with the obligation to pay due regard to the exercise of freedom navigation on the part of other States. The due regard obligation first requires coastal States to make due notice. Paragraph 3 of Article 60 stipulates that “[d]ue notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained.” Article 60(3) further provides that:

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Constructions at sea: impacts and legal regime ­137 [a]ny installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.

The “due regard” obligation may also require reasonableness so that it is necessary for coastal States to undertake consultation before construction if the construction potentially causes negative impacts on other parties concerned. This is consistent with the principle of international law that there is no gradation of “freedoms,” and one should not be formulated de lege ferenda.25 Constructions at Sea in the High Sea and the Area In the high sea and the Area, all States can exercise the freedom to construct artificial islands and other installations in accordance with international law.26 This freedom in the high sea is not prescribed in as much detail as the exclusive rights of coastal States under Article 60. In addition, such freedom is subject to the sovereign rights and jurisdiction of the coastal State over its continental shelf in the exceptional cases where high seas may partially overlap with the continental shelf of a coastal State which has not established an exclusive economic zone or which has an extended continental shelf.27 A similar obligation of “due regard” is, however, contained in Article 147 concerning installations used for carrying out all activities of exploration for and exploitation of the mineral resources of the international seabed area. Accordingly, Article 147 requires States to pay due regard to the interests of other States in their exercise of the freedom of the high seas. States conducting constructions in the Area are required to give due notice of the construction and make appropriate publicity concerning the erection, emplacement and removal of “installations used for carrying out activities in the Area,” of the location of any structures not entirely removed, and of the extent of the safety zone. With regard to “appropriate publicity” and the safety of navigation, the IMO Secretariat has pointed out that “IMO maintains the most direct and continuing contact with the authorities of States concerned with safety of navigation and the prevention of vessel-source pollution. Accordingly, the purpose of the ‘publicity’ is likely to be served by some IMO involvement.”28

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Constructions at Sea in the Overlapping Maritime Zone In the overlapping maritime zones, the sovereign rights and jurisdiction of the parties concerned have not yet been delimited. In principle, the rights to conduct constructions at sea may belong to all the parties concerned. In practice, constructions at sea inevitably touch upon the structure of the seafloor, causing some permanent changes to the seabed and the marine environment. In the Suriname v. Guyana case,29 the Arbitration held that “acts that do cause physical change would have to be undertaken pursuant to an agreement between the parties to be permissible, as they may hamper or jeopardize the reaching of a final agreement on delimitation” and that: [i]t should not be permissible for a party to a dispute to undertake any unilateral activity that might affect the other party’s rights in a permanent manner . . . It is the Tribunal’s opinion that drawing a distinction between activities having a permanent physical impact on the marine environment and those that do not, accomplishes this and is consistent with other aspects of the law of the sea and international law.30

Furthermore, in the context of a territorial dispute, States that occupy or control islands, rocks or low-tide elevations have obligations under UNCLOS to protect and preserve the marine environment.31 First, States shall take all measures necessary to ensure that activities under their jurisdiction and control are conducted so as to not cause damage by pollution to other States and their environment.32 Second, States must take all measures to deal with all sources of pollution of the marine environment, including the pollution sources from installations, devices, constructions and equipment.33 Given the negative and permanent impacts to the seabed and the marine environment, constructions at sea in overlapping maritime zones are activities that must be restrained. Unilateral construction at sea in an overlapping maritime zone may constitute an infringement of international law, particularly the law of the sea.

LEGAL IMPACTS OF CONSTRUCTIONS AT SEA Constructions at sea may have complicated legal impacts on (1) the legal status of the man-made features after construction, (2) the jurisdiction of the coastal States on the man-made features as well as their appertaining maritime zones, if any, (3) the related rights of other States and (4) the claims of the Parties concerned in the context of territorial and maritime disputes.

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Legal Status of the Man-made Features after Construction With regard to the legal status of the man-made features after construction, there are two possible scenarios: the status is “unchanged” or “changed.” First, the legal status of features will be unchanged if the constructions are made on islands. According to the classification of Article 121 of the UNCLOS, there are two types of islands, namely rocks (under paragraph 3) and islands which are entitled full maritime zones (under paragraph 2). With regard to the latter, the legal status of the islands after construction will certainly be unchanged. An island that is reinforced with coastal defenses in principle remains an island in the sense of Article 121 of the UNCLOS.34 The constructions on islands cannot make them become artificial islands and as such they continue to generate full maritime zones. With regard to the former, it may be asked whether rocks can be transformed into islands with full maritime zones after construction. The “natural” element is one of the requirements for a feature to be classified as an island under the definition of Article 121(1). This criterion is, however, not repeated under the provisions of paragraph 3 on rocks. The lack of such explicit reference to the “natural” criterion gives rise to the argument that constructions may help to reinforce the capacity to sustain human habitation or the economic life of the features, thereby, helping rocks to acquire a similar legal status to islands under paragraph 2 in generating full maritime zones. This argument can in no way be accepted. First, if rocks can be “constructed” into full islands, coastal States will be encouraged to conduct such constructions to generate maritime zones. Maritime zones generated in this manner would actually come from additional artificial structures. This would directly infringe the very basic principle that maritime zones can only be generated from land entitlement. Second, because of the artificial changes covering and expanding their surface, rocks of this kind are no longer purely areas naturally formed of land. Recognizing such rocks as islands may cause inconsistency in the provisions of Article 121 of the UNCLOS. In addition, if rocks, after construction, can generate full maritime zones, overlapping maritime zones could be massively increased as a result of man-made activities, instead of being “naturally” defined as a result of geographical configuration. This may challenge the current law of the sea order. For these reasons, it is submitted that constructions built either on rocks or on full islands will not lead to any change of their legal status. This coincides with the conclusion of the Tribunal in the recent arbitration in the South China Sea case that “the Convention requires that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification.”35

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Second, the legal status of features may be changed if the constructions are made on low-tide elevations or submerged features. These changes can only be made in limited cases based on the location of the low-tide elevations. If the construction is made on low-tide elevations located in the territorial sea, the low-tide elevations will change to basepoints and can thus be used to generate maritime zones.36 If the construction is conducted on low-tide elevations located outside the territorial sea, either in the EEZ, on the continental shelf or in the high sea, the low-tide elevations will change to man-made features, such as artificial islands, installations or structures. Constructions on submerged features usually turn the features into man-made features, namely artificial islands, installations or structures, regardless of the location of the submerged features. There is no definition for the term “artificial islands” under UNCLOS. One suggests that “artificial island” generally refers to a feature which is above water at high tide because of land reclamation or other human activities whereas “installations and structures” usually refer to things like buildings, lighthouses, research stations and oil platforms.37 Others propose that “artificial islands” have, notwithstanding great diversity in form, three characteristics in common. They are exclusively the work of human beings, surrounded by water and used for work on a fixed location. As such they “occupy” more or less permanently a certain part of the sea. One can interpret the term more narrowly to apply only to man-made structures, created from natural sources, which form a piece of land, surrounded by water and which rise above the water level at high tide.38 Notwithstanding the lack of definition, the exact nature of the manmade features, to which the low-tide elevations located outside the territorial sea, either in the EEZ, on the continental shelf or in the high sea, will change after construction has taken place, will also depend on the construction materials and methods. In any case, “artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”39 In the Qatar and Bahrain case,40 Judge Vereshchetin expressed the view that: [T]he absence of any evidence whatsoever to the effect that Qit’at Jaradah has ever been shown on nautical charts as an island, the alleged attempts of both States to artificially change the upper part of its surface, do not allow me to conclude that Qit’at Jaradah has the legal status of an island . . . In my assessment, this tiny maritime feature . . . constantly changing its physical condition, cannot be considered an island having its territorial sea.41

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This means that, “as a matter of law, human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it.”42 Jurisdiction of the Coastal States on the Man-made Features and their Appertaining Maritime Zones Having no similar legal status to that of islands, artificial islands, installations and structures can only possess a reasonable safety zone. The breadth of the safety zone will be measured as follows: The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 meters around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones.43

A safety zone of 500 meters from the outer edge of the artificial islands, installations and structures is the maximum breadth that coastal States can generate for those constructions in accordance with applicable international standards. No other such standards have been currently adopted by the International Maritime Organization, and thus 500 meters provides the only reference for coastal States in measuring the safety zone.44 Further limitations are also set forth for the breadth of the safety zone in paragraph 7 of Article 60 in which it is stipulated that a safety zone around artificial islands, installations and structures may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation. However, once a safety zone has been reasonably established, all ships must respect it and should comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations and structures.45 In addition to the jurisdiction over the safety zone, coastal States are granted exclusive jurisdiction over artificial islands, installations and structures with regard to customs, fiscal, health, safety and immigration laws and regulations.46 Drawing an analogy to the legal regime of the contiguous zone under Article 33, the coastal State is entitled to adopt laws and regulations in respect of such matters. This exclusive jurisdiction also includes criminal jurisdiction with regard to offenses committed on or against such artificial islands, installations and structures.47

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Impacts on the Rights of Other States Constructions at sea will no doubt interfere with the use of the sea by other States and produce negative impacts on the marine environment. The process of constructions at sea and the existence of artificial islands, installations and structures may interfere with shipping, fisheries and other ocean activities. The artificial islands, installations and structures may force ships to make a detour or even change their navigation routes. These problems result not only from the location, size and design of the manmade features, but also from their functions. Such problems are especially serious for the marine environment. For example, in the case where a large artificial island is constructed, the extraction of a large amount of sand and gravel from the sea may lead to significant changes in tidal and wave patterns in its vicinity, causing erosion of the seabed or of nearby shores and might also affect water quality and marine organisms. Constructions at sea may also permanently change the marine habitat and cause serious damage for fisheries, aquaculture and recreation.48 Given these negative impacts, it has been argued that “the right of a State to use marine areas and natural resources subject to its sovereignty or jurisdiction is broad but not unlimited. It is qualified by the duty to have due regard to the rights of other States and to the protection and preservation of the marine environment.”49 Accordingly, coastal States bear the obligation to ensure that the construction of artificial islands, installations and structures would not constitute an obstacle to established international shipping routes. If there is a potential interference with international navigation of recognized sea lanes, artificial islands, installations and structures cannot even be granted the 500-meter safety zone. In addition, coastal States are required to take appropriate measures, including the adoption of laws and regulations concerning the safety of navigation and the regulation of maritime traffic, as well as providing navigational aids and facilities, in order to ensure the safety of navigation around such facilities.50 Coastal States must cooperate, coordinate and communicate with other States concerning the potential effects of their construction activities on the marine environment and take appropriate measures to protect and preserve that environment.51 Coastal States are also obliged to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from artificial islands, installations and structures under their jurisdiction.52 In line with this obligation, in the Singapore v. Malaysia land reclamation case, Singapore gave the necessary assurances with respect to navigation rights, when it stated that “even when the reclamation is fully completed, the existing widths of the navigation channels will remain unchanged and fully accessible to ships and small boats.”53

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Impacts on the Claims of the Parties Concerned in the Context of Territorial and Maritime Disputes Modern technology makes it possible to develop small islets and low-tide elevations as bases for structures, such as recreational or industrial facilities,54 and states tend to use constructions at sea to fortify their claims in territorial and maritime disputes. These activities unfortunately have no legal effect on the enhancement of such claims and hinder the prospects of dispute settlement. Constructions at sea may help a submerged feature or a low-tide elevation become an artificial island, installation or structure. Such constructions, as discussed in the earlier section, will not help to change the legal status of these man-made features to islands and open the way for territorial claims or entitlement. These man-made features are still considered as part of the seabed and thus coastal States can only exercise their jurisdiction over them on the basis of their sovereign rights and jurisdiction in the EEZ or continental shelf. Therefore, when located in overlapping maritime zones, the fate of such man-made features will be decided in accordance with the maritime delimitation, irrespective of who built the constructions on them. This principle is reflected in the provisions of Articles 60(8), 80, 147(2)(e) and 259. These articles emphasize that the presence of artificial islands, installations and structures in the EEZ, continental shelf and the Area does not affect the delimitation of maritime spaces. The State which built these artificial structures will face the risk of others having jurisdiction over the features if such features are located in the maritime zone of other States after maritime delimitation.55 That is to say constructions at sea have no legal effect to territorial claims. With regard to the capacity for generating maritime zones, constructions at sea cannot transform rocks into islands with full maritime zones. Therefore, constructions have no role in generating additional maritime zones for the man-made features. At most, coastal States can only possess a maximum belt of 500-meter safety zone as a result of constructions at sea. This means constructions at sea can make no contribution to maritime claims. In the context of territorial and maritime disputes, unilateral constructions at sea also hinder the prospects for dispute settlement and constitute an infringement of international law. First, Article 74(3) and Article 83(3) of the UNCLOS lay out the provision that while agreement on the maritime boundary of the overlapping EEZ and continental shelf is pending, the States concerned are under an obligation not to take unilateral action to jeopardize or hamper the process or possibility of reaching a final agreement. Actions that jeopardize or

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hamper reaching final agreement are those that “somehow alter the status quo ante to prejudge the outcome of the agreement or involve taking (including attempting to take) resources, especially non-renewable resources, from the area of overlaps.”56 In the Aegean Sea (Interim Measure) case, three types of activities were held to cause irreparable damage to the rights of other claimants, namely (1) erection of installations on or above the seabed, (2) appropriation or exploitation of natural resources of the continental shelf and (3) causing physical damage to the seabed or subsoil or the natural resources.57 In The South China Sea Arbitration, the Tribunal also listed three kinds of activities that aggravate a dispute. These were: (1) continuing during the pendency of the proceedings with actions that are alleged to violate the rights of the other parties, in such a way as to render the alleged violation more serious, (2) taking actions that would frustrate the effectiveness of a potential decision, or render its implementation by the parties significantly more difficult, and (3) undermining the integrity of the dispute resolution proceedings themselves, including by rendering the work of a court or tribunal significantly more onerous or taking other actions that decrease the likelihood of the proceedings in fact leading to the resolution of the Parties’ dispute.58 In this regard, constructions at sea likely cause permanent changes to the seabed and the marine environment may well be considered as obstacles that hinder the final settlement of the dispute. Constructions at sea also create complications and tensions that destroy the good will of other parties toward dispute settlement. Second, the obligation to restraint in order not to jeopardize or hamper the reaching of a final agreement is argued to not only be applicable to the overlapping EEZ and continental shelf, but has also become a general rule for dispute settlement under customary international law.59 This argument is based on two foundations. First, the principle of settling disputes by peaceful means has been enshrined in Article 2(3) of the United Nations Charter and crystallized into international law from the general State practice and opinio juris. In the Military and Paramilitary Activities case between Nicaragua and the United States,60 the Court concluded that the prohibition of the threat or use of force had become customary international law. This is another way to reaffirm the customary rule of the principle of dispute settlement by peaceful means. Second, two subordinate resolutions to the principles provided under the United Nations Charter directly highlight the obligation to restraint as one of the requirements for the peaceful settlement of disputes. Resolution 2625 (1970) stipulates that “States parties to an international dispute, as well as other States, shall refrain from any action which may aggravate the situation so as to endanger the maintenance of international peace and security, and shall act in accordance with the purposes and principles

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of the United Nations.”61 Resolution 37/10, also known as the Manila Declaration, lays down that: States parties to an international dispute, as well as other States, shall refrain from any action whatsoever which may aggravate the situation so as to endanger the maintenance of international peace and security and make more difficult or impede the peaceful settlement of the dispute, and shall act in this respect in accordance with the purposes and principles of the United Nations.62

In addition, in the Qatar v. Bahrain case, based on the view that low-tide elevations could not be fully assimilated with islands and other land territory, the Court ruled that in the case of low-tide elevations which are located in zones of overlapping claims, there were no grounds for recognizing the right of any Party in the overlapping area to use the low-water line of the low-tide elevations as baselines.63 Moreover, for the purposes of drawing the equidistance line, such low-tide elevations had to be disregarded.64 This dictum can be used to supplement the provisions of Articles 13(1) and 7(4) that constructions to transform a low-tide elevation to a basepoint will be prohibited if the low-tide elevations are located within an overlapping territorial sea area. The entitlement of coastal states to the low-tide elevations in this case will be decided through the process of maritime delimitation.65

NON-CONSTRUCTIVE CONSTRUCTIONS IN THE SOUTH CHINA SEA Recent Development of Constructions in the South China Sea In 2014, the South China Sea witnessed a few constructions at sea. The first construction was the placement of the deep-water oil rig, the Haiyan Shiyou 981, near Triton Island, a sand cay in the Paracels group, in May 2014. The Haiyan Shiyou 981 was placed at a location 17 nautical miles from Triton Island and 130 nautical miles from the mainland of Vietnam. Under the UNCLOS, Triton is a rock that cannot generate an EEZ and continental shelf.66 Therefore, the location of the oil rig lies deep within the EEZ and the continental shelf generated from the mainland of Vietnam. An oil rig can be classified as an installation for economic purposes. Under Article 60(1)(b), Vietnam, as a coastal State, is entitled exclusive rights to the placement of such installations. The unilateral act of China to place the oil rig without the authorization of Vietnam thereby constituted a grave infringement of the sovereign rights and jurisdiction of Vietnam in the EEZ and continental shelf.

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The second construction project of note, which was still in progress at the time of writing, has been the massive Chinese land reclamation work on some features of the Spratlys, namely the Johnson South Reef, Kennan Reef, Gaven Reef, Fiery Cross Reef, Subi Reef, Mischief Reef and Cuarteron Reef. Aerial photographs released by Philippine intelligence sources have revealed the full extent of the reclamation conducted by China since September 2013.67 As of 2017, China had completed building up 3,200 acres of new land, which accounted for more than 94 percent of construction in the South China Sea.68 Implications of Constructions in the South China Sea This extensive reclamation project undertaken by China will not help the country to fortify its territorial and maritime claims in the South China Sea dispute. Gaven Reef is a sand dune located at 10° 12’ 27” N, 114° 13’ 21” E. According to one authority, Gaven Reef is considered as rock only two meters high.69 In the Notification and Statement of Claim of the Philippines in the case against China, Gaven Reef is listed as a submerged feature.70 Johnson South Reef is located at 9° 43’ 00” N, 114° 16’ 55” E. Similar to Gaven Reef, the geographical description of Johnson South Reef indicates that it is naturally above water only at low tide.71 In other accounts it is classified as a group of rocks.72 Kennan Reef, located at 09° 54’ 13” N, 114° 27’ 53” E, is a low-tide elevation only above water at low tide.73 Fiery Cross Reef, located at 09° 33’ 00” N, 112° 53’ 25” E, is a coral reef surrounded by a lagoon. The greater part of the reef is submerged at high tide, except for one prominent rock on the southwestern tip. It is, therefore, also regarded as a rock.74 Cuarteron Reef is a coral reef with no lagoon, located at 08° 51’ 41” N, 112° 50’ 08” E. Subi Reef is a submerged coral reef, located at 10° 55’ 22” N, 114° 05’ 04” E. Mischief Reef is also a submerged reef, located at 09° 54’ 17” N, 115° 31’ 59” E. That is to say, Johnson South, Kennan, Gaven, Fiery Cross and Cuarteron Reefs are generally regarded either as rocks or as low-tide elevations. None of them can possibly be considered as islands capable of generating full maritime zones under Article 121(2). Indeed, the South China Sea Award concluded that none of the high-tide features in the Spratly Islands, in their natural condition, are capable of sustaining human habitation or economic life of their own within the meaning of Article 121(3) of the Convention. Therefore none of them can generate entitlements to an exclusive economic zone or continental shelf. In addition, Subi Reef, Gaven Reef (South), Hughes Reef and Mischief Reef are low-tide elevations, within the meaning of Article 13 of the Convention.75

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Since they are low-tide elevations, the construction that has been and continues to be undertaken, despite its massive scale, will not help to change the legal status of these features to islands, and thus will not help China to fortify its sovereignty claims. At the same time, the extensive reclamation work on these features will not transform these rocks into islands with full maritime zones. In fact, the unilateral extensive constructions on some features of the Spratlys can be regarded as constituting an infringement of the international law of the sea. First, the massive constructions go against the obligations to restraint in a territorial and maritime dispute, a general rule of international law that has been crystallized into customary international law, and the obligation of marine environment protection. The Fiery Cross Reef, Cuarteron Reef, Gaven Reef (North) and Johnson South Reef are features under competing sovereignty claims of China, Vietnam and the Philippines. The use of dredging for reclamation work on these features is an action that has made permanent changes to their geographical configuration as well as to the marine environment in the vicinity. These kinds of activities are prohibited under international law. Second, as the Subi, Hughes and Gaven Reefs (South) are low-tide elevations, their locations within 12 nautical miles from the islands of Sandy Cay, Gaven (North), McKennan and Sin Cowe suggest that in principle, constructions on Subi, Hughes and Gaven Reefs (South)76 will transform these features into basepoints. However, as islands of the Sandy Cay, Gaven (North), McKennan and Sin Cowe are subject to competing claims from Vietnam, China and the Philippines, Subi, Hughes and Gaven Reefs (South) are located within the disputed territorial seas generated from the Union Reefs and Tizard Bank (as illustrated in Figures 7.1 and 7.2). Therefore, the massive constructions on these features must also be restrained under the general rule of international law. Third, as Mischief Reef is within the exclusive economic zone and continental shelf of the Philippines, and China has engaged in the construction of artificial islands, installations, and structures at Mischief Reef without the authorization of the Philippines, China has breached Articles 60 and 80 of UNCLOS with respect to the Philippines’ sovereign rights in its exclusive economic zone and continental shelf.77 Fourth, pictures and reports covering the massive Chinese constructions in the seven features reveal that China has used dredging techniques to extract millions of tons of rock and sand from the sea floor, which has then been pumped into the reef to form new land.78 In the South China Sea case, the Tribunal concluded that China’s land reclamation and construction of artificial islands, installations, and structures at Cuarteron Reef,

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Hughes Reef

Sin Cowe Island

Kennan Reef Holiday Reef

Loveless Reef Lansdowne Reef Collins Reef

Higgens Reef Zhangxi Jiao

Johnson South Reef

Source:  Illustration map drawn by the author in Mapinfo Programme.

Figure 7.1 Hypothetical baseline and territorial sea of the Union Reefs based on the geographical configuration of the features Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef, and Mischief Reef has caused severe, irreparable harm to the coral reef ecosystem. These actions breach obligations on maritime environment protection provided for under Articles 123, 192, 194(1), 194(5), 197, and 206 of UNCLOS.79 In addition, the massive constructions that China has been undertaking also violate the common agreement reached by China and the ASEAN countries under the 2002 ASEAN–China Declaration on the Conduct of Parties in the South China Sea (DOC). To date, the DOC is the only document reflecting the common agreement of the Parties on conduct in the South China Sea. Some Chinese scholars also regard the DOC as a serious

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Itu Aba Island

Petty Reef Sand Cay

Eldad Reef

Gaven Reef Discovery Great Reef

Nanyit Island

Discovery Small Reef

Whitsun Reef

Source:  Illustration map drawn by the author in Mapinfo Programme.

Figure 7.2 Hypothetical baseline and territorial sea of the Tizard Bank based on the geographical configuration of the features promise, or even a kind of treaty obligation.80 Point 5 of the DOC provides that “[t]he Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.” That is to say, the Parties concerned reached an agreement to exercise restraint in the South China Sea dispute and to stop conducting activities such as populating the presently uninhabited islands, reefs, shoals, cays, and other features. China has conducted massive unilateral constructions since 2013, long after the 2002 commitment, with a clear aim to change the status quo in the Spratlys. These huge constructions have been transforming the seven presently uninhabited submerged features and rocks into habitable features. Some reports suggest that these constructions will become military bases with communication systems, fortress platforms, fuel storage, airstrips, and

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so on.81 These are the types of activity that run directly counter to Article 5 of the DOC and escalate tension in the region.82 One may argue that China is not the only Party conducting construction in the South China Sea. Other Parties, namely Malaysia, Vietnam and Taiwan,83 have also undertaken certain constructions on features in the South China Sea. However, a sharp distinction needs to be made as to the scale, purposes and the time of conducting the constructions. Such constructions are permissible if their purpose is to maintain the livelihood of the present inhabitants of the features and if they are conducted in a manner that is not intended to change the legal status of the rocks or islands. Moreover, if they were carried out before 2002, or do not fundamentally change the functions of the features, such constructions do not run counter to the spirit of the DOC. On the other hand, constructions on a gigantic scale carried out after 2002, with the purpose of changing the legal status of the features and which could be used for military purposes are clearly contrary to the wording and spirit of the DOC and thereby should be prohibited. The features subject to massive construction are all listed in the submission of the Philippines in the case against China.84 Beijing’s attitude, however, has been clear. China not only refused to participate in the arbitration proceedings but has also attempted to use its constructions to unilaterally change the status quo, create a fait accompli in the Spratlys and complicate the South China Sea disputes.85 Above all, it is the lack of clarification and binding force that lead to the non-compliance with the DOC, particularly in connection with such massive construction. Therefore, it is the time for ASEAN and China to substantively discuss detailed guidelines to fully observe Article 5 of the DOC. In due course, these guidelines should be integrated into the legally binding code of conduct.

CONCLUSION Construction is not a new type of activity at sea. Coastal States have been building structures at sea for a long time for economic or marine scientific purposes. The international law of the sea has provided sufficient legal framework to regulate these activities, in which the rights to construct at sea are usually granted to coastal States as an exclusive right on the basis of their sovereignty in the international waters and territorial seas and their sovereign rights and jurisdiction in the EEZ and continental shelf. Rights to construct at sea are also further granted in the high sea and the Area for every State. These rights, however, have to be exercised with “due regard”

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to the navigation rights of other States and particularly to the protection and preservation of the marine environment. Constructions at sea are permitted to facilitate the exercise of the sovereign rights of coastal States over resources. Such facilitation, however, must be in line with efforts to maintain good order at sea by a rules-based approach. Therefore, constructions at sea cannot produce distorting effects on the current legal system. For the purpose of generating maritime spaces, it is the status and location of the features before, not after, the undertaking of the artificial interference that define the features as islands or artificial islands. As a result, the former may enjoy a full maritime zone, while the later will only have the maximum of a 500-meter safety zone. In the context of territorial and maritime disputes, constructions neither create any entitlement nor fortify the legal basis for the constructor’s entitlement over a submerged feature or a low-tide elevation, which can only be decided based on the entitlement of land or islands in maritime delimitation. Likewise, constructions at sea in overlapping maritime zones may cause permanent changes to the seabed and marine environment and thus jeopardize or hamper the final dispute settlement. Where disputes exist, the parties concerned are obliged to enter into interim arrangements. Prior consultation and cooperation in constructions at sea should be promoted. Pending final agreement, excessive construction is not constructive and can only result in complications, escalation of disputes and breaches of international law.

NOTES  1. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, December 10, 1982, 1833 U.N.T.S. 3 [UNCLOS], Article 194(3) (c) and (d).   2. UNCLOS, Article 258 and 262.   3. Satya N. Nandan and Shabtai Rosenne, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (Boston: Martinus Nijhoff Publishers, 2007), 584.  4. Alfred Soons, “Artificial Islands and Installation in International Law,” Occasional paper, University of Rhode Island, 22 (1974), 3.  5. Alex G. Oude Elferink, “Artificial Islands, Installation and Structure” (last updated September 2013), The Max Planck Encyclopedia of Public International Law: Online Edition, Vol. 1, paragraph 1.  6. Informal Working Paper No. 12, Second Committee, August 20, 1974, Third U.N. Conference on the Law of the Sea, Caracas Session, June 20 to August 29, 1974. Quoted in Nikos Papadakis, “Artificial Islands in International Law,” Maritime Studies and Management 3 (1975): 33.   7. On October 22, 1945, two British destroyers struck mines in Albanian territorial waters in the Corfu Channel. The explosions caused damage to the vessels and loss of life. The United Kingdom addressed an Application to the International Court of Justice asking for a decision to the effect that the Albanian Government was internationally responsible for the consequences of the incidents and that it must make reparation or pay compensation. “Corfu Channel Case, 1948‒1949,” I.C.J. Reports.  8. Corfu Channel case, 1949 I.C.J. 15 (Judgment of April 9), paragraph 22.

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  9. Trail Smelter was a corporation owned and operated by a Canadian national, located in British Columbia since 1906. Between 1925 and 1937, the state of Washington was seriously damaged due to the effects of sulfur dioxide emitted by Trail Smelter. The United States successfully sued Canada and obtained an injunction against further air pollution by Trail Smelter. See Arthur K. Kuhn, “Trail Smelter Arbitration (USA v. Canada),” American Journal of International Law, Vol. 35, No. 4 (1941): 665‒66. 10. “Trail Smelter Arbitral Tribunal Decisions,” American Journal of International Law, Vol. 35, No. 4 (1941): 684. 11. Soons, Artificial Islands, 5. 12. In 2002, Singapore conducted land reclamation works in Pulau Tekong and Tuas View Extension. Malaysia held that these reclamation works infringed Malaysia’s territorial waters, caused pollution and damaged the marine environment in the Straits of Johor. Malaysia unilaterally brought Singapore to Arbitration established under Annex VII of UNCLOS. During the arbitral proceeding, Malaysia also requested provisional measures from the International Tribunal on the Law of the Sea. “Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore),” Case number 2004-05, 2005, Permanent Court of Arbitration, accessed February 10, 2017, http:// www.pcacases.com/web/view/108. 13. “Separate opinion of Judge Chandrasekhara Rao,” International Tribunal for the Law of the Sea, paragraph 33, accessed October 24, 2014, http://www.itlos.org/fileadmin/itlos/ documents/cases/case_no_12/12_order_081003_sep_op_Ch_Rao_en.pdf. 14. UNCLOS, Article 60 and 80. 15. Nandan and Rosenne, United Nations, 584. 16. UNCLOS, Article 60(1) (b) and (c). 17. Nandan and Rosenne, United Nations, 584 at paragraph 60.15(c). 18. Robert Beckman, “Legal Status of Low-Tide Elevations and Submerged Features” (paper presented at Geographical Features in the East Asian Sea and the Law of the Sea, Taiwan, 2012), 9. 19. As provided for under UNCLOS, Article 58. 20. Elferink, “Artificial Islands,” paragraph 13. 21. A.M.J. Heijmans, “Artificial Islands and the Law of Nations,” Netherlands International Law Review Vol. 21, No. 2 (1974): 147 and 160. 22. UNCLOS, Article 246(5)(c). 23. UNCLOS, Articles 258‒61. 24. Bernard Oxman, “Offshore Features Subject to Claims of Sovereignty,” in The South China Sea Disputes and Law of the Sea, ed. Jayakumar, Tommy Koh and Robert Beckman (Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2014), 18. 25. Heijmans, “Artificial Islands,” 160. 26. As provided for under UNCLOS, Article 87. 27. Elferink, “Artificial Islands,” paragraph 17. 28. Nandan and Rosenne, United Nations, 584 at paragraph 60.15(e). 29. Guyana and Suriname have substantive overlapping maritime zones which are a legacy of the boundary delimitation process in the colonial period. After independence, although bilateral maritime dispute settlement had not made any progress, both sides took many unilateral activities to assert their jurisdictions. For example, a Suriname naval force escorted a Canadian oil company out of a concession granted by Guyana in the overlapping maritime zone. Guyana initiated arbitration proceedings under Annex VII of UNCLOS to seek maritime delimitation and a judgment on alleged breaches of international law by Suriname in the disputed maritime zones. “Guyana and Suriname,” Award of Arbitral Tribunal 2007. 30. “Guyana and Suriname,” Award of Arbitral Tribunal 2007, paragraph 467 and 470. 31. Robert Beckman, “Islands, Rocks and Low Tide Elevations: Distinction and Legal Status” (paper presented at the International Symposium on the Philippines v. China Arbitration Case: The Efficacy of the Annex VII Tribunal in Resolving Complex Territorial/Maritime Disputes, Beijing, 2014), 13.

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32. 33. 34. 35. 36. 37. 38. 39. 40.

41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56.

57.

58. 59. 60. 61.

Constructions at sea: impacts and legal regime ­153 UNCLOS, Article 194(2). UNCLOS, Article 194(3)(c) and (d). Elferink, “Artificial Islands,” paragraph 4. Award of The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016, paragraph 305. In accordance with the provision of UNCLOS, Article 13. Robert Beckman, “Geographic Features and Maritime Claims” (paper presented at the South China Sea Conference: Cooperation for Security and Development, Ho Chi Minh City, 2012), 10. Heijmans, “Artificial Islands,” 139‒40. UNCLOS, Articles 60(8), 147(2)(e), and Article 259. Qatar filed a case against Bahrain at the International Court of Justice and requested the Court to settle certain disputes relating to sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qit’at Jaradah, and the delimitation of the maritime areas of the two States. “Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),” I.C.J. Reports, 1994, 1995 and 2001. “Declaration of Judge Vereshchetin,” International Court of Justice, accessed October 20, 2014, http://www.icj-cij.org/docket/files/87/7037.pdf. Award of The South China Sea Arbitration, paragraph 305. UNCLOS, Article 60(5). Nandan and Rosenne, United Nations, 586. UNCLOS, Article 60(6). UNCLOS, Article 60(2). Nandan and Rosenne, United Nations, 585 at paragraph 60.15(d). Heijmans, “Artificial Islands,” 155. “Joint declaration of Judges ad hoc Hossain and Oxman,” International Tribunal for the Law of the Sea, accessed August 22, 2017, http://www.itlos.org/fileadmin/itlos/documents/ cases/case_no_12/12_order_081003_joint_dec_Hossain_Oxman_en.pdf. UNCLOS Article 60(4) and (7) and Nandan and Rosenne, United Nations, 587. UNCLOS, Articles 123, 192, 194(1), 194(5), 197, and 206. UNCLOS, Article 208. “Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore),” ITLOS/PV.03/03 (2003), 15 and ITLOS/PV.03/04, 10. “Separate Opinion of Judge Oda,” paragraph 9, International Court of Justice, accessed October 24, 2014, http://www.icj-cij.org/docket/files/87/7031.pdf. Beckman, “Geographic features,” 19. David Anderson and Youri van Logchem, “Rights and obligations in areas of overlapping maritime claims” in The South China Sea Disputes and Law of the Sea, ed. Jayakumar, Tommy Koh and Robert Beckman (Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2014), 216. “Aegean Sea Continental Shelf (Greece v. Turkey),” 1976 I.C.J. 3 (Order of September 11), paragraph 30, quoted by Anderson and Logchem, “Rights and Obligations.” Also, analysed in Rainer Lagoni, “Interim Measures Pending Maritime Delimitation Agreements,” American Journal of International Law Vol. 78, No. 2 (1984), 366. Award of The South China Sea Arbitration, paragraph 1176. Anderson and Logchem, “Rights and Obligations,” 223. Also, in Nguyen Dang Thang, “The Functions of Joint Zones from the Perspective of Maritime Delimitation” (PhD Diss., University of Cambridge, 2013), 111‒12. “Case Concerning Military and Paramilitary Activities in and against Nicaragua,” 1986 I.C.J. 14 (Judgment of June 27). “Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations,” October 24, 1970, UN Documents, accessed October 20, 2014, http://www.un-­docum​ ents.net/a25r2625.htm.

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62. “General Assembly Resolution A/RES/37/10,” Point 8, United Nations, 15 November, 1982, accessed August 22, 2017, http://www.un.org/documents/ga/res/37/a37r010.htm. 63. Although the low-tide elevations in Qatar v. Bahrain were located in the overlapping territorial sea, paragraph 209 did limit the use of such low-tide elevations as basepoints in general, not only in overlapping territorial seas. Therefore, it can be concluded that low-tide elevations cannot be used as base points if they are located in other overlapping maritime zones as well. 64. “Case concerning maritime delimitation and territorial questions between Qatar and Bahrain (Qatar v. Bahrain),” 2001 I.C.J.40 (Judgment of March 16), paragraph 209. 65. This conclusion was also supported in the Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), 2008 I.C.J.12 (Judgment of May 23), and the Award of The South China Sea Arbitration. 66. Even relying on the maritime zone generated from the largest feature of the Paracels, Woody Island, the location of the oil rig was still deep into the EEZ and continental shelf of Vietnam. For more discussion, see Nguyen Thi Lan Anh, “Xisha (Paracels) Islands: A Rejoinder,” RSIS Commentary No. 117 (2014), Nanyang Technological University. 67. “Philippines Releases Photo of Chinese Reclamation,” Sun Star Manila, May 15, 2014, accessed October 24, 2014, http://www.sunstar.com.ph/breaking-news/2014/05/15/ photos-chinese-land-reclamation-released-342989. 68. “Country: China,” Asia Maritime Transparency Initiative, accessed February 10, 2017, https://amti.csis.org/island-tracker/chinese-occupied-features/. 69. Mark J. Valencia et al., Sharing the Resources of the South China Sea (London, The Hague, Boston: Martinus Nijhoff Publishers, 1999), Appendix 1, 227. 70. “Notification and Statement of Claim on the West Philippines Sea,” Ministry of Foreign Affairs of the Philippines, accessed October 24, 2014, http://www.dfa.gov.ph/ index.php/component/docman/doc_download/56-notification-and-statement-of-claimon-west-philippine-sea?Itemid=546. 71. Valencia et al., Sharing the Resources, Annex 1, 230. 72. David Hancox and Victor Prescott, “A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys amongst those Islands,” Maritime Briefing Vol. 1, No. 6 (1997): 3‒30 and “Notification of the Philippines,” paragraph 22. 73. Valencia et al., Sharing the Resources, and “Notification of the Philippines,” paragraph 16. 74. Valencia et al., Sharing the Resources, and “Notification of the Philippines,” paragraph 22. 75. Award of The South China Sea Arbitration, paragraph 1203. B. 3c and 7ab. 76. Award of The South China Sea Arbitration, paragraph 1203. B. 3. d,e and f. 77. Award of The South China Sea Arbitration, paragraph 1203. B. 7 and 14. 78. Rupert Wingfield-Hayes, “China’s Island Factory,” BBC, September 9, 2014, accessed October 22, 2014, http://www.bbc.co.uk/news/special/2014/newsspec_8701/index.html; “China Builds Another Island in South China Sea,” IHS Jane’s Defence Weekly, accessed October 22, 2014, http://www.janes.com/article/43757/china-builds-another-island-insouth-china-sea; “Castles Made of Sand: Chinese Land Reclamation in the South China Sea,” IHS Jane’s Defence Weekly, October 6, 2014, accessed October 22, 2014, http://www. janes.com/article/43935/castles-made-of-sand-chinese-land-reclamation-in-the-south-ch​ ina-sea; “Information on Islands Tracking, Land Reclamation by China,” accessed October 22, 2014, https://amti.csis.org/island-tracker/chinese-occupied-features/. 79. Award of The South China Sea Arbitration, paragraph 1203. B. 13. 80. Bing Jia, “The Issue of Admissibility in Inter-state Arbitration,” in South China Sea Arbitration: A Chinese Perspective, ed. Stefan Talmon and Bing Jia (Oxford and Portland: Oregon, 2014), 111‒12. 81. Rupert Wingfield-Hayes, “China’s Island Factory.” 82. “Remarks by MOFA Spokesperson Le Hai Binh on China’s Illegal Reclamation Activities on 6th November 2014,” Vietnamese Ministry of Foreign Affairs, accessed October 15, 2016, http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns141111165232. 83. Information on constructions of China, Taiwan and Vietnam in the South China Sea

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can be tracked at Asia Maritime Transparency Initiative, accessed February 10, 2017, https://amti.csis.org/island-tracker/. 84. “The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China),” PCA Case No. 2013-19, the Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016, accessed October 15, 2016, https://pcacases.com/web/view/7. 85. Carl Thayer, “No, China is not Reclaiming Land in the South China Sea,” The Diplomat, June 7, 2015, accessed June 10, 2015, http://thediplomat.com/2015/06/no-china-is-not-recl​ aiming-land-in-the-south-china-sea/.

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8. Air defence identification zones: implications for freedom of overflight and maritime disputes Robert Beckman and Phan Duy Hao Airspace is governed by two fundamental principles. First, the principle of sovereignty governs the airspace above the land territory of a State and the airspace above the belt of territorial sea adjacent to its coast known as the territorial sea. Second, the principle of freedom of overflight governs the airspace above the seas outside the limits of the territorial sea of any State. An Air Defence Identification Zone (ADIZ) beyond territorial spaces is neither clearly permitted nor prohibited by any international agreement. An ADIZ is a zone within and beyond the territorial sea in which a State unilaterally declares that aircraft entering the zone must identify themselves in order to protect its security from attack by hostile aircraft. Foreign aircraft may exercise freedom of overflight within the zone, but if they fail to identify themselves in advance they are subject to being interrogated or intercepted so that the coastal State can determine whether or not they have a hostile intent. The law and practice governing ADIZs has recently become a matter of concern in Asia after China declared an ADIZ in the East China Sea on 23 November 2013.1 The Chinese ADIZ substantially overlaps the existing ADIZs of Japan, and to a smaller extent, those of Korea and Taiwan. The Chinese ADIZ provoked criticism from governments and commentators.2 The declaration of the ADIZ by China has raised three other concerns.3 First, can China use the ADIZ to strengthen its claim to sovereignty over the Diaoyu/Senkaku Islands? Second, does the declaration of an ADIZ strengthen China’s argument that foreign military aircraft have no right to engage in surveillance and reconnaissance activities in the airspace above its exclusive economic zone (EEZ)? Third, does China intend to declare an ADIZ in the airspace above the South China Sea, and if so, would this exacerbate existing disputes over sovereignty claims and maritime claims in the South China Sea? 156 Robert Beckman and Phan Duy Hao - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:53:09PM via Sydney University

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Although it has been alleged that the Chinese ADIZ is contrary to the practice of other States, as the chapter points out, the practice of States that have declared ADIZs is neither uniform nor consistent. Therefore the chapter suggests that interested States discuss and agree on the development of “rules of the road” to ensure that the extent, scope and operation of ADIZs and interceptions follow best international practice in order to minimize the risk of collisions or other incidents. This chapter attempts to answer some of these questions. For that purpose, the chapter is structured as follows. First, the chapter looks at two major principles of international law governing airspace, the principle of national air sovereignty and the principle of freedom of overflight. Second, the chapter provides an overview of ADIZs, their status and State practice, in this regard. Third, it examines China’s ADIZ in the East China Sea and the reactions of other States to China’s East China Sea ADIZ. Fourth, it discusses the implication of a possible Chinese ADIZ in the South China Sea, especially in light of the Arbitral Award in the Philippines/China South China Sea disputes issued on 12 July 2016. The chapter concludes that, while ADIZs are neither permitted nor prohibited by any international treaties and State practice concerning ADIZs is neither uniform nor consistent, an ADIZ needs to be established and operated in accordance with the 1944 Chicago Convention on International Civil Aviation and the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS). A unilateral ADIZ claim by China in such a hotly disputed area as the South China Sea without consultation and coordination with relevant States would not only aggravate tensions but also provoke much criticism on both legal and political grounds. There is a need to develop rules to ensure that any ADIZ follows best international practice and minimizes the risk of collisions or other incidents that may threaten international peace and security.

MAJOR PRINCIPLES OF INTERNATIONAL LAW GOVERNING AIRSPACE Airspace is governed by two fundamental principles. The first principle governing airspace is sovereignty, according to which States have sovereignty over the airspace above their land territory and above the territorial sea adjacent to their coast. Article 1 of the 1944 Chicago Convention on International Civil Aviation provides that “[t]he contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory”.4 Article 2 further provides that that “the territory of a State shall be deemed to be the land territory and territorial

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waters adjacent thereto”.5 Similarly, Article 2 of the 1982 UNCLOS provides that the sovereignty of a coastal State extends to an adjacent belt of sea, described as the territorial sea, and to the airspace above the territorial sea.6 Under the 1982 UNCLOS, every State has a right to establish a territorial sea up to a limit of 12 nautical miles (nm) measured from baselines determined in accordance with the Convention.7 The second principle governing airspace is freedom of overflight. Freedom of overflight is a freedom of the high seas. Article 2 of the 1958 Convention on the High Seas provides that freedom of the seas includes the right of all States to fly over the high seas.8 Article 87 of the 1982 UNCLOS confirms that freedom of the high seas comprises freedom of overflight.9 The principle of freedom of overflight outside the territorial sea is not affected by the two regimes under the 1982 UNCLOS which give coastal States sovereign rights to explore and exploit the natural resources on their continental shelf and in their exclusive economic zone. Article 78 of the 1982 UNCLOS provides that the regime of the continental shelf does not affect the legal status of the suprajacent waters or of the airspace above those waters.10 Article 58 of the 1982 UNCLOS provides that in the exclusive economic zone (EEZ), all States, whether coastal or land-locked, enjoy the freedom of overflight and other internationally lawful uses of the sea related to this freedom, such as those associated with the operation of aircraft.11 In short, the 1982 UNCLOS makes it clear that the freedom of overflight is the principle governing the airspace above the seas seaward of the outer limit of the territorial sea of any State.

ADIZS: LEGAL STATUS AND STATE PRACTICE What is an ADIZ? Annex 15 to the 1944 Chicago Convention on International Civil Aviation defines an ADIZ as a “special designated airspace of defined dimensions within which aircraft are required to comply with special identification and/or reporting procedures additional to those related to the provision of air traffic services”.12 In practical terms, an ADIZ is a zone within and beyond the territorial sea in which a coastal State unilaterally declares that foreign aircraft entering the zone must identify themselves by submitting their Instrument Flight Rules (IFR) or Defense Visual Flight Rules (DVFR) flight plans and/or reporting their location to the coastal State in order to protect the coast State’s security.13 In international airspace, foreign aircraft may exercise freedom of overflight within the zone, but if they fail to identify themselves in advance, they are subject to being inter-

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rogated or intercepted so that the coastal State can determine whether or not they have a hostile intent. ADIZs are a product of the Cold War. The justification for their establishment was national security. They were established to address the concern of a number of States over the possibility of massive nuclear attacks by hostile long-range bombers.14 The purpose was to enable the attacked States to have more time to mobilize their defensive aircraft and groundto-air missiles. In today’s world, with the advance of technology, nuclear attacks would not necessarily come from aircraft but from ground-based or ship-based missiles. ADIZs are therefore useful only to States engaged in wars involving the use of aircraft, or to those fearful of possible attacks by terrorist hijacked aircraft, especially after the 11 September 2001 attacks.15 ADIZs under International Law An ADIZ is neither permitted nor prohibited by any international agreement. The 1944 Chicago Convention on International Civil Aviation states that over the high seas, the rules of the air shall be those established under the Convention.16 The Convention does not explicitly provide for the right of States to establish ADIZs in the airspace above the high seas even though Article 11 provides that States can establish the laws and regulations relating to the admission to or departure from their territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within their territory.17 This right is nowhere to be found in UNCLOS either. The EEZ, a new regime created by UNCLOS, is not a security area. In the EEZ, coastal States only have sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources and jurisdiction as provided for in the Convention with regard to artificial islands, installations and structures, marine scientific research and the protection of the marine environment.18 Beyond the territorial sea, coastal States may establish a contiguous zone of up to 24nm from the baseline to exercise control over customs, fiscal, immigration and sanitary issues, but not security.19 For these reasons, several authors have opined that an ADIZ is an encroachment on the principle of the freedom of overflight.20 Others, however, have maintained that even though there is no treaty basis for an ADIZ right, given State practice since the 1950s with few protests, the legal basis may be found in customary international law.21 The Statute of the International Court of Justice (ICJ) describes international custom as “general practice accepted as law”.22 In the Asylum case, the ICJ held that the relevant practice must be constant and uniform.23 In the Nicaragua case, it elaborated that:

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[F]or a new customary rule to be formed, not only must the acts concerned “amount to a settled practice,” but they must be accompanied by opinio juris sive neccessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it.24

To conclude that the legality of ADIZs is settled under customary international law, one has to prove that the norm has met the threshold as determined by the ICJ. Regardless of whether or not ADIZ has become a customary rule, it is still a fact that many States have established and enforced their ADIZs with relatively few objections as long as they do have legitimate national security justification. On the other hand, it can be argued that an ADIZ beyond territorial airspaces does not prohibit or limit the freedom of overflight. It is not a “no-fly zone”. It merely requires that a foreign aircraft exercising the freedom of overflight identify itself so as to protect the security interests of the coastal State. Despite the fact that the legality of ADIZs under international law is not clear, most States comply with them because doing so can enhance security and safety by providing clear rules and areas for the operation and possible interception of aircraft near territorial airspace. ADIZs of the United States The United States was the first nation to establish ADIZs. In 1950, it declared the world’s first ADIZs to reduce the risk of a surprise aerial attack from the Soviet Union. Under the United States Federal Aviation Regulations, an ADIZ is defined as an airspace “over land or water in which the ready identification, location and control of all aircraft . . . is required in the interest of national security”.25 The rule is that “[n]o person may operate an aircraft into . . . an ADIZ unless the person files a DVFR [Defense Visual Flight Rules] flight plan containing the time and point of ADIZ penetration”.26 Today, the United States has six zones (West Coast, East Coast, Alaska, Hawaii, Guam and Washington DC).27 The ADIZ of the continental coast of the United States extends out more than 300nm in some Atlantic areas and more than 400nm off southern California.28 The United States also has an ADIZ off the coast of Alaska that extends out at least 350nm into the airspace above the Bering Sea and a similar distance into the Arctic Sea from Alaska’s northern coast.29 In addition, it also has ADIZs off Hawaii and Guam that extend out more than 250nm.30 The United States has stated that the requirement of the foreign aircraft to identify itself in advance only applies to aircraft intending to enter the

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airspace over US territory, and that the requirement of prior identification can be justified as a “condition of entry” into its territory. Consequently, the official policy of the United States is that it does not recognize the right of a coastal State to apply its ADIZ procedures to US aircraft not intending to enter the national airspace of that State.31 Its policy is that military aircraft of the United States not intending to enter national airspace of another State will not identify themselves or otherwise comply with ADIZ procedures established by such States, unless it has specifically agreed to do so.32 ADIZs in Asia The ADIZ of Japan (200 to 300nm) was established by the United States during the US military occupation of the Ryukyu Islands after the Second World War.33 In September 1969, the United States transferred the management of Japan’s ADIZ to the Japanese government. Japan extended its ADIZ twice, once in 1972 and again in 2010.34 The ADIZ in Korea (140nm) was established by the United States in 1951 during the Korean War. ADIZs were also declared in the Philippines (225nm), India (150nm), Vietnam (150nm), Myanmar (130nm) and Taiwan (225nm) during the Cold War.35

CHINA’S ADIZ IN THE EAST CHINA SEA Declaration of ADIZ by China in 2013 On 23 November 2013, the Ministry of National Defence (MND) of China announced the establishment of an ADIZ in the East China Sea contiguous to the Chinese coastline.36 The rules for the ADIZ provided that aircraft flying within the zone should report their flight plans to the Ministry of Foreign Affairs or the Civil Aviation Administration of China, regardless of whether or not they intended to enter the airspace of China.37 Aircraft flying in the ADIZ must maintain two-way radio communications, respond in a timely and accurate manner to identification inquiries and follow the instructions of the MND, the administrative organ of the ADIZ.38 The rules further provided that in the event that aircraft did not cooperate in the identification process or refused to follow the instructions, China’s armed forces would adopt defensive emergency measures.39 China’s ADIZ overlaps in some areas with the ADIZs of Japan, South Korea, and Taiwan. China’s ADIZ includes the airspace above the Senkaku/Diaoyu Islands which are controlled by Japan and over which

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Japan, China and Taiwan claim sovereignty. China’s ADIZ also includes the airspace above Socotra Rock (Ieodo in Korean and Suyan Jiao in Chinese), a submerged feature on which Korea has constructed a research installation that lies in the area of overlapping EEZ claims of China and Korea. Reactions to China’s ADIZ Several objections have been raised by Japan, the United States and others against China’s ADIZ. First, some objections have been made because China’s ADIZ regulations require reporting by aircraft entering the ADIZ even if they do not intend to enter Chinese airspace. In a statement issued after China’s ADIZ declaration, the United States said that it does not apply its ADIZ procedures to foreign aircraft not intending to enter its national airspace and that it does not support efforts by any other States to apply ADIZ procedures to foreign aircraft not intending to enter their national airspace.40 On 27 November 2014, only four days after the Chinese declaration, the United States flew two Air Force B52 bombers from Guam through the Chinese ADIZ without giving China any prior notification.41 The United States also made it clear that it would continue to follow its national policy of not notifying the coastal State if its military aircraft entered the ADIZ of another State without the intention of entering the airspace under the sovereignty of that country.42 It should be noted, however, that China is not the only State that requires aircraft entering its ADIZ to report even if they do not intend to enter national airspace. Unofficial sources suggest that Japan requires Taiwanese aircraft entering its ADIZ to file flight plans regardless of whether they enter Japanese airspace.43 Australia, Myanmar, and Taiwan also require such reporting.44 Since State practice varies, there appears to be no legal requirement under customary international law for an ADIZ to only apply to aircraft that intend to enter a State’s airspace. Second, objections were made because China failed to consult its neighbours before declaring its ADIZ. Consultation may be considered an exercise of due regard. It is a practice that States should consider before declaring ADIZs over areas subject to maritime disputes. In the case of China’s ADIZ, tensions might have been mitigated if China had engaged in consultation with Japan, South Korea and the United States.45 However, it is not totally clear that there is a uniform practice that States declaring an ADIZ first consult neighbouring States or States where an overlapping ADIZ would result. In the context of the Cold War, it seems highly unlikely that the United States would have consulted China and

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the Soviet Union before establishing ADIZs off the coasts of Japan and Korea. It appears that Japan did consult Taiwan before extending its ADIZ in 2010. However, consultation means prior notification rather than consent. Despite the fact that Taiwan registered an objection after being consulted, Japan proceeded to amend its ADIZ.46 Third, objections have been made because China’s ADIZ includes the Senkaku/Diaoyu Islands, whose sovereignty is in dispute between China and Japan, and also Socotra Rock, a submerged feature on which Korea has constructed a research installation that lies in the area of overlapping EEZ claims of China and Korea.47 The argument is that, by declaring an ADIZ that included the Senkaku/Diaoyu Islands and Socotra Rock, China was attempting to enhance its sovereignty/maritime claims over the Senkaku/Diaoyu Islands and Socotra Rock, or last least push Japan to recognize the existence of a Senkaku/Diaoyu dispute between China and Japan.48 However, the fact that China’s military aircraft fly over the airspace above a disputed feature would not enhance China’s sovereignty or jurisdiction claim, especially if Japan or South Korea objected to such flights. It should also be noted that the Senkaku/Diaoyu Islands are within the ADIZ of Japan. In fact, some reports indicate that Japan regularly scrambles aircraft if Chinese aircraft approach these islands, even though the islands are uninhabited and a Chinese aircraft passing over them would arguably pose no threat to the security of Japan.49 In 2015, Japan made 571 scrambles against Chinese aircraft – a significant increase from the previous year with 464 scrambles.50 Furthermore, some of the ADIZs of other countries also include offshore geographic features that are in dispute. South Korea’s ADIZ, for example, covers Tokdo/Takeshima, a group of small islands claimed by Japan.51 Following China’s ADIZ declaration, South Korea announced that it had extended its ADIZ to include Socotra Rock.52 Fourth, concerns have been raised that tensions could increase if China undertakes “defensive emergency measures” or uses its ADIZ to justify its exercise of freedom of overflight in the area of its ADIZ near the disputed Senkaku/Diaoyu Islands. Some commentators have opined that one reason that China may have declared the ADIZ was to counter the fact that Japan was intercepting Chinese aircraft in its ADIZ near the equidistance line between the two States, many miles from the Japanese coast.53 After declaring an ADIZ in the same area, China could argue that Japan is under a corresponding obligation to give China notice if its aircraft enter the Chinese ADIZ. Fifth, concerns were expressed by some commentators that China may use its ADIZ in order to support its position that foreign military aircraft

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have no right to fly over its EEZ on reconnaissance or surveillance missions.54 The concern is that an ADIZ declaration, a seaward extension of one aspect of national security, may serve as precedent for seaward extensions of other security aspects, for example, military activities in the EEZ.55 Military activities in the EEZ indeed have been a source of tension between the United States and China for several years, beginning with an incident in April 2001 involving a collision over the South China Sea between a United States Navy EP-3 reconnaissance plane and a Chinese People’s Liberation Army naval F-8 fighter.56 In China’s view, the surveillance flight conducted by the United States violated the principle of freedom of overflight and the 1982 UNCLOS because the surveillance by the United States plane was conducted in airspace in China’s EEZ and posed a “serious threat to the national security of China”.57 As recently as July 2014, Chinese officials stated that the United States had no right to conduct such activities in airspace above China’s EEZ even after it sent a naval vessel to spy on the international Rim of the Pacific (RIMPAC) exercises near Hawaii.58 This issue reflects a fundamental dispute between China and the United States on the interpretation and application of the provisions of the 1982 UNCLOS. The United States, which is not a party to the 1982 UNCLOS but claims to accept most of the provisions of the Convention in principle as reflecting customary international law, maintains that the sovereign rights and jurisdiction of coastal States in their EEZ are limited to the regulations on marine scientific research, regulations on the exploration and exploitation of the natural resources and regulations on protection and preservation of the marine environment. The United States maintains that the 1982 UNCLOS fails to give coastal States any jurisdiction to regulate foreign aircraft outside their territorial sea. Rather, the 1982 UNCLOS preserves the freedom of overflight for all States in the airspace above the EEZ. Further, the United States argues that the conduct of aerial surveillance and reconnaissance in the airspace above the EEZ is a lawful use of the sea relating to the freedom of overflight that is recognized in Article 58 of the 1982 UNCLOS. In short, the United States’ position is that the EEZ is an economic zone, not a security zone.59

IMPLICATIONS OF A POSSIBLE CHINESE ADIZ IN THE SOUTH CHINA SEA The main concern in Southeast Asia that was raised following China’s declaration of an ADIZ in the East China Sea was that China would also

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declare an ADIZ in the South China Sea. This concern was understandable, given the fact that tensions were already high between China and Vietnam and between China and the Philippines. The fact that China has undertaken large-scale construction works on the reefs it occupies in the Spratly Islands, and has constructed airstrips on Fiery Cross, Mischief and Subi reefs,60 has increased the level of concern, not just among the ASEAN claimant States, but among other States with interests in the South China Sea. Statements from officials and commentators in China have indicated that China may declare an ADIZ in the South China Sea at some time in the future.61 Following the award of the Arbitral Tribunal established under UNCLOS to settle the maritime disputes between the Philippines and China in the South China Sea, China reaffirmed that it would declare an ADIZ in the South China Sea if it considers that its security is threatened.62 If so, the first question is whether China would be entitled to declare an ADIZ in this area, that is to say whether there is a legitimate national security justification for China to establish an ADIZ in the South China Sea. The second question is where China might declare an ADIZ in the South China Sea. China has a major naval base on the island of Hainan and it has other facilities along its southern coast in Guangzhou province. It might therefore possibly attempt to declare an ADIZ off its southern coast, extending about 100nm, and as far as the median line in the Gulf of Tonkin. If this hypothetical ADIZ were extended further south up to 150nm or more, it would include the Paracels, which are occupied by China, but also claimed by Vietnam. As the HD-981 oil rig incident demonstrated, the Paracels are a major source of tension between China and Vietnam.63 Therefore, if China were to declare an ADIZ that included the Paracels, it would be likely to greatly exacerbate friction between China and Vietnam. The islands in dispute between China and the Philippines include Scarborough Shoal, a large reef with four to six small rocks that are above water at high tide. Scarborough Shoal is more than 500nm from the coast of China, and only about 124nm from the coast of the Philippines. Since it is well within the EEZ of the Philippines measured from its coast,64 it would be extremely provocative if China were to declare an ADIZ that extended so far from its own coast. This same argument can be applied to the Spratly Islands, which are the major islands in dispute in the South China Sea. They are very close to the coasts of Vietnam, the Philippines, Malaysia and Brunei (some features are within 200nm from either Vietnam, the Philippines, Malaysia or Brunei), and between 570 and 600nm from the Chinese island of Hainan. The Arbitral Tribunal in the case between the Philippines and China concluded

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that all of the islands in the Spratlys are rocks entitled to no more than a 12 nm territorial sea, which means that the waters in the South China Sea outside the 12 nm territorial sea from the islands will be open to all States to exercise the freedoms of the high seas, including overflight, navigation and military activities. Any declaration of an ADIZ so far from China that included islands occupied and claimed by several States would raise doubts as to its justification for national security. An ADIZ declaration of China in the South China Sea would also be certain to raise grave concerns in ASEAN and provoke reactions from the United States, Japan, Australia and many other States outside the region. They would view it as part of a threat to the freedoms of navigation, overflight and military activities that they have exercised in accordance with UNCLOS and the 1944 Chicago Convention on International Civil Aviation.

CONCLUSION: A PRACTICAL SOLUTION REGARDING THE ESTABLISHMENT AND OPERATION OF ADIZS China is reportedly spending large amounts of money to increase the capabilities of its air force and improve its ability to identify aircraft above the seas off its coast. In the East China Sea, China has overlapping EEZ claims with its neighbours as well as a sovereignty dispute with Japan over the Senkaku/Diaoyu Islands. Given that China’s ADIZ overlaps significantly with those of its neighbours, there may be an increased number of interceptions by China of aircraft in its ADIZ. At the same time, as China sends its aircraft into the ADIZs of its neighbours, there may be an increased number of interceptions of Chinese military aircraft by its neighbours. In addition, the United States is likely to continue to fly reconnaissance missions in the airspace above China’s EEZ without providing any notification to China. One practical way to deal with this problem is for all the sides to agree that the principle of international law governing the airspace outside the territorial sea of any State is freedom of overflight. They could also agree that a foreign military aircraft flying over an uninhabited offshore feature poses no threat to the security of any State claiming sovereignty over that feature. Furthermore, the States concerned could agree that flights over disputed offshore features or over disputed maritime zones, as well as the failure to respond to or object to such flights, are without prejudice to the sovereignty or maritime claims of the States concerned. Given that some foreign aircraft will enter the ADIZ of other States without giving prior notification, the coastal State concerned is likely to

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send up its own military aircraft to investigate. In order to minimize the risk of such an incident getting out of hand, it would be in the interests of all of the States concerned to follow established “rules of road” and best international practices in such cases. In fact, such rules of the road already exist for the interception of civilian aircraft. They are set out in Article 3 bis of the Chicago Convention, which was adopted in 1984 and had 153 parties as of January 2017, including China, Japan and Korea.65 Similar rules of the road should be followed or new rules adopted for the interception of military aircraft. A good example is the adoption by ASEAN Defence Ministers on October 28, 2018 of the Guidelines for Air Military Encounters (GAME), a non-binding set of measures designed to manage unintentional air military encounters over the high seas. All of the ASEAN-Plus countries including China Australia, China, India, Japan, New Zealand, South Korea, Russia and the United States, have given their in-principle support for the Guidelines. They should be encouraged to formally adopt and use the Guidelines in practice. In the South China Sea, where sovereignty and maritime disputes are even more complex and involve even more States, for the sake of regional peace and stability, it is advisable that no State should declare and attempt to enforce any ADIZ. If an ADIZ were claimed by China in the South China Sea, it would be almost certain to provoke much criticism on both legal and political grounds. It would also lead to incidents that threaten international peace and security. The Philippines had an ADIZ of 225 nm and Vietnam had an ADIZ of 150 nm established during the Cold War66 that do not seem to be enforced at present. A Chinese declaration of an ADIZ in the South China Sea may make Vietnam and the Philippines consider reactivating and even expanding their ADIZs.

NOTES   1. “Statement by the Government of the People’s Republic of China on Establishing the East China Sea Air Defense Identification Zone”, Xinhua, 23 November 2013, accessed 18 September 2017, http://news.xinhuanet.com/english/china/2013-11/23/c_132911634.htm.  2. See, for example, “Statement of the Secretary of State on the East China Sea Air Identification Zone”, US Department of State, 23 November 2013, accessed 18 September 2017, http://www.state.gov/secretary/remarks/2013/11/218013.htm; “Statement of the Minister of Foreign Affairs of Japan on the ‘East China Sea Air Defence Identification Zone’ by the Ministry of National Defense of the People’s Republic of China”, 24 November 2013, accessed 18 September 2017, http://www.mofa.go.jp/press/release/press4e​ _000098.html.   3. This chapter focuses on legal issues regarding ADIZs. It does not aim to address security and international political issues, including China–Japan relations, the role of the United States and the rise of China.

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  4. “Convention on International Civil Aviation”, adopted 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) (CIAC), Article 1.   5. CIAC, Article 2.   6. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, 10 December 1982, 1833 UNTS 3 [UNCLOS], Article 2.   7. UNCLOS, Article 3.   8. “Convention on the High Seas”, adopted 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962), Article 2.   9. UNCLOS, Article 87. 10. UNCLOS, Article 78. 11. UNCLOS, Article 58. 12. CIAC, Annex 15, Section 1.1, accessed 18 September 2017, http://www.icao.int/ NACC/Documents/Meetings/2014/ECARAIM/REF05-Annex15.pdf. Pursuant to Article 37 of CIAC, ICAO adopts and amends from time to time, as may be necessary, international standards and recommended practices and procedures for Aeronautical Information Services. These standards and recommended practices are designated as Annex 15 to the Convention. The Convention itself does not have any provision on ADIZs. Annex 15 as amended most recently in November 2013, however, introduces a definition of ADIZs and contains in Appendix 1 a provision on Contents of the Aeronautical Information Publication. 13. Jaemin Lee, “China’s Declaration of an Air Defense Identification Zone in the East China Sea: Implications for Public International Law”, American Society of International Insights 18 (2014): 1, accessed 18 September 2017, http://www.asil.org/insights/volume/18/ issue/17/china%E2%80%99s-declaration-air-defense-identification-zone-east-china-sea. 14. Elizabeth Cuadra, “Air Defense Identification Zones: Creeping Jurisdiction in the Airspace”, Virginia Journal of International Law 18 (1977): 496. 15. Elizabeth Cuadra, “Air Defense Identification Zones”. After 11 September 2001, the United States established an ADIZ over Washington DC, accessed 18 December 2017, http://www.ainonline.com/aviation-news/aviation-international-news/2008-12-29/washin​ gton-dc-adiz-becomes-permanent. 16. CIAC, Article 12. 17. Although there are technical provisions on ADIZs in Annex 15 (recommended practices) to CIAC, CIAC itself does not provide for the right of States to establish ADIZs. 18. UNCLOS, Article 56. 19. UNCLOS, Article 33. 20. See, for example, Elizabeth Cuadra, “Air Defense Identification Zones”, 496. 21. Jaemin Lee, “China’s Declaration of an Air Defense Identification Zone”. See also J. Ashley Roach,  “Air Defence Identification Zones”, The Max Planck Encyclopedia of Public International Law 1 (2012): 232, accessed 18 September 2017 http://opil. ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e237; and Peter A. Dutton,  “Caelum Liberum: Air Defense Identification Zones Outside Sovereign Airspace”, American Journal of International Law 103 (2009), 691. 22. “Statute of the International Court of Justice”, adopted 26 June 1945, 33 UNTS 993, Article 38(1)(a) (entered into force 24 October 1945) (ICJ Statute). 23. Colombian–Peruvian Asylum Case (Colombia v. Peru), Judgment, (1950) ICJ Report 266, at 277. 24. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment, (1986) ICJ Reports 14, at 44. 25. 14 C.F.R. §99.3. 26. 14 C.F.R. §99.9. 27. For the coordinates of these ADIZs, see 14 C.F.R. §99.41‒49 (2009). 28. Peter A. Dutton, “Caelum Liberum: Air Defense Identification Zones Outside Sovereign Airspace”, American Journal of International Law 103 (2009): 691. 29. Peter A. Dutton, “Caelum Liberum: Air Defense Identification Zones”. 30. Peter A. Dutton, “Caelum Liberum: Air Defense Identification Zones”.

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31. “Commander’s Handbook on the Law of Naval Operations”, accessed 18 September 2017, www.jag.navy.mil/documents/NWP_1-14M_Commanders_Handbook.pdf. 32. “Commander’s Handbook”. 33. Elizabeth Cuadra, “Air Defense Identification Zones”, 495. This paper focuses on Asia, but ADIZs have also been established in other regions, including Europe (Germany, Denmark), South Asia (India), Africa (South Africa) and the Middle East (Saudi Arabia). 34. “Press Conference, Revision to Air Defense Identification Zone (ADIZ) Line”, Ministry for Foreign Affairs of Japan, 25 June 2010, accessed 18 September 2017, http://www. mofa.go.jp/announce/fm_press/2010/6/0625_01.html. 35. Elizabeth Cuadra, “Air Defense Identification Zones”, 495. 36. “Statement by the Government of the People’s Republic of China on Establishing the East China Sea Air Defense Identification Zone”. 37. “Statement by the Government of the People’s Republic of China”. 38. “Statement by the Government of the People’s Republic of China”. 39. “Statement by the Government of the People’s Republic of China”. 40. “Statement of the Secretary of State on the East China Sea Air Identification Zone”. 41. Zachary Keck, “US Bombers Challenge China’s Air Defense Identification Zone”, The Diplomat, 27 November 2013, accessed 18 September 2017, http://thediplomat. com/2013/11/us-bombers-challenge-chinas-air-defense-identification-zone/. 42. “Statement of the Secretary of State on the East China Sea Air Identification Zone”. 43. Eric Heginbotham, “The Foreign Policy Essay: China’s ADIZ in the East China Sea”, Lawfare Blog, 24 August 2014, accessed 18 September 2017, http://www.lawfareblog. com/?p=37889. 44. Eric Heginbotham, “The Foreign Policy Essay”. 45. Lee Woon Jae, “Tension on the Air: The Air Defense Identification Zones on the East China Sea”, Journal of East Asia International Law 7 (2014): 279. 46. “Press Conference, Revision to Air Defense Identification Zone (ADIZ) Line”. 47. See Madison Park, “Why China’s New Air Zone Incensed Japan, US”, CNN, 27 November 2013, accessed 19 September 2017, http://edition.cnn.com/2013/11/25/world/ asia/china-japan-island-explainer/. 48. See Zhu Feng, “China’s First ADIZ Decision: One Year Later”, Asia Maritime Transparency Initiative, 12 November 2014, accessed 19 September 2017, http://amti. csis.gov/chinas-first-adiz-decision-one-year-later/. 49. See “Japanese Fighter Scrambles against Foreign Aircraft Hit Record High”, Kyodo News International, 7 July 2014, accessed 19 September 2017, http://www.globalpost.com/­dis​ patch/news/kyodo-news-international/140709/japanese-fighter-scrambles-against-foreign​ -aircraft-hi. 50. Franz-Stefan Gady, “Japan’s Fighter Jets Intercepted Chinese Aircraft 571 Times in 2015”, The Diplomat, 26 April 2016, accessed 19 September 2017, http://thediplomat. com/2016/04/japans-fighter-jets-intercepted-chinese-aircraft-571-times-in-2015/. 51. Eric Heginbotham, “The Foreign Policy Essay: China’s ADIZ in the East China Sea”. 52. Zachary Keck, “South Korea to Expand Its Air Defense Identification Zone”, The Diplomat, 2 December 2013, accessed 19 September 2017, http://thediplomat. com/2013/12/south-korea-to-expand-its-air-defense-identification-zone/. 53. See Eric Heginbotham, “The Foreign Policy Essay: China’s  ADIZ  in the East China Sea”. 54. The outer limit of China’s claimed ADIZ is almost identical to the outer limit of China’s claimed EEZ in the East China Sea. Tetsuo Kotani, “Reviewing the First Year of China’s ADIZ: A Japanese Perspective”, Asia Maritime Transparency Initiative, 25 November 2014, accessed 19 September 2017, http://amti.csis.gov/reviewing-the-firstyear-of-chinas-adiz-a-japenese-perspective/. See also Wendell Minnick, “China Incident with US P-8 Sparks Debate on Pacific Posture”, Defense News, 31 August 2014. See also Andrew S. Erickson and Emily de La Bruyere, “Going Maverick: Lessons from China’s Buzzing of a U.S. Navy Aircraft”, The Wall Street Journal, 25 August 2014, accessed 19

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55. 56. 57. 58. 59.

60. 61.

62. 63.

64.

65. 66.

Building a normative order in the South China Sea September 2017, http://blogs.wsj.com/chinarealtime/2014/08/25/going-maverick-lessonsfr​om-chinas-buzzing-of-a-u-s-navy-aircraft. Elizabeth Cuadra, “Air Defense Identification Zones”, 486. See “China‒US Aircraft Collision Incident of April 2001: Assessments and Policy Implications”, CRS Report for Congress, 10 October 2001, accessed 19 September 2017, https://fas.org/sgp/crs/row/RL30946.pdf. “Chinese FM Spokesman Gives Full Account of Air Collision”, Xinhua, 3 April 2001, accessed 19 September 2017, http://news.xinhuanet.com/english/20010404/393124A. htm. Shannon Tiezzi, “China’s RIMPAC Spying: Having Your Cake and Eating It Too”, The Diplomat, 1 August 2014, accessed 19 September 2017, http://thediplomat.com/2014/08/ chinas-rimpac-spying-having-your-cake-and-eating-it-too/. See Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone”, Chinese Journal of International Law, 9 (2010), 9‒29. See also Zhang Haiwen, “Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?” – Comments on Raul (Pete) Pedrozo, “Military Activities in the EEZ”, 31‒47. It should be noted that not all countries share the United States’ views. Bangladesh, Brazil, Burma, Cambodia, Cape Verde, China, Egypt, Haiti, India, Iran, Kenya, Malaysia, Maldives, Mauritius, North Korea, Pakistan, Portugal, Saudi Arabia, Somalia, Sri Lanka, Sudan, Syria, Thailand, United Arab Emirates, Uruguay, Venezuela, and Vietnam take the position that UNCLOS gives coastal States the right to regulate not only economic activities, but also activities of foreign navies beyond 12 nm. See Ronald O’Rourke, “Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress”, Congressional Research Service, 17 August 2017, accessed 19 September 2017, http://fas. org/sgp/crs/row/R42784.pdf. See, for example, Gregory Poling, “Spratly Airstrip Update: Is Mischief Reef Next?”, Asia Maritime Transparency Initiative, 15 September 2015, accessed 19 September 2017, http://amti.csis.org/new-imagery-release. See Zachary Keck, “China’s Drafting a South China Sea ADIZ”, The Diplomat, 31 January 2014, accessed 19 September 2017, http://thediplomat.com/2014/01/chinasdrafting-a-south-china-sea-adiz/; Zachary Keck, “PLA Officer: China Must Establish South China Sea ADIZ”, The Diplomat, 22 February 2014, accessed 19 September 2017, http://thediplomat.com/2014/02/pla-officer-china-must-establish-south-china-sea-adiz/. See “China Says ADIZ in South China Sea Depends on Threats”, Xinhua, 13 July 2016, accessed 19 September 2017, http://news.xinhuanet.com/english/2016-07/13/c_135509740. htm. See Ankit Panda, “1 Year Later: Reflections on China’s Oil Rig ‘Sovereignty-Making’ in the South China Sea”, The Diplomat, 12 May 2015, accessed 19 September 2017, http:// thediplomat.com/2015/05/1-year-later-reflections-on-chinas-oil-rig-sovereignty-makin​ g-in-the-south-china-sea/. “Philippines Position on Bajo de Masinloc (Scarborough Shoal) and the Waters within its Vicinity”, Philippine Department of Foreign Affairs website, 18 April 2012, accessed 19 September 2017, http://www.gov.ph/2012/04/18/philippine-position-on-baj​ode-masinlocand-the-wa​ters-within-its-vicinity/. “Protocol relating to an Amendment to the Convention on International Civil Aviation Article 3 bis, Signed at Montreal on 10 May 1984”, accessed 19 September 2017, http:// www.icao.int/secretariat/legal/List%20of%20Parties/3bis_EN.pdf. Elizabeth Cuadra, “Air Defense Identification Zones”, 509.

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9.  Maritime claims in the South China Sea and freedom of navigation operations Jonathan G. Odom Like other military operations, activities, and actions, a freedom of navigation operation (FONOP) is not an end in itself, nor is it conducted in a hypothetical world or a political vacuum. Instead, FONOPs are conducted in order to achieve specific objectives, and they must be put into the proper context of the real-world situation in which they are conducted. This chapter will discuss the relationship between the maritime claims and FONOPs in the South China Sea, particularly in the vicinity of the Spratlys and Paracels,1 in order to aid the reader in gaining a greater understanding of what is actually at play. First, it will explain the nature of the different types of territorial-maritime disputes that can exist in situations like the one in the South China Sea. Second, it will summarize the actual territorial-maritime claims within the Spratlys and the Paracels—to include not only what we know, but also point out what we don’t know, which is also important. Third, it will explore the elements of and the justification for the longstanding U.S. Freedom of Navigation (FON) Policy, which includes FONOPs. And, fourth, it will raise the issue of the extent to which other nations are either undertaking FON-related activities in the South China Sea or should consider doing so in the future. Taken together, this discussion will hopefully demonstrate that FONOPs in the South China Sea are lawful under international law and legitimate as a policy option, yet are sometimes complicated in their operational execution due to some of the facts and circumstances of a particular situation. Taken together, this discussion should provide a helpful context for understanding the goals and importance of conducting FONOPs in the South China Sea.2

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UNDERSTANDING THE NATURE OF TERRITORIAL-MARITIME DISPUTES At the outset, it is essential to understand the nature of territorialmaritime disputes generally, as well as those in the South China Sea around the Spratlys and Paracels, more specifically. International relations experts would characterize the South China Sea situation as a “complex problem.”3 The complexity of some security-related problems can be manifested in aspects of an overall “strategic security environment,”4 but it can also be found in the military-focused “operational environment” of the situation. Regarding the latter, U.S. military doctrine acknowledges, “[T]he operational environment often presents some situations so complex that they defy complete understanding.”5 Despite such challenges, that same military doctrine insists, “Understanding the operational environment is fundamental to joint operations.”6 Thus, even if complete understanding might be unachievable in a particular situation, improved understanding can surely help to bring “adequate order to complex problems.”7 While Realists might be skeptical about the value of discussing international law in the context of international relations,8 a positive attribute of international law and the existing international rules-based order is how they can help to frame a particular situation or problem, such as the one that currently exists in the South China Sea. From a legal perspective, it is important to deconstruct the South China Sea situation and recognize that there is more than one type of international dispute that exists there. In reality, there are four categories of disputes between nations that exist simultaneously: (1) competing territorial claims, (2) competing maritime claims, (3) overlapping maritime claims, and (4) restrictive maritime claims. Figure 9.1 illustrates the conceptual relationship between these categories of territorial-maritime disputes in a geospatial area like the South China Sea. Thus, a fundamental point for understanding the strategic or operational environment of the South China Sea situation is to recognize it is not simply one category of international disputes at issue, but rather involves several categories of disputes existing simultaneously and multiple international disputes fitting within each of those categories, also simultaneously. Having identified the four categories of territorial-maritime disputes existing in the South China Sea, it is helpful to have a working definition for each of these categories. Competing territorial claims occur when two or more nations are claiming sovereignty of the same territory, whether it is continental territory or an insular feature (e.g., an island). Competing maritime claims flow from competing territorial claims. That is, if two or

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Competing Territorial Claims

Overlapping Maritime Claims

Competing Maritime Claims

Restrictive Maritime Claims

Source: Author.

Figure 9.1  Categories of South China Sea disputes more nations claim sovereignty of the same territory, then they likewise are both claiming maritime zones around that territory. Overlapping maritime claims occur when the waterspace between two claimants is less than the maximum breadth of maritime zones that coastal States may claim from their territory. For example, if there is less than 24 nautical miles (nm) of waterspace between two nations, then the nations are unable to enjoy the full entitlement of a 12-nautical mile territorial sea. Likewise, if there is less than 400nm of waterspace between two nations, then they are unable to enjoy the full entitlement of the maximum breadth of a 200-nautical mile exclusive economic zone (EEZ). Restrictive maritime claims occur when a coastal State attempts to restrict the activities of other nations within that nation’s maritime zones in a manner or to an extent greater than the applicable international law would permit.9 These working definitions are not found expressly in any international treaty or judicial ruling, but they should nonetheless provide a helpful foundation for the remainder of this discussion. In general, it is important to understand the different nature of these four categories of territorial-maritime disputes because different bodies of international law apply. For competing territorial claims and competing maritime claims, the applicable body of international law is the law of sovereignty. This body of law is not codified in any treaty or convention, other than the general obligation of nations to resolve their international disputes by peaceful means.10 Rather, it is derived from the customary law of sovereignty, which is reflected in the jurisprudence of rulings by the international courts and arbiters involving actual disputes between two or

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more sovereign nations.11 Concurrently, for overlapping maritime claims and restrictive maritime claims, the applicable body of international law is the international law of sea, reflected primarily in the U.N. Convention on the Law of the Sea (UNCLOS).12 Additionally, it is important to distinguish between these four categories of territorial-maritime disputes because different national policies might also apply. Consider the United States as an example. For competing territorial claims and competing maritime claims in which the United States is not a claimant, the U.S. policy is generally to not take a particular claimant’s side on the ultimate issue of sovereignty, but to call upon the claimants to resolve the dispute by peaceful means and in accordance with international law. This U.S. policy has been declared and reiterated specifically for the competing claims in the South China Sea.13 Many nations have similar policies for a number of reasons.14 Nations also tend to take no side for overlapping maritime claims between other nations, for similar reasons. But in situations involving restrictive maritime claims,15 a different approach might apply. For the United States, that would be the longstanding U.S. FON Policy.16 It is important to recognize that the complex South China Sea situation triggers both of these U.S. policies simultaneously: the United States does not take a side on the competing territorial and maritime claims, but it does challenge the excessive maritime claims asserted by any of the claimants. Thus, while some foreign governments and critics might seek to bind the United States to a purported promise of absolute neutrality in the South China Sea situation,17 or redefine U.S. policy as such, those characterizations oversimplify the situation—either negligently or deliberately.

MARITIME CLAIMS IN THE VICINITY OF THE SPRATLYS AND PARACELS Now that we have utilized international law to help frame the situation, what are the specific circumstances of the territorial-maritime claims in the vicinity of the Spratlys and the Paracels? They can be summarized as follows: ●●

In terms of competing territorial claims, six claimants18 involving five nations assert sovereignty over territorial features in the South China Sea. But not every one of those claimants claims all of the geographic features in the South China Sea. The PRC, Taiwan, and Vietnam each appear to claim sovereignty of all of the Spratlys and Paracels. But Brunei, Malaysia and the Philippines do not claim

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●●

●●

sovereignty to any of the Paracels, nor do they appear to claim sovereignty of all of the Spratlys. Moreover, the latter claimants have not identified specifically which territorial features within the Spratlys they are each claiming. In terms of competing maritime claims, the claimants have also not expressly identified the maritime entitlements (i.e., a territorial sea only, or a territorial sea and an EEZ) that they are claiming for each of their geographic features in the Spratlys.19 With regard to the Paracels, the PRC has issued baselines20 around the outermost points of the outermost features—thereby implying that it is claiming, at a minimum, that those particular features are entitled to a territorial sea. In terms of overlapping maritime claims, few if any of the maritime boundaries in the South China Sea have been settled among these six claimants.21 In fact, none of the maritime boundaries have been settled in the Spratlys or the Paracels.

While all of these specific circumstances are helpful to understand the overall situation in the Spratlys and the Paracels, do any of those circumstances implicate FON interests, FON policies, or FONOPs? The short answer is no. None of these three categories of disputes trigger the FON policies of other nations, including the United States, or lines of effort carried out by those nations to promote those policies, such as FONOPs. The fourth category of territorial-maritime disputes, however, does implicate national FON policies. In terms of restrictive maritime claims, four of the six claimants assert maritime claims that seek to restrict transits and activities by other nations (i.e., claimant and non-claimant nations) in a manner that other nations consider to be in excess of what is permitted by the international law of the sea. Among the six claimants, Brunei has the “cleanest hands” with no maritime claims that purportedly restrict the right of innocent passage of foreign ships through its claimed territorial sea or the freedom of foreign ships and aircraft to conduct non-economic activities within its EEZ22 The Philippines has previously asserted a number of maritime claims that could be construed as excessive maritime claims, but it has largely “cleaned its house” of national maritime claims in recent years.23 And those remaining excessive maritime claims by the Philippines do not appear to apply to the Spratlys,24 much less the Paracels (given that the Philippines does not assert a territorial claim to the Paracels). Unfortunately, the PRC, Malaysia, Taiwan, and Vietnam have each asserted a number of restrictive maritime claims in excess25 of what the international law of the sea permits.26

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Moreover, it is not only the restrictive maritime claims those four claimants have codified by national law, regulation, or declaration that creates problems for the international community and a rules-based international order. It is also their inaction in some instances, coupled with the ­ambiguity of their actions in other instances. One complicating factor involves the nature of the individual geographic features they are claiming in the Spratlys or the Paracels. Observers will refer colloquially to them as “the Spratly (or Paracel) islands” or “the Spratly (or Paracel) island group,” as if all of the geographic features within the vicinity are equal in the eyes of international law. To the contrary, international law attributes different maritime entitlements to insular features, depending upon the specific nature of each of those features. Generally, islands capable of human habitation or economic life are entitled to a territorial sea and an EEZ,27 rocks are a subset of islands28 that are entitled only to a territorial sea,29 low-tide elevations are not entitled to their own territorial sea,30 and artificial islands are only entitled to a safety zone no greater than 500 meters.31 To date, with the exception of the Philippines,32 none of the claimants have declared what they believe to be the specific nature of each of the individual geographic features they are claiming within the Spratlys or the Paracels. Compounding that first challenge is ascertaining the starting point from which to measure the maritime entitlements for each of these geographic features in the Spratlys. Generally, international law requires the starting point to be what is referred to as the “normal baseline,” which is the lowwater line along the coast of a continental coastline or island “as marked on large-scale charts officially recognized by the coastal State.”33 To date, however, none of the claimants have declared whether there are particular large-scale charts of the Spratly features that they “officially recognize” and are marked with a low-water line around each feature,34 nor have they published detailed charts delineating straight baselines around their features claimed in the Spratlys.35 Admittedly, international law permits coastal nations to depart from the normal baseline methodology, but only in extremely limited circumstances where specific criteria are met.36 Yet what gets overlooked sometimes in those exceptional circumstances is that international law also requires the coastal nation drawing those baselines to provide “due publicity” to the international community via geographical coordinates or by showing them on “charts of a scale or scales adequate for ascertaining their position,” which shall be deposited with the United Nations.37 In other words, the potential right to draw such baselines is accompanied by the responsibility for publishing them. But the one South China Sea claimant that seeks to employ such exceptional baselines in all instances (i.e., the PRC) has

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failed to provide such “due publicity” for all of its claimed South China Sea features. In 1992, the PRC declared in one of its national laws that its territorial sea “is designated with the method of straight baselines.”38 Thereafter, the PRC has published coordinates for its straight baselines along its continental coastline,39 around the Paracels in the northern portion of the South China Sea,40 and around the Senkakus in the East China Sea.41 It is worth noting that the United States consider these baselines and resulting internal waters to constitute an excessive maritime claim.42 Regardless, the PRC has not, to date, published geographic coordinates or detailed charts for its baselines in the Spratlys. Yet it is also worth noting that the Arbitral Tribunal ruled that the PRC may not lawfully draw archipelagic or straight baselines in the Spratlys.43 Those five paragraphs of the Tribunal’s 1,203-paragraph ruling are relatively brief in length; however, they send a rare but powerful message by an international tribunal: coastal States do not have unlimited discretion to enact and promulgate maritime claims that directly or indirectly affect the freedom of the seas guaranteed to other States under international law. Thus, any attempt by the PRC to draw such straight baselines in the Spratlys that impact other States’ freedom of the seas would constitute an excessive maritime claim under UNCLOS. Furthermore, the Arbitral Tribunal’s analysis of the Spratlys implies that the straight baselines previously drawn by the PRC around the Paracels constitute an excessive maritime claim under UNCLOS. A second complicating factor in the Spratlys and the Paracels arises from some of the ambiguous, yet significant, actions that some of the claimants have taken. Consider, for example, the U-shaped line44 asserted by two of the claimants (i.e., the PRC and Taiwan). Does the U-shaped line represent a territorial claim—that is, a line of allocation intended to represent the islands within the South China Sea (including in the Spratlys and Paracels) to which China claims sovereignty? If so, it would be entirely a matter of competing territorial claims governed by the customary law of sovereignty. Or does the U-shaped line also represent a claim to a special status of all of the waters located within the line? If so, it would be a matter of applying the international law of the sea. To date, neither the PRC nor Taiwan has clarified the intended meaning of the U-shaped line.45 Consequently, the international community has been unsure whether to consider and scrutinize it in terms of the customary international law of sovereignty, or whether to view it through the international law of the sea.46 For this reason, one of the most significant developments arising from the Arbitration case between the Philippines and the PRC was the Tribunal’s binding legal conclusion that closed the door on one of those two options. Specifically, the Tribunal ruled that the U-shaped line is “incompatible with”47 and “contrary to”48 the international law of the sea

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reflected in UNCLOS. The Tribunal further ruled that any claimed maritime entitlements reflected by the U-shaped line are “without lawful effect to the extent that they exceed the geographic and substantive limits” of the maritime entitlements that a coastal State may claim under UNCLOS.49 In other words, regardless of whether the PRC or Taiwan ever clarifies the U-shaped line’s intended meaning, the Tribunal determined any element of its purported meaning that affects the international law of the sea would constitute an excessive maritime claim. Thus, any attempt by the PRC or Taiwan to utilize the U-shaped line to impact the freedom of the seas guaranteed to other States under international law would constitute an excessive maritime claim under UNCLOS. A third complicating factor arising from ambiguous actions by some of the claimants involves what has been commonly labeled as reclamation activities, or what this author has referred to as “clamation”50 and the Arbitral Tribunal referred to as “human modification.”51 A number of the South China Sea claimants have engaged in such modification activities over the years, but the PRC has drawn recent attention due to the significant scope of its modification activities, particularly in the Spratlys.52 What is the intended purpose of these activities by the undertaking claimants? To be sure, some of the purposes might be unrelated to law, but rather for strategic or tactical advantages in the overall situation. In the context of international law, however, is the purpose of these modification activities to establish or strengthen a claimant’s territorial claims in relations to competing claims by the other claimants?53 Or is their intention to follow up at some time in the future by asserting maritime entitlements (e.g., territorial sea and EEZ) around the features? Once again, the lack of clarity leaves the international community confused as to which body of international law to apply. Regarding the issue of “human modification,” another of the significant legal developments arising from the Arbitration case was how the Tribunal closed the door on one of those two options. Given its limited jurisdiction to questions involving UNCLOS, the Tribunal remained silent on what impact, if any, this human modification would have on strengthening competing territorial claims. But it did clearly discuss how such modifications could not elevate the status of a feature to affect maritime claims. Specifically, the Tribunal ruled that UNCLOS “requires that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification.”54 Moreover, the Tribunal concluded that “human modification cannot change the seabed into a lowtide elevation or a low-tide elevation into an island.”55 Thus, regardless of a claimant’s intent for undertaking any human modification, any future attempt by the modifying State to utilize such modification to impact the

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freedom of the seas guaranteed to other States would also constitute an excessive maritime claim under UNCLOS.

U.S. FREEDOM OF NAVIGATION POLICY Having categorized the territorial-maritime claims and applied them to the specific circumstances in the Spratlys and the Paracels, now would be the logical point to inject national FON policies and FONOPs into the discussion. At least one other nation in the world has either formally established or seeks to establish a FON Program (i.e., the United Kingdom).56 And a number of individual nations and regional organizations have spoken out publicly in favor of preserving the freedom of navigation.57 But, in reality, many observers of the South China Sea situation appear to be focused largely on the longstanding U.S. FON Policy and its FONOPs conducted around the world, including those conducted in the Spratlys. The U.S. FON Policy has recently drawn significant attention in the United States and abroad. An argument could be made that the program has received more attention in the past two years than in its preceding 35 years combined. Senior U.S. officials,58 including former President Barack Obama,59 have publicly and repeatedly declared that the United States “will continue to sail, fly, and operate anywhere that international law allows.” Most recently, the new U.S. President Donald Trump has publicly stated that freedom of navigation and overflight and other internationally lawful uses of the sea are “a very, very high priority.”60 The world now watches as U.S. military vessels and aircraft conduct FONOPs in the South China Sea, including in the vicinity of the Spratlys and the Paracels. The U.S. FON policy was not conceived by any recent U.S. presidential administration. In fact, the United States has made it a priority to preserve the freedom of the seas throughout the nation’s history.61 The U.S. FON Program has bipartisan support, as indicated by the fact that presidents Jimmy Carter (a Democrat) and Ronald Reagan (a Republican) formally established and developed the U.S. FON Program nearly four decades ago. But even before the U.S. FON Program was established, a number of the preceding U.S. presidents also emphasized the U.S. interest in preserving the freedom of the seas and highlighted the role of U.S. naval and air forces in preserving that national interest around the world.62 Of note, the program involves activities undertaken by multiple departments of the U.S. government—in other words, it is not purely a U.S. Department of Defense (DoD) effort nor limited solely to FONOPs. The FON Program is firmly rooted in the rules of international law. Since the program’s inception, a fundamental guiding principle has been

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to “not acquiesce in unilateral acts of other States designed to restrict” the freedom of the seas.63 As was clarified in the most recent DoD maritime security strategy, freedom of the seas means “all of the rights, freedoms, and lawful uses of the sea and airspace, including for military ships and aircraft, recognized under international law.”64 Reaffirming UNCLOS, this freedom of the seas includes, among other things, the rights of innocent passage,65 transit passage,66 archipelagic sea lanes passage,67 the freedoms of navigation and overflight and “other internationally lawful uses of the sea,”68 and the freedom of the high seas.69 Thus, despite efforts by some to narrowly construe what international law guarantees to States in the oceans and airspace of the world,70 the phrase “freedom of the seas” legitimately includes far more than the freedom for commercial vessels.71 The U.S. FON Program is guided, managed, planned, and executed in a manner that is consistent with international law.72 Before the United States decides whether to respond diplomatically or operationally to a maritime claim asserted by a coastal State, the appropriate lawyers, policy advisers, and technical experts within the U.S. government conduct coordinated analysis of that foreign maritime claim in relation to the applicable international law, and assess whether that claim is consistent with that body of law. Following international jurisprudence, the U.S. legal analysis draws primarily from the text of UNCLOS, the extensive negotiating history of that treaty, other rules of customary international law, and relevant State practice. To the extent practicable, the United States is transparent about those assessments through official publications such as the U.S. Department of State’s Limits in the Seas studies73 and Digest of United States Practice in International Law,74 and the DoD’s Maritime Claims Reference Manual.75 Moreover, for any action that the U.S. government does decide to take against an excessive maritime claim, the appropriate lawyers, policy advisers, and technical experts within the government are also involved in drafting, planning, and carrying out those actions. In short, these official U.S. actions are deliberate and lawful. With regard to the range of those U.S. actions, the U.S. FON Program can be broken down into two lines of effort: diplomatic activities and operational activities.76 Yet merely because there are two distinct lines of effort within the program should not be misconstrued as meaning that those efforts are being conducted at cross purposes. To the contrary, these activities are effectively synchronized. Having worked closely with legal and policy colleagues at the U.S. Department of State on these matters, this author can personally attest that the two departments are almost always aligned on whether they consider a particular foreign maritime claim to be excessive under international law, and on ensuring that the U.S. government takes appropriate actions to preserve the rights, freedoms, and lawful uses

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of the sea covered by that foreign claim. It is the exception, not the norm, when the two departments have differences of opinion on these matters. In the diplomatic line of effort of the program, the U.S. government engages coastal States around the world when those countries are developing or establishing maritime claims along their respective coastlines. When appropriate, legal and oceanographic experts from the U.S. government will provide constructive feedback to those coastal States on specific ways to help ensure that their prospective maritime claims are fully consistent with international law. When a coastal State asserts a maritime claim that is ambiguous, the U.S. Department of State will exchange diplomatic communications with that country and request clarification on the nature of the claim and the legal justification for it. These diplomatic communications can take the form of either a written démarche or an across-the-table conversation between the appropriate representatives of the two governments, or a combination of the two. If a coastal State enacts a maritime claim that is excessive (i.e., inconsistent with international law), then the U.S. Department of State will issue an official diplomatic protest to that country’s government in order to register a formal objection to the excessive claim. When discussing FONOPs, it is useful to be aware of this diplomatic line of effort to appreciate how the United States goes to great efforts to encourage other States to clarify their maritime claims and communicate U.S. objections to excessive ones. Often times, U.S. FONOPs are conducted only after the coastal State has repeatedly declined to clarify its questionable claims or reform the excessive nature of those claims. In the operational line of effort of the U.S. FON Program, DoD and U.S. Coast Guard forces conduct FONOPs and what are described as “other FON-related activities.” The difference between the two is that FONOPs have the primary purpose of challenging an excessive maritime claim, while the second category has some other primary goal, such as information collection, with challenging an excessive claim being a secondary effect.77 Some may wonder why the United States does not limit its challenges to excessive maritime claims solely to the diplomatic arena. The formation and development of international law, especially in the context of customary law, is about State practice. Such practice is demonstrated by both the official words and official actions of individual States, with each reinforcing the other. If a coastal State establishes an excessive claim and others protest it through diplomatic means only, what happens if the coastal State simply ignores those diplomatic protests, declines to reform its claim, and perhaps even takes law enforcement actions to uphold the excessive claim? Acquiescence by others poses a risk of legitimizing the coastal State’s excessive claim—if not as a matter of law, then at least in effect. The net

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result could be that the coastal State has de facto changed international law to achieve its strategic ends. Thus, the U.S. FON Program’s operational activities reinforce U.S. public statements and diplomatic communications, and are fully consistent with the official protest of an excessive claim. In that way, the United States is simply standing up for its freedom, and that of other States, as guaranteed in international law. This returns us to one of the practical challenges arising for conducting FONOPs in the some areas of the South China Sea, which were discussed previously. On the one hand, some of the excessive maritime claims in the Paracels are “ripe” for challenging by FONOPs. More specifically, Vietnam and Taiwan generally require foreign warships to provide notification prior to exercising the right of innocent passage through any of their territorial seas, including the territorial sea claimed around the Paracels. Concurrently, the PRC generally requires foreign warships to obtain authorization prior to exercising that right of innocent passage through any of its territorial seas, including the territorial sea claimed around the Paracels. Consequently, in January 2016, the United States conducted a FONOP through these waters to challenge all three of these claimants’ improper restrictions on the right of innocent passage.78 In addition to these excessive claims impeding the right of innocent passage in the Paracels, the PRC has also drawn improper straight baselines around the outermost points of the outermost features in the Paracels. Consequently, in October 2016, the United States conducted a FONOP to challenge these improper baselines.79 For conducting FONOPs in the Spratlys, however, the circumstances are a bit more complicated. Some of the claimant States have not clarified the nature of all of their maritime claims in the Spratlys. For example, if a particular claimant has not specified which features located within the Spratlys are claimed as islands (including rocks), then it is not entirely clear which features are claimed as entitled to a territorial sea. Thus, if that coastal State has enacted an excessive maritime claim that generally applies to all of its territorial seas (e.g., restriction on foreign warships’ exercising the right of innocent passage), then it might be unclear which specific waters within the Spratlys are affected by that claim. For this reason, it could be prudent to focus the execution of FONOPs to challenging excessive maritime claims around features that satisfy both of the following criteria: (a) the claimant clearly claims the feature as its territory, and (b) the feature is clearly entitled to a maritime zone affected by the excessive maritime claim. Such self-censoring by the United States or other like-minded States, however, can come with some risk. That is, if the United States imposes upon itself a level of certainty before conducting FONOPs in these ambiguous areas, then there is risk that claimant States may attempt to leverage their own ambiguity to dissuade the United States and other nations

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from conducting FONOPs. At a later date, that claimant State might then use that lack of activity by other States as evidence that those States have acquiesced or consented to what would otherwise be an excessive maritime claim. An operational way to mitigate that political risk is for the operational forces of the United States or other like-minded States to maintain a physical presence in or near those uncertain areas in the Spratlys—not to directly challenge an excessive maritime claim in existence but rather to dissuade the claimant State from attempting to enact one in the future. Also, it should be noted that, from an operational perspective, one of the positive consequences of the Arbitral Tribunal’s ruling is that it reduced the extent to which claimant States can leverage such ambiguity. For example, because the Tribunal concluded as a matter of law that Mischief Reef,80 Hughes Reef,81 and Second Thomas Shoal82 are low-tide elevations and do not qualify as islands entitled to a territorial sea, there is no need to limit passage within 12nm of any of those features to what qualifies as “innocent passage” under UNCLOS. Moreover, because the Tribunal concluded as a matter of law that none of the Spratlys are entitled to an EEZ,83 the existence of the freedom of the high seas in the center of the South China Sea is now legally indisputable. Therefore, whether any of the claimants decide to clarify the nature of any maritime claims around such features, an international court has now ruled that those features can have either limited or no legal effect on the freedom of the seas enjoyed by all nations under international law.

FREEDOM OF NAVIGATION POLICIES OF OTHER NATIONS So far, the focus has been on what the United States is doing to preserve the freedom of navigation in the South China Sea, including in the vicinity of the Spratlys and the Paracels. Some senior U.S. officials have indicated that the U.S. military undertakes FONOPs to preserve the freedom of navigation for all nations.84 But what, if anything, are other nations doing? Should they also engage in operational activities, including their own ­version of FONOPs? The reality is that not every nation has a blue-water navy, and some nations have no navy at all. But for those nations that do have blue-water navy capabilities, they should surely consider contributing to the collective effort to protect the freedom of the seas in the South China Sea. In recent years, there have been public reports of Australian85 and French military forces86 contributing to that effort, and calling upon other European nations to do likewise.87 Meanwhile, Japan, whose Maritime Self-Defense

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Force constitutes one of the world’s five largest navies, has voiced support for U.S. FONOPs in the South China Sea,88 but has also indicated that it will not conduct or join such FONOPs.89 The reasons for Japan’s decision have not been made public, but presumably, they might include domestic concerns within Japan about expanding the role of its Maritime Self-Defense Force, as well as international relations concerns seeking to avoid backlash from China due to their historical animosities. Regardless, this situation of excessive maritime claims in the South China Sea is not about, and should not be allowed to become characterized as solely about, the United States versus China. Moreover, it cannot be perceived as extraregional powers versus resident nations, especially in light of the colonial legacy in East Asia. The freedom of navigation policy of any nation, whether it is an expressed or implied policy, should consider the use of all elements of national power. This would include not merely military activities, but also diplomatic and informational activities. Thus, if like-minded, non-claimant nations either operationally cannot (i.e., lack the resources) or politically will not (i.e., risk of friction) engage in military activities to challenge efforts by any of the claimant States to restrict the freedom of the seas, they should still consider speaking out, both publicly and in official démarches. For many years, the United States and like-minded European nations (e.g., the United Kingdom, France and Germany) would issue simultaneous démarches that protested excessive maritime claims enacted by other coastal nations around the world.90 That collective routine, however, appears to have withered away in more recent years, for reasons that are not entirely clear. But if all nations in the world are equal sovereigns, then every one of those nations has a diplomatic voice. And we have seen non-claimant nations residing in the region, such as Singapore91 and Indonesia,92 speak out on occasion, either asking China to clarify the meaning of its U-shaped line or challenging its legality under international law. But those nations can speak out more frequently, and other nations should definitely be willing to add to the collective volume of these diplomatic challenges. The United States is not the only nation that has an interest in preserving freedom of navigation in the South China Sea, including in the Spratlys and the Paracels, and others should not risk being viewed as free-riders of navigation.

CONCLUSION In conclusion, the following takeaways are offered up in regards to maritime claims in the South China Sea and to FONOPs. First, it is critical to

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recognize that several types of international disputes exist simultaneously in the South China Sea, and different bodies of international law and national policies apply to each of them. Of note, FONOPs are intended to challenge only one of those types of disputes, specifically restrictive maritime claims (or what the United States labels as “excessive maritime claims”). Second, the FON policy of a particular nation can involve utilizing all elements of that nation’s power. As a result, the longstanding U.S. FON policy has involved both diplomatic activities and operational activities to challenge excessive maritime claims asserted by some coastal States around the world. Third, while several of the South China Sea claimants have maritime claims in the Spratlys that are fully or largely consistent with the international law of the sea, those waters also involve competing maritime claims from multiple claimants that simultaneously assert excessive maritime claims (i.e., the PRC, Malaysia, Taiwan, and Vietnam), which are subject to challenge through FONOPs. Fourth, the United States has made clear that it will continue to conduct FONOPs in the South China Sea, including in the Spratlys and the Paracels, in order to protect the freedom of the seas. Other nations have pronounced that they have an interest in preserving that maritime freedom, and a few have taken demonstrable actions in support of the effort. But the evidentiary record is still limited regarding the extent to which the majority of other nations are capable, ready, and willing to take action to preserve the freedom of navigation in the South China Sea, and, if so, whether that action would be diplomatic or informational in nature, or operational through FONOPs. More nations can surely do more.

NOTES  1. This chapter uses the phrases “the Spratlys” and “the Paracels” to encompass all of the geographic features located within those two archipelagoes. This includes submerged features and low-tide elevations, which would not be entitled to maritime zones (e.g., territorial sea) as a matter of international law, and high-tide elevations, which would be entitled to maritime zones (e.g., territorial sea). This choice of words is deliberately intended to avoid expressing or implying that all geographic features located within the Spratly Islands and Paracel Islands archipelagoes are capable of sovereignty claims.   2. The views expressed are those of the author and do not necessarily reflect the positions of the U.S. Department of Defense or any of its components.  3. For a concise overview of Complexity Theory and Complex Problems, see Andreas Fischer, Samuel Greif and Joachim Funke, “The Process of Solving Complex Problems,” Journal of Problem Solving, Vol. 4, No. 1 (Winter 2012): 19‒42, accessed December 14, 2017, http://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=1118&context=jps.   4. U.S. Department of Defense, “Doctrine for the Armed Forces of the United States,” Joint Publication 1, March 25, 2013, accessed December 14, 2017, http://www.dtic.mil/ doctrine/new_pubs/jp1.pdf, I-10 (“The strategic security environment is characterized

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  5.   6.   7.   8.

  9.

10.

11. 12.

13.

Building a normative order in the South China Sea by uncertainty, complexity, rapid change, and persistent conflict. This environment is fluid, with continually changing alliances, partnerships, and new national and transnational threats constantly appearing and disappearing. While it is impossible to predict precisely how challenges will emerge and what form they might take, we can expect that uncertainty, ambiguity, and surprise will dominate the course of regional and global events”). U.S. Department of Defense, “Joint Publication 3-0,” Joint Operations, II-5, August 11, 2011, accessed December 14, 2017, http://www.dtic.mil/doctrine/new_pubs/jp3_0.pdf. U.S. Department of Defense, “Joint Publication 3-0,” Joint Operations, II-20, August 11, 2011, accessed December 14, 2017, http://www.dtic.mil/doctrine/new_pubs/jp3_0.pdf. U.S. Department of Defense, “Joint Publication 3-0.” See, e.g., Richard H. Steinberg, “Wanted—Dead or Alive: Realism in International Law,” in Interdisciplinary Perspectives on International Law and International Relations, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 146‒73. This author recognizes that the U.S. Government and respected U.S. commentators have traditionally used the term “excessive maritime claims.” See U.S. Department of Defense, “Maritime Claims Reference Manual,” accessed December 14, 2017, http://www.jag.navy. mil/organization/code_10_mcrm.htm; U.S. Department of Navy et al., NWP 1-14M, “Commander’s Handbook on the Law of Naval Operations,” 2007, accessed December 14, 2017, http://www.jag.navy.mil/documents/NWP_1-14M_Commanders_Handbook. pdf; J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd ed. (Leiden/ Boston: Brill-Nijhoff, 2012). This author intends for the phrase “restrictive maritime claims” to be more neutral and less conclusory in tone, because it reflects a category of international disputes for which there might be at least two perspectives. Additionally, this author intends for the term “restrictive maritime claims” to be more encompassing in scope, in order to capture all maritime claims composed of restrictions that might potentially be “excessive maritime claims.” “Charter of the United Nations,” October 24, 1945, 1 U.N.T.S. XVI, Art. 2(3), accessed December 14, 2017, https://treaties.un.org/doc/publication/ctc/uncharter.pdf (“All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”). These include the International Court of Justice, its predecessor the Permanent Court of International Justice, arbitral tribunals established under the Permanent Court of Arbitration, and other international arbiters. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, December 10, 1982, 1833 U.N.T.S. 3 [UNCLOS]. To date, approximately 87 percent of the nations of the world (i.e., 167 of 193) are parties to UNCLOS. For those nations that are not yet parties to the Convention, they are nonetheless bound by many of its provisions as a matter of customary law. For a useful compilation of those provisions of UNCLOS that international courts and tribunals, governments and scholars have identified as binding on all States as customary law, see J. Ashley Roach, “Today’s Customary International Law of the Sea,” Ocean Development and International Law, Vol. 45, No. 3 (2014): 239. Of note, the United States has not yet acceded to UNCLOS, but the U.S. Government has publicly and consistently stated that it considers many of its provisions to reflect customary law. See, e.g., “U.S. President Ronald Reagan, Statement on U.S. Ocean Policy,” March 10, 1983, accessed December 14, 2017, http://www.jag.navy.mil/organization/documents/ Reagan%20Ocean%20Policy%20Statement.pdf. See also U.S. Department of Navy et al., “Commander’s Handbook on the Law of Naval Operations,” NWP 1-14M. See, e.g., Assistant Secretary of State Daniel R. Russel, Bureau of East Asian and Pacific Affairs, “Testimony Before the House Committee on Foreign Affairs Subcommittee on Asia and the Pacific,” February 5, 2014, accessed December 14, 2017, http://www.state. gov/p/eap/rls/rm/2014/02/221293.htm (“I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First

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14.

15.

16.

17. 18. 19.

20.

21.

Maritime claims in the South China Sea and freedom of navigation ­187 of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim”). Some of the potential reasons for the third-party nations, including the United States, to maintain a take-no-sides policy for competing claims include: (1) third-party nations might desire to preserve their bilateral relationships with each of the claimant States, (2) third-party nations might seek to serve as intermediaries to help the claimants manage or resolve their disputes, and (3) third-party nations lack full knowledge of the evidence or information supporting the claimants’ positions and are not empowered with the adjudicative authority to mandate claimants share such evidence or information. The United States uses the phrase “excessive maritime claims” in its FON policy. See U.S. Department of Defense, “Freedom of Navigation Program Fact Sheet” (“Some coastal States in the world have asserted maritime claims that the United States considers to be excessive—that is, such claims are inconsistent with the international law of the sea and impinge upon the rights, freedoms, and uses of the sea and airspace guaranteed to all States under that body of international law”). See, e.g., Assistant Secretary of State Daniel R. Russel, Bureau of East Asian and Pacific Affairs, “Testimony Before the House Committee on Foreign Affairs Subcommittee on Asia and the Pacific,” February 5, 2014 (“Second, we do take a strong position that maritime claims must accord with customary international law. This means that all maritime claims must be derived from land features and otherwise comport with the international law of the sea. So, while we are not siding with one claimant against another, we certainly believe that claims in the South China Sea that are not derived from land features are fundamentally flawed. In support of these principles and in keeping with the longstanding U.S. Freedom of Navigation Program, the United States continues to oppose claims that impinge on the rights, freedoms, and lawful uses of the sea that belong to all nations”). See, e.g., Ben Blanchard, “China Tells U.S. to Stay out of South China Seas Dispute,” Reuters, July 15, 2015, accessed December 14, 2017, http://www.reuters.com/article/ us-china-usa-asean-idUSKBN0FK0CM20140715. The claimants include the Sultanate of Brunei, the People’s Republic of China (PRC), the Federation of Malaysia, the Republic of the Philippines, the Socialist Republic of Vietnam and Taiwan. Among the six claimants, the one that has provided the greatest specificity as to claimed maritime entitlements for individual Spratly features is the Republic of the Philippines. In its Memorial and supplemental documents submitted to the Arbitral Tribunal, the Philippines asserted that a number of the Spratly features are not entitled to a territorial sea, as they are either low-tide elevations or submerged features, and that none of the Spratlys are entitled to an EEZ. See Award of The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016, accessed December 14, 2017, http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, paras. 291‒97 (identifying which features in the Spratlys that the Philippines considers to be submerged features or low-tide elevations) and paras. 408‒45 (identifying that Philippines considers all of the high-tide features in the Spratlys to be “rocks” under Art. 121(3) of UNCLOS, which are not entitled to an exclusive economic zone). “People’s Republic of China, Deposit of Lists of Geographical Coordinates as Contained in the Declaration on the Baselines of the Territorial Sea,” May 15, 1996, accessed December 14, 2017, http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDF​ FILES/CHN_1996_Declaration.pdf. An example of one maritime boundary in the South China Sea that has been settled is the boundary between the PRC and Vietnam in the Gulf of Tonkin, which was resolved by agreement in 2000. “Agreement with China on Demarcation of the Territorial Sea, EEZ and Continental Shelf in the Gulf of Tonkin (Beibu Bay/Bac Bo Gulf), Concluded on 25 December, 2000, Entered into Force on 30 June 2004,” accessed December 14, 2017, https://treaties.un.org/Pages/showDetails.aspx?objid=080000028006ece3.

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22. See “Brunei,” in U.S. Department of Defense, “Maritime Claims Reference Manual.” 23. Compare U.S. Department of State, “Philippines’ Maritime Claims and Boundaries,” Limits in the Seas Study No. 142, September 16, 2014, accessed December 14, 2017, http://www.state.gov/documents/organization/231914.pdf, with U.S. Department of State, “Straight Baselines: Philippines,” Limits in the Seas Study No. 33 (June 23, 1973), available at http://www.state.gov/documents/organization/61546.pdf. 24. U.S. Department of State, “Philippines’ Maritime Claims and Boundaries.” 25. The PRC restricts the right of innocent passage by foreign warships through its claimed territorial sea, and restricts the freedom of other internationally lawful uses of the sea, including military activities, in its EEZ. Vietnam and Malaysia assert similar excessive maritime claims. While Taiwan does not assert a restriction on foreign military activities within its EEZ, it does restrict the right of innocent passage by foreign warships through its claimed territorial sea. See “PRC, Malaysia, Taiwan, and Vietnam,” in U.S. Department of Defense, “Maritime Claims Reference Manual.” It is worth noting that Vietnam did reform several of its longstanding excessive maritime claims in its Law of the Sea of Vietnam (Law No. 18/2012/QH13), which was adopted on June 21, 2012 and took effect on January 1, 2013. Yet that national legislation retained several of its excessive claims. 26. Under the international law of the sea as reflected in UNCLOS, the right of innocent passage is a navigational right guaranteed to “all ships” of “all States” in the territorial seas of coastal States (UNCLOS, Articles 17‒32). Thus, a coastal State shall not “impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage” (UNCLOS, Article 24). Additionally, all States enjoy the freedoms of navigation and overflight “and other internationally lawful uses of the sea related to these freedoms” in the EEZs of coastal States (UNCLOS, Article 58(1)). They shall have “due regard” to the rights and duties of those coastal States, but those coastal States shall also have “due regard” to the rights of States exercising those lawful freedoms and uses (UNCLOS, Articles 58(3) and 56(2)). 27. UNCLOS, Article 121(2). 28. The International Court of Justice has referred to the three paragraphs of Article 121 of UNCLOS as the “indivisible” legal regime of islands. See International Court of Justice, “Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),” 2007, para. 139, accessed October 27, 2016, available at http://www.icj-cij.org/docket/files/120/14075.pdf. 29. UNCLOS, Article 121(3). 30. UNCLOS, Article 13. But if a low-tide elevation is located within 12 nm of an island (including rocks), then it may extend the territorial sea for that island. 31. UNCLOS, Article 60. 32. See, e.g., Award of The South China Sea Arbitration, accessed December 14, 2017, http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, paras. 291‒97 (identifying which features in the Spratlys that the Philippines considers to be submerged features or low-tide elevations) and paras. 408‒45 (identifying that Philippines considers all of the high-tide features in the Spratlys to be “rocks” under Art. 121(3) of UNCLOS, which are not entitled to an exclusive economic zone). 33. UNCLOS, Article 5. 34. UNCLOS, Article 5. 35. UNCLOS, Article 16. 36. UNCLOS, Article 7 (straight baselines) and Art. 47 (archipelagic baselines). The International Court of Justice has held that the rules for drawing straight baselines are intended to be used in exceptional situations only “if a number of conditions are met” and those rules must be applied “restrictively.” See International Court of Justice, “Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),” March 16, 2001, para. 212, accessed December 14, 2017, http://www.icj-cij.org/docket/files/87/7027.pdf. 37. UNCLOS, Article 16.

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38. People’s Republic of China, “Law of the Territorial Sea and the Contiguous Zone,” January 25, 1992, Article 3, accessed December 14, 2017, http://www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/CHN_1992_Law.pdf (“The extent of the PRC’s territorial sea measures 12 nm from the baseline of the territorial sea. The PRC’s baseline of the territorial sea is designated with the method of straight baselines, formed by joining the various base points with straight lines”). 39. People’s Republic of China, “Deposit of lists of geographical coordinates as contained in the Declaration on the Baselines of the Territorial Sea.” 40. People’s Republic of China, “Deposit of lists of geographical coordinates as contained in the Declaration on the Baselines of the Territorial Sea.” 41. People’s Republic of China, “Deposit of a chart and of a list of geographical coordinates on the Baselines of the Territorial Sea of Diaoyu Dao and its Affiliated Islands,” September 21, 2012, accessed December 14, 2017, http://www.un.org/depts/ los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/chn_mzn89_2012_e.pdf. 42. The inherent legal problem with the PRC’s employment of the straight baseline methodology is that it uses the exceptional method as a universal standard for its entire continental coastline (even though that entire coastline does not satisfy the requisite UNCLOS criteria), and uses it for its claimed archipelagos (even though the PRC does not meet the UNCLOS definition of an archipelagic state). See U.S. Department of State, “Straight Baseline Claim: China,” Limits in the Seas Study No. 117, July 9, 1996, accessed December 14, 2017, http://www.state.gov/documents/organization/57692.pdf; see also U.S. Department of State, “Diplomatic Note to the Ministry of Foreign Affairs of the People’s Republic of China,” March 7, 2013, published in Digest of United States Practice in International Law, 2013, ed. Carrielyn D. Guymon, 369‒70, accessed December 14, 2017, http://www.state.gov/documents/organization/226409.pdf. 43. Award of The South China Sea Arbitration, paras. 571‒75 (concluding that China may not use archipelagic baselines or straight baselines in the Spratlys). 44. On other occasions, the U-shaped line has also been referred to as the nine-dash line, the ten-dash line, the eleven-dash line, and the “Cow’s tongue.” 45. Award on Jurisdiction and Admissibility of The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016, para. 160, accessed December 14, 2017, https://www.pcacases.com/web/sendAttach/1506 (“But China has not, as far as the Tribunal is aware, clarified the nature or scope of its claimed historic rights. Nor has China clarified its understanding of the meaning of the ‘ninedash line’ set out on the map accompanying its Notes Verbales of 7 May 2009.” See also U.S. Department of State, “China’s Maritime Claims in the South China Sea,” Limits in the Seas Study No. 143, December 5, 2014, accessed December 14, 2017, http://www. state.gov/documents/organization/234936.pdf. 46. If it is a claim to special status of all of the waters located within the U-shaped line, then the Arbitral Tribunal applied rules of UNCLOS and invalidated the U-shaped line. “Arbitral Award, In the Matter of the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China,” para. 278. 47. Award of The South China Sea Arbitration, para. 261. 48. Award of The South China Sea Arbitration, para. 278. 49. Award of The South China Sea Arbitration (emphasis added). 50. The Latin prefix “re” implies the modifier of “again” or “back to an original place, condition, etc.” See “Re,” Webster’s Dictionary, accessed December 14, 2017, http:// www.merriam-webster.com/dictionary/re. In fact, some of these artificial features in the Spratlys are not claiming anything “again” or “back to an original condition” (i.e., previously above-water), but rather something entirely new. 51. Award of The South China Sea Arbitration, paras. 305‒06. 52. U.S. Department of Defense, “Asia-Pacific Maritime Security Strategy,” August 2015, accessed October 27, 2016, https://dod.defense.gov/Portals/1/Documents/pubs/ NDAA%20A-P_Maritime_SecuritY_Strategy-08142015-1300-FINALFORMAT.PDF.

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53. If so, that is a legal impossibility because the disputes have already crystallized and international courts consider such bolstering activities to be legally “meaningless.” See International Court of Justice, “Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia),” 2002, para. 135, accessed September 7, 2018, http:// www.icj-cij.org/docket/files/102/7714.pdf; see also International Court of Justice, “Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),” 2007, para. 117; see also Jonathan G. Odom and Kerry Lynn Nankivell, “New South China Sea Lighthouses: Legal Futility and Strategic Risk,” The Diplomat, November 25, 2015, accessed September 7, 2018, http://­thediplomat. com/2015/11/new-south-china-sea-lighthouses-legal-futility-and-strategic-risk/. 54. Award of The South China Sea Arbitration, para. 306. 55. Award of The South China Sea Arbitration, para. 305. 56. Her Majesty’s Government, “The UK National Strategy for Maritime Security,” May 2014, 16‒17, accessed December 13, 2017, https://www.gov.uk/government/uploads/ system/uploads/attachment_data/file/310323/National_Strategy_for_Maritime_Securi​ ty​_2014.pdf (“Freedom of Navigation. Freedom of Navigation (FON) is the term given to the bundle of rights and freedoms that warships, merchant ships, aircraft and submarines enjoy to navigate on, over, and under the world’s seas: it is vital to the security and economic stability of the UK. FON facilitates global maritime trade and provides the UK military with the legal landscape to allow it to respond to threats to security at range. FON rights are set out in the 1982 United Nations Convention of the Law of the Sea (UNCLOS). The stability of the UNCLOS regime, and in consequence maritime security, may be fundamentally undermined by excessive claims over sea areas or interferences with navigational rights and freedoms. [Her Majesty’s Government] supports a programme to capture and record excessive geographical or jurisdictional maritime claims by States, including incidents of unwarranted interference with UK shipping, and directs diplomatic responses or demonstrations of UK counter-practice as appropriate”). 57. See, e.g., Group of 7 (G-7), “Leaders’ Declaration at Ise-Shima Summit,” May 26‒27, 2016, accessed December 14, 2017, http://www.mofa.go.jp/files/000160266.pdf (“We reiterate our commitment to maintaining a rules-based maritime order in accordance with the principles of international law as reflected in UNCLOS, to peaceful dispute settlement supported by confidence building measures and including through legal means as well as to sustainable uses of the seas and oceans, and to respecting freedom of navigation and overflight”); see also “Joint Communique of the 49th ASEAN Foreign Ministers’ Meeting,” Vientiane, Laos, July 24, 2016, accessed December 14, 2017, http:// asean.org/storage/2016/07/Joint-Communique-of-the-49th-AMM-ADOPTED.pdf (“We underscored the importance of strengthening regional cooperation and promoting mutual trust and understanding in maritime security and maritime safety to ensure peace and stability as well as safety of sea lanes, freedom of navigation and overflight and unimpeded commerce . . .”). 58. See, e.g., U.S. Secretary of Defense Ash Carter, “Remarks at the IISS Shangri-La Dialogue,” May 30, 2015, accessed December 14, 2017, http://www.defense.gov/News/ Speeches/Speech-View/Article/606676/iiss-shangri-la-dialogue-a-regional-security-archit​ ecture-where-everyone-rises; for a reaffirmation of that U.S. policy by a senior official during the early days of U.S. President Donald Trump’s administration, see also U.S. Secretary of State-designate Rex Tillerson, “Response to Question by U.S. Senator Ben Cardin,” January 2017, accessed December 14, 2017, https://www.desmogblog.com/2017​ /02/02/rex-tillerson-south-china-sea-exxon-russia-offshore-oil-gas (“The United States will uphold freedom of navigation and overflight by continuing to fly, sail, and operate wherever international law allows”). Subsequent to providing the above response, Mr. Tillerson was confirmed by the U.S. Senate and held the office of U.S. Secretary of State. 59. U.S. President Barack Obama, “Remarks by President Obama and President Xi of the People’s Republic of China in Joint Press Conference,” September 25, 2015, accessed December 14, 2017, https://www.whitehouse.gov/the-press-office/2015/09/25/remarks-

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61.

62.

63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77.

Maritime claims in the South China Sea and freedom of navigation ­191 president-obama-and-president-xi-peoples-republic-china-joint. As of when this chapter was submitted for publication, the new U.S. President, Donald J. Trump has not made any public statements about the freedom of navigation, U.S. FON Policy, or FONOPs. However, during his Senate confirmation hearing, the Trump administration’s new Secretary of Defense James Mattis testified, “But the bottom line is that international waters are international waters and we have got to figure out how do we deal with holding on to the kind of rules that we have made over many years that led to the prosperity for many nations, not just for ours. This has been part of why many nations have gotten more prosperous, because of this freedom of commerce.” “Defense Secretary Confirmation Hearing (James Mattis),” Senate Armed Services Committee, January 12, 2017, accessed December 14, 2017, https://www.c-span.org/video/?421347-1/defensesecretary-nominee-general-james-mattis-says-russia-trying-break-nato&start=7871. U.S. President Donald Trump, “Joint News Conference with Japan’s Prime Minister Shinzo Abe,” Washington, DC, February 10, 2017, accessed December 14, 2017, https:// www.c-span.org/video/?423837-1/president-trump-says-doubt-courts-will-restore-us-tra​ vel-ban (“We will work together to promote our shared interests which we have many in the region. We will have freedom of navigation and defending against the North Korean missiles and nuclear threat, both of which I consider a very very high priority”). See, e.g., U.S. President Franklin D. Roosevelt. “Fireside Chat,” September 11, 1941, http://www.presidency.ucsb.edu/ws/?pid=16012 (“Generation after generation, America has battled for the general policy of the freedom of the seas. And that policy is a very simple one, but a basic, a fundamental one. It means that no nation has the right to make the broad oceans of the world at great distances from the actual theatre of land war, unsafe for the commerce of others . . . Upon our naval and air patrol . . . falls the duty of maintaining the American policy of freedom of the seas”). A searchable database of public papers and speeches by every U.S. president is available at http://www.presidency.ucsb.edu/ws/?pid=16012. Of note, this database contains numerous mentions by presidents throughout U.S. history to preserving a national interest in “freedom of navigation” or “freedom of the seas.” U.S. President Ronald Reagan, “Statement on U.S. Ocean Policy.” U.S. Department of Defense, “Asia-Pacific Maritime Security Strategy.” UNCLOS, Article 17. UNCLOS, Article 38. UNCLOS, Article 53. UNCLOS, Article 58. UNCLOS, Article 87. See, e.g., Jin Kai, “5 Myths about China’s Missile Deployment on Woody Island,” The Diplomat, February 20, 2016, accessed December 14, 2017, http://thediplomat. com/2016/02/5-myths-about-chinas-missile-deployment-on-woody-island/. See, e.g., Jonathan G. Odom, “South China Sea and Freedom of Navigation,” The Diplomat, March 9, 2016, accessed December 14, 2017, http://thediplomat.com/2016/03/ south-china-sea-and-freedom-of-navigation/. U.S. Department of Defense, “Freedom of Navigation Program Fact Sheet,” March 2015, accessed December 14, 2017, http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/ DoD%20FON%20Pro​gram%20--%20Fact%20Sheet%20(March%202015).pdf. An archive of published Limits in the Seas Studies is available at http://www.state.gov/e/ oes/ocns/opa/c16065.htm (accessed December 14, 2017). An archive of U.S. Digest Practice in International Law is available at http://www.state. gov/s/l/c8183.htm (accessed December 14, 2017). The Maritime Claims Reference Manual is available at http://www.jag.navy.mil/­organi​ zation/code_10_mcrm.htm (accessed December 14, 2017). U.S. Department of Defense, “Freedom of Navigation Program Fact Sheet,” U.S. Department of Defense, “Freedom of Navigation (FON) Program,” available at http:// www.state.gov/e/oes/ocns/opa/maritimesecurity/ See U.S. Department of Defense, “Freedom of Navigation Program Fact Sheet.”

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78. Office of the U.S. Secretary of Defense, “Press Statement (31 January 2016),” accessed December 14, 2017, http://thediplomat.com/2016/01/return-of-the-fonop-us-navy-des​ troyer-asserts-freedom-of-navigation-in-paracel-islands/ (“I can confirm the Department of Defense conducted a freedom of navigation operation in the South China Sea on Jan 30 (Jan 29 EST), specifically in the vicinity of Triton Island in the Paracel Islands, to challenge excessive maritime claims of parties that claim the Paracel Islands. This operation challenged attempts by the three claimants, China, Taiwan and Vietnam, to restrict navigation rights and freedoms around the features they claim by policies that require prior permission or notification of transit within territorial seas. The excessive claims regarding Triton Island are inconsistent with international law as reflected in the Law of the Sea Convention. During the operation, the USS Curtis Wilbur, (DDG 54) transited in innocent passage within 12nm of Triton Island”). 79. Julian Ku, “U.S. Defense Department Confirms USS Decatur Did Not Follow Innocent Passage and Challenged China’s Excessive Straight Baselines,” Lawfare, November 4, 2016, accessed November 5, 2016, https://www.lawfareblog.com/us-defense-department-confirms-uss-decatur-did-not-follow-innocent-passage-and-challenged-chinas (reporting that the USS Decatur conducted a FONOP near the Paracel Islands, which was aimed at challenging the PRC’s excessive straight baselines). 80. Award of The South China Sea Arbitration, para. 378. 81. Award of The South China Sea Arbitration, para. 358. 82. Award of The South China Sea Arbitration, para. 381. 83. Award of The South China Sea Arbitration, para. 646. 84. See, e.g., U.S. Secretary of Defense Ash Carter, “Remarks at U.S. Naval Academy Commencement,” May 27, 2016, accessed December 14, 2017, http://www.defense.gov/ News/Speeches/Speech-View/Article/783891/remarks-at-us-naval-academy-commence​ ment (“Our Freedom of Navigation operations there, by the USS LASSEN and other vessels, are not statements about sovereignty or preferences for any country’s claims. They are not new to the last year. They are not confined to the South China Sea—we routinely conduct these operations all over the world. Rather, each is a principled act meant to uphold the rights of all nations—the United States, China, and everyone else—to the freedom of the seas”) (emphasis added). 85. See, e.g., “Australia Conducting ‘Freedom of Navigation’ Flights in South China Sea,” December 15, 2015, accessed December 14, 2017, http://www.bbc.com/news/world-­aus​ tralia-35099445; but see Euan Graham, “Australia’s FONOP Debate: A Necessary Storm in a Teacup,” The Interpreter, October 17, 2016, accessed December 14, 2017, https://www. lowyinstitute.org/the-interpreter/australia%C2%92s-fonop-debate-necessary-storm-tea​ cup (discussing the debate between Australia’s Liberal government and Labor opposition over whether to conduct FONOPs in the South China Sea); but see “South China Sea: Australia Considers Joint Naval Patrols With Indonesia,” The Guardian (Australia), October 31, 2016, accessed December 14, 2017, https://www.theguardian.com/world/2016/ nov/01/south-china-sea-australia-considers-joint-naval-patrols-with-indonesia. 86. See French Minister of Defence Jean-Yves Le Drian, “Remarks at IISS Shangri-La Dialogue,” June 5, 2016, accessed December 14, 2017, https://www.iiss.org/en/events/ shangri%20la%20dialogue/archive/shangri-la-dialogue-2016-4a4b/plenary4-6c15/drian​ -5b52 (“The principles of freedom of navigation and overflight, to which France is deeply committed, represent a crucial issue. Last week, the heads of state and government of the G7 underlined their commitment to maintaining a maritime order based upon the principles of international law, as reflected in the United Nations Convention on the Law of the Sea (UNCLOS). This issue is of the utmost importance, and not only for the stability and security of the region, because, if the Law of the Sea is not observed in the China seas today, it will be in jeopardy in the Arctic, the Mediterranean and elsewhere tomorrow. In order to keep the risk of conflict contained, we must defend the Law and defend ourselves with the Law. This is a message that France will continue to convey in international fora. It is a message that France will continue to support, by operating her ships and flying her aircraft wherever international law permits and as determined

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87.

88.

89.

90. 91.

Maritime claims in the South China Sea and freedom of navigation ­193 by operational need. Several times a year, French naval vessels pass through the waters in this region and they will continue to do so”). See French Minister of Defence Jean-Yves Le Drian, “Remarks at IISS Shangri-La Dialogue” (“France is a country of the European Union, and the conditions that I have cited—that is, respect for the rule of law, seeking dialogue and steadfastness when this rule is violated—are at the heart of responsible multilateralism which, in France’s view, must be the hallmark of the European Union’s action. It is for this reason that the situation in the China seas, for example, directly affects the European Union—it is not just in the interest of our economies that the freedom of maritime traffic needs to be respected. Why shouldn’t the European navies, therefore, coordinate to ensure a presence that is as regular and visible as possible in the maritime areas in Asia? I will shortly explain this proposal in detail to my European colleagues, and I hope that at the next Shangri-La Dialogue we will be able to assess the effects together”). See Japan Minister of Defense Tomomi Inada, “Joint Press Briefing by U.S. Secretary of Defense James Mattis and Minister Inada,” Tokyo, Japan, February 4, 2017, accessed December 14, 2017, https://www.defense.gov/News/Transcripts/Transcript-View/Article/​ 1071436/joint-press-briefing-by-secretary-mattis-and-minister-inada-in-tokyo-japan (“I said that freedom of navigation operations and other actions by the U.S. forces in the South China Sea contribute to maintaining maritime order based on the rule of law, and that I support these efforts”); see also Gidget Funtes, “Japan’s Maritime Chief Takei: U.S. Industry, Military Key to Address Western Pacific Security Threats,” USNI News, February 22, 2016, accessed December 14, 2017, https://news.usni.org/2016/02/22/ japans-maritime-chief-takei-u-s-industry-military-key-to-address-western-pacific-securi​ ty-threats (quoting Adm. Tomohisa Takei, Chief of Staff of the Japan Maritime Self-Defense Force as saying (“[T]he Defense Minister of Japan mentioned that Japan strongly supports U.S. freedom of navigation operations in the South China Sea”). See, e.g., “[Self-Defense Force] Won’t Join U.S. Operations in the South China Sea: Inada,” The Japan Times, February 5, 2017, http://www.japantimes.co.jp/news/2017/02/05/ national/sdf-wont-join-u-s-operations-south-china-sea-inada/#.WJi4mjq7p7j (quoting Japan’s Minister of Defense Tomomi Inada as stating, “I told Secretary Mattis that Japan supports the U.S. military’s freedom of navigation operation in the sea. But the SDF will not be sent to the area”); see also Christopher P. Cavas, “Interview: Adm. Tomohisa Takei, Chief of Staff, Japanese Maritime Self-Defense Force,” Defense News, March 30, 2016, accessed December 14, 2017, http://www.defensenews.com/story/defense/show-daily/sing​ apore-air-show/2016/03/30/admiral-tomohisa-takei-japanese-maritime-self-defense-forcejms​df/81858684/ (“[Question:] As you know the US Navy has been carrying out freedom of navigation (FON) passages in the South China Sea and elsewhere. There have been calls from some quarters for nations to join in these operations, but that has not yet happened. Will Japan join with the US in FON demonstrations? [Answer:] The Japanese government supports the US Navy’s freedom of navigation operations but Japan has no plan to participate. However, the South China Sea and the Western Pacific must be open and stable. It is in the national interest of Japan. The Japanese government intends to keep the current presence around the oceans—to have joint maritime exercises with coastal countries and use the South China Sea as a transit. More than ever that is one of the Japanese government’s directions for us”); see also Li Bao, “Japan’s Naval Chief Rules Out Joint-US Freedom of Navigation Patrols,” VOA News, September 28, 2016, accessed December 14, 2017 http://www.voanews.com/a/japanese-naval-chief-rules-out-joint-us-fre​ edom-of-navigation-patrol/3528783.html (“Admiral Takei said this week that although Japan strongly supports U.S. FON operations in the South China Sea, it has no such plans to conduct or join naval patrols in the region”). The text of many of these diplomatic protests issued by nations other than the United States to coastal nations is not available in the public domain. But a number of them are cited in J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims. “MFA Spokesman’s Comments in Response to Media Queries on the Visit of Chinese Maritime Surveillance Vessel Haixun 31 to Singapore,” Ministry of Foreign Affairs of

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Singapore, June 20, 2011, accessed December 14, 2017, http://www.mfa.gov.sg/content/ mfa/media_centre/press_room/pr/2011/201106/press_20110620.printable.html?status=1 (“We have repeatedly said that we think it is in China’s own interests to clarify its claims in the SCS with more precision as the current ambiguity as to their extent has caused serious concerns in the international maritime community. The recent incidents have heightened these concerns and raise serious questions in relation to the interpretation of the 1982 UN Convention on the Law of the Sea (UNCLOS)”). 92. Permanent Mission of the Republic of Indonesia to the United Nations, “Diplomatic Note No. 480/POL-703/VII/10,” July 8, 2010, accessed October 27, 2016, http://www. un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf (“Indonesia also follows closely the debate over the above mentioned map which has also been referred to as the so-called ‘nine-dotted-lines map’. Thus far, there is no clear explanation as to the legal basis, the method of drawing, and the status of those separated dotted-lines . . . [T]he so-called ‘nine-dotted-lines map’ . . . clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982”).

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10. A regional ocean governance framework for the integrated management of the environment and biological resources in the South China Sea Vu Thanh Ca Besides its importance in terms of maritime transportation, and its wealth in reserves of oil, gas and other mineral resources, the South China Sea (SCS) is also very rich in biological resources. As a wide semi-enclosed sea with different climate regimes at its extremities, the SCS is one of the major centers of shallow sea biodiversity in the world. The natural resources of the SCS provide goods and services for the socio-economic development of surrounding countries and also of countries outside the region. Many countries with coastlines on the SCS, such as Indonesia, China, the Philippines, Cambodia and Vietnam have large populations dependent on fishing. However, nowadays, the fishery resources in the SCS have been seriously depleted.1 According to Witter et al., the fish population in the SCS has decreased dramatically, to the extent that at present the number of some species is only about 5 percent of that during the 1950s.2 Some fish of high economic value, such as coral groupers, are being intensively harvested and during the past eight years, Napoleon wrasse have declined by an estimated 80 percent. The causes of fishery resource depletion are overfishing, illegal and destructive fishing, destruction of ecological systems and habitats, invasive species, land and island reclamation, and so on. The SCS environment is also seriously polluted and degraded due to land-based pollution loads and sea-borne wastes, to unregulated use and extraction of natural resources, or to use and extraction of natural resources in defiance of the principles of rational planning. Island reclamation and giant clam harvesting, especially by China in the Spratlys, have destroyed highly valuable coral reefs, the most important marine ecological system and habitat, which has significantly contributed to the degradation of biodiversity and the depletion of fishery resources in the sea. Territorial 196 Vu Thanh Ca - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:53:22PM via Sydney University

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disputes also worsen the problem due to lack of cooperation between disputing countries. China’s excessive claim of rights within the nine-dash line has exacerbated competition for fishery resources in the sea and led to accelerated degradation of stocks. As seas are interconnected, marine pollution can propagate rapidly and cause impacts on a wide scale across many countries. Many species of marine animals migrate over vast distances, even over the entire world ocean. Thus, the SCS can be considered as a Large Marine Ecosystem (LME), and to protect its biodiversity and fishery resources it is necessary to solve its problems across its entire extent. To do this, besides establishing mechanisms for coordinating the cooperative activities of different sectors and local governments within each particular country, it is necessary to set up a mechanism for coordinating the activities of all countries surrounding the SCS and establishing marine protected areas in the disputed waters. This can be done only if a coordinated intergovernmental ocean governance mechanism with responsibility for the entire SCS is established. Such a governance mechanism would create a common framework for management of all relevant issues and should be established in accordance with international conventions and agreements on maritime activities, including the use and extraction of natural resources, conservation and protection of marine environments, ecological systems and biodiversity for socioeconomic development. There are many international legal documents that could provide useful guidance in the development of such a governance mechanism, for example the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biodiversity (CBD), UN resolutions on the oceans and the law of the sea, the UN Framework Convention on Climate Change (UNFCCC), the Marpol 73/78 Convention, and the recent award of the PCA on the SCS case. Some existing mechanisms such as the Coordinating Body on the Seas of East Asia (COBSEA) or Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) have been effective in coordinating cooperation among different countries in the seas of East Asia. However, these mechanisms at present address only coastal issues and avoid the problems in the center of the SCS or questions relating to disputed marine areas and islets, despite the fact that these matters are of critical importance in conserving the environmental, biodiversity and fishery resources of the SCS. Other mechanisms, such as the Southeast Asia Fisheries Development Center (SEAFDEC) and the WorldFish Center have also not been effective in regulating fishing and other activities to promote biodiversity, resource protection and conservation. Therefore, to protect and conserve the ­environment and fishery resources, it is necessary to establish an international governance mechanism that can manage issues relating to the marine environment,

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biodiversity and fishery resources in the entire SCS, especially in the high seas and around disputed islets. Moreover, countries surrounding the SCS must apply international laws, especially UNCLOS and the recent SCS arbitration award in determining sea areas under their sovereignty and jurisdiction and in formulating marine environment, biodiversity and fishery resource protection and conservation policies. According to the SCS arbitration award, islets and rocks in the Spratlys can only generate territorial seas with the width of 12 nautical miles; low tidal elevations and submerged features have no territorial seas; and the Chinese claim of historical rights in the marine area within the nine-dash line has no legal basis. As the islets in the Paracels and rocks in the Scarborough Shoal are similar to those in the Spratlys, it can be suggested that the Award should be equally applied to them. If this is so, then, on the basis of the Award, the overlapping Chinese claim of historic rights within the nine-dash line in the EEZs of other countries surrounding the SCS will automatically vanish, and only overlapping EEZ claims between neighboring countries will continue to exist. Thus, the Award would generate a high sea in the center of the SCS that would encompass a part of the Spratly Islets and the entire Macclesfield Bank. By reducing the competing claimed area and generating a high sea, the Award should facilitate the establishment of the above-mentioned regional cooperating and coordinating mechanism for management, protection and conservation of biodiversity, important marine ecological systems and fishery resources in the SCS.

BIODIVERSITY, FISHERY RESOURCES AND THE ENVIRONMENT OF THE SOUTH CHINA SEA There are four distinct seasons (spring, summer, autumn and winter) in the northern part of the sea with a maximum annual difference in the daily average air temperature of up to 12oC‒13oC; and at the same time, the southern part of the sea has only two distinct seasons, the wet season and the dry season, with a maximum annual difference in the daily average air temperature of only 3oC to 4oC. Differences in temperature and sea circulation create marine biodiversity with many local endemic species. The biodiversity in the South China Sea is expressed in ecological systems, species and genetics. The sea also has many distinct ecological systems, such as coral, sea grass, cliffs, sandy beaches, muddy intertidal zones, mangroves, open sea, deep sea, and so on. According to Ng and Tan (2000),3 Randall and Lim (2000),4 and Lane et al. (2000),5 there are about 2,500 fish species in the Indonesia–Malaysia sea areas. Although based on limited research, Ng and Tan found that in the

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South China Sea, there are 263 families with 3,365 species of fish.6 In reality, the number of fish species in the South China Sea may be significantly larger since, as these two researchers pointed out,7 pelagic and abyssal fish fauna are still not well documented. Pan (2010), based on a review of published data, found a list of 1,766 crustacean species in the SCS.8 According to McManus (2016), the seas of the Philippines have more than 600 species of corals and the Philippines and its southern neighbors are home to more than 2,200 species of reef fish.9 The diversity in fish species and in ecological systems is a very important natural resource for socio-economic development and marine environmental protection for countries surrounding the SCS. Marine and nearshore ecological systems provide ecological services, which include providing goods: foods, clean water, fuel, materials, genetic resources, and so on; regulatory benefits such as mitigation and prevention of natural hazards, regulating climate, filtration of polluted water, disease prevention, and so on; cultural benefits such as promotion of aesthetics, social relationships, recreation and ecotourism, history, science and education, and so on; general support including facilitating sediment settling, changing the soil components, absorbing redundant nutrients, and water purification. The biodiversity also helps aquaculture development, especially for endemic species. Because of the importance of fish in Asian diets, many countries surrounding the SCS, such as China, Thailand, the Philippines, Indonesia and Vietnam, are among the world’s leading countries in fishing and aquaculture and have large populations dependent on fishing. The lack of an effective mechanism for SCS fisheries management has led to significant degradation of the sea’s resources. Among the countries surrounding the SCS, China, whose huge population has recently come to enjoy a modestly high standard of living and where food consumption has, as a result, increased dramatically, emerged as the world’s paramount fishing state after 1990. By 2000, China’s total annual catch had reached 14.58 million tons.10 By 2014, it had reached more than 17 million tons, almost three times larger than the catch of its nearest competitor, Indonesia.11 China’s second largest fish catch is from the SCS.12 Although on a much smaller scale, the fisheries landings of other regional countries, such as Indonesia, Vietnam, the Philippines, Thailand and Malaysia, have also been increasing annually. As a result of such intensive fishing, the SCS is currently overfished and the coastal areas, in particular, are being fished at twice the optimal level.13 McManus (2016) has pointed out that a 2002 study indicated that fish stocks at trophic levels three and above in the sea, such as tuna, mackerel, jacks and sharks declined more than 50 percent from 1960 to 2000.14 According to a report of the United Nations’ Food and Agriculture Organization (FAO) in 2010, China reported that in 2007

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the country was operating some 289,000 motorized marine fishing vessels with a total combined power of 14.7 million KW.15 According to Pauly et al. (2014), China’s catch in foreign waters is about 12 times greater than the value reported to FAO.16 Beckman (2013) has also noted that the fishing industry is rapidly growing in China.17 Therefore, fishing by China and other countries surrounding the SCS certainly contributes significantly to the depletion of fishery resources there. Also, the catch of tropical reef fish for exporting live to China causes very serious environmental and social impacts. The tropical reef fish species with high economic values are long-lived, slow-growing species that are very vulnerable to overfishing. As noted earlier, coral groupers and Napoleon wrasse in the past eight years alone have seen a decline of 80 percent.18 Destructive fishing methods, such as using electric shock, cyanide or bottom trawling are commonly used to catch the fish. These methods destroy corals, causing coral degradation. As recently pointed out by the Arbitral Tribunal in the SCS case and by McManus (2016), giant clam harvesting by Chinese fishermen and Chinese island reclamation have also severely damaged coral reefs in the Paracels and Spratlys.19 It was found that more than 160 km2 of highly productive coral reefs show signs of damage from clam harvesting, dredging and/or filling, and that the PRC is responsible for 99 percent of such damage.20 According to Juinio-Menez (2016), the total area of damaged coral reef in the Spratlys and Scarborough Shoal is about 125 square kilometers, which results in an economic loss of more than US$4 billion per year in ecological system service.21 Other countries and territories, such as Vietnam, Taiwan, the Philippines and Malaysia have also carried out reclamation projects, but on a much smaller scale. Also, China has used dredged local materials for land reclamation while other countries have transported the reclamation materials from land. Because of these Chinese activities, the coral reefs have been damaged not only by the land reclamation itself, but also by dredging, by suspended solid materials originated from dredging and by the impact of transportation, and so on. These activities are extremely serious, especially since the corals are already subject to various pressures such as bleaching due to high water temperatures, overfishing, fishing by the destructive methods referred to above, and more general pollution. Disputes arising from the illegal claims of China to about 87 percent of the SCS, including the EEZ of many coastal States, further worsen the problem. In the context of these disputes, every country seeks to gain advantage over the other. Trawlers and driftnet operators even try to fish in the waters of other countries. The resultant violations of EEZs by different countries and the efforts of China to control the maritime area inside the nine-dash line are the principal causes for violent encounters at sea. At present, Beijing does not accept the Arbitral Tribunal’s judgment

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that Chinese claims to historical rights within the nine-dash line, outside China’s EEZ, have no legal basis, that artificial islands built on low tidal elevations are not entitled to sovereignty claims, and that rocks in the Spratlys do not have EEZs. Thus the disputes remain. Besides the degradation of fishery resources, the SCS also is facing the problem of water pollution. As there is a strong current system in the sea with a clockwise circulation during summer and a counter-clockwise circulation during winter, the pollutants from one area can be easily transported to other areas. Spilled oil can also easily be transported over the entire SCS. For example, from January to April 2007, crude oil drifted continuously to the beaches of Central Vietnam, but subsequent investigations could not determine the possible sources of the pollution.22 One of the very important issues that needs to be addressed in the management of coasts and oceans is the control of land-based pollution sources, which, according to studies by the United Nations, account for as much as 80 percent of the sources of ocean pollution.23 This is also true for the SCS. Cooperation between different countries is needed to solve this problem. Given the above-mentioned issues, if no action is taken, the degradation and destruction of fishery resources, of biodiversity and ecological systems, and of the entire marine environment in the SCS will become increasingly serious, and many sea animal species may face extinction.

OCEAN GOVERNANCE FOR MANAGEMENT OF FISHERY RESOURCES AND THE ENVIRONMENT AT THE REGIONAL LEVEL To address the above-mentioned problems, countries surrounding the SCS have promulgated various laws and regulations for protection of the fishery stocks there. For example, China has implemented the “Catch zero-increase program” since 2000 and has undertaken other measures to enable the recovery of fishery stocks.24 Vietnam promulgated an ordinance for protection of fisheries resources in 1989 and enacted the Fisheries Law in 2003.25 Moreover, with help from international mechanisms, such as COBSEA or PEMSEA, systems of laws and regulations for integrated management of marine and coastal natural resources and of the environment are gradually being developed and applied. Regional scale projects, such “Reversing environmental degradation trends in the South China Sea and the Gulf of Thailand,” funded by UNEP and implemented by COBSEA, with cooperation from countries surrounding the SCS, as well as other projects conducted by PEMSEA, are also helping to arrest the

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degradation of fishery resources, biodiversity and ecological systems and to control environmental pollution in the nearshore areas.26 However, these mechanisms have proved insufficient to solve the problems and the fishery resources, biodiversity, ecological systems and environment of the sea are continuing to degrade. Another political document that should be mentioned here is the Declaration on the Conduct of Parties in the South China Sea (DOC) signed by China and the ASEAN countries in 2002. This document includes a paragraph committing the Parties to refrain “from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner” and states that “Pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities [including] marine environmental protection.”27 However, as the DOC is only a political document and is legally non-binding, several countries, most notably China, have tended to violate it.28 China’s recent construction of artificial islands in the Spratlys and its giant clam harvesting on coral reefs are examples of this. To solve these problems, it is necessary to develop and implement integrated ocean governance policies. By definition, governance is an approach for management of a society with agreed priorities and established procedures for cooperation and coordination. Governance can be implemented at the global, national or local levels. Governance creates a common framework for management. The governance of oceans, seas and coasts is based on constitutions, regulations and conventions, international agreements on maritime activities, on the use and exploitation of natural resources, on the conservation and protection of marine environments and ecological systems for socio-economic development. The seas of the world are all interconnected. Marine species migrate on an immense scale. Pollution spreads rapidly. Its impact can be regional or even global. The SCS ecological system should be viewed from this perspective. To protect the system and maintain its biodiversity, its problems must be solved on a regional level, through mechanisms coordinating the cooperative activities of the different branches of local government within each individual littoral country, and also among the various countries surrounding the SCS. Usually, national policies and laws on the governance of seas and coasts are developed based on international conventions and agreements on the protection and conservation of the marine environment and the use and exploitation of natural resources to which the country is a party. Recent research has demonstrated that policies and strategies for sustainable development must include regulations on integrated management based on an ecological systems approach.

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The ecological systems approach to integrated management of coasts and oceans is a holistic approach for sustainable use of space and marine natural resources, especially for the conservation and protection of marine and coastal environments and ecological systems. The United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biodiversity (CBD), the United Nations Framework Convention on Climate Change (UNFCCC), the Marpol 73/78 Convention, and the recent Arbitral award on the SCS case are all examples of international legal documents that could be utilized to guide the construction of such a system of governance to promote sustainable development of coasts and oceans.29 Of these legal documents, the United Nations Convention on the Law of the Sea (UNCLOS) is the most important. It utilizes a holistic approach to the interconnected ocean environment and its effective implementation will help create a comprehensive system of regulations for ocean governance. Besides UNCLOS, various international laws on the environment contain some important principles, such as integrated prevention of pollution, generation equality, the concept that polluters pay, public participation, the rights of indigenous people, and an emphasis on the roles of women in development. These are also basic principles of sustainable development. To realize such principles, it is necessary to build administrative mechanisms for the establishment of systems that can coordinate and encourage cooperation among all stakeholders in the coastal and ocean governance process. There exist many international mechanisms for coordinating and facilitating cooperative ocean governance activities among various countries. An example is the United Nations Open-ended Informal Consultative Process on Oceans, charged with the tasks of analyzing development activities in the oceans within the legal scope of UNCLOS and the goals of Agenda 21, the UN Sustainable Development Goals and the 2030 Agenda for Sustainable Development, which uses the results of its work to propose issues that need to be considered by the United Nations General Assembly, and to determine measures to enhance coordination and cooperation in ocean governance among countries and organizations.30 Sustainable ocean governance can be considered as a purposive effort to regulate human activities for rational use and extraction of natural resources, for the conservation and protection of environmental and ecological systems, and for the promotion of biodiversity to enable the oceans to satisfy the needs of our generation and future generations to come. As the management of marine environments, ecological systems and biodiversity is a transboundary issue, ocean governance is most effective if it is implemented regionally. The report of the United Nations SecretaryGeneral on “Oceans and the Law of the Sea” stated that the “future of the

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oceans depends on enhanced scientific research into ocean processes, effective implementation of the international instruments that regulate various ocean activities and a comprehensive and integrated approach to ocean management.”31 Therefore, the most appropriate approach to ocean governance is an integrated one with mechanisms for coordination and cooperation. Ocean governance should be approached on the international, regional and national levels. Within each country, the mechanism for coordination and cooperation in implementing ocean governance should be established horizontally, between the relevant ministries, sectors and local governments at the same level; at the same time, vertical lines of coordination and cooperation should also be established, from the central government agencies to local government agencies, organizations, communities and individuals. The governance process must ensure the participation and define the responsibilities of all stakeholders, especially local communities, in the co-management mechanism. Depending on the situation, it might be necessary to establish an inter-sector organization to implement ocean governance according to UNCLOS and other related international agreements and programs. Integrated management policies are developed based on the assessment of their economic, social and environmental impacts, and on the potential for implementing them at different administrative levels. Consensus in development and implementation of regulations at the international, regional and national levels must be approached holistically; and in addition to the use of traditional sources of information and diplomatic meetings, it is possible to use international and national conferences, workshops, recommendations, resolutions, declarations, compacts, and so on. This approach creates optimum conditions for the establishment and implementation of regulations and tools for coordinating cooperation in the integrated management of natural resources, and protection of the environment of the oceans, coasts and islands. International and national policies on ocean governance must always consider the scope of spatial regulation, national sovereignty, sovereignty rights and jurisdiction of the sea area, the regulating subjects, interests and other issues that need to be addressed and resolved. National sovereignty, sovereignty rights and jurisdiction of a sea area should be determined based on the UNCLOS. To determine the interests and other issues that need to be addressed and resolved, coastal States should develop long-term targets and strategies for achieving such targets, and integrate them into their national development planning. For the development of strategies for coastal and ocean governance, issues relating to marine, coastal and island ecological systems and biodiversity should have special importance and need a comprehensive analysis. Maritime safety is also especially important.

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At the regional level, ocean governance should be implemented through a mechanism that acts as a coordinating body promoting cooperation in the activities of different States in the region. This body should focus on implementing regional agreements and commitments. The International Commission for the Conservation of Atlantic Tunas (1969) is an example of a mechanism that has been able to achieve a certain success in the conservation of this species in the Atlantic and surrounding waters. The lessons learned from the experience of this commission should be helpful in establishing a new ocean governance mechanism in the SCS.

OCEAN GOVERNANCE FRAMEWORK FOR THE PROTECTION OF THE ENVIRONMENT AND BIOLOGICAL RESOURCES IN THE SCS FOR SUSTAINABLE DEVELOPMENT As mentioned above, due to the fishing practices of coastal countries surrounding the SCS, the degradation of fishery resources and biodiversity there has become a serious problem. If urgent actions are not taken, the degradation may reach a critical threshold, making it difficult for the fishery resources and biodiversity of the sea to recover, and many animal species may face extinction. Many countries are trying to halt illegal fishing practices with the aim of conserving the fishery resources and biodiversity of the sea. However, due to their cross-border nature, the problems cannot be solved by any one country. Also, territorial disputes and overlapping claims make the governance process more difficult, if not impossible. UNCLOS is the most comprehensive legal document on the conservation, protection and exploitation of the living resources in the sea, and on the protection of the marine and ocean environment. At present, it has 167 States Parties. Among countries surrounding the SCS, only Cambodia is not a state party. The Convention sets very comprehensive rules for conservation and fishing both in EEZs and on the high seas. In addition to UNCLOS, other international legal documents, such as the abovementioned Convention on Biodiversity, the United Nations Framework Convention on Climate Change, the Marpol 73/78 Convention, and so on, can serve as legal frameworks for international cooperation and coordination in regional ocean governance. However, even though almost all countries surrounding the SCS are States Parties to the UNCLOS and other conventions, weak national governance and competing fishery resource exploitation make cooperation and coordination very difficult to implement.

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In summary, the causes of living resource degradation and environmental pollution in the SCS are as follows: 1. Weak governance in coastal States, even in States with a relatively complete system of laws on the regulation of fisheries, conservation and protection of marine living resources and ecological systems, and protection of marine environments; 2. Difficulties in coordinating cooperation among coastal States in the regulation of fisheries, conservation and protection of marine living resources and ecological systems, and protection of marine environments due to territorial and sea area disputes; 3. Large-scale island reclamation and giant clam harvesting by China, which damages the most valuable coral ecological systems; 4. Lack of an effective regional ocean governance mechanism, which is also due to territorial and sea area disputes. Despite the Arbitral award on the SCS case, China is still not willing to implement its findings. At present it seems that efforts to promote regional cooperation in the management of marine living resources and on environmental issues by using existing mechanisms will bring about very limited results since they avoid tackling island and maritime disputes. Therefore, to better manage the living resources and environment of the SCS, it is necessary to set up an international ocean governance mechanism in the SCS. This mechanism could address the issue of territorial disputes. Nevertheless, as countries insist in their rights, it seems that these disputes cannot be solved in the short term, although there are some hopes with the recent Arbitral award on the SCS. By stating that Beijing’s claims to historic rights in the maritime area within the nine-dash line beyond the Chinese EEZ have no legal basis, that the islets in the Spratlys are rocks and have no EEZs, and that the historic fishing rights of traditional fishers have not been extinguished within the territorial sea of the Scarborough Shoal (and the same can be said for the Spratlys and Paracels), the Arbitral award has enabled countries surrounding the SCS to determine the boundary of the seas under national jurisdiction and has generated a high sea at the center of the SCS. These provide very suitable conditions for setting up the above-mentioned regional cooperation and coordination mechanism. This mechanism should: 1. Help States Parties to understand and apply the UNCLOS for the conservation, protection and exploitation of the living resources and environment in the sea under their jurisdiction, and cooperate in the conservation, protection and extraction of living resources and

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the environment in the high sea. This includes conducting general scientific survey work and promoting cooperative scientific surveys to determine with a reasonable degree of accuracy the fishery resources within each country’s maritime area of jurisdiction, as well as the fishery resources in the high sea; 2. Help States Parties to at least temporarily determine their maritime boundaries strictly in accordance with the UNCLOS, bearing in mind the recent Arbitral award on the SCS case; 3. Strengthen cooperation between States Parties; 4. Set up some marine protected areas around the disputed islets, such as the Spratlys, Scarborough Shoal, the Paracels, and other places; 5. Enable joint scientific research in the sea. The above-mentioned coordinating and cooperative mechanism for ocean governance of the SCS should be established as soon as possible. Its concrete details can be determined through many channels, such as international workshops and conferences, diplomatic meetings, and so on. The ASEAN Community plus China should work together to set the process in motion.

CONCLUSION For many reasons, especially the maritime and island disputes, China’s excessive claims to the maritime area within the nine-dash line, Chinese giant clam harvesting and island reclamation, and poor governance by countries surrounding the SCS, the living resources and marine environment in the sea have been seriously degraded. To solve the problems of the degradation of living resources and of the marine environment in the SCS, it is necessary to have an effective regional ocean governance mechanism that can also address the issue of territorial disputes. This mechanism needs to be established as soon as possible and should be set up through a soft approach, centering around international workshops and conferences, multi-level diplomatic ­meetings, and so on. The award by the Arbitral Tribunal established under UNCLOS Annex VII (PCA Case No. 2013-19) should guide coastal countries in the SCS to temporarily determine their maritime boundaries, and thus the residual high sea area. Each ASEAN country surrounding the SCS can temporarily determine the outer boundary of its EEZ based on the claimed baseline and the UNCLOS. By doing so, a high sea will automatically appear in the center of the SCS. This “temporary high sea” can be used as a basis

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for negotiating with China and thus enable the regional ocean governance mechanism to be set up and function.

NOTES   1. Villy Christensen, Len R. Garces, Geronimo T. Silvestre and Daniel Pauly, “Fisheries Impact on the South China Sea Large Marine Ecosystem: A Preliminary Analysis Using Spatially-Explicit Methodology,” in Proceedings of World Fish Center Conference: Assessment, Management and Future Directions for Coastal Fisheries in Asian Countries, ed. Geronimo Silvestre, Len Garces, Ilona Stobutzki, Mahfuzudin Ahmed, Rowena Andrea Valmonte-Santos, Cesar Luna, Lualhati Lachica-Aliño, Patricia Munro, Villy Christensen and Daniel Pauly, (Penang: Wordfish Cener, 2003) 67; A. Witter, L. Teh, X. Yin, W.W.L. Cheung and U.R. Sumaila (2015), “Taking Stock and Projecting the Future of South China Sea Fisheries,” Working Paper #2015-99, Fisheries Economics and Changing Ocean Research Units, The Global Ocean Cluster, Institute for the Oceans and Fisheries, the University of British Columbia, Vancouver, BC, Canada.   2. A. Witter et al., “Taking Stock and Projecting.”   3. Peter K.L. Ng and K.S. Tan, “The State of Marine Biodiversity in the South China Sea,” The Raffles Bulletin of Zoology, Supplement No. 8 (The Biodiversity of the South China Sea) (2000): 3‒7.   4. John E. Randall and Kelvin K.P. Lim (eds), “A Checklist of the Fishes of the South China Sea,” The Raffles Bulletin of Zoology, Supplement No. 8 (The Biodiversity of the South China Sea) (2000): 569‒667.  5. David J.W. Lane, Loisettle M. Marsh, Didier Vandenspiegel and Frank W.E. Rowe, “Echinoderm Fauna of the South China Sea: An Inventory and Analysis of Distribution Patterns,” The Raffles Bulletin of Zoology, Supplement No. 8 (The Biodiversity of the South China Sea) (2000): 457‒92.   6. Ng and Tan, “The State of Marine Biodiversity in the South China Sea.”   7. Ng and Tan, “The State of Marine Biodiversity in the South China Sea.”   8. Marianne Pan, “Crustacean Diversity of the South China Sea,” in Marine Biodiversity of Southeast Asian and Adjacent Seas, ed. Maria L.D. Palomares and Daniel Pauly, Fisheries Centre Research Reports 18(3), Fisheries Centre, University of British Columbia [ISSN 1198-6727], 2010, 43‒52.   9. John W. McManus, “Offshore Coral Reef Damage, Overfishing, and Path to Peace in the South China Sea,” in Ebook Proceedings of International Seminar Environmental and Maritime Security in the South China Sea, Hai Phong, October 10‒12, 2016, 53‒92. 10. Fawzi A. Taha, “Japan’s Declining Fish Catch Raises Trade Prospects,” in IIFET 2000 Proceedings, accessed December 14, 2017, http://ir.library.oregonstate.edu/xmlui/­bitstre​ am/handle/1957/31043/111a.pdf;sequence=1. 11. “Top 10 Fishing Nations Worldwide in 2014 (in Metric Tons),”accessed December 14, 2017, https://www.statista.com/statistics/240225/leading-fishing-nations-worldwide-2008/. 12. James Kraska, “The Lost Dimension: Food Security and the South China Sea Disputes,” National Security Journal, Harvard Law School, February 26, 2015, accessed December 14, 2017, http://harvardnsj.org/wp-content/uploads/2015/02/James-Kraska-Article-.pdf. 13. McManus, “Offshore Coral Reef Damage.” 14. McManus, “Offshore Coral Reef Damage.” 15. FAO, “State of World Fisheries and Aquaculture,” accessed December 14, 2017, http:// www.fao.org/3/a-i5555e.pdf. 16. Daniel Pauly, Dyhia Belhabib, Roland Blomeyer, William W.W.L. Cheung, Andrés M Cisneros-Montemayor, Duncan Copeland, Sarah Harper, Vicky W.Y. Lam, Yining Mai, Frédéric Le Manach, Henrik Österblom, Ka Man Mok, Liesbeth van der Meer,

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17. 18. 19.

20. 21.

22. 23. 24. 25.

26.

27. 28. 29.

30.

A regional ocean governance framework ­209 Antonio Sanz, Soohyun Shon, U. Rashid Sumaila, Wilf Swartz, Reg Watson, Yunlei Zhai and Dirk Zeller, “China’s Distant-Water Fisheries in the 21st Century,” Fish and Fisheries, Volume 15, Issue 3 (September 2014): 474–88. Daniel W. Beckman, Marine Environmental Biology and Conservation (USA: Jones and Bartlett Publishers, Inc., 2013). Stephen Paul Brooker, “The Disastrous Impact Of Overfishing In The South China Sea,” Value Walk, November 9, 2015, accessed December 14, 2017, http://www.valuewalk. com/2015/11/disastrous-impact-overfishing-south-china-sea/. The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, accessed December 14, 2017, https://pca-cpa.org/wp-content/ uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf; McManus, “Offshore Coral Reef Damage.” McManus, “Offshore Coral Reef Damage.” Marie Antonette Juinio-Menez, “Rock-Island-Reef: The High Stakes in the South China Sea,” in Ebook Proceedings of International Seminar on Environmental and Maritime Security in the South China Sea, Hai Phong, October 10‒12, 2016, 53‒92, 125‒37. Danh Duc, “Nhìn lại vụ tràn dầu năm 2007,” Tuổi Trẻ, December 13, 2009, accessed December 14, 2017, http://tuoitre.vn/tin/tuoi-tre-cuoi-tuan/20091213/nhin-lai-vu-trandau-nam-2007/352779.html. GreenPeace, “Plastic Debris in the World’s Oceans,” accessed December 14, 2017, http:// www.unep.org/regionalseas/marinelitter/publications/docs/plastic_ocean_report.pdf. FAO, “Fisheries and Aquaculture Country Profile—China,” accessed December 14, 2017, ftp://ftp.fao.org/FI/DOCUMENT/fcp/en/FI_CP_CN.pdf. Hoi dong Nha nuoc [State Council], Phap lenh bao ve va phat trien nguon loi thuy san Viet Nam [Vietnam’s Ordinance on Protection and Development of fisheries resources], accessed December 14, 2017, http://www.moj.gov.vn/vbpq/lists/vn%20bn%20php%20lut/ view_detail.aspx?itemid=2320; Quoc hoi [Congress], Luat Thuy san Viet Nam [Vietnam’s Fisheries Law], accessed December 14, 2017, http://chinhphu.vn/portal/page/portal/ chinhphu/hethongvanban?class_id=1&_page=422&mode=detail&document_id=80047. “Reversing Environmental Degradation Trends in the South China Sea and the Gulf of Thailand,” South China Sea Project, accessed December 14, 2017, http://www.unepscs. org/; Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) website, accessed December 14, 2017, http://www.pemsea.org/. ASEAN, “Declaration on the conduct of parties in the South China Sea,” accessed December 14, 2017, http://asean.org/?static_post=declaration-on-the-conduct-of-parties​ -in-the-south-china-sea-2. Li Mingjiang, “Managing Security in the South China Sea: From DOC to COC,” Kyoto Review of Southeast Asia, accessed December 14, 2017, https://kyotoreview.org/ issue-15/managing-security-in-the-south-china-sea-from-doc-to-coc/. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, December 10, 1982, 1833 U.N.T.S. 3 [UNCLOS], accessed December 14, 2017, http:// www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf; “United Nations Convention on Biological Diversity 1992,” accessed December 14, 2017, https://www.cbd.int/doc/legal/cbd-en.pdf; “United Nations Framework Convention on Climate Change,” accessed December 14, 2017, https://unfccc.int/resource/docs/ convkp/conveng.pdf; “International Convention for the Prevention of Pollution from Ships (MARPOL),” accessed December 14, 2017, http://www.imo.org/en/About/ Conventions/ListOfConventions/Pages/International-Convention-for-the-Preventionof-Pollution-from-Ships-(MARPOL).aspx; The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China). “United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea,” accessed December 14, 2017, http://www.un.org/depts/los/consulta​ tive_process/consultative_process.htm; “Agenda 21 of United Nations Conference

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on Environment & Development Rio de Janerio,” Brazil, June 3‒14, 1992, accessed December 14, 2017, https://sustainabledevelopment.un.org/content/documents/ Agenda21.pdf; “United Nations Sustainable Developments Goals,” accessed December 14, 2017, http://www.un.org/sustainabledevelopment/sustainable-development-goals/; “The Sustainable Development Agenda—United Nations Sustainable Developments Goals,” accessed December 14, 2017, http://www.un.org/sustainabledevelopment/ development-agenda/, accessed March 1 2017. 31. “Oceans and the Law of the Sea, Report of the Secretary-General, March 4, 2005,” accessed December 14, 2017, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/​ 257/59/PDF/N0525759.pdf ?OpenElement.

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11. Post-South China Sea arbitration challenge: toward regional cooperation for the environmental sustainability of the East Asian seas Raphael P. M. Lotilla The following discussion focuses on the protection and preservation of the marine environment in East Asia, particularly in the South China Sea. Tensions and conflicts in the East Asian seas region in the past few years have moved attention away from regional cooperation. During that period, the South China Sea’s marine environment has experienced destruction on a massive scale. A compulsory arbitration case was filed pursuant to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)1 by the Philippines against China in 20132 which included issues involving violations of obligations toward the marine environment. To the extent that the Arbitral Tribunal’s final award released in 20163 sought to clarify the rights and obligations of the States Parties to the UNCLOS relative to each other and to the international community in the protection of the marine environment in the South China Sea, the decision can help facilitate forward movement on cooperation for the sustainable development of the region’s seas.

THE SEAS OF EAST ASIA Among the seas of East Asia, each constituting a “large marine ecosystem” (LME), are the following: the Yellow Sea, the East China Sea, the South China Sea (SCS), the Gulf of Thailand, the Sulu-Celebes Seas, and the Indonesian Seas. LMEs are regions of ocean space encompassing coastal areas from river basins and estuaries to the seaward boundaries of continental shelves and the outer margin of the major current systems. Characterized by distinct bathymetry, hydrography, productivity, and trophically dependent populations, LMEs and their contributing 211 Raphael P. M. Lotilla - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:53:28PM via Sydney University

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f­ reshwater basins are recommended by the Global Environment Facility as the geographic area for integrating changes in sectoral economic activities.4 The East Asian Seas region is home to a significant part of the world’s coral reefs and mangroves and also produces about 40 percent of the world’s fish catch and more than 80 percent of aquaculture. The human pressure on marine and coastal resources is very high with approximately 2 billion people living in the region.5 The SCS is the largest among the East Asian Seas—covering 3.1 million square kilometers, and containing 7.37 percent of the world’s coral reefs and 0.93 percent of the world’s sea mounts.6 Some 125 rivers drain a catchment area of around 2.5 million square kilometers (sq. km) into the SCS. The Gulf of Thailand is a separate LME with an area of 0.39 million sq. km and 0.6 percent of the world’s coral reefs, but due to the close interrelationship between the two, they are usually treated together. The SCS LME’s total population was estimated at 350 million in 2005.7 A checkered history, varying political and economic systems, divergent sociocultural traditions, and uneven levels of economic development of the States in the region—together with unresolved territorial disputes and overlapping maritime zones—have complicated efforts to find a cooperative regional marine architecture. The urgency of cooperation cannot be stressed enough since the contribution of the marine sector to the different national economies is significantly higher in the East Asian Seas as compared to countries in other regions (PEMSEA 2009).8

THE UNCLOS AS A COOPERATIVE OCEANS FRAMEWORK FOR THE MARINE ENVIRONMENT The 1982 UN Convention on the Law of the Sea (UNCLOS) provides a cooperative oceans framework reflecting its negotiating history. Most developing states had emerged in the wake of the decolonization process after the Second World War. For them, the drafting of the 1982 UNCLOS was the first opportunity to reshape the world’s modern “constitution for the oceans.” This is clearly articulated in the preambular paragraph of the UNCLOS, which, in part, states: “Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked . . .”9 Despite differences on specific issues, and the failure of individual countries to obtain all of their desired negotiating goals, the developing States of East Asia were one with the world in recognizing the value of the new set of

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rules establishing “a legal order for the seas and oceans which will facilitate international communication, and will promote peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the maritime environment” (1982 UNCLOS, Preamble).10 The duty to cooperate among States articulated in UNCLOS primarily arose from the North–South dimensions of negotiations leading to its adoption.11 Developing countries recognized their lack of capacity and looked forward to international cooperation to assist them in fully utilizing their newly extended maritime space. But that duty also extends beyond developmental differentiations among States. The duty to cooperate permeates different parts of UNCLOS, including those on the protection and preservation of the marine environment, and applies to all States regardless of their level of development. Part IX of UNCLOS is devoted specifically to “enclosed and semienclosed seas” and expressly incorporates the duty to cooperate. This regime covers “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States” (UNCLOS, Article 122).12 The special treatment recognizes that enclosed and semi-enclosed seas are “discrete ecosystems, often threatened precisely because their waters are ‘trapped’ between the littoral land-masses,” with scientists agreeing that they “require special treatment since many are under threats which more open marine areas do not face.”13 Illustrating this point further, Schofield and Townsend-Gault state:14 For present purposes, let us suppose that the primary issues at stake here are fish and water-borne pollutants. The most obvious difference between these two and hydrocarbons is that they are not spatially confined. Both can migrate from one State’s zone of jurisdiction to another. Further, if the States concerned are littorals of an enclosed or semi-enclosed sea, the waters and everything swimming or suspended in them are “trapped” there and the exchange with the oceans is severely limited. Recognition of this reality led the drafters of 1982 Convention to create special rules applicable to enclosed and semi-enclosed seas . . .

Article 123 of UNCLOS provides the following: States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end, they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea, (b) to co-ordinate the implementation of their rights and duties with respect to

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the protection and preservation of the marine environment, (c) to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area, and (d) to invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article.

In the last Global International Waters Assessment of the South China Sea conducted in 2005, the priority environmental and socio-economic concerns identified in the area were unsustainable exploitation of fish, and habitat loss and modification.15 These concerns were, to some extent, most felt in the coastal areas of the surrounding littoral States. Large-scale dredging and reclamation activity on or near uninhabited coral reefs or atolls in the middle of the SCS had not yet taken place. Pollution, including oil spills, and freshwater shortages were secondary environmental and socio-economic concerns in the area. In the SCS, the GIWA 2005 report found that oil spills had had moderate environmental impact, and that there had been episodic discharges from shipping and occasional spills from oil exploration and production.16 In this environment, fisheries would have been an ideal area for cooperation since the tragedy of the commons afflicts the SCS region, and the socio-economic and environmental impact of fisheries is well recognized. A frequently quoted fisheries status and prognosis for the SCS in 1999, states:17 In the South China Sea, the fisheries situation resembles a malignant and incongruent problem. Fishing fleets of individual countries are depleting the common resources of the sea, thereby causing long-term costs (loss of future fishing opportunities) to all, and reaping short-term benefits at the cost of others. Although there are unilateral attempts at improving the current situation (e.g. China’s fishing ban), regulation of fisheries is dependent on a regional approach to the problem where all littoral States have to commit themselves to agree upon a limit to annual catches. The long-term effect of this development might lead to the breakdown of the ecosystem.

Among the poor in the Philippines, Malaysia, and Indonesia, estimates are that fisheries contribute approximately 65 percent of the animal protein consumed. As Tengberg and Cabanban pointed out, the average per capita consumption of fish in the SCS region is about 30 kilograms (kg) per year and this could increase to 50 kg per year.18 With higher incomes, increasing demand and population growth, there is greater pressure to expand exploitation of natural fish stocks or increase aquaculture production in the ocean areas. In that context, it is significant that Chapter 17 of Agenda 21, paragraphs 58 and 88, provide that “States should, where and as appropriate, ensure adequate coordination and cooperation in enclosed and semi-enclosed

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seas and between subregional, regional and global intergovernmental fisheries bodies.”19 Paragraph 58 falls under the subheading “Sustainable use and conservation of marine living resources in the high seas” while paragraph 88 is on the “Sustainable use and conservation of marine living resources in areas under national jurisdiction.” These paragraphs embody a recognition in Agenda 21 that an enclosed or semi-enclosed sea may consist of waters entirely under the national jurisdiction of several States, or, it may also include a high sea or area beyond national jurisdiction. In either case, however, it is in the interest, and the legal obligation, of all the States bordering an enclosed or semi-enclosed sea to come together and cooperate over the region’s marine living resources. Unfortunately, in the SCS, a collective response to the common challenges continues to be elusive decades after Rio and Rio110, and long after the States of the region ratified the UNCLOS. Notwithstanding an existing legal mandate for regional cooperation, the level of trust among the States of the enclosed and semi-enclosed East Asian seas still needs to be raised through concrete efforts particularly in three interrelated areas identified in UNCLOS: marine living resources, marine environment, and marine scientific research.

OBLIGATIONS RELATIVE TO THE MARINE ENVIRONMENT The obligations of States Parties to the UNCLOS relative to the marine environment which the Tribunal found relevant to the dispute between the Philippines and China may be grouped into the following: (1) the duty to protect and preserve the marine environment, (2) the duty to cooperate, and (3) the duty to monitor, assess and communicate. In its final award, the Tribunal emphasized at the outset that the substantive obligations on the marine environment in UNCLOS are laid out in its Part XII and “apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it.”20 They are, as well, not dependent upon “which State is sovereign over features in the South China Sea.” This recalls the Tribunal’s previous decision on jurisdictional issues released in 2015 stating that “the environmental provisions of the Convention impose obligations on States Parties including in the territorial sea.”21 As will be discussed below, the Tribunal found the obligation to protect and preserve the marine environment under Articles 192 and 194 of the UNCLOS relevant to the harvesting of vulnerable, threatened and endangered species, to harmful fishing practices including the use of ­

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cyanide and dynamite, as well as to island construction activities. The obligations to cooperate under Articles 197 and 123 and to assess and monitor under Article 206 of the UNCLOS, on the other hand, were cited in relation to the island construction activities. Duty to Protect and Preserve the Marine Environment In discussing the obligation of States Parties to the UNCLOS in protecting and preserving the marine environment, the Tribunal dealt at length on the content of Article 192 in Part XII which provides that “States have the obligation to protect and preserve the marine environment.” The Tribunal considered it well established that Article 192 “does impose a duty on States Parties” despite its general terms.22 The content of this duty “is informed by the other provisions of Part XII and other applicable rules of international law.” Accordingly, drawing upon “the corpus of international law relating to the environment,” the Tribunal clarified that States are required “to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control,” and have a positive “‘duty to prevent, or at least mitigate’ significant harm to the environment when pursuing large-scale construction activities.”23 The Tribunal also clarified that the content of the general obligation in Article 192 is detailed in the subsequent provisions of Part XII, including Article 194 on “Measures to prevent, reduce and control pollution of the marine environment.” Taken together, Articles 192 and 194 impose obligations “not only in relation to activities directly taken by States and their organs but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment.”24 This obligation to “ensure” is an obligation of conduct requiring “due diligence” in the sense of adopting appropriate rules and measures and maintaining a level of vigilance in enforcing them.25 Additionally, Article 192 in relation to Article 194(5) which states that “The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life” is “not limited to measures aimed strictly at controlling marine pollution” and extends to “the prevention of harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat.”26 The Tribunal also ruled that the obligation in Article 192 is further detailed “by reference to specific obligations set out in other international agreements, as envisaged in Article 237”27 of the UNCLOS which provides the following:28

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Post-South China Sea arbitration challenge ­217 1. The provisions of this Part are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention. 2.  Specific obligations assumed by States under special conventions with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.

Thus, the Tribunal considered the Convention on the International Trade of Endangered Species (CITES) as forming part of the general body of international law “that informs the content of Articles 192 and 194(5).”29 Sea turtles found on board Chinese fishing vessels are listed under Appendix I to the CITES Convention as species threatened with extinction and subject to the strictest controls on trade, while giant clams and many of the corals in the Spratlys are listed in Appendix II to CITES and “are unequivocally threatened.”30 The Tribunal also drew upon the Convention on Biodiversity (CBD) for a definition of ecosystem in relation to the reference in Article 194(5) to “rare and fragile ecosystems.”31 In the Tribunal’s Award on Jurisdiction, the Tribunal accepted the Philippine clarification that in raising China’s violations of the CBD, the Philippines did not raise a claim arising under the CBD “as such”, but “refers to the CBD only insofar as that instrument informs the normative content of Articles 192 and 194.”32 In that earlier award, the Tribunal was satisfied that, as confirmed in several other decisions,33 Article 293(1)34 of the UNCLOS, together with Article 31(3)35 of the Vienna Convention on the Law of Treaties, enables the Tribunal “in principle to consider the relevant provisions of the CBD” for this purpose.36 The Tribunal found that China breached its obligations under Article 192 and Article 194(5), noting that China was aware of poaching practices of Chinese fishing vessels. While recognizing that China enacted in 1989 a Law on the Protection of Wildlife, prohibiting the catching or killing of special State protected wildlife including sea turtles and giant clams, the Tribunal found “no evidence in the record that would indicate that China has taken any steps to enforce those rules and measures against fishermen engaged in poaching of endangered species.”37 The Tribunal cited specific incidents where “the evidence points directly to the contrary.” China “did not merely turn a blind eye to this practice. Rather, it provided armed government vessels to protect the fishing boats.”38 The Tribunal similarly inquired into China’s “responsibility for the more recent and widespread environmental degradation caused by propeller

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chopping for giant clams across the Spratlys,”39 and found that China also violated its obligation to protect and preserve the marine environment by its toleration and protection of the harvesting of giant clams by this method. Citing a marine scientist’s estimate “that China is responsible for almost 70 square kilometres of coral reef damage from giant clam harvesting using propellers, a practice he described as more thoroughly damaging to marine life than anything he had seen in four decades of investigating coral reef degradation,”40 the Tribunal concluded:41 From satellite imagery showing scarring from this practice, it appears the harvesting took place in areas under control of Chinese authorities, at a time and in locations where Chinese authorities were engaged in planning and implementing China’s island-building activities. The Tribunal considers that the small propeller vessels involved in harvesting the giant clams were within China’s jurisdiction and control. The Tribunal finds that China, despite its rules on the protection of giant clams, and on the preservation of the coral reef environment generally, was fully aware of the practice and has actively tolerated it as a means to exploit the living resources of the reefs in the months prior to those reefs succumbing to the near permanent destruction brought about by the island-building activities . . .

The Tribunal also considered a failure to take measures against the use of dynamite and cyanide as a breach of Articles 192, 194(2) and 194(5)  of the UNCLOS.42 Noting that both are proscribed under the FAO Code of Conduct for Responsible Fisheries, the Tribunal considered them to be “pollution” of the marine environment within the meaning of the UNCLOS, human-introduced substances that “result in such deleterious effects as to harm living resources and marine life” and threaten the fragile ecosystem of the coral reefs and the habitats of endangered species.43 While a flag State has an obligation over fishing vessels flying its flag to exercise due diligence that those vessels do not take measures to pollute the marine environment,44 the Tribunal however found “scant evidence in the case record about the use of explosives and cyanide over the last decade or Philippine complaints about its use” and did not make a finding against China on this point.45 The Tribunal went on to examine the environmental impact of China’s extensive island-building activities at seven reefs in the Spratlys. The Tribunal noted that China had created on top of the coral reefs “approximately 12.8 million square meters of land, from millions of tons of dredged coral, rocks and sand” since the end of 2013.46 According to the Tribunal, “there is no question that the artificial island-building program is part of an official Chinese policy and program implemented by organs of the Chinese State.”47 The Tribunal-appointed marine expert’s assessment estimated that for “large areas of reef affected by the construction activi-

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ties, recovery is unlikely, or may take decades to centuries,”48 with reefs subjected to direct land reclamation disappearing entirely. A 2016 satellite imagery analysis found that up to 60 percent of the shallow reef habitat at the seven reefs has been directly destroyed.49 According to the Tribunal, “China as well as the Philippines and other States in the region, undertook some more modest construction and land construction work on features in the Spratlys”50 in the two decades prior to 2013. These included the installation of buildings, wharves, helipads and weather and communication instruments. But the Tribunal noted the observations of its appointed experts that most of the construction during the earlier period was “limited to the building of discrete structures with a minimal footprint over the natural form and structure of existing coral reefs”51 and that “the scale of these previous impacts generally cannot be compared with the environmental harm caused by the construction activities [of China in 2013], both in terms of spatial extent and duration.”52 The Tribunal accepted the findings of its expert on the impact of the construction:53 China’s construction activities have led to reduced productivity and complexity of the affected reefs, with significant reductions of nursery habitat for a number of fish species. Therefore, not only will the reefs affected by construction have a greatly reduced capacity to sustain local fisheries but their ability to help replenish the fisheries of neighbouring jurisdictions will also be vastly diminished – at least threefold. The construction activities thus will have a broader impact on the marine ecosystem in and around the South China Sea and on fisheries resources.

The Tribunal found that China’s artificial island-building activities on the seven reefs in the Spratlys had caused “devastating and long-lasting damage to the marine environment” and that, through its construction activities, China had (1) breached its obligation under Article 192 to protect and preserve the marine environment, (2) breached its duty under Article 194(1) by conducting dredging activities in such a way as to pollute the marine environment with sediment, and (3) violated its duty under Article 194(5) to take measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.54 Duty to Cooperate At this point, it may be relevant to recall that a case for compulsory arbitration under Annex VII of UNCLOS was brought in 2003 by Malaysia against Singapore involving land reclamation in the Straits of Johor.55 Malaysia applied for the issuance of provisional measures with

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the International Tribunal on the Law of the Sea (ITLOS) while awaiting the constitution of an arbitral tribunal. Although the case did not involve construction of islands on mid-ocean features, it is instructive in that the ITLOS emphasized the duty to cooperate among the parties and indicated how it could help lead toward a solution. The ITLOS noted that there had been “insufficient cooperation between the parties” up to the time when the case was filed and that an assessment concerning the impact of the land reclamation works on waters under the jurisdiction of Malaysia had not been undertaken by Singapore.56 According to the ITLOS, “given the possible implications of land reclamation on the marine environment, prudence and caution require that Malaysia and Singapore establish mechanisms for exchanging information and assessing the risks or effects of land reclamation works and devising ways to deal with them in the areas concerned.”57 The ITLOS directed Malaysia and Singapore, by way of provisional measures, to cooperate and, for this purpose, enter into consultations in order to establish a group of independent experts with the mandate “to conduct a study, on terms of reference to be agreed by Malaysia and Singapore, to determine, within a period not exceeding one year from the date of this Order, the effects of Singapore’s land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation.”58 The joint study prescribed by ITLOS was carried out by an independent group of experts, composed of four professors of coastal engineering— two appointed by each side.59 The Group of Experts was assisted by an independent consultant, jointly appointed by Malaysia and Singapore. The Group of Experts submitted its Report to both Governments on November 5, 2004, and unanimously found “no major impacts” arising from the reclamation works. Forty were classified as “slight,” meaning that while they could be detected in mathematical models, they were unlikely to be detectable in the field. The remaining 17 were classified in the “minor” to “moderate” range. To alleviate the identified impacts, the Group made seven recommendations which were accepted by Malaysia and Singapore, and formed the basis for bilateral negotiations to find a resolution. After three rounds of negotiations, Malaysia and Singapore signed a full and final settlement of the case on April 26, 2005. In the South China Sea Arbitration, the Tribunal referred to the Malaysia–Singapore case in reiterating previous international decisions underlining that “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law,”60 and that States can minimize damage to the environment through cooperation.61 The Tribunal cited two specific UNCLOS provisions on the duty to cooperate relevant to

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the dispute: Article 197 on Cooperation on a Global or Regional Basis, and Article 123 on Cooperation of States Bordering Enclosed and SemiEnclosed Seas, previously quoted. Article 197 of UNCLOS provides: “States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.” There was no discussion on the nature and scope of the obligation to cooperate in both provisions. But the Tribunal’s conclusion regarding the existence of a legal duty to cooperate is unavoidable as the Tribunal explicitly stated that China’s island-building activities violated China’s obligations under Article 197 and Article 123.62 The Tribunal found that there is “no convincing evidence of China attempting to cooperate or coordinate with the other States bordering the South China Sea,”63 noting that China’s actions were met by protests from the Philippines and neighboring States.64 An inference that proceeds from those observations of the Tribunal is that the duty to cooperate in this instance is owed directly to the other bordering States. The Tribunal took immediate cognizance, without need of an extensive discussion, of the South China Sea as a semi-enclosed sea by stating that Article 123 “covers semi-enclosed seas, such as the South China Sea.”65 This finding is consistent with discussions during the drafting of Article 123 of UNCLOS where the South China Sea was often cited as an example.66 It is also consistent with the contemporary characterization made by international organizations such as the Global Environment Facility, the United Nations Development Programme, the United Nations Environment Programme, and regional organizations like the Partnerships for the Environmental Management of the Seas of East Asia.67 The Tribunal’s conclusion may be seen to suggest, although nothing explicit appears in its decision, that the duty to cooperate is an obligation of conduct which requires of a State a certain level of diligence in coordinating with the other States. That level of diligence is qualitatively higher whenever the activities are carried out in an enclosed or semi-enclosed sea as compared to that required of States which are not bordering one. The scale and impact involved in the construction of islands in this case only amplify the necessity of taking steps to cooperate and coordinate with other bordering States. It can be argued further that the higher level of diligence would also apply to the protection of the environment in an enclosed or semi-enclosed sea, including the harvesting of rare and endangered species, and not just to island construction. Since an obligation to ­cooperate

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is also imposed by UNCLOS on States in maritime zones like the EEZ and the high seas and in relation to specific concerns as in Article 197 on the protection of the marine environment, the inclusion of a separate duty to cooperate in enclosed and semi-enclosed seas under Article 123 cannot have been intended only as a redundancy or unnecessary repetition of the duty to cooperate imposed generally. Duty to Monitor, Assess, and Communicate The Tribunal examined Section IV on Monitoring and Environmental Assessment under Part XII of UNCLOS for the relevant obligations of States Parties in relation to island construction activities, and found the following relevant obligations:68 (1) Article 204 requires States to endeavor as far as practicable to “observe, measure, evaluate and analyse . . . the risks or effects of pollution on the marine environment” and to keep under surveillance the effects of any activities which they “permit or in which they engage” in order to determine whether they are likely to pollute the marine environment; (2) Article 205 requires States to publish reports of the results from such monitoring to the competent international organizations, which should make them available to all States; and (3) Article 206 requires States to conduct an environmental impact assessment (EIA) and to communicate reports of its results. The Tribunal’s decision, however, focused on Article 206 on “Assessment of potential effects of activities,” which states: When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in Article 205.

The Tribunal cited the statement of the International Tribunal for the Law of the Sea that the obligation to conduct an EIA “is a direct obligation under the Convention and a general obligation under customary international law,”69 and that Article 206 has been described as an “essential part of a comprehensive environmental management system” and as a “particular application of the obligation on States, enunciated in Article 194(2).”70 Given the impact and scale of the island-building activities, the Tribunal concluded that China was required to prepare an EIA.71 The decision suggests that it would not have been difficult to establish compliance with this duty, but the Tribunal could not make a definitive finding that China prepared an EIA since no report was identified that would resemble an

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EIA meeting the requirements of Article 206 or of China’s EIA Act of 2002.72 The Tribunal also did not definitely find that China failed to conduct an EIA “in light of the repeated assertions by Chinese officials and scientists that China has undertaken thorough studies.”73 This quoted part of the statement appears to dilute the Tribunal’s reference to an International Court of Justice’s decision that “simple assertions as to the existence of a preliminary assessment did not equate to having ‘adduced any evidence that it actually carried out such a preliminary assessment’.”74 Nevertheless, the Tribunal found China’s failure to communicate the results of an EIA sufficient to establish a breach of Article 206. The Tribunal stressed that “the obligation to communicate reports of the results of the assessment is absolute.”75 Furthermore, the obligation to communicate “is, by the terms of Article 205, to ‘competent international organizations, which should make them available to all States’.”76 The Tribunal noted that although “China’s representatives have assured the States Parties to the Convention that its ‘construction activities followed a high standard of environmental protection,’ it has delivered no assessment in writing to that forum or any other international body as far as the Tribunal is aware.”77 The foregoing reading adds elements, as to recipient entity and timeliness, to Article 205 on “Publication of Reports” which reads as follows: “States shall publish reports of the results obtained pursuant to Article 204 or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States.” Publication alone, for example, seems not to suffice. For the Tribunal, Article 206 “ensures that planned activities with potentially damaging effects may be effectively controlled and that other States are kept informed of their potential risks.”78 These specifications appear reasonable particularly in the context of the magnitude and impact of the island-building activities in a semi-enclosed sea. In this sense, at least, China’s lack of cooperation or coordination is “not unrelated to China’s lack of communication.”79

CONCLUSION: MOVING REGIONAL COOPERATION FORWARD Unilateral acts of the scale and magnitude recently suffered by the marine environment in the SCS run counter to the vision of a cooperative community of States and peoples in a shared sea. The legal responsibilities of UNCLOS States Parties to each other and to the international community

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in the protection of the marine environment, especially in semi-enclosed seas, are take-off points for the realization of regional cooperation. It is significant but ironic that the SCS is bounded entirely by developing States. Effective cooperation has to be demonstrated as a manifestation of South– South solidarity and in order to insure that the developing coastal States of the region realize the benefits under their extended maritime jurisdiction under UNCLOS. Once attained, regional cooperation in the SCS would have enormous positive influences on the sustainable development of the East Asian Seas as a whole. Recent studies have added a compelling sense of urgency to regional cooperation. For the period 2005‒10, an annual average 10.5 million tons of fish catch were obtained from the SCS. China accounted for 30‒34 percent of total SCS catch annually, followed by Taiwan and Vietnam (range of 17‒21 percent), and Thailand (10‒17 percent). The majority of assessed stocks or species are overfished or fully fished. A business as usual scenario would result over the next thirty years in an expected decline in the population of important fish species from 9 percent to 59 percent, causing a fish catch decline of over 60 percent and a decline in landed value by 55 percent.80 Cooperation in the SCS under the UNCLOS is consistent with the corollary concepts of comprehensive, common, and cooperative security. Common security is multilateral, inclusive, and aims at increasing mutual security by reducing the risks of inadvertent conflict and by stressing “non-provocative” defense strategies.81 The concept implies “that security should and can be achieved through a web of interdependence, including cooperation in economic development and scientific research and a general enhancement of human interactions.”82 Common and comprehensive security are related to cooperative security that is based on three main ideas: (1) security with one’s neighbors as opposed to security against them; (2) a broad interpretation of security threats to include, among others, environmental degradation and resource access; and (3) an emphasis on multilateral institutions and processes for managing regional issues and promoting habits of dialogue and cooperation.83 For a cooperative SCS regime to be realized, a Philippine scholar who has worked hard at strengthening Philippines–China relations has pointed out two essentials for the region’s preeminent power: The first is the need to accept that this vast body of water called the South China Sea, and all that it represents, is a shared resource that is vital to many nations and peoples and not just to China. The second is the need to acknowledge that being a respected big power does not exempt one from the constraints of international law; on the contrary, it implies a heavier responsibility than that borne by other States for upholding the rules, norms and laws that bring order and peace to what could otherwise be chaotic inter-state relations.84

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As a responsible major power, China can lead by taking a step back at this point. Perhaps another SCS littoral State without territorial claims in the area may be in the best position to facilitate discussions on establishing SCS regional coordinating arrangements as envisioned in UNCLOS. The South China Sea as a semi-enclosed sea, like several others in the East Asian Seas region, is a common concern, and all the bordering States must engage each other on its sustainable development.

NOTES  1. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, December 10, 1982, 1833 U.N.T.S. 3 [UNCLOS].  2. Award on Jurisdiction and Admissibility of The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China) [hereinafter Award on Jurisdiction], PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, October 29, 2015.  3. Award of The South China Sea Arbitration (The Republic of the Philippines vs. The People’s Republic of China) [hereinafter Final Award], PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, July 12, 2016. The dispute relating to the protection and preservation of the environment, particularly harmful fishing practices and harmful construction activities, is reflected in the Philippines’ Submission No. 11 (as amended) and Submission No. 12, both quoted below: “(11) China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef;” “(12) China’s occupation of and construction activities on Mischief Reef (b) violate China’s duties to protect and preserve the marine environment under the Convention; . . .”   4. See Kenneth Sherman and Gotthilf Hempel (eds), The UNEP Large Marine Ecosystem Report: A Perspective on Changing Conditions in LMEs of the World’s Regional Seas, UNEP Regional Seas Report and Studies No. 182 (Nairobi, Kenya: United Nations Environment Programme, 2008).   5. Anna Tengberg and Annadel Cabanban, “Preparation of a Programmatic Approach for the Coordinated Sound Management and Development of the East Asian Seas region,” PEMSEA, East Asian Seas Stocktaking Meeting, September 2011, accessed December 14, 2017, http://pemsea.org/dev/sites/default/files/stocktaking-meeting-paper.pdf, 3.   6. “Sea around Us Project,” Vancouver: University of British Columbia, accessed December 14, 2017, http://www.seaaroundus.org/data/#/lme/36?chart=catch-chart&dimension=ta xon&measure=tonnage&limit=10. The Final Award and Award on Jurisdiction in para. 3 of both place the SCS area at 3.5 million square kilometers.   7. C. Wilkinson, L. De Vantier, L. Talaue McManus, and D. Lawrence, South China Sea Global International Waters Assessment (GIWA) Regional Assessment 54 (Nairobi, Kenya: United Nations Environment Program: 2005), 21.  8. Partnerships in Environmental Management for the Seas of East Asia (PEMSEA), “The Marine Economy in Times of Change,” in Tropical Coasts, 16 (2009), 1.   9. Preamble, UNCLOS, para. 5. 10. Preamble, para. 4. 11. See Peter Payoyo, Cries of the Sea (The Hague: Kluwer Publications, 1997), 49‒55 particularly the discussions on “The North–South Dialogue in the Third Committee of UNCLOS III: Legal Aspects of International Cooperation for Development and Global Sharing in the Oceans.”

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12. UNCLOS, Article 122. 13. Clive Schofield and Ian Townsend-Gault, “From Sundering Seas to Arenas for Cooperation: Applying the Regime of Enclosed and Semi-Enclosed Seas to the Adriatic,” Geoadria, Vol. 17, No. 1 (2012): 13–24. 14. Clive Schofield and Ian Townsend-Gault, “From Sundering Seas to Arenas for Cooperation: Applying the Regime of Enclosed and Semi-Enclosed Seas to the Adriatic,” 17‒18. 15. Wilkinson et al., South China Sea Global International Waters Assessment, 9. 16. Wilkinson et al., South China Sea Global International Waters Assessment, 33. 17. Tom Naess, “Environment and Security in the South China Sea Region: The Role of Experts, Nongovernment Actors, and Governments in Regime Building Processes,” Master thesis (1999), University of Oslo, Norway. See also Wilkinson et al., South China Sea Global International Waters Assessment, 44. 18. Anna Tengberg and Annadel Cabanban, “Preparation of a Programmatic Approach,” 4. 19. United Nations Conference on Environment and Development, Agenda 21 (New York: United Nations, 1993), para. 58 and 88. 20. Award of The South China Sea Arbitration, para. 940. 21. Award on Jurisdiction and Admissibility of The South China Sea Arbitration, para. 408(a) and (b). 22. Award of The South China Sea Arbitration, para. 941. 23. Award of The South China Sea Arbitration, para. 941. 24. Award of The South China Sea Arbitration, para. 944. Citing Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 131; quoting Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14, at p. 79, para. 197. 25. Award of The South China Sea Arbitration, para. 944. Citing  Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS  Reports 2015, para. 139.  For an analysis of the  Tribunal’s approach  in interpreting the law of the sea in relation to international  environmental  law, see  Plakokefalos, Ilias, “Environmental Law Aspects of the Arbitral Tribunal Award in the South China Sea Dispute,” December 5, 2016, accessed December 14, 2017, https://ssrn.com/abstract=2880624  or  http://dx.doi.org/10.2139/ssrn.2880624. See also  Makane Moïse Mbengue (2016), “The  South  China  Sea  Arbitration:  Innovations in Marine Environmental Fact-Finding and Due Diligence Obligations,” American Journal of International Law Unbound 285, accessed December 14, 2017, https://www.cambridge. org/core/services/aop-cambridge-core/content/view/2E05CF47EA5665220E521CDC A9CEFEEE/S239877230000917Xa.pdf/div-class-title-the-south-china-sea-arbitrationinnovations-in-marine-environmental-fact-finding-and-due-diligence-obligations-div.pdf, originally published online December 12, 2016. 26. Award of The South China Sea Arbitration, para. 959. 27. Award of The South China Sea Arbitration, para. 942. 28. UNCLOS, Article 237. 29. Award of The South China Sea Arbitration, para. 956. 30. Award of The South China Sea Arbitration, para. 957. 31. Award of The South China Sea Arbitration, para. 945. The Philippines and China are States-Parties to the CBD. 32. Award on Jurisdiction and Admissibility of The South China Sea Arbitration, para. 282. 33. The Tribunal referred to Jurisdictional Hearing Tr. (Day 2), pp. 97‒98, citing M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of December 4, 1997, ITLOS Reports 1999, p. 10 at p. 42, paras. 84‒85 (Annex LA-36) and M/V “Virginia G” (Panama/Guinea-Bissau), Judgment of April 14, 2014, ITLOS Reports 2014, p. 4 at p. 68, para. 216 (Annex LA-223); Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation), Merits, Award of August 14, 2015, paras. 193‒98. 34. UNCLOS 293(1) on “Applicable Law” states: 1. A court or tribunal having jurisdiction

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35.

36. 37. 38. 39. 40.

41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

Post-South China Sea arbitration challenge ­227 under this section shall apply this Convention and other rules of international law not incompatible with this Convention. Article 31 on “General Rule of Interpretation” of the Vienna Convention on the Law of Treaties states: 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the Parties regarding the interpretation of the Treaty or the application of its provisions; (b) Any subsequent practice in the application of the Treaty which establishes the agreement of the Parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the Parties. Award on jurisdiction and admissibility of The South China Sea Arbitration, para. 176. Award of The South China Sea Arbitration, para. 964. Award of The South China Sea Arbitration, para. 964. Award of The South China Sea Arbitration, para. 965. Award of The South China Sea Arbitration, para. 958. On the use of experts and fact-finding by the Tribunal, see “Environmental Fact-finding and Due Diligence Obligations,” 110 American Journal of International Law Unbound 285, accessed December 14, 2017, https:// www.cambridge.org/core/services/aop-cambridge-core/content/view/2E05CF47EA56652 20E521CDCA9CEFEEE/S239877230000917Xa.pdf/div-class-title-the-south-china-seaarbitration-innovations-in-marine-environmental-fact-finding-and-due-diligence-­obligati​ ons-div.pdf, originally published online December 12, 2016. Also see Harry Ormsby, “Judicial Fact-finding and the South China Sea Arbitration,” accessed December 14, 2017, http://kluwerarbitrationblog.com/2016/09/06/judicial-fact-finding-and-the-south-china-s​ ea-arbitration/, originally published online September 6, 2016. Award of The South China Sea Arbitration, para. 965. Award of The South China Sea Arbitration, para. 970, Award on jurisdiction and admissibility of The South China Sea Arbitration, para. 175. Award of The South China Sea Arbitration, para. 970. Award of The South China Sea Arbitration, paras. 972 and 975. Award of The South China Sea Arbitration, para. 971. Award of The South China Sea Arbitration, para. 976. Award of The South China Sea Arbitration, para. 976. Award of The South China Sea Arbitration, para. 982, last part citing Ferse report. Award of The South China Sea Arbitration, para. 978. Award of The South China Sea Arbitration, para. 977. Award of The South China Sea Arbitration, para. 977. Award of The South China Sea Arbitration, para. 977. Award of The South China Sea Arbitration, para. 979. Award of The South China Sea Arbitration, para. 983. Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of October 8, 2003, ITLOS Reports, 2003. Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), para. 97. Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), para. 99. Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), para. 106. “Remarks in Parliament by Singapore Foreign Minister Yeo on the Settlement Agreement between Singapore and Malaysia on Land Reclamation,” May 16, 2005. Award of The South China Sea Arbitration, para. 946. MOX Plant (Ireland v. United Kingdom) Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, para. 82. The Tribunal also mentioned in para. 985 that the International Tribunal for the Law of the Sea has recognized the importance of cooperation to marine protection and preservation in several decisions besides the MOX Plant Case, including the Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports, 2003, para.

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61. 62. 63. 64. 65. 66.

67.

68. 69. 70. 71. 72. 73. 74.

75. 76. 77. 78. 79. 80.

81.

82.

83. 84.

Building a normative order in the South China Sea 92; and the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 140. Award of The South China Sea Arbitration, para. 985 citing Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p.14, p.49, para. 77. Award of The South China Sea Arbitration, para. 993. Award of The South China Sea Arbitration, para. 986. Award of The South China Sea Arbitration, para. 984. Award of The South China Sea Arbitration, paras. 946 and 984. The characterization of the South China Sea as a semi-enclosed sea also appears at the outset, para. 3 in the Introduction of both the Final Award and the Award on Jurisdiction. For an extended discussion on the duty to cooperate in Art. 123, see Christopher Linebaugh, “Joint Development in a Semi-Enclosed Sea: China’s Duty to Cooperate in Developing the Natural Resources of the South China Sea,” 52 Columbia Journal of Transnational Law 542 (2014). See Partnerships for the Environmental Management of the Seas of East Asia (PEMSEA), “Sustainable Development Strategy for the Seas of East Asia,” p. 20, accessed December 14, 2017 http://www.pemsea.org/dev/sites/default/files/SDS-SEA%202015%20FINAL%2011​ 272015%20FULL%20rev_1.pdf (accessed March 2017). Final Award, para. 947. Final Award, para. 948 citing Responsibilities and Obligations of States with respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10 at p. 50, para. 145. Award of The South China Sea Arbitration, para. 948. Award of The South China Sea Arbitration, para. 988. Award of The South China Sea Arbitration, para. 989 and 991. Award of The South China Sea Arbitration, para. 991. Award of The South China Sea Arbitration, para. 989, citing Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua: Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), Merits Judgment, ICJ Reports 2015, para. 154. Award of The South China Sea Arbitration, para. 948. Award of The South China Sea Arbitration, para. 991; also para. 947. Award of The South China Sea Arbitration, para. 991. Award of The South China Sea Arbitration, para. 948. Award of The South China Sea Arbitration, para. 986. Allison Witter, Louise Teh, Xueying Yin, William W.L. Cheung and U. Rashid Sumaila, “Taking Stock and Projecting the Future of South China Sea Fisheries,” University of British Columbia Fisheries Center Working Paper, 2015; U. Rashid Sumaila, W. Cheung, Boom or Bust: The Future of Fish in the South China Sea (Canada: University of British Columbia, 2015). Andrew Mack, “Security Regimes for the Oceans: The Tragedy of the Commons, the Security Dilemma, and Common Security,” in Freedom for the Seas in the 21st Century, ed. John Van Dyke, Durwood Zaelke, and Grant Hewison (Washington, D.C.: Island Press, 1993), 409–19. Mark Valencia, “Regional Maritime Regime Building in Northeast Asia,” in Securing the Oceans: Essays on Ocean Governance: Global and Regional Perspectives, ed. Thia-eng Chua, Gunnar Kullenberg and Danilo Bonga (Quezon City: Partnerships in Environmental Management for the Seas of East Asia, 2008), 283‒335. M. Valencia, “Regional Maritime Regime Building. Aileen S. P. Baviera, “Arbitration Over, Time for China to Lead Responsibly,” Global Asia Vol. 11, No. 3 (Fall 2016): 76.

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12. Energy drivers for offshore cooperation Dylan Mair and Rachel Calvert This chapter focuses on the oil and gas resources that could drive upstream exploration and production (E&P) cooperation in the South China Sea.1 In addition to providing an overview of joint E&P agreements in the AsiaPacific, this chapter considers the known hydrocarbons remaining in the South China Sea as well as those passing through it, the discoveries that might be made in the future, and the impact these hydrocarbons have on the energy supply of regional players. Even a large discovery in the South China Sea faces huge economic barriers – remoteness, water depth and gas quality challenges – that ensure oil and gas shipments through the South China Sea will continue to have a much greater impact on Asian energy supplies. This is even more the case in the context of relatively low international oil and gas prices, which reduce the commercial viability of complex upstream projects, such as those that would be required in much of the South China Sea. Even accounting for expanding overland pipeline capacity, alternate sea routes and methane hydrates, these shipping lanes will only grow in importance to the economic health of the region for the foreseeable future. Individual and cumulative well and field statistics described in this chapter are drawn from the commercially available exploration and production databases of IHS Markit unless noted otherwise.

E&P COOPERATION POTENTIAL DEMONSTRATED IN OTHER LOCATIONS IN THE ASIA-PACIFIC Cooperative bilateral solutions for petroleum exploration are fairly common in the Asia-Pacific, with multiple instances of joint authorities and joint rightholdings in the region. Joint authorities establish a joint development area and a joint authority to administer the area. Such agreements typically do not delineate disputed maritime boundaries, allowing both Parties to maintain their claims to the area while agreeing 229 Dylan Mair and Rachel Calvert - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:53:34PM via Sydney University

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on exploration, production and profit sharing arrangements that allow the area to be developed. In joint rightholding arrangements, companies from each country (typically national oil companies) sign joint venture agreements to cooperatively develop blocks applying the petroleum law of one of the countries. These agreements allow both Parties to hold an interest in projects in disputed areas, and to bring in additional companies that have the technology and/or funds required to develop the block in question. There are three main joint authorities in the Asia-Pacific, the Malaysia‒ Thailand Joint Development Area (MTJDA), the Australia‒Timor Leste Joint Petroleum Development Area (JPDA) and the Korea‒Japan Joint Development Zone (JDZ). The MTJDA (shown on Figure 12.1) is a fully functional joint development area.2 Since the first MTJDA PSCs were signed in 1994, two blocks (A-18 and B-17) have moved into the production phase, producing approximately 1,150 MMscfg/d and 16,500 bc/d in 2015.3 While the Australia–Timor Leste JPDA is also operational, at the time of writing administration of the area had been complicated by ongoing disputes between Australia and Timor Leste.4 There are currently two producing fields in the JPDA, Bayu-Undan and Kitan. In 2016 Bayu/Undan produced 2.67 trillion cubic feet (Tcf) of 4.0 Tcf of recoverable gas and 222 million barrels of condensate out of a total 400 million barrels recoverable. Kitan had produced some 25 million barrels by 2016 of an estimated total 35 million barrels of recoverable oil. This production has already generated billions of dollars earmarked for infrastructure projects in Timor Leste. The Greater Sunrise Gas Field, roughly 20 per cent of which lies in the JPDA and 80 per cent in Australian waters, is estimated to contain 5.1 Tcf of gas and 226 million barrels of condensate.5 However, at the time of writing development of the field had been suspended due to ongoing disputes between the two countries concerning maritime boundaries and field development plans.6 No commercially viable discoveries have been made in the Korea–Japan JDZ to date. Nonetheless, its realization was a considerable diplomatic achievement for these two countries. Regarding joint rightholdings in the region, the Malaysia‒Vietnam PM-3 Commercial Arrangement Area (CAA, shown on Figure 12.1) has thus far proven the most successful. PM-3 CAA has 534 MMboe of estimated recoverable reserves in producing and developing fields; this figure rises to 623 MMboe if appraising and non-commercial fields are included.7 The joint Brunei‒Malaysia development of blocks CA1 and CA2 (shown on Figure 12.1) has resulted in multiple wells being drilled and discoveries in both blocks, though discoveries in CA2 are smaller and need to be developed in clusters to be commercially viable.8

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Notes:  The stippled area shows the basin area within theoretical limits for prospectivity in the South China Sea that has not already been subject to uncontested drilling and production. These largely untested frontiers lie in deep to ultra-deep (over 200 m to over 1,000 m) water depth. Joint E&P areas: A is the China/Vietnam Bipartite Cooperation Area; B is the Malaysia–Thailand Joint Development Area; C is the Malaysia/Vietnam Block PM-03 CAA, administered by Malaysia with PetroVietnam participation; and D is Brunei/ Malaysia blocks CA1 and CA2, administered by Brunei with PETRONAS participation.

Figure 12.1 Disputed frontiers and joint E&P areas in and around the South China Sea

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At the time of writing, the China‒Vietnam bipartite cooperation agreement for joint exploration in the Gulf of Tonkin (shown on Figure 12.1) had been extended at least until the end of 2016, but had not yet resulted in any commercially viable discoveries. The agreement proved the first steps for Vietnam and China cooperation for oil and gas. A further small step may be made with both parties negotiating an extension of the median line slightly further out of the Gulf of Tonkin. The unresolved Thailand‒Cambodia Offshore Claims Area (OCA) represents a huge opportunity for bilateral agreement, although this has remained disputed since 1976. IHS Markit estimates of the prospectivity of this area suggest production could fill the widening gap between Thailand’s supply and demand for five years without additional LNG imports; for Cambodia, revenues from production could completely transform the country’s energy mix and economy.9 As stated above, there are many examples of cooperative agreements to facilitate hydrocarbon E&P in the Asia-Pacific. This means that there are multiple potential model agreements that could be studied to inform the creation of similar cooperative agreements in the South China Sea. As will be discussed in the next four sections, project economics face significant challenges in the South China Sea, which means that agreements that allow for multiple Parties to operate without waiting for maritime or territorial boundary disputes to be formally resolved and to share costs and technical capabilities could offer the best prospect for oil and gas development in the South China Sea.

KNOWN RECOVERABLE HYDROCARBONS IN THE SOUTH CHINA SEA Known recoverable hydrocarbons are hydrocarbons in fields that have been discovered as a result of exploration drilling, and may reasonably be extracted with today’s technology. These cumulative resources can be accurately estimated. Around 75 per cent of the gas and 25 per cent of the oil found in a “typical” field may be expected to flow to the surface depending on the quality of the reservoir, though enhanced recovery techniques may make some incremental gains later in the life of the field. Defining the extent of the South China Sea is critical to providing estimates of known recoverable hydrocarbons, as the shoreward perimeter is also the most prospective. For our chapter we include all of the waters from Taiwan to Natuna Island, and from Vietnam and Hainan to the Philippines and Borneo, excluding the Gulf of Thailand. This includes geological provinces extending into the Gulf of Tonkin and

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Note:  Almost all of these volumes have been found in the undisputed perimeter of the South China Sea.

Figure 12.2 Discovered hydrocarbon volumes and potential production from the South China Sea the Natuna Sea. It is not intended as a formal definition of the South China Sea. The energy equivalent of 56 billion barrels of recoverable gas and oil (Bboe) had been found offshore in this area as of late 2016 (see Figure  12.2), predominantly in the form of gas. Around 22 Bboe had already been produced. Another 13 Bboe of recoverable reserves remains in fields that are already producing, or are being developed. Seventeen Bboe is being appraised through studies and further drilling to determine if there is a way to produce each of these fields economically – not all will succeed. Most of the remaining 4 Bboe exists in marginal or subcommercial fields of 30 million boe or less. A very significant 7.6 Bboe worth of gas lies in the Natuna D-Alpha field close to Natuna Island (see Figure 12.3). This represents almost half of the hydrocarbon volumes still being appraised in the South China Sea as we have defined it. Despite Natuna D-Alpha’s size, there are significant gas quality challenges (described later in this chapter), which means commercial devel-

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Notes:  Each basin is coloured according to exploration maturity. The bubbles within the basins represent the volumes of gas still to be recovered. Oil volumes are much smaller. The large bubble in the East Natuna Basin represents the Natuna D-Alpha discovery. The tiny bubble in the Reed Bank Basin also represents a lone discovery.

Figure 12.3  Basins of the South China Sea

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Billion barrels of oil equivalent per year

2

Petroleum and Natural Gas Exports from Middle East to North Asia

1

China (excl. Taiwan) Japan South Korea Taiwan

– 2012

2013

2014

2015

2016

2017

2018

2019

2020

2021

Notes:  The future production from all of the developed and developing assets of the South China Sea (13 Bboe remaining) represents just 3 years (2014‒16) of Middle East imports.

Figure 12.4 Petroleum and natural gas imports from the Middle East to North Asia opment may require a combination of future technology, better commodity prices and improved contract terms with the Indonesian government. All of the nations around our defined greater South China Sea are set to produce 13 Bboe of oil and gas over the decades-long life of the developed and developing commercial fields found within this area. By contrast, 13 Bboe was exported from the Middle East to China (including Taiwan), Japan and Korea in 2014‒16 (see Figure 12.4).

FUTURE POTENTIAL PROSPECTIVITY OF THE SOUTH CHINA SEA The South China Sea is comprised of a number of sedimentary basins, each formed through a different geological history that has a unique

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impact on a given basin’s potential to form commercial hydrocarbon deposits. Exploration wells target potential hydrocarbons, but also provide technical data that hints at broader basin prospectivity. The chance of technical success for a wildcat exploration well is usually worse than one in two, so there is always uncertainty. Frontier basins with few wells drilled can expect much lower chances of success. In the absence of data, the prospectivity of a basin may still be presumed using analogous basins elsewhere in the world; however this approach comes with a huge margin for error. Over 80 exploration wells have been drilled every year over the past decade in our nominal greater South China Sea, peaking at over 100 wells in 2014. The number of those wells drilled in deep water increased from 1 in 10 to 1 in 3 over this period. Seventy exploration wells including just ten deepwater exploration wells were drilled in 2016 due to low international oil and gas prices putting operations on hold. These trends are likely to continue for some years until production profits at higher commodity prices clear debt and permit renewed investment in exploration. Before we can assess the future potential prospectivity of the South China Sea, we must clarify which basins within our nominal South China Sea are being assessed. This chapter considers the prospectivity that may lead to cooperation in the South China Sea, including areas where existing production and related infrastructure already exist would add little value, as the countries effectively in control of these areas would be unwilling to delineate joint exploration areas in already producing basins. For example, the Baram Delta Basin straddling the coastlines of East Malaysia and Brunei is the most productive basin in the South China Sea, with continuous production since 1911 at the onshore Miri field. Despite the maturity of this basin, there are still regular smaller fields of both oil and gas being discovered. This potential is usually included in estimates of the prospectivity of the South China Sea, and indeed one of China’s claimed nine dashes does intersect the basin’s estimated boundaries. Despite this cartographic presumption, Malaysian production continues from many fields on either side of China’s claim. Given that production and the related petroleum rights are well established, Malaysia would be highly unlikely to agree to joint exploration in this area, making the Baram Delta Basin largely irrelevant when considering prospectivity that would motivate joint exploration and production activities. The basins thus excluded from further analysis in this chapter are: Baram Delta Basin (Malaysia and Brunei); Northwest Sabah, Central Luconia, West Luconia and Balingian provinces (Malaysia); Cuu Long and Nam Con Son basins (Vietnam); and Qiongdongnan and Pearl River Mouth basins (China). While this rules out all of the most productive

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South China Sea basins, these basins are productive largely because their development has been unhindered by international politics for many years. Hydrocarbon development in other South China Sea basins faces multiple challenges in terms of both prospectivity and field economics, including remoteness, significant water depth and low gas quality. Each of these is described below, with specific references to the outstanding basins.

DISTANCE FROM SHORE IMPACTS BOTH PROSPECTIVITY AND ECONOMICS Distance from shore can impact prospectivity as the geology changes further away from the eroding terrestrial landscape that delivers clastic (sand, silt and clay) sediments into the basins that ring the South China Sea. This terrestrial sedimentation is supplemented by sedimentary processes at sea including reef development in shallower waters and the deposition of carbonaceous marine detritus at any depth. The thickness of this sediment is critical to the evolution of producible hydrocarbons. The South China Sea Ocean Floor at the centre of the South China Sea is far from terrestrial sediment sources. The oceanic crust formed from the spreading of the South China Sea is estimated to be buried under less than a thousand meters of sediment. Lack of burial depth means the sediments are unlikely to be sufficiently compacted for a geological seal to form over structures that might hold hydrocarbons within. The thinner sedimentary sequence also results in less geothermal heating, severely limiting the thermogenic maturation of organic matter into oil or gas. Gas may still form through biogenic (anaerobic) processes, and such gas deposits can be found to be economic. However this gas is predominantly methane, which has less energy value than thermogenic gas of higher specific gravity. Significant quantities of oil are unlikely to form under these conditions. The basins underlying the Spratlys and Paracels are not currently receiving terrestrial sediments; however the continuous formation of reefs provides a thick sedimentary sequence and potential for a geological seal. The potential for oil depends on the geological history of these sediments. In the best case terrestrial sediments may have become source rock within the sequence. However, these basins are more likely to be gas-prone. Only the Spratly Islands have proven to be prospective, with four wildcats by the Philippines in the 1970s and three Chinese ocean drilling project wells in 1999 returning a single gas discovery of less than 2 Tcf (0.35 Bboe) recoverable gas in the Reed Bank Basin. The field may have been commercial closer to shore, but on its own it is stranded. The full extent of the prospectivity of the Spratly Islands area remains untested, but the

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sub-basins have not shown any indications yet of oil. The prospectivity of the Paracel Islands has been tested to the north (Qiongdongnan Basin) and south (Hoang Sa Basin) by China. While the north has not been physically disputed, the two unsuccessful wells (with shows) drilled by China to the south were impacted heavily by geopolitical conflict between the governments of Vietnam and China and the activities of fishing vessels from both nations. This likely impacted the time available for testing the wells. Only gas shows have been mentioned. The greatest prospectivity for oil and gas lies in the distal (outboard) reaches of the coastal basins of the present day South China Sea. The disputed areas of these basins lie almost entirely in deep water, where prospectivity is challenged by commercial limits. The petroleum system, the mechanism that leads to hydrocarbon accumulations, can also produce problematic levels of carbon dioxide. These challenges are described separately below. The economic impact of distance is greatest for gas. New floating LNG technology notwithstanding, gas always needs to be piped to market or to an LNG facility. With so many gas-prone basins in the South China Sea, the economics of a pipeline means bigger, or more, fields need to be found. This requirement has left a lot of gas stranded around the world regardless of the technical potential of the geology. Four very remote basins with shallow water are the Vung May Basin, the East Natuna Basin, the North Luconia Basin and the basins of the Spratly and Paracel Islands. The first three basins are a long way from any disputed rocks, reefs or other shallow features currently occupied by China, although cooperation could be considered by more proximal countries. The East Natuna Basin also has gas quality issues which are discussed further below. The shallow water Vung May Basin has seen very limited exploration drilling. Crestone Energy Corporation drilled a dry well in 1994 within a Chinese exploration contract held by Brightoil Petroleum (Holdings) Ltd. of Hong Kong since July 2014, although overlapping contracts awarded by Vietnam prevent any further exploration activity. PetroVietnam drilled a well in 1995 that provided useful geological information but likely did not flow oil or gas. Talisman Vietnam (now owned by Repsol SA) completed a well in 900 meters of water at the western edge of the basin in mid-­December 2014. The play targeted was thought to be similar to the Red Emperor field in the Nam Con Son Basin to the west. The original well encountered only shows but confirmed a Miocene and Oligocene geological sequence common to many Southeast Asian basins. A subsequent sidetrack from the well found 35 MMboe gas and condensate. Monetizing this relatively small gas discovery is entirely dependent on tying into

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future pipeline facilities to Vietnam that still await approval for the Red Emperor field. Part of the basin lies between the exclusive economic zones submitted to the UN by Malaysia and Vietnam in 2009. This small area of unknown prospectivity outboard of the above discoveries might offer some possibility for joint development. Between the Vung May Basin and Malaysia’s Central Luconia Basin (CLB) lies the North Luconia Basin. The geology is related, with the sediments thinning and the water getting deeper to the north. The most exciting play in the CLB in recent years has been pinnacle reefs. However basin-centred pinnacles in the CLB have already proven to lack gas, due to either a lack of overburden to form a seal or a lack of charge (migration paths for gas to rise from source rocks into the pinnacle). Only one pinnacle in the North Luconia Basin has been tested, by Shell in 2015, but the well did not contain hydrocarbons. More conventional plays have yielded only two sub-commercial discoveries with poorer reservoir quality further from shore. It will take more than the current eight exploration wells to fully test the prospectivity of this basin, but this is well in hand with the current exploration commitments of recent Malaysian contract awards.

DEEP WATER MAY IMPACT GEOLOGY AND IS ALWAYS A CHALLENGE FOR FIELD ECONOMICS Most of the disputed acreage of the non-producing basins ringing the South China Sea (the basins not already described above) lie in deep water – determined here as over 200 meters depth. Drilling in deep water requires a much more expensive rig. Production in deep water is also much more expensive. Bigger discoveries may overcome the economic hurdles; smaller fields remain stranded. Worldwide exploration in deep water has realized vast resources of oil, particularly in the Gulf of Mexico, and offshore Brazil, Angola, French Guiana and Ghana. However deepwater exploration in the South China Sea has predominantly yielded gas – with the notable exception of the Baram Delta offshore Malaysia, and in the Pearl River Mouth Basin offshore China. However, gas dominates discovered hydrocarbons even in these two locations. Deep water then adds further technological complexity and cost to the issues of remoteness. Low commodity prices further delay sanctioning for future fields.10 Deep water limits the formation of reefs in the current day; however reefs may have formed in basins during times of slower subsidence and lower sea levels, as seen in the Song Hong Basin (Vietnam). The prospectivity of clastic reservoirs is affected by the basin slope, distance from shore, rate of subsidence and the volume of sediment supply – a challenge of geometry.

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Gravity-driven terrestrial sediments (called turbidites) selectively deposit according to the energy required to move the sand grains. Coarser grains do not travel as far. This results in poor reservoir quality in turbidites further out to sea, in deeper water. Even the exceptional Baram Delta (Malaysia) has been found to have a limit, with deposits found outboard of the Kikeh field diminishing in size due to the diminishing reservoir quality. Nonetheless these deepwater basins offer the best prospectivity for potential cooperation in the South China Sea. The shelf of the Southwest and Northwest Palawan basins has been extensively explored but with only two successes in deep water, the Malampaya oil and gas discovery in over 700 meters of water and the much smaller Galoc field in 336 meters of water. These constitute the largest deepwater discoveries (over 200 meters water depth) in the entire South China Sea. The deepwater potential of carbonates in the basin remains untested since BHP Billiton declared force majeure on the drilling of its Cinco prospect. Deepwater turbidites were tested by Otto Energy in 2015 (in 1,780 meters water depth) but found only oil and gas shows. Three other candidate basins for deepwater exploration are the Song Hong, Phu Khanh and Hoang Sa basins east of Vietnam. Two of these basins already face significant gas quality issues, and are described in the next section. The Hoang Sa Basin wells are mentioned above.

GAS QUALITY ISSUES CONFOUND EVEN THE LARGEST DISCOVERY The potential for high CO2 undermines field economics in the South China Sea, even in the perimeter basins with better prospectivity. The challenges arising from high CO2 levels are most clearly demonstrated at the Natuna D-Alpha field located in the Natuna Sea Basin. This is the largest undeveloped field in Southeast Asia and the largest discovered in both the Natuna Sea and the South China Sea to date, with recoverable resources twice as large as the next biggest discovery. It is estimated to hold 222 Tcf of gas, including 46 Tcf of recoverable hydrocarbons, primarily in the form of methane. However 71 per cent of the gas in place is carbon dioxide. This discovery represents the whole pie chart shown in the East Natuna Basin on Figure 12.3. The field is located on a shelf edge and is very remote, all of which complicate the commercial viability of further development of the field. This in turn has seen the Indonesian government’s efforts to sign a new production sharing contract (PSC) for the field make little progress since 2011, with partners thus far failing to agree on a viable development

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plan, suggesting that a commercially viable development plan may not be feasible in the foreseeable future. Estimated development costs are US$40 billion. The CO2 separation cost alone has been estimated to reach 49 per cent of the estimated (US$19.5 billion) total upstream investment, and PT Pertamina (Pesero) and ExxonMobil have already spent over US$200 million on feasibility and engineering studies. As this case highlights, not only remoteness, but also gas quality is a barrier to hydrocarbon development in the South China Sea – with water depth posing additional challenges. The southern Song Hong Basin includes a gas discovery by ExxonMobil in 2011 that could ultimately be appraised as large as 10 Tcf. The gas is found within a very large platform that has developed on the Tri Ton Horst block that runs parallel to the Vietnam coast. An earlier well drilled in the platform in 1992 by BP found gas with CO2 levels of 80 per cent CO2 while the subsequent ExxonMobil wells found gas with only 30 per cent CO2. Understanding the multiple gas kitchens where the gas originated is key to understanding the prospectivity of this carbonate platform and other smaller platforms. In any case the acidic gas is remote and will require special handling. The Phu Khanh Basin turbidities offshore of Vietnam in the Phu Khanh Basin have long been considered prospective. However, limited seismically defined structures and very high levels of CO2 in the gas discovered so far have severely downgraded the deepwater potential of yet another perimeter basin. Nonetheless, oil seeps are observed along the shore and a very small non-commercial oil field has been discovered.

THE IMPACT OF FLOATING LNG (FLNG) TECHNOLOGY The recent development of the Floating Liquefaction of Natural Gas (FLNG) concept provides some additional hope for development of stranded deepwater and remote gas. This technology has recently been used for the first time, deployed in December 2016 by PETRONAS at the Kanowit field in Sarawak. The project represents the first deployed FLNG facility in operation in the world. Murphy has also committed its final investment decision to deploy FLNG offshore of Sabah. The PETRONAS FLNG facility will process gas from the Rotan field with tiebacks to three other fields. The technology is still very new, and is expected to become less costly over time. LNG does require that extremely little to no CO2 be present, as CO2 does not liquefy at the same temperatures as hydrocarbon gas and has acidic qualities. The dominance of gas in Asia’s hydrocarbon resources magnifies development challenges related to water depth, as costly and complex

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pipeline construction will be required until FLNG technology is proven and scalable. This means that although the long-term potential for commercially viable gas development is significant, and will encourage nations to continue to search for remote gas deposits, in the short- to medium-term the likelihood of significant commercial production is limited. Issues with remoteness, gas quality and water depth pose problems not only for conventional oil and gas development in the South China Sea, but also for the development of future energy sources, such as methane hydrates.

METHANE HYDRATE POTENTIAL Under very specific conditions of pressure and temperature known as the “stability envelope,” methane that comes into contact with water can form solid crystals known as methane clathrate, also commonly known as methane hydrate. Solid crystals generally form at moderate depths on the seabed or under permafrost, and only at conditions within the stability envelope: at shallower depths the pressure might not be enough for crystal stability and deeper, the geothermal temperature may be too high. These conditions have been found to exist in the South China Sea. They remain uneconomical to produce. In 2014, two separate breakthroughs related to methane hydrates were reported. Together these developments call for a reassessment of the prospects for methane hydrates as a potential longer-term new source of energy. Although commercial viability of methane extracted from methane hydrate may still not be “close,” the likely timeline of commercialization appears to have advanced to just a decade. Japan’s Ministry of Economy, Trade and Industry (METI) has established procedures for methane hydrate exploration and assessment of resources, and recently announced it is embarking on a three-year study with a stated aim to make the methane extraction process commercially viable by 2023. Costs will be critical, especially in the current low international gas price environment: While Japan and South Korea used to pay among the highest gas prices globally through their LNG purchases, as high as US$20 per million British thermal units (MMBtu) in 2013‒14, Northeast Asia LNG prices fell to lows of $4‒5 per MMBtu in April 2016 before doubling to almost $10 per MMBtu in January 2017. It seems likely these countries would accept even higher prices – perhaps a 50 per cent premium – to bring in marginal sources of domestically produced gas. There is a lot of speculation about whether hydrates could be the next unconventional hydrocarbons revolution. There are similarities, as

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economic thresholds defined the possibility of both, and they have a wide distribution. But there are major differences too. Energy technologies normally fall within two broad types of development. Large-scale, centralized technologies offer the potential for economies of scale to defray high capital costs, such as Canadian oil sands developments and LNG. This requires government funding and support through the long incubation time to find solutions to the R&D challenges. By contrast, unconventional gas, including shale gas, is more widely distributed in nature and has a manufacturing aspect. For this reason, the technology rollout could be pioneered by smaller entrepreneurial players. For this type of distributed business, progress often arises out of constant innovation and learning from doing. Methane hydrates likely sit between these two extremes, but more closely resemble large scale processes. Offshore technology at ocean depths of 300 meters or more will limit the range of companies with resources to specialize and operate in the area of methane hydrates. Without the diversity of operators seen in the onshore unconventional revolution, a similar pace of innovation and production growth from methane hydrates is unlikely. Innovation in the development of methane hydrates would still benefit from the cooperation of as many countries as possible. As such, methane hydrate development has the potential to become a driver of energy ­cooperation in the South China Sea over time. The challenges of remoteness, gas quality and water depth drive up project costs and pose multiple technical development issues, all of which could serve as drivers for hydrocarbon E&P cooperation in the South China Sea as countries and companies pool resources to address these issues. However, these challenges also mean that shipping through the South China Sea will be more important than hydrocarbon production there for many years to come. This is especially significant from China’s perspective, given its rising energy demand and reliance on oil and gas imports through the South China Sea.

THE IMPORTANCE OF SEABORNE ENERGY TRADE AND LIMITATIONS OF THE ALTERNATIVES, ESPECIALLY FOR CHINA The South China Sea is one of the most important trade and shipping routes in the world, and has substantial geostrategic significance both within and beyond the Asia-Pacific. Given the lack of viable alternate overland or pipeline supply routes, the South China Sea is of strategic importance to both energy import-dependent countries in Asia, including

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Japan and South Korea, and the energy exporters that supply these countries, including Australia and multiple Middle Eastern nations. As such, all of these countries have an interest in maintaining unrestricted access to the shipping lanes that pass through the South China Sea – an interest China shares. China is highly dependent on the South China Sea route for energy imports from the Middle East, Africa and Latin America. About 80 per cent of China’s crude imports and over a third of its LNG imports pass through the Straits of Malacca, with even higher percentages traversing the South China Sea.11 As such, China’s interests in the South China Sea are primarily driven by considerations of national security and sovereignty as it seeks to ensure uninterrupted access to sea lanes, including in times of crisis. The country’s petroleum exploration interests in the South China Sea are of far less strategic importance and have much less potential to impact China’s energy supplies. China has a more positive view of the South China Sea’s prospectivity than other countries, estimating 125 billion barrels (bbl) of oil and 500 Tcf of natural gas reserves compared to the US Energy Information Administration’s estimate (2013) of 11 bbl and 190 Tcf of proven and probable reserves.12 China is also trying to rapidly increase natural gas use to reduce pollution and related public criticism of the government. The government aims to increase natural gas penetration in China’s primary energy mix from 5.8 per cent in 2015 to 15 per cent in 2020.13 While this could result in some pressure on China’s national oil companies to develop gas reserves in the South China Sea, the impact of low international oil and gas prices on these companies has caused the government to embrace lower-cost imports over high-cost domestic production. This shift, combined with growing gas demand, will increase China’s need for LNG imports. As such, China’s main goal in the South China Sea will be maintaining access to shipping lanes. China is concerned about its dependency on energy imports through the South China Sea and the Straits of Malacca, and has worked and continues to work to create alternate routes for oil and gas imports, primarily via overland pipelines from Myanmar, Russia and Central Asia (see Figure 12.5). Central Asia is, and will likely remain for many years, China’s most important supplier of piped gas. While there is considerable unused capacity in existing Central Asian pipelines that would allow this source of imports to grow, geographic and infrastructure constraints result in much of this remaining capacity going unused as China’s LNG imports rise – which undermines China’s efforts to reduce dependence on gas imports that pass through the South China Sea. Likewise, although China’s crude oil imports are becoming more diversified, the Middle East

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Notes:  Russia provides oil (via 9, Eastern Siberia–Pacific Ocean Pipeline) and will provide gas from 2019 (via 8, Power of Siberia, and may eventually provide more through 1, Power of Siberia 2). Central Asia provides oil (via 3, Kazakhstan–China Oil Pipeline) and gas (via 4, Central Asia–China Pipelines A, B and C; 2, Sarybulak-Jeminay and will provide more via 5, Central Asia–China Pipeline D from 2020). Myanmar will soon provide both oil (7) and gas (6) through the Myanmar–China Pipelines with port facilities capable of delivering of Middle East product without passing through the South China Sea.

Figure 12.5 Overland pipelines provide import routes to China from Central Asia, Russia and Myanmar and Africa are likely to remain its main suppliers for several years, with crude shipment volumes moving through the South China Sea surpassing alternate pipeline routes.

ALTERNATIVE OVERLAND PIPELINES Pipelines from Myanmar China’s gas pipeline from the Bay of Bengal, across Myanmar and into Yunnan province began operations in 2013. The pipeline has a capacity of 12 Bcm/year, 10 Bcm/year of which can be used to send gas to China, but it is operating far below this level. A parallel oil pipeline was completed

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in 2015. It has a maximum capacity of 440,000 bbl/d, and was planned to become operational in 2017. The pipelines are not likely to reach full capacity within this decade, and the relative importance of Myanmar’s oil and gas as a share of China’s overall imports is set to decline over time as China’s energy demand rises. As such, the gas pipeline will only meet 1.7 per cent of China’s projected gas demand and around 3 per cent of its projected crude demand in 2020.14 Pipelines from Russia Russia provided 14 per cent of China’s crude imports in 2016, primarily via the Eastern Siberia–Pacific Ocean (ESPO) Pipeline.15 In 2013‒15, stateowned Russian and Chinese energy firms signed multiple deals that would see export volumes rise significantly over the next several years. In 2013, Rosneft signed substantial oil supply agreements with CNPC and Sinopec for up to 365 million tons of crude over 25 years and up to 100 million tons over 10 years, respectively.16 The latter agreement was extended in January 2017. Delivering on these deals will require additional export capacity, including raising the capacity of the 300,000 bbl/d ESPO branch pipeline from Skovorodino to Mohe.17 In May 2014, China and Russia signed a US$400 billion deal for Russia to supply China with up to 38 Bcm/ year for 30 years, with shipments starting from 2019, after the Power of Siberia pipeline is built.18 In 2014 and 2015, Russia and China signed two additional preliminary agreements for additional gas imports via two other new pipelines, but neither of these deals has been finalized. In IHS Markit’s outlook, China’s gas demand is expected to reach 524 Bcm by 2030.19 As such, Russian gas imports are likely to make up just 7 per cent of total gas demand by 2030. While Russian gas supplies will go some way toward alleviating supply constraints in China’s northeast region and increased demand in that area, pipeline imports into this region will likely not have a major impact on the country’s total LNG imports, which are largely driven by the southern and eastern coastal provinces. Further, even expanded Russian crude imports will pale in comparison to crude imports via the South China Sea. Pipelines from Central Asia In 2015, the Central Asia–China Gas Pipelines (CAGP) A, B and C sent just over 30 Bcm of gas to China from Turkmenistan, Uzbekistan and Kazakhstan. This accounted for 16 per cent of China’s total gas supply, but still fell well below the CAGP’s 55 Bcm/year capacity. By the end of China’s 13th Five-Year Plan in 2020, IHS Markit expects gas imports via

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the CAGP to total 42 Bcm/year, 36 per cent of China’s total projected gas imports, with smaller additional volumes from the Sarybulak–Jeminay Pipeline.20 The Kazakhstan–China Oil Pipeline is presently being expanded to a capacity of 400,000 bbl/d, which even if fully utilized would only account for some 3 per cent of China’s projected 2020 crude demand.21 While Central Asia is an important gas supplier for China and Russia has the potential to supply China with significant amounts of both oil and gas, China will remain reliant on both LNG and crude oil imports that pass through the South China Sea, especially from the Middle East and Africa. This view is further supported by China’s domestic energy prospectivity – China’s oil fields are mature and conventional production is declining, whereas domestic gas production is likely to grow but be unable to keep pace with rising demand. Due to technical complexities, unconventional gas and oil development is likely to be a decade away from having a significant impact on Chinese energy supplies. This means that China will remain reliant on crude oil imports via the Straits of Malacca and the South China Sea for several years, and that shipping lanes through the South China Sea will remain strategically important for China for years to come.

CONCLUSION Many Asian countries bordering the South China Sea face growing energy demand from their domestic populations that have caused their interest in E&P in the South China Sea to rise. Despite this interest, remoteness, low gas quality and significant water depth pose substantial challenges to the development of hydrocarbon resources in the South China Sea. These challenges are deepened by the expectation that international oil and gases prices will remain relatively low for the next 3‒5 years, undermining the commerciality of such complex, high cost projects. While these challenges could encourage E&P cooperation in the South China Sea, they also mean that oil and gas shipments through the South China Sea will remain more important to regional energy supply than hydrocarbon production within the South China Sea for the foreseeable future. As such, any upstream cooperation that develops in the South China Sea is more likely to be the result of geopolitical drivers than energy drivers.

NOTES   1. All information contained herein was current as of the time of writing in March 2017.   2. Note for all figures: Source: IHS Markit. © 2018 IHS Markit. All rights reserved. Provided

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 3.   4.  5.   6.  7.   8.   9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Building a normative order in the South China Sea “as is”, without any warranty. All maps are not to be reproduced or disseminated and are not to be used nor cited as evidence in connection with any territorial claim. IHS Markit is impartial and not an authority on international boundaries which might be subject to unresolved claims by multiple jurisdictions. Emilio Intrieri, “A Brief History of the MTJDA”, available through IHS Markit Upstream Intelligence (2016), accessed December 2016. Rachel Calvert, “Timor-Leste: Oil & Gas Risk Commentary”, available through IHS Markit E&P Terms and Above-Ground Risk (2016), accessed December 2016. Thad Pittman, “Greater Sunrise FLNG”, available through IHS Markit Upstream Companies & Transactions (2016), accessed December 2016. Calvert, “Timor-Leste”. Mei Ching Koay, “Talisman Malaysia Ltd. Block PM-3 CAA: 10-year Extension Received”, available through IHS Markit Upstream Intelligence (2016), accessed December 2016. Cahir O’Neill, “Malaysia–Brunei Deep-Water Play Analysis”, available through IHS Markit Energy Plays & Basins (2016), accessed December 2016. Suraya Tulot, Antonio Dimabuyu and Dylan Mair, “Putting the Thailand–Cambodia Overlapping Claims Area Potential into Context”, Petroleum Exploration Society of Great Britain, March 2012 Newsletter, pp. 58‒65. Dylan Mair and Evonne Tan, “South East Asia: Deep-Water Activity in an Environment of Oversupply”, GEOExPro, Vol. 12 No.1 (2015): 46‒48. U.S. Energy Information Administration (2013), “South China Sea”, available at https:// www.eia.gov/beta/international/analysis_includes/regions_of_interest/South_China_Sea/ south_china_sea.pdf (accessed December 2016). U.S. Energy Information Administration (2013), “South China Sea”. Zhouwei Diao, “China LNG Market Profile”, available through IHS Markit China Energy Service (2016), accessed December 2016. Diao, “China LNG Market Profile”. John Webb and Matthew J. Sagers, “Russia’s Eastward Oil Pipeline Expansion”, available through IHS Markit Energy Power, Gas, Coal and Renewables (2017), accessed March 2017. John Webb and Matthew J. Sagers, “Russia’s Eastward Oil Pipeline Expansion”. John Webb and Matthew J. Sagers, “Russia’s Eastward Oil Pipeline Expansion”. Matthew J. Sagers, “Gazprom’s Power of Siberia Project on Track to Deliver First Gas to China in 2019”, available through IHS Markit Energy Power, Gas, Coal and Renewables (2016), accessed December 2016. Diao, “China LNG Market Profile”. Diao, “China LNG Market Profile”. Diao, “China LNG Market Profile”.

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13. Different strokes for different folks: a second look at UNCLOS Part XV dispute settlement mechanisms and the South China Sea disputes Jay Batongbacal Relations between claimants in the South China Sea disputes took very a serious down-turn since 2009 on account of major events such as the Philippine arbitration against China over the West Philippine Sea;1 the deployment of China’s oil rig HS-981 in Vietnam’s East Sea;2 collisions and near-collisions between ships of China, Vietnam, and the Philippines;3 and China requiring identification and warning off United States (US) and Philippine aircraft from “military security areas.”4 Some of these incidents are no longer isolated in some far away area of open seas, but increasingly come close to the mainland of the littoral States. Tensions between littoral States peaked with the conclusion of the arbitration case between the Philippines and China in July 2016, but fortunately these have been followed by a period of relative calm.5 The most important trend in the region is that a number of claimants have incrementally clarified the nature and scope of their respective claims, and are bringing their maritime zones in accord with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).6 Since 2009, the principal Southeast Asian claimants, the Philippines,7 Vietnam, Malaysia, and Brunei have all taken actions that implicitly adopt a consistent interpretation and application of the UNCLOS provisions on maritime zones. Apparently, only China actively asserts a maritime claim outside of those recognized by the UNCLOS, albeit inconsistently and lately based on alleged “historical facts” through the now-infamous nine-dash lines.8 Despite the Tribunal’s finding in Philippines v. China that China’s expansive claims to historic rights to the natural resources of the South China Sea are incompatible with its international obligations, China has rejected the ruling and refuses to clarify and fully align its claims with the UNCLOS. The UNCLOS-based configuration of zones, however, is 249 Jay Batongbacal - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:53:42PM via Sydney University

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more likely to be recognized by the international community as the correct method of allocating jurisdiction within the South China Sea. The emerging consistency in regional practice for most of the States involved makes possible the consideration of possible legal recourses in any given scenario in which a claimant State attempts to assert its claim through the exercise of official acts. This chapter examines the applicability of the UNCLOS Part XV dispute settlement mechanisms, particularly the compulsory modes under Section 2, to incidents that manifest the South China Sea disputes.

CURRENT STATUS OF CLAIMS Since 2009, a commonality of interpretation and application of the UNCLOS appears to have unfolded among the smaller littoral States. Through their respective public acts, Southeast Asian coastal States have implicitly taken a “minimalist” approach, which regards only the mainland coasts as capable of generating 200 nautical mile (nm) exclusive economic zones (EEZ) and continental shelf areas, and totally disregards the effect of any and all islands within the Spratly and Paracel island groups. Vietnam and Malaysia did so in their formal submissions to the Commission on the Limits of the Continental Shelf (CLCS) for the continental shelf beyond 200nm,9 while Brunei may be considered to be inclined toward such a position, given the preliminary information it submitted to the CLCS, indicating that it intends to make a similar submission subject to pending negotiations with neighboring Malaysia.10 The Philippines also adopted such a position in the arbitration case that it launched against China in 2013.11 It is clear that the islands will be subject to future application of the rules collected in the UNCLOS Article 121, which attempt to establish guidelines for distinctive entitlements to islands and certain types of rocks. The capability to maintain “human habitation or economic life of its own,” detailed criteria for which were laid out in Philippines v. China, is the prerequisite to the entitlement to an EEZ and continental shelf. In the absence thereof, a rock can only have a 12nm territorial sea.12 It is important to note that, even before the Tribunal’s award, none of the smaller States appeared to consider any island or rock to be entitled to an EEZ and a continental shelf. This results in creating a large, enclosed high seas corridor within the South China Sea that technically could be subject to the UNCLOS Part IX on enclosed and semi-enclosed seas with the corresponding obligations for the surrounding coastal States to coordinate and cooperate in the management of the waters within. If any one feature

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within the Paracels or Spratlys were to qualify for an EEZ and continental shelf, then the open space would be greatly reduced. Of the littoral States, only China maintains a differing view, having chosen instead to push its so-called nine-dash line claim which was officially published to the international community for the first time in 2009. As noted in Philippines v. China, China’s claims as represented by this map began appearing in various Chinese publications in the late 1940s and 1950s with eleven lines encompassing the South China Sea, which were reduced to nine lines afterwards until China enclosed a map with nine-dash lines in a Note Verbale to the Commission on the Limits of the Continental Shelf in 2009.13 Although some academic commentary attempts to justify the nine-dash line as merely indicative of claims to maximum maritime boundaries up for negotiation, or to claims to “historic rights” to resources,14 China’s official actions and statements since 2009 tend to justify its claims not merely on the basis of sovereign rights, but to historic rights independent of those recognized in the UNCLOS.15

LEGAL CONSIDERATIONS It is unlikely that China’s “maximalist” claim to historic rights over the entire area of the nine-dash line can ever gain international recognition or acquiescence, especially in the light of the Award on the Merits in Philippines v. China. In the first place, its prior ambiguity and continued refusal to expressly clarify its claim leave only its actions and justificatory statements as reliable gauges of the meaning of the nine-dash line. In a situation where contrasting actions, statements, and interpretations are made, statements against self-interest seem normally to prevail; more so in this case, where the claim to historic rights over an arbitrarily delineated vast ocean space can never hold water. Even though China has subtly shifted from using the term “historic rights” and now prefers to refer to “historic facts,”16 its argument in support of a broad scope of rights and entitlements to the South China Sea cannot hold traction given prevailing international law and jurisprudence. Further, any attempt to invoke “historic title,” “historic rights,” or “historic waters” will likewise fall far short of justifying the expansive nine-dash line claim. The Tribunal in Philippines v. China underlined this point when it declared that the UNCLOS does not preserve any State’s claims to historic rights to living and non-living resources in the EEZ or continental shelf of other States, nor to the Area and the high seas.17 The proper framework for analyzing incidents at sea and the potential legal disputes that may arise, and the corresponding Part XV mechanisms that are relevant, can only be the UNCLOS framework. Incidents must be

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viewed as those which occur within overlapping UNCLOS zones, whether territorial sea, EEZ, or continental shelf, using the minimalist configuration adopted by the smaller littoral States. Determining the pertinent rights and obligations of the States Parties to the dispute must begin with the fundamental obligations established not only by the UNCLOS, but by relevant international law in general. These include the obligations to: ●● ●● ●● ●● ●●

not use force, or the threat of the use of force, while asserting and defending claims; not take unilateral actions in the disputed area that jeopardize or hamper future settlement; ensure that unilateral actions that are taken do not cause permanent damage or prejudice to the rights of the other disputing State; act in good faith and without abusing one’s rights; and avail of the peaceful modes of settlement of international disputes.

Key to this last obligation is the UNCLOS, Part XV, which provides for an extensive array of dispute settlement procedures that coastal States may avail themselves of. Part XV provides a comprehensive array of both voluntary and compulsory dispute settlement forms, including those that involve third parties such as conciliators and international tribunals. Of greater interest are the so-called mandatory conciliation (a non-binding mode) and compulsory modes entailing binding decisions such as resort to adjudication and arbitration, since these refer to modes that involve third-party participation and the possibility that State Parties may be viewed to have provided prior consent to such mechanisms upon ratification of the UNCLOS. This implies that such State Parties may, under the right circumstances, be dragged into litigation before an international tribunal constituted in accordance with Part XV in consonance with the State Parties’ right to unilaterally initiate compulsory dispute settlement procedures in the event of a failure of negotiations.18 However, litigating before an international tribunal is not an absolute eventuality, since Part XV was also designed to not indiscriminately and unavoidably cover all possible disputes. Resort to the compulsory modes entailing binding decisions under Part XV still does not extend to categories of disputes included under so-called limitations and optional exclusions. These are types of disputes that, sometimes in a rather convoluted manner, cannot be subject to any of the compulsory third-party dispute settlement modes and can only be resolved between the two parties through negotiations. Two types of limitations are mentioned in the UNCLOS Article 297. The first excludes disputes over the exercise by a coastal State of sovereign

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rights in the EEZ, including its EEZ conservation and management laws;19 these notably encompass most fisheries disputes. The second covers disputes over the conduct of marine scientific research (MSR), particularly with respect to the coastal State’s obligation to allow MSR under reasonable conditions, or in case it orders the suspension or cessation of MSR activities.20 Such disputes, at best, and under certain circumstances, may be subject to mandatory conciliation under the UNCLOS, Annex V.21 In addition, States Parties are allowed by the UNCLOS, Article 298, to opt out of Part XV on compulsory dispute settlement with respect to certain classes of disputes. These include disputes that involve the interpretation or application of the UNCLOS Articles 15, 74, and 83 relating to sea boundary delimitations (i.e., the territorial sea, EEZ, and continental shelf), or involving historic bays or titles;22 disputes concerning military activities and law enforcement activities affecting fisheries or marine scientific research;23 and disputes which have been subject to action by the United Nations Security Council.24 Sea boundary delimitation disputes may be subject to mandatory conciliation, provided that these do not involve any unsettled disputes concerning sovereignty or other rights over continental or insular land territory.25 As seen in the Philippines v. China case, these exceptions tend to be construed restrictively, allowing greater room for the invocation of third party dispute resolution mechanisms to other maritime disputes. Despite these limitations, Part XV does indicate certain classes of disputes subject to compulsory dispute settlement without limitation or exception: those in which a coastal State has acted in contravention of the rights of other States to the freedoms and rights of navigation, overflight, laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to those freedoms within the EEZ;26 or when a user State while exercising such rights and freedoms has violated the laws or regulations of a coastal State adopted in conformity with the UNCLOS and international standards;27 or when a coastal State has acted in contravention of international rules and standards for protection and preservation of the marine environment, adopted by the UNCLOS or through international organizations or diplomatic conferences.28

AS APPLIED TO MANIFESTATIONS OF THE DISPUTES AT SEA Fisheries Incidents in the EEZ Competition and clashes over fishing grounds traditionally have been the longest-running manifestation of the disputes, taking place mostly in

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the area of the Gulf of Tonkin and the Paracels where both Vietnamese and Chinese coastal fishers have historically fished. Chinese fishing on the eastern side of the South China Sea had been infrequent until the 1990s, and often concentrated in the areas offshore or nearshore of the Philippine island province of Palawan.29 From 1997, Chinese fishing had become more visible in the area of Scarborough Shoal. The friction this engendered came to a head in 2012 in the months-long standoff between China Marine Surveillance (CMS) and Philippine Coast Guard ships. There is little information available on the details and nature of fisheries incidents on the Vietnamese and Chinese sides of the South China Sea, but in the Philippines, more recently, fisheries enforcement activities have involved arrests of Chinese or Vietnamese fishermen for coral harvesting, gathering of giant clams, taking of sharks, marine turtles and other rare, threatened or endangered species using cyanide fishing and other destructive methods. When caught, these fishers are usually prosecuted before the regular courts for having committed fisheries and environmental crimes. These incidents continue, though arrests have been less frequent or publicized. In the future, in addition to capture fisheries, the region may see the development of marine aquaculture areas or fish farming activities, such as those that China has begun in Mischief Reef. The region will likely see further competition in terms not only of fishing, but also regulation and counter-regulation by the littoral States in an attempt to control or protect fishing activities. This creates a significant risk of marine casualties, particularly between fishing vessels and law enforcement vessels, as well as of sudden escalations in tensions. Options to address fisheries disputes through the UNCLOS, Part XV, are rather limited, on account of the Articles 297 limitation and 298 exclusion clauses that practically take fisheries out of the scope of compulsory dispute settlement procedures for incidents within the 12nm territorial sea or in the 200nm EEZ. At most, fisheries incidents in overlapping EEZ areas might be the subject of agreements of a practical nature, which the parties are obliged to enter into.30 This obligation is not present for overlapping territorial seas. In both instances, they may normally be subject to mandatory conciliation, but only if the incidents are far enough away that they do not require the resolution of an adjacent territorial dispute (such as the Paracels or Spratly islands). However, within 200nm, the Article 297 limitation against EEZ disputes applies. Therefore, the incident must also be well beyond any potential overlapping EEZ area. In light of the Award on the Merits in Philippines v. China which discounted the distortive impact of the Spratly Islands on the adjacent EEZ of the Philippines, these types of incidents may very well take place in a central high seas core area beyond 200nm from littoral States’ mainland coastlines.

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This highlights the importance of the high seas core area; fisheries incidents within that region are subject to freedom of fishing in favor of all States, and therefore any attempt by a coastal State to intervene in another’s fishing in that area may be subject to Part XV compulsory procedures since they are not expressly comprehended within the limitations and exclusions. Another way to address a fisheries incident could be by invoking the international obligations of a fishing State under the Code of Conduct for Responsible Fishing established under the auspices of the Food and Agriculture Organization (FAO). Although most of this Code of Conduct is comprised of soft voluntary obligations intended to promote the conservation of fisheries resources,31 some of those provisions have become obligatory in relation to the FAO Compliance Agreement and the International Plan of Action Against Illegal, Unreported, and Unregulated Fishing. A State that has been called out for supporting or condoning IUU fishing may be subject to the imposition of sanctions in some countries or regions, such as the European Union. Incidentally, environmental groups have called for the protection of the coral resources in the South China Sea, which is adjacent to the so-called Coral Triangle, regarded as a center of marine biodiversity in the world.32 However, there is as yet no single mechanism (not even the Convention on Biological Diversity) that can be invoked to establish such protection without cooperation by the States concerned. Unilateral Drilling on the Continental Shelf When the Chinese drilling rig HS-981 began exploratory drilling in waters south of the Paracels and well within Vietnam’s 200nm EEZ and continental shelf in May 2014,33 China opened a new phase in the South China Sea disputes. The drilling followed an unprecedented opening by China of petroleum exploration blocks within Vietnam’s continental shelf encompassing areas well beyond any prospective median line between landmasses.34 This event broke the long-standing practice among the littoral States of staying well on their side of the South China Sea, within 100nm of their own mainland. By drilling in an area that, even without the sovereignty disputes over the Paracels, is clearly one where there are un-delimited maritime boundaries, China signaled a possible era of unrestrained high-risk unilateral exploratory drilling throughout the entire South China Sea. But only China has this capability through its State-owned and -controlled national oil companies. All other littoral States rely mainly on the private sector petroleum concessionaires to undertake such drilling activities for them.

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Such activities are fundamentally unsafe and pose a serious risk to the marine environment in the South China Sea, since by nature they will have to be undertaken quickly to minimize interference from other claimants. The HS-981 incident also instigated a major (but unarmed) battle between Vietnamese and Chinese public and private ships.35 Unilateral drilling of this kind will certainly raise the risks of armed clashes occurring between participating ships and escalation into major conflict. In addition, the drilling itself, undertaken with haste, poses the risks of a major oil spill disaster such as what happened to the Deepwater Horizon in the Gulf of Mexico. Disputes over drilling on the continental shelf would be covered by the optional exclusions, but subject to mandatory conciliation for as long as no adjacent territorial disputes are involved. This seems to limit the application of compulsory procedures, and could lead to violations of the obligation against taking unilateral and permanently prejudicial actions pending settlement of the disputes, actions that could jeopardize or hamper the reaching of final agreement.36 States are also obliged to enter into provisional arrangements of a practical nature to regulate these activities.37 In the case Guyana v. Suriname, where Guyana undertook unilateral exploratory drilling, to which Suriname responded by sending its navy to conduct “law enforcement” activities to prevent the unauthorized drilling, the Arbitral Tribunal found both to have reneged on their international obligations: Guyana by authorizing drilling without first notifying and attempting to negotiate provisional measures, and Suriname by sending its ships to stop the drilling rig with veiled threats that without compliance, the rig would “bear the consequences.”38 In the South China Sea, the problem arises because it is clear that China intends to lay claim to the continental shelves of all other littoral States, well beyond any prospective median line with either the mainland or any prospective island in those waters. However, it is possible that any future incident like that of HS-981’s deployment, as well as activities in the protective cordon around it, would be categorized as being in violation of international obligations. The award in Guyana v. Suriname indicates that in case of a deadlock, resort to compulsory mechanisms under Part XV, and even provisional measures before the International Tribunal for the Law of the Sea, would become available.39 Deliberate Collisions and Near-Collisions at Sea Since 2007, China has used its CMS and Coast Guard vessels more and more frequently to dissuade smaller States’ activities like fishing and

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seismic surveys in the South China Sea.40 It has used its large CMS ships to threaten or ram Vietnamese vessels on numerous occasions, including the HS-981 incident in 2014 when hundreds of collisions were reported.41 China has employed similar tactics against Philippine ships since 2012. Chinese ships have also interfered with the voyages of US Navy ships like the USS Impeccable and the USS Cowpens.42 These activities are far more intrusive than shadowing, such as what happened when an Indian cruiser crossed the South China Sea.43 More recently, CMS ships reportedly have also used their water cannon against smaller vessels.44 All this increases the possibility of marine casualties and pollution, as well as the risk of escalation into conflict. Especially in the aftermath of Philippines v. China,45 the employment of public ships in this manner is the most legally vulnerable on account of the overriding obligation to ensure safety of life at sea, which includes avoidance of collisions.46 Even if justified on the ground of law enforcement, actions should be undertaken only by government ships,47 and should not pose adverse consequences to another ship or the marine environment.48 The international legal document regulating the prevention of collisions at sea49 contains, for example, rules on safe speed,50 actions to avoid collision,51 overtaking,52 head-on situations,53 and crossing situations,54 which could be invoked to determine the legitimacy and legality of actions of ships. Deliberate violations of these rules by vessels in order to intimidate others from continuing their voyage or activity could be attributable to the flag State as a matter of flag State responsibility. The Arbitral Tribunal in Philippines v. China decided along these lines when it ruled that high-speed passes and crossing the bow maneuvers carried out by large Chinese Coast Guard vessels against smaller Philippine ships were in breach of Rules 2, 6, 7, 8, 15 and 16 of the COLREGS and Article 94 of the UNCLOS.55 The principle of flag State jurisdiction generally prevents the coastal State from enforcing against foreign vessels, especially government ships which also have sovereign immunity. Within the 12nm territorial sea, foreign ships are bound to comply with coastal State regulations on navigation,56 and infractions could be subject to compulsory procedures, but necessarily require that sovereignty over the adjacent land is uncontested. Hence, within the South China Sea near the disputed islands and rocks, compulsory procedures may not be available unless maritime safety ­obligations are involved. Beyond the territorial sea, however, collisions and near-collisions may be subject to compulsory procedures, particularly if related to violation of the user States’ high seas rights and freedoms in the EEZ and continental shelf;57 violation of coastal State regulations enacted in accordance with the UNCLOS;58 violation of rules and standards for the protection of the

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marine environment;59 and non-compliance with the UNCLOS general obligations to ensure safety of life at sea and avoid collisions,60 and not to pose adverse consequences to another ship or the marine environment.61 Military Exclusion Zones The issue of military exclusion zones (MEZs) has come to the fore with the EP-8A Poseidon incident in the South China Sea in May 2015.62 China does not permit the operation of military aircraft and vessels, such as surveillance planes and ships, within its EEZ without prior approval.63 It sends out interceptors to accost any that approach. Previous incidents such as that involving a collision with an EP-3A in 200164 and harassment of the USS Impeccable in 200965 suggest a 70–100nm zone around Hainan Island, although this is based only on the location of the interceptions rather than an expressly defined zone. No details are available for the EP-8A Poseidon incident in 2015, but given the nature of the aircraft and the object of its surveillance it appears that a similar zone might be that being asserted by Chinese forces on its new artificial islands. Warnings against Philippine military aircraft coming close to Subi Reef have also been reported.66 Only China is known to be actively warning aircraft and ships off on account of the entry into a “security area.” The obvious concern is that these MEZs will eventually expand and be enforced by military aircraft and ships based on those artificial islands, thus directly impeding the freedom of navigation and overflight over distinct parts of the South China Sea. The risk is twofold: not only the possibility of collisions between military ships and aircraft, but also confusion with civilian air traffic which could spark a major civilian disaster.67 MEZs are not specifically governed by international law. They are established as a matter of practice either within a State’s territorial airspace in order to protect key facilities, or outside of territorial airspace as part of an ongoing military operation (e.g., while there are hostilities, or temporarily during exercises). As part of military operations at sea, they are not covered by the UNCLOS, except insofar as relevant to the exercise of the rights and freedoms of navigation and over-flight. It bears mentioning that an MEZ is not the same as an Aerial Defense Identification Zone (ADIZ). An ADIZ is not per se an exclusion zone, but an information and reporting zone necessary for the management of airspace. The basic parameters of the ADIZ are found in the International Civil Aviation Organization, specifically in Annex 15, which describes how such an ADIZ may be monitored and implemented. Enforcement of an ADIZ generally does not authorize the use of force against civilian

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aircraft, and it has been argued that the prohibition against the use of force against civil aviation is already part of customary international law codified in the Chicago Convention.68 Military operations are not within the scope of the UNCLOS regulations, and may be optionally excluded from the operation of Part XV.69 They are not subject to mandatory conciliation. In Philippines v. China, the Tribunal took a rather liberal approach to determining the application of the exception, when it considered that the mere involvement of Philippine military personnel on one hand, and Chinese military and paramilitary personnel on the other hand, at Second Thomas Shoal were sufficient cause for the issue to be considered to be beyond the Tribunal’s jurisdiction.70 Interference with Marine Scientific Research In the 1990s and early 2000s, the South China Sea saw many scientific cooperation activities between the claimant countries, but this is no longer the case.71 China interfered with Philippine marine archaeological activity on Scarborough Shoal in 2012,72 and then publicly claimed the right to control activities on archeological sites and shipwrecks in the South China Sea.73 At present it is using scientific activities, such as those for weather and climate change monitoring, as justifications for its artificial islands.74 There is a real fear among the scientific community that MSR activities in the South China Sea will be stifled by the disputes, and that any such activities might result in marine casualties given China’s employment of ships of whatever type. The right of all States (and international organizations) to conduct MSR is recognized and promoted by the UNCLOS.75 Such research activities should be for peaceful purposes only, and not interfere with the legitimate uses of the sea.76 Notably, MSR activities cannot provide a legal basis for any claims to any parts of the sea or its resources.77 If conducted within 12nm from land, then the activity is completely subject to the sovereignty and sole competence of the coastal State.78 A dispute over this would not be subject to compulsory procedures. If conducted within 200nm, then issues surrounding the activity could be characterized as an offshoot of EEZ and continental shelf disputes if the research activity is of direct significance to exploration and exploitation of natural resources, involves drilling into the continental shelf or the use of explosives and introduction of harmful substances into the marine environment, or involves the construction or use of artificial islands and installations.79 Disputes over MSR are subject to compulsory procedures under the UNCLOS, unless they involve withholding of consent thereto, or the cessation and suspension of research.80

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In other words, such right and discretion of the coastal State to withhold consent or order cessation and suspension cannot be contested through third party mechanisms. Regulation of MSR in a manner inconsistent with the UNCLOS is subject to mandatory conciliation, but only for as long as it does not involve the coastal State’s right to designate specific areas in the continental shelf subject to resource exploration and exploitation,81 or its withholding of consent (for justifiable reasons) to MSR by another State.82 All States have the right to conduct MSR in the high seas, and any attempt to interfere with such action by States can be regarded as a dispute concerning a high seas right and freedom. This could then be subject to compulsory jurisdiction as a matter of interpretation and application of the UNCLOS since it is not specifically included in the limitations or optional exceptions to the compulsory mechanisms of Part XV. Artificial Island-Building China introduced a new element into the South China Sea disputes through the creation of completely new artificial islands through massive reclamation efforts in early 2014. Although smaller States such as Vietnam, Malaysia and Philippines have undertaken reclamation before, such activities were undertaken with existing natural island features and never even approached the massive scale of China’s efforts. China expanded what were originally small buildings and installations on the water into full-blown artificial islands capable of housing large military or civilian complexes. As shown by the EP-8A Poseidon incident, they also serve as the anchor for undeclared MEZs. The construction of these new islands is a major concern since it could herald an era of creation of new artificial islands that are then used to carve arbitrary MEZs within the South China Sea. It also obviously intensifies the militarization of the area. Given China’s demonstrated willingness to use its vessels in a threatening manner against other claimants, the risk of a violent confrontation is increased. The coastal State in the exercise of its sovereignty has sole jurisdiction over the creation and maintenance of artificial islands within 12 nm from land.83 It also has the right and freedom to do so in the high seas,84 subject to due notice, regard, and safety obligations.85 This makes it possible for issues arising out of such artificial islands or installations in the high seas to be subject to Part XV compulsory procedures, as an issue of interpretation and application of the UNCLOS, based on those grounds. Within 200 nm, however, the fact that a coastal State is recognized to have exclusive jurisdiction over artificial islands makes it subject to optional exclusion.86 It should be noted, however, that the issue of creation and maintenance of artificial islands and installations may be treated distinctly or separately

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from the issue of what the island or installation is used for, and how such usage may affect other international rights and obligations. Thus, even if the legitimacy of such artificial islands or installations is not contested, the status of activities undertaken using them is not necessarily beyond legal scrutiny.

CONCLUSIONS The foregoing review of incidents and possible resort to Part XV compulsory dispute settlement mechanisms indicates that Part XV still has rather limited scope, due to the nature and number of limitations and exclusions to its use. Thus, even if all littoral States were to clarify their claims and adopt a regionally consistent configuration of maritime zone entitlements, resort to Part XV still relies largely on non-compulsory modes (negotiations, conciliations, and so on). These limitations persist despite the outcome in Philippines v. China. However, the few legal options that are available at least may still be used to address the currently most critical civil manifestations of the dispute, i.e., collisions and unilateral drilling, for as long as issues are limited to flag State obligations applicable either in any or all maritime zones regardless (e.g., safety of life at sea, marine environment protection) or in the context of obligations while disputes are pending (e.g., no unilateral acts that cause permanent prejudice). Resort to compulsory modes is therefore not totally ruled out, and may still be available to the Parties, given the right conditions and invoking only the relevant facts and law in a way that takes the issue beyond the inherent limitations and exclusions. The case of the Philippines v. China is also instructive in this light, as the Philippines painstakingly avoided the jurisdictional trapdoors to the Tribunal’s consideration of the case. Fisheries are likely to remain intractable without the Parties negotiating a modus vivendi pending settlement of claims. As far as these incidents are concerned, compulsory mechanisms appear to have been completely removed from consideration by Part XV limitations and optional exclusions. And of all the manifestations, further militarization of the region poses the greatest danger, as it is largely beyond the scope of the UNCLOS, save for the most general norms against the use or threat of use of force. This highlights the need for imaginative and innovative diplomacy on the part of all claimants. Resort to non-compulsory procedures is still the primary mode of dispute settlement even under the UNCLOS Part XV, as the application of compulsory binding mechanisms has been greatly constrained. The alignment of the claims of smaller littoral States provides an opportunity for such coordinated diplomacy based on legal rights and

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obligations, which in the long run could help in the management of the South China Sea disputes and steer all Parties toward a more equitable resolution in the future.

NOTES  1. The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, accessed May 10, 2016, http://www.pcacases.com/web/view/7.   2. “Vietnam opposes illegal foreign activities in its waters,” Voice of Vietnam, May 4, 2014, accessed May 10, 2016, http://english.vov.vn/Politics/Vietnam-opposes-illegal-foreignactivities-in-its-waters/276036.vov; “China seriously violates Vietnam’s sovereignty in the East Sea,” Vietnamnet, May 10, accessed May 10, 2016, http://vietnam.vnanet.vn/vnp/en-u​ s/13/59017/focus/china-seriously-violates-vietnams-sovereignty-in-the-east-sea.html.  3. One of the most publicized incidents took place in March 2013 when Chinese ships attempted to block a Philippine resupply ship heading to Second Thomas Shoal. See Chiara Zambrano, “Mission to Ayungin Shoal,” ABS-CBN News, March 27, 2014, accessed May 10, 2016, http://www.abs-cbnnews.com/specials/mission-ayungin.   4. Reuters and T. Thornhill, “This is Chinese navy, you go! China issues EIGHT warnings to US surveillance planes to get away from disputed man-made islands,” Mail Online, May 21, 2015, accessed May 10, 2016, http://www.dailymail.co.uk/news/article-3090728/ China-navy-warns-U-S-spy-plane-disputed-South-China-Sea-CNN.html.  5. The South China Sea Arbitration.  6. “United Nations Convention on the Law of the Sea” (UNCLOS), United Nations, December 10, 1982, 1833 U.N.T.S. 3 [UNCLOS].   7. “Republic Act No. 9522,” The LawPhil Project, March 10, 2009, accessed May 10, 2016, http://www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html. This is an Act to Define the Archipelagic Baselines of the Philippines.   8. See the “Notes Verbales of China submitted to the Commission on the Limits of the Continental Shelf,” United Nations, accessed May 10, 2016, http://www.un.org/depts/los/ clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf and http://www. un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf.   9. See documents at the CLCS: “Submission by the Socialist Republic of Viet Nam,” United Nations, May 3, 2011, accessed May 10, 2016, http://www.un.org/depts/los/clcs_new/­ submissions_files/submission_vnm_37_2009.htm; and “Joint Submission of Malaysia and the Socialist Republic of Vietnam,” United Nations, May 3, 2011, accessed May 10, 2016, http://www.un.org/depts/los/clcs_new/submissions_files/submission_mysvnm_33_​ 2009.htm. 10. See “Brunei Darussalam’s Preliminary Submission concerning the Outer Limits of its Continental Shelf,” United Nations, accessed May 10, 2016, http://www.un.org/depts/ los/clcs_new/submissions_files/preliminary/brn2009preliminaryinformation.pdf. 11. See the “The Philippine Notification and Statement of Claim,” Philippine Department of Foreign Affairs, January 22, 2013, accessed June 3, 2015, https://www.dfa.gov.ph/ images/UNCLOS/Notification%20and%20Statement%20of%20Claim%20on%20West​ %20Philippine%20Sea.pdf. 12. UNCLOS, Article 121, para. 3. 13. Award on jurisdiction and admissibility of The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent Court of Arbitration, October 20, 2015, Note 121 at p. 62, accessed June 3, 2015, https://www.pcacases.com/web/sendAttach/1506; see also Award of The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), PCA Case Nº 2013-19, The Hague, the Netherlands: Permanent

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14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

30. 31. 32. 33. 34. 35.

36.

37. 38.

Different strokes for different folks ­263 Court of Arbitration, July 12, 2016, Note 131 at p. 67, accessed June 3, 2015, https:// pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf. See Zhiguo Gao and Bing Bing Jia, “The Nine-Dash Line in the South China Sea: History, Status, and Implications,” The America Journal of International Law 107, 1 (January 2013): 98‒124. Award of The South China Sea Arbitration, at pp. 87‒91. See for example, Zhang Hua, “China’s Position on the Territorial Disputes in the South China Sea between China and the Philippines,” Embassy of the People’s Republic of China in the Republic of the Philippines, April 3, 2014, accessed June 3, 2015, http:// ph.china-embassy.org/eng/xwfb/t1143881.htm. In this statement, it is argued that “from the overall interests of safeguarding regional peace, stability and prosperity, and on the basis of respecting historic facts and international laws, the Chinese side has always adhered to resolving relevant disputes with sovereign states directly concerned.” Award of The South China Sea Arbitration, para. 239 at 100. Barbados v. Trinidad and Tobago, Award of April 11, 2006, 96 at para. 206; reiterated in Award on jurisdiction and admissibility of The South China Sea Arbitration, October 29, 2015, 121 at para. 346. UNCLOS, Article 297, para. 3(a). UNCLOS, Article 297, para. 2(a and b). UNCLOS, Article 297, para. 2(b) and 3(b). UNCLOS, Article 298, para. 1(a). UNCLOS, Article 298, para. 1(b). UNCLOS, Article 298, para. 1(c). UNCLOS, Article 298, para. 1(a)(i and ii). UNCLOS, Article 297, para. 1(a). UNCLOS, Article 297, para. 1(b). UNCLOS, Article 297, para. 1(c). Aileen S.P. Baviera, Jay Batongbacal and S. Arcamo, “Fisheries Conflict in the South China Sea: Philippine Interests, Problems and Prospects,” Research Report, University of the Philippines Center for Integrative Development Studies, Bureau of Fisheries and Aquatic Resources, and Foreign Service Institute (unpublished). UNCLOS, Article 74 and 83. See for example, “FAO Code of Conduct for Responsible Fishing,” Fisheries and Aquaculture Department, 6.1‒6.3, 6.6, 6.8, and 6.12, accessed May 10, 2016, http:// www.fao.org/docrep/005/v9878e/v9878e00.htm. J.E.N. Veron., Lyndon DeVantier, Emre Turak et al., “Delineating the coral triangle,” Galaxea, Journal of Coral Reef Studies 11(2009): 91‒100. Adam Taylor, “The $1 billion Chinese oil rig that has Vietnam in flames,” The Washington Post, May 4, 2014, accessed May 10, 2016, http://www.washingtonpost.com/blogs/ worldviews/wp/2014/05/14/the-1-billion-chinese-oil-rig-that-has-vietnam-in-flames/. Award of The South China Sea Arbitration, p. 87 at para. 208, 89. Ernest Z. Bower and Gregory B. Poling, “China-Vietnam tensions high over drilling rig in disputed waters,” Center for Strategic & International Studies, May 16, 2014, accessed May 10, 2016, http://csis.org/publication/critical-questions-china-vietnam-tensions-highove​r-drilling-rig-disputed-waters. Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration Between Guyana and Suriname (Award of September 17, 2007), pp. 159‒60, para. 477. As the Permanent Court of Arbitration acted as Registry in this case, this Award can be found on http://archive.pca-cpa.org/Guyana-Suriname%20Award70f6. pdf ?fil_id=664 (accessed May 10, 2016). UNCLOS, Article 74, para. 3. Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII, of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration Between Guyana and Suriname, pp. 141‒47, at paras. 432‒45.

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39. The United Nations Convention on the Law of the Sea in the Matter of an Arbitration Between Guyana and Suriname, pp. 147‒48, para. 446. 40. “Journey to the South China Sea,” CCTV-4, December 2013, accessed May 10, 2016, http://news.cntv.cn/special/nhjx/. 41. “Vietnam and China ships collide in the South China Sea,” BBC, May 7, 2014, accessed May 10, 2016, http://www.bbc.com/news/world-asia-27293314. 42. Jane Perlez, “American and Chinese ships nearly collided in the South China Sea,” New York Times, December 14, 2013, accessed May 10, 2016, http://www.nytimes. com/2013/12/​15/world/asia/chinese-and-american-ships-nearly-collide-in-south-chinasea.html; “Pentagon says Chinese harassed U.S. ship,” CNN, May 9, 2009, accessed May 10, 2016, http://edition.cnn.com/2009/POLITICS/03/09/us.navy.china/index.html. 43. Ananth Krishnan, “In South China Sea, a surprise Chinese escort for Indian ships,” The Hindu, June 14, 2012, accessed May 10, 2016, http://www.thehindu.com/news/national/ In-South-China-Sea-a-surprise-Chinese-escort-for-Indian-ships/article12858744.ece?ho​ mepage=true. 44. Zachary Keck, “China fires water cannon at Philippine fishermen,” The Diplomat, February 25, 2014, accessed May 10, 2016, http://thediplomat.com/2014/02/china-fireswater​-cannons-at-philippine-fishermen/. 45. The Tribunal found that China acted in contravention of international law when it employed its vessels in a dangerous and threatening manner against smaller Philippine vessels in the vicinity of Scarborough Shoal. Award of The South China Sea Arbitration, pp. 417‒35. 46. UNCLOS, Article 94, para. 3. 47. UNCLOS, Article 224. 48. UNCLOS, Article 225. 49. “Convention on the International Regulations for Preventing Collisions at Sea” (COLREG), Admiralty and Maritime Law Guide, October 20, 1972, accessed May 10, 2016, http://www.admiraltylawguide.com/conven/collisions1972.html. This convention entered into force on July 15, 1977. 50. COLREG, rule 6. 51. COLREG, rule 8. 52. COLREG, rule 13. 53. COLREG, rule 14. 54. COLREG, rule 15. 55. Award of The South China Sea Arbitration, p. 435 at para. 1109. 56. UNCLOS, Article 21. 57. UNCLOS, Article 297, para. 1(a). 58. UNCLOS, Article 297, para. 1(b). 59. UNCLOS, Article 297, para. 1(c). 60. UNCLOS, Article 94, para. 3. 61. UNCLOS, Article 225. 62. Jim Sciutto, “China warns US spy plane,” CNN, September 15, 2015, accessed May 10, 2016, http://edition.cnn.com/2015/05/20/politics/south-china-sea-navy-flight/. 63. “Exclusive Economic Zone and Control Act,” United Nations, June 26/1998, Art. 9, accessed May 10, 2016, http://www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFILES/chn_1998_eez_act.pdf. 64. “A U.S.–Chinese mid-air collision and ‘The Letter of Two Sorries’,” Association for Diplomatic Studies and Training, February 19, 2017, accessed May 10, 2016, http://adst. org/2016/04/a-u-s-chinese-mid-air-collision-and-the-letter-of-two-sorries/. 65. Raul Pedrozo, “Close encounters at sea: the USNS Impeccable Incident,” Naval War College Review Vol. 60, No. 3 (2009): 101‒11. 66. Camille Diola, “China warning Philippine planes over South China Sea,” Philippine Star, May 25, 2015, accessed May 10, 2016, http://www.philstar.com/headlines/2015/05/25​ /1458645/china-warning-philippine-planes-over-south-china-sea. 67. For example, in 1983, Korean Airlines Flight 007, a civilian 747 bound for Seoul,

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68.

69. 70. 71.

72. 73.

74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86.

Different strokes for different folks ­265 was  shot down by Russian interceptors after it strayed into Russian airspace at night. See the “Chicago Convention on International Civil Aviation,” International Civil Aviation Organization, December 7, 1944, and more particularly the Protocol adopted at the occasion of the 25th (Extraordinary) Session of the Assembly on May 10, 1984 introducing Art. 3 bis on the non-use of weapons against civil aircraft in flight. This amendment entered into force on October 1, 1998, accessed May 10, 2016, http://www.icao.int/ publications/Documents/7300_cons.pdf. See also “The Convention on International Civil Aviation: Annexes 1‒18,” accessed May 10, 2016, http://www.icao.int/safety/airnavigation/ nationalitymarks/annexes_booklet_en.pdf. UNCLOS, Article 298, para. 1(b). “Philippines v. China, Award on Jurisdiction and Admissibility,” Article 1161. Karsten von Hoesslin, “A view of the South China Sea – from within: Report on the Joint Oceanographic Marine Scientific Research Expedition (III) in the South China Sea,” Culture Mandala: The Bulletin of the Centre for East–West Cultural and Economic Studies: Vol. 7: Iss. 1, Article 4, accessed May 10, 2016, http://epublications.bond.edu.au/ cgi/viewcontent.cgi?article=1096&context=cm. Jeremy Page, “Chinese Territorial Strife Hits Archaeology,” The Wall Street Journal, December 4, 2013, accessed May 10, 2016 https://www.wsj.com/articles/chinese-territo​ rial-strife-hits-arc​haeology-1385954351?tesla=y. Jeremy Page, “China takes territorial disputes to shipwrecks in the South China Sea,” The Wall Street Journal, December 2, 2013, accessed May 10, 2016, https://www.wsj.com/arti​ cles/chinese-territorial-strife-hits-archaeology-1385954351?tesla=y; see also Dan Kedmey, “China asserts sovereignty over shipwrecks,” Time, December 2, 2013, accessed May 10, 2016, http://world.time.com/2013/12/02/china-asserts-sovereignty-over-shipwrecks/. Shannon Tiezzi, “Revealed: China’s reasons for island-building in the South China Sea,” The Diplomat, April 10, 2015, accessed May 10, 2016 http://thediplomat.com/2015/04/ revealed-chinas-reasons-for-island-building-in-the-south-china-sea/. UNCLOS, Article 238. UNCLOS, Article 230, paras. a and b. UNCLOS, Article 241. UNCLOS, Article 245. UNCLOS, Article 246, para. 5(a‒c). UNCLOS, Article 297, para. 2. UNCLOS, Article 246, para. 6. UNCLOS, Article 246, para. 5. UNCLOS, Article 60 and 80. UNCLOS, Article 87, para. d. UNCLOS, Article 60. UNCLOS, Article 298, para. 1(a)(i).

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Conclusion – Tempering the South China Sea slow boil: expanding options for evolving disputes Tran Truong Thuy The South China Sea issue is multi-dimensional in nature. There are at least four categories of disputes and/or rivalries among parties in the South China Sea that exist and evolve in parallel. They are: (1) territorial disputes over islands/rocks, low-tide elevations and submerged features between claimants; (2) competing claims among littoral states regarding sovereignty, sovereign rights, and jurisdiction over maritime zones; (3) divergent interpretations about the rights of coastal and user states in different maritime zones (especially within the territorial seas and exclusive economic zones of coastal states) regarding freedom of navigation and overflight, including activities of military vessels and aircraft; and (4) strategic competition between the rising resident power China and the established distant power the United States, in which the South China Sea has become the frontier and a bellwether of Asia-Pacific, if not global, competition. This book explores all these four dimensions of the South China Sea issue from international relations and international law perspectives.

DRIVING FORCES OF SOUTH CHINA SEA DYNAMICS In general, the situation in the South China Sea has become more tense mainly due to the growing importance of this sea in the strategic calculations of all the parties involved, and especially of China. Leszek Buszynski argues (Chapter 4 in this volume) that China is trying to turn the South China Sea into its own backyard. If these efforts succeed, the South China Sea would become a border region, a buffer zone that prevents other countries from accessing and attacking China. From Beijing’s point of view, the chief hypothetical antagonists here are the United States and its regional allies, such as Japan and South Korea. China’s efforts to change the status 266 Tran Truong Thuy - 9781786437532 Downloaded from Elgar Online at 11/15/2020 12:53:50PM via Sydney University

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quo in the South China Sea, Buszynski suggests, are aimed at gaining a foothold in the race for control of this strategic body of water. The Sea has thus become one of the most important components of Beijing’s anti-access/area-denial strategy, where the goal is to push America as far offshore as possible. Furthermore, he argues, China wants to carve out a protected area for its missile carrying submarines (SSBNs) as a basis for a second strike nuclear capability against the US. It is in this context that strategic competition among the major countries in the region has become more acute. In their wide-ranging chapter, Wu Xiangning and You Ji (Chapter 3 in this volume) explore the competition among different interest groups within China as a driver for increasing tension in the South China Sea. The role of Chinese law enforcement forces in the Sea has increased in recent years, leading to competition with other agencies. Although the civilian control mechanism remains intact and fully functional, the PLA navy hopes to strengthen its traditional role and take the lead in implementing China’s policy on the South China Sea dispute. Some observers believe that the rise of nationalism in many countries in the region is one of the factors that make the situation in the South China Sea more complex and difficult to solve. When China deployed its oil rig HYSY 981 in Vietnam’s exclusive economic zone during May–July 2014, for example, it referred to the structure as “mobile national territory” and deployed not only law enforcement vessels but also hundreds of fishing boats to protect it. Fishing nationalism, indeed, has increasingly emerged as one of the main causes of tension in the South China Sea. China has built up a large fishing fleet, the “ears and eyes” of its naval forces and marine law enforcement vessels. The more than 50,000 large and small Chinese fishing boats deployed in the South China Sea receive subsidized gasoline and are equipped with the Beidou satellite navigation system which enables them to remain in constant contact with the Chinese Coast Guard.1 Most of Vietnam’s fishing activities are also concentrated in the South China Sea. Vietnamese fishermen, too, ply their trade, with full endorsement and support from the government and public, in the country’s claimed exclusive economic zone, to demonstrate the exercise of de facto sovereignty rights there. Energy issues have often been discussed as sources of rivalries and tension in the South China Sea. Dylan Mair and Rachel Calvert (Chapter 12 in this volume) argue that these issues are more complex than they might appear on the surface. China’s estimations of the oil and gas reserves in the Sea, they note, are often considerably in excess of those published by the US Department of Energy (EIA) and various independent sources.

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In fact, the recoverable oil and gas reserves in the disputed areas of the South China Sea, including the Paracels and the Spratlys, are rather limited and not always of high quality, although prospecting has been to some extent impacted by geopolitical conflict. Gas can be commercialized by building pipelines to transport it or liquefying it for shipment. Both processes require massive investment in expensive high technology. If world hydrocarbon prices are not sufficiently high, such investment will be totally unprofitable. Moreover, the South China Sea’s oil and gas are not of critical importance to China’s overall energy security. What is important for Beijing is the security of the sea lanes transporting Middle Eastern oil across the South China Sea. More than 80 percent of China’s oil and over a third of its imported liquified petroleum gas come from the Middle East and are carried through the South China Sea. Other routes are far less significant. For example, the inland transport routes through Myanmar and from Russia currently account for a negligible share of Chinese imports. By 2020, oil and liquefied natural gas from the Middle East transported through Myanmar to China are expected to account for only 3 percent and 1.7 percent respectively of Chinese requirements. Russia provided 14 percent of China’s crude imports in 2016. In 2013‒14, China and Russia signed several agreements on energy, but it is estimated that by 2030 Russia will provide only 7 percent of China’s total gas demand. The economies of Japan and South Korea also rely heavily on oil and gas imports from the Middle East across the South China Sea. If freedom of navigation through the South China Sea is curtailed, Japanese tankers would be obliged to pass through Indonesian archipelagic waters then sail around the east coast of the Philippines. This detour would increase transportation costs significantly, leading to a rise in gasoline prices, which would heavily impact consumer spending and possibly cause the Japanese stock-market to fall by 10 percent or more over two or three years.2 It has also been argued that one of the main reasons why the disputes in the South China Sea have proved so protracted and difficult to resolve is because of the uneven distribution of energy resources there, which is unfavorable to the most ambitious player—China. China possibly does not want to delimit the Sea partly because the maritime zone to which it would be entitled is the northern part of that body of water, which is rather poor in energy reserves. That uneven resource distribution, some suggest, is one of the main reasons why China continues to promote the “shelving disputes and joint exploration” principle in the maritime zones of other countries where there are large oil and gas reserves.

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THE INTERPLAY OF INTERNATIONAL LAW AND POWER States conduct their external relations in an environment where their actions are to some extent constrained by established international law. International law provides all countries, large or small, with both a framework and an instrument for pursuing their national interests. States try to make use of international law to justify their own actions and to criticize the behavior of their rivals. At the same time, they tend to interpret specific provisions of international treaties or ambiguities in those treaties in such a way as to maximize their interests. The interplay of international law and power is clearly demonstrated in developments in the South China Sea. China, with the goal of gradually transforming the South China Sea into its own backyard, has for several decades exploited the ambiguities and limitations of international law to strengthen its position there. Specifically, on the issue of sovereignty, China lays claim to a very large number of islands, rocks, reefs, shoals and submerged features in the South China Sea. It has expanded the territory under its control in the Paracels and the Spratlys, occupied Scarborough Shoal, and reclaimed, transformed, and militarized several of the features in its possession. These activities have fundamentally changed the status quo in favor of China. On maritime disputes, China has attempted to maximize its claims by appealing to the notion of historical rights, symbolized by the nine-dash line. It also adopts a maximized interpretation of Article 121 of the UNCLOS, claiming an exclusive economic zone and continental shelf for the Paracel and Spratly groups. At the same time, Beijing applies its own interpretation of UNCLOS Section 3 on “innocent passage” and UNCLOS Article 58 on obligations of “due regard to the rights of Coastal States” in an attempt to restrict and control the military activities of the United States and other countries within its claimed territorial waters and exclusive economic zones.3 It has also hinted at the possibility of establishing an Air Defense Identification Zone (ADIZ) in the South China Sea, as it did in the East China Sea.4 As Robert Beckman and Phan Duy Hao point out in their chapter (Chapter 8 in this volume), while ADIZs are common both in Asia and in other parts of the world, and while the legal framework that underpins them is somewhat vague and ambiguous, and practice varies from state to state, any attempt on the part of China to set up an ADIZ in the South China Sea would be politically very hazardous and could provoke an extremely undesirable chain reaction. Proceeding in this manner, China has implemented a series of policy measures towards the South China Sea, including expanding its military,

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law enforcement and civilian presence in the Sea, on land and in the air; preventing or attempting to prevent other claimants from exercising their sovereignty, sovereign rights, and jurisdiction over the entire area it claims; delaying the settlement of disputes and advocating instead the approach of “shelving the disputes and jointly exploiting the resources”; and promoting China’s narratives in the international arena both as regards the South China Sea issue in general and also in relation to specific events, for example concerning land reclamation in the Spratlys, the incidents involving Vietnam’s seismic exploration ships Binh Minh 02 in 2011 and Viking 2 in 2012, the oil rig HYSY 981 deployment in 2014, the South China Sea arbitration case, and so on. Wu Xiangning and You Ji (Chapter 3 in this volume) suggest that while Beijing’s South China Sea policy has become more robust under Xi Jinping’s leadership, and while some strategists consider that it might, in certain circumstances, be more cost effective to deter moves on the part of other claimants through assertive actions in disputed waters, the dominant view is in favor of slow, cautious, incremental transformation of the status quo. China avoids any action that might stimulate a decisive response from ASEAN countries and other interested powers, especially from the United States. Specifically, one favored tactic is that of self-imposed “red lines” to avoid standoffs. For example, China only resorts to serious law enforcement in those areas where its boundary base line has been announced. The difference can be clearly seen by comparing China’s law enforcement measures in the Spratlys and in the Paracels. In the former, enforcement is largely rhetorical while in the latter, expulsion is the usual approach. Relevant countries have adjusted their policies and responded with different levels of determination to China’s activities, creating a multilayered situation in the South China Sea with overlapping and interacting political, diplomatic, military and informational dimensions. This state of affairs in the South China Sea displays the following main characteristics: The United States views China’s actions as a challenge to the US-led international order in the Asia-Pacific region. Washington cannot countenance this and it was against this background that the Obama administration announced its “rebalancing” strategy. Under the “rebalancing” strategy, the United States has focused on strengthening its position in the region by consolidating its existing alliance system, forming new partnerships with other regional countries and increasing its bilateral and multilateral diplomatic, military and economic presence in the Asia-Pacific region in general and in the South China Sea in particular. Notably, the United States has intensified its freedom of navigation operations (FONOPs) in the Sea, and promoted bilateral and multilateral naval and coast guard cooperation with and capacity building for Southeast Asian South China Sea claimants.5

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The United States’ response to the South China Sea imbroglio is perhaps its strongest since the 1990s and is certainly the most vigorous among countries outside the region. However, it should be noted that the United States has maintained a neutral position with regard to the territorial and maritime disputes themselves. Although Washington has protested against and does not recognize what it regards as excessive claims in the South China Sea, such as the straight baselines of some littoral states, China’s nine-dash line and its claims of sovereignty over low-tide elevations and submerged features, the United States does not take sides in the sovereignty disputes over land features (islands/rocks) and the issue of whether these features can generate full maritime zones. Apart from conducting limited actions directly challenging China’s position in the South China Sea, such as the irregular FONOPs, Washington’s activities have focused chiefly on the diplomatic front. This is partly because of the legal ambiguity of the South China Sea issues, and partly due to the lack of consensus within Washington on whether China’s activities are actually detrimental to American national interests, and on whether some kind of accommodation with China might be possible in order to ensure stability in the Asia-Pacific region. There is also a view that the United States and other countries might risk more if they contest China’s moves in the disputed waters. The result is indecisiveness and a lack of appetite to implement more forceful policies. Southeast Asian claimant countries are rather more concerned about China’s territorial and maritime ambitions in the South China Sea. In order to protect their interests they pursue, to varying degrees, multidirectional policies combining reliance on international law, especially on the UNCLOS, to justify their own maritime claims and to protest against the perceived illegal claims and activities of others; regionalizing South China Sea  issues through ASEAN-related mechanisms and mobilizing support from other ASEAN partners; strengthening cooperation with external powers, especially the United States, Japan, Australia, and India; while at the same time maintaining cooperation with China in general and in the South China Sea in particular. However, ASEAN as a group is still struggling to maintain relevance in the management of South China Sea tensions. Indeed, ASEAN has failed to reach an appropriate level of consensus when consensus has been critically needed because some mainland Southeast Asian non-claimant countries have not shared the concerns of the ASEAN claimants and have therefore been more supportive of China. Non-regional countries have also adjusted their policies in one of two directions: United States’ allies (Japan, Australia, New Zealand, other G7 countries, and to some extent the EU) have basically aligned with the position of the United States and supported its actions in the South China Sea;

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other countries such as Russia and India maintain a relatively independent stance, although Russia is more favorable to China and India is more supportive of the United States. As a result, the South China Sea issue during recent decades has become an international issue, a smoldering fire in the geopolitical landscape of the Asia-Pacific region, as well as at international and regional diplomatic forums.

CLAIMS OVER LAND, SEA AND AIR On July 12, 2016, the UNCLOS Annex VII Arbitral Tribunal on the South China Sea dispute between Philippines and China handed down a landmark award, which has far-reaching implications, especially for the first two dimensions of the South China Sea issue discussed above, namely territorial disputes over islands/rocks, low-tide elevations and submerged features and competing claims over maritime zones. Regarding territorial disputes, it should be recalled that Brunei, mainland China and Taiwan, Malaysia, the Philippines, and Vietnam all maintain sovereignty claims over the whole or part of the Spratly group. China and Vietnam have conflicting sovereignty claims over the Paracel group. China and the Philippines are disputing sovereignty over Scarborough Shoal. Due to the ambiguous status of the islands in all these groups regarding their ability to generate exclusive economic zones and a continental shelf, one of the principal outstanding issues has been whether the contending parties can claim rights over the more than one hundred features that are either low-tide elevations or totally submerged. The Philippine–China Arbitral Award has clarified the situation significantly in at least two important respects. First, parties can now claim sovereignty only over high-tide elevations, and, to some extent, expand the area of their sovereignty claims to low-tide elevations in cases where the latter are situated within 12 nautical miles of the former. Although these principles have been long established, most notably in the UNCLOS, particularly Article 121 on the regime of islands and Article 13 on the use of the low-tide elevations situated wholly or partly within the breadth of the territorial sea measured from the mainland or an island for drawing baselines, the Arbitral Award has reaffirmed these points and applied them directly and specifically to the territorial issues in the South China Sea. Second, after considering the historical background, physical and natural conditions and other aspects of all islands in the Spratly group and of Scarborough Shoal, the Arbitral Panel reached the most important conclusion that no land features there can sustain human habitation or an economic life of their own and,

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therefore, cannot generate an exclusive economic zone or continental shelf. Consequently, no country can claim sovereignty rights and jurisdiction over low-tide elevations or submerged features that are located beyond 12 nautical miles of the rocks in the Spratlys except over those lying within its own exclusive economic zone or continental shelf. In other words, parties now can legally claim sovereignty only over the dozen or so land features in the Spratlys and Scarborough Shoal which are permanently above water. On the question of claims over maritime zones, the Arbitration Award has narrowed down significantly the disputed maritime area in the South China Sea. Legally speaking, China from now on cannot base its claim to some 80 percent of the South China Sea either on the concept of historical rights embodied in the nine-dash line or on the exclusive economic zone and continental shelf generated by islands. On the nine-dash line, the Arbitral Tribunal concluded categorically that, “there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.”6 Specifically, the Tribunal noted that, “to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention.”7 The Tribunal also argued that, “there was no evidence that China had historically exercised exclusive control over the waters or their resources.”8 On the regime of islands, as discussed above, the Tribunal concluded that no feature in the Spratlys could generate an exclusive economic zone and continental shelf. The Arbitral Tribunal also rejected China’s claim that the Spratly Islands could be classified as a unified archipelago. Beijing therefore cannot draw straight archipelagic baselines around this group and use the baselines to claim extended maritime zones (paragraphs 575 and 576). In other words, the disputed maritime area in the South China Sea is now limited to just 12 nautical miles surrounding the Spratly Islands and Scarborough Shoal at the maximum. As for the situation in the Paracels group, Vu Hai Dang argues (Chapter 5 in this volume) that although these islands were not the subjects of consideration in the Philippines–China South China Sea arbitration, their features share many similarities with those of the Spratlys. On this basis, one can reasonably conclude that the Paracels, too, do not fulfill the legal conditions to have an archipelagic baseline and that no features of the group can be considered as islands capable of generating an exclusive economic zone and continental shelf. James Kraska (Chapter 6 in this volume), who shares similar views with Vu Hai Dang, argues that although China has occupied the Paracel Islands and claimed historical rights within the nine-dash line, this cannot change Vietnam’s legal right to its exclusive economic zone. The EEZ is the

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­ roduct of a long negotiation process on the international law of the sea. p Its main purpose has been to give coastal states the power to protect coastal resources, notably fishing resources, rather than to allow the expansion of national territory or to promote offshore industrial development. China’s fishing ban, which applies to a large part of Vietnam’s exclusive economic zone, is illegal. Only Vietnam has the right to issue such regulations. On the issue of claims over air space, Robert Beckman and Phan Duy Hao note (Chapter 8 in this volume) that an Air Defense Identification Zone (ADIZ) is not a no-fly zone, but an area in which foreign aircraft have the right to operate, but must notify their status and flight plans to the competent authorities of the host country. The United States and China, however, have divergent views on the relationship between ADIZs and EEZs. Underlying these divergent views are differing interpretations of the provisions of the 1982 UNCLOS. The United States considers that the airspace within the EEZ is a free-fly zone and that its aircraft need not notify the host country if they do not intend to enter the airspace above the territorial waters of that country. China takes the contrary position. However, there are good grounds for arguing that the establishment of an ADIZ cannot strengthen sovereignty claims but can only exacerbate conflict in areas where geopolitical tensions are high. China, following the example of Japan, Korea, and Taiwan, has already established an ADIZ in the East China Sea and has alluded to the possibility of establishing another ADIZ in the South China Sea. Robert Beckman and Phan Duy Hao, as noted above, consider that such a step would entail very serious political risks. Wu Xiangning and You Ji (Chapter 3 in this volume) argue that China is aware of this and is unlikely to establish a South China Sea ADIZ in the near future. Beijing does not want to create unnecessary tension with ASEAN countries and invite external powers (US, Japan, and Australia) to challenge any new ADIZ it might proclaim in this politically sensitive and strategically volatile area.

THE NEW STATUS QUO Although the objectives of China’s South China Sea strategy (sovereignty, security, and development) remain unchanged, and although Beijing continues to pursue a policy of expanding control of the Sea while maintaining a “strategic environment conducive to development,” which requires avoiding any alliance between the United States and the regional countries against China, it is clear that China has recently adjusted its tactics. There have been fewer incidents or conflicts with other parties than before, including in fisheries, oil and gas development. Several factors have

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contributed to this adjustment. These include: (1) China has completed its land reclamation in the Spratlys and needs time to consolidate the advantages it has achieved; (2) the devastating award of the Arbitral Tribunal has obliged China to act more cautiously, avoiding behavior which might be seen as a clear violation of the Judgment; (3) China has now come to prioritize the implementation of the Belts and Roads Initiative (BRI), which requires cooperation with its neighbors; and (4) the United States has a new president and China must carefully scrutinize the attitude of the Trump administration. However, while refraining from blatantly assertive activities that might affect China’s other policy priorities, Beijing continues to quietly consolidate its position on the islands it has occupied and to expand its control over the South China Sea on the waters, in the air and on the ocean floor.9 China’s current advantage in the South China Sea is the result both of strategic calculations as well as serendipitous events. The Arbitration Award was disastrous for Chinese diplomacy. China’s strategy of nonparticipation in the proceedings proved bankrupt—Beijing considered that the Tribunal did not have jurisdiction in the case and all of its efforts were directed towards convincing the Tribunal to that effect from the outset. However, the Philippines now has a new President who has decided to pursue a policy of not emphasizing the Arbitration Award and of tilting towards China, which has made the situation in the South China Sea more favorable to Beijing. More important, however, is the changing balance of power in the international system, especially that between the rising resident power China and the established distant hegemon the US. The emergence of a new and unpredictable American president, Donald Trump, who has not yet formulated a coherent Asian policy, has accelerated the shift in the power balance. Trump’s rather opaque South China Sea policy contains elements of continuity with that of the Obama administration. However, there are also new features. Within the framework of its overall East Asia policy and its relationship with China, the United States under Trump seems to link the South China Sea with issues related to North Korea, Taiwan, and trade. Because of this, Washington is arguably more likely than before to contemplate various trade-offs or to make a grand bargain with China relating to the future of the Sea and the position of the two great powers within and around it. All this only adds to the concerns of regional countries and makes them less willing to deal determinedly with China both in general and in the South China Sea in particular. Regarding ASEAN, while mini-lateral maritime cooperation between ASEAN countries has increased (Sulu, Malacca patrols, and so on), overall ASEAN unity and cooperation on the South China Sea issue has weakened significantly, especially since the Philippines under President Duterte has

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abandoned its traditional role as one of the most vociferous proponents of engaging ASEAN collectively on the South China Sea. As mentioned above, there is a clear division among ASEAN member states regarding this issue. This gives China abundant opportunity to manipulate “the ASEAN way.” China’s economic relations with ASEAN as a whole and with each of its members, as Michael Yahuda points out (Chapter 2), also give Beijing certain advantages. China has emerged in recent years as one of ASEAN’s leading trade partners and assumed economic leadership in the region. China does not hesitate to use its economic power to distribute rewards and mete out punishments. Therefore, to certain countries, placating China can seem more advantageous than maintaining ASEAN unity, especially regarding the South China Sea. On the other hand, several middle powers, notably Japan, Australia and India, have continued to display a strong interest in countering Beijing’s activities in the Sea. Japan has stepped up capacity building for Southeast Asian countries, while sustaining and elevating economic relations with them to counterbalance the influence of China. Australian Prime Minister Malcolm Turnbull, speaking at the 2017 Shangri-La Dialogue, directed wide-ranging and strong criticism towards China, including on the South China Sea issue.10 India has increased its involvement and seems likely to continue its engagement in the South China Sea, especially in the context of tensions along its own land border with China.

WHITHER THE SOUTH CHINA SEA? In the next five to ten years, the possibility of China forcibly occupying islands in the Spratlys currently in the possession of other claimants, or engaging in direct military actions against other countries in the South China Sea seems less likely. The main reasons are: (1) China has now occupied all the Paracel Islands and has a strong foothold in the Spratly group, especially after the reclamation and fortification work it has carried out there. These positions are sufficient to maintain its presence and new occupation would not bring significant added value militarily and legally; (2) In addition to the principles of international law, which great powers frequently ignore but which must be regarded as having some effect, China (in contrast to the situation in 1988) has now signed the Treaty of Amity and Cooperation in Southeast Asia (TAC) and the Declaration on the Conduct of Parties in the South China Sea (DOC), which included provisions prohibiting the use of force to settle disputes; (3) More importantly, if China employs force, ASEAN and other powers will unite and move closer to the United States; resort to force would thus not only destroy the image of “peaceful rise” that

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China has long cultivated but would also herald the end of the peaceful environment necessary for its economic development over the next 35 years. (If Beijing decides it has no alternative to expanding occupation, its priority will be the islands/rocks/reefs that are currently unoccupied.) The idea that China and the ASEAN claimants can resolve the South China Sea dispute through negotiations or other peaceful means is unrealistic. Regarding the dispute over the sovereignty of the Paracels, resolution through negotiations or through international courts is not feasible as China will not agree to it. In the dispute over sovereignty of the Spratly Islands, the possibility of solving the problems in international courts or through third-party mediation is also not feasible. China is opposed to such approaches. Other countries are not yet prepared to step forward and some are uncertain about the legal arguments advanced by all parties. Another obstacle to resolution through peaceful negotiation is the intense domestic pressure on all the governments involved. No government wants to make concessions on sovereignty. The final delimitation of overlapping maritime areas is also unlikely to be completed in the next 20‒30 years. This is because: (1) The resolution of sovereignty and legal issues of the Paracel and Spratly Islands must be completed first; (2) There are differences in the approach for initiating negotiations—China prefers to negotiate on a bilateral basis to promote its advantage as the larger party, while the smaller states prefer multilateral negotiations in order to mobilize support and make the process less asymmetric; (3) A solution in conformity with international law and international practice would not be compatible with China’s ambitions and interests, as Beijing would then be entitled to only about 20‒25 percent of the South China Sea, that is to say the northern part, with its unpromising energy reserves. The decision by the Arbitral Tribunal in the Philippines–China case can be helpful in narrowing down the scope of the South China Sea disputes and focusing the attention of the claimants more clearly on the issues involved (notably the issues of historic rights and the nine-dash line, the regime of islands, sovereignty claims over low-tide elevations or submerged features), but it cannot “solve” the problem itself. This being so, developments in the South China Sea in the next 5‒10 years will probably take place under one of the following scenarios: Scenario 1: Continued Tension on the Sea but not Leading to Open Military Confrontation China would continue its assertive activities in the South China Sea to protect its perceived interests while limiting the escalation of disputes into

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military conflicts and avoiding strategic confrontations with the United States, other major powers and ASEAN to maintain a peaceful environment for economic development. After the current round of construction and consolidation of the islands has come to an end, China would intensify its actual control, utilizing in diversified ways both the islands themselves and the sea along the nine-dash line. Against the background of China’s rising national comprehensive power, this approach would not risk totally destabilizing the current situation in the region, nor would it affect China’s overall international stance. The reaction of other countries in international forums, not to mention public opinion, would have only a limited and transient impact. US engagement would remain limited to diplomacy and some demonstrative gestures on the Sea, such as conducting more FONOPs. This scenario would serve the internal economic and political needs of China, satisfying to some extent the hawks and the nationalists. Scenario 2: The Parties Enhance Dialogue to Effectively Manage the Dispute In this scenario, the parties would intensify dialogues to manage the disputes and to reduce tension, focusing on the DOC implementation and negotiations for a Code of Conduct (COC). There might also be a certain amount of progress in negotiating the delimitation of some bilateral overlapping maritime areas and in promoting joint development arrangements. The United States and China, too, might initiate a dialogue to manage their differences and avoid collision. This scenario would unfold when China, after a period of expansion, adjusts its policies towards the objective of becoming a responsible rising power, embracing ASEAN and endeavoring to avoid diplomatic isolation, and the United States, after a period of tension with China, finds itself overstretched across many global fronts. At the same time, ASEAN would have been successful in maintaining the South China Sea issue on the agenda of regional forums and engaging external stakeholders to support its position. Scenario 3: A Mixture of “Tension and Stability” This is essentially a combination of scenario 1 and scenario 2. China would still be assertive both in the Sea and on the diplomatic front when necessary. At the same time, it would show a willingness to negotiate and continue dialogue with the other disputing parties on maritime delimitation and maritime cooperation. It would also continue discussions with ASEAN on implementing the DOC and negotiating a COC. International forums, especially those led by ASEAN, would continue to be the main

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platforms for parties to raise their concerns on the South China Sea issue in particular and maritime security in general. US–China friction would continue but would be unlikely to lead to either military confrontation or a grand bargain. The possibility of scenario 3 unfolding seems more likely. The parties would continue to conduct fortifying activities on the islands they occupy and exercise the sovereign rights and jurisdictions within the maritime zones to which they are entitled under the UN Convention on the Law of the Sea. China would not renounce its sovereignty claims over disputed islands and rights over water and it is likely to continue right-asserting activities, including interfering with the activities of other countries. At the same time the parties would still have incentives to maintain dialogue and achieve some progress, even if this is merely symbolic. Smaller countries would continue addressing the South China Sea issues at regional and international forums when necessary. The United States, Japan, and other major powers would continue to have a vested interest in these issues and maintain a certain level of engagement, not allowing China to control the South China Sea.

EXPANDING OPTIONS FOR EVOLVING DISPUTES While it is unlikely that the South China Sea issue will disappear or that open conflict will erupt in the next one or two decades and while the most probable scenario will be the mixture of “tension and stability” discussed above, the main objectives for all parties involved should be to prevent tensions from occurring, to avoid escalation of tensions when they do occur, to prevent miscalculations, and to find ways to promote confidence building measures and encourage practical maritime cooperation where and when it is needed. While the tensions arising from disputes over islands and waters cannot be immediately resolved, the South China Sea faces many nontraditional security issues that require close cooperation between all countries concerned. First, as Vu Thanh Ca and Raphael Lotilla have documented (Chapter 10 and 11), over-exploitation of fisheries resources and marine pollution pose major challenges. Fish stocks in the South China Sea are under heavy pressure and have been significantly depleted by fishing activities. Specifically, total fish stocks in the South China Sea have been depleted by 70‒95 percent since the 1950s and catch rates have declined by 66‒75 percent over the last 20 years.11 Over-fishing, destructive fishing practices such as using landmines or cyanide poisoning, as well as massive land reclamation all contribute to the destruction of marine

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ecosystems, negatively impacting the sustainability of the living and nonliving resources of the South China Sea. In addition, illegal, unreported and unregulated (IUU) fishing has emerged as one of the most serious sources of friction among littoral countries. This problem cannot be solved without closer coordination and cooperation. Climate change also contributes to the damage to marine ecosystems, but this has not been fully addressed by regional governments and communities. Finally, under the provisions of Article 123 of the United Nations Convention on the Law of the Sea (UNCLOS), states bordering semi-enclosed seas like the South China Sea are obligated to cooperate in areas that include the protection of the marine environment and management of fish stocks.12 The South China Sea Arbitration Award also establishes additional incentives and obligations for parties to cooperate in fisheries management and environmental protection. On fishing, the Tribunal ruled that fishermen from all littoral countries have traditional fishing rights within the territorial sea of Scarborough Shoal (and, by implication, the Spratlys and the Paracels). This conclusion has opened up further opportunities for cooperation on fishing management. On environmental protection, the Tribunal’s ruling clearly defines the environmental obligations of states bordering the South China Sea. The implementation of these obligations does not depend on sovereignty claims.13 Second, transnational crimes such as piracy and terrorism have emerged as serious non-traditional security issues in the region and are becoming increasingly complex. Should an offshore oil and gas facility become a target for terrorist attacks, the ensuing environmental disaster would be extremely severe and massive funds would be required to clean up the oil spill. Thus, in today’s security environment, where transnational terrorist organizations are increasingly armed with large and sophisticated weapons, the possibility of an attack on a maritime resource development platform or an industrial facility poses major challenges. These challenges require cooperation among all countries in the region. Third, maritime security and safety are also facing many challenges. The South China Sea is the second busiest shipping lane in the world. The risk of collisions and other incidents in the Sea is increasing due to the large number of ships passing through it and the growing presence of naval and law enforcement vessels. Incidents in the South China Sea occur not only by accident but also, and more seriously, by deliberate, calculated and intentional actions on the part of some claimants to protect their rights. These incidents have involved, in many cases, law enforcement vessels. Data from the Center for Security and International Studies shows that from 2010 to 2017, 53 major incidents were identified in the South China Sea (Chinese maritime law enforcement vessels were involved in 75 percent of these

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incidents).14 The frequency and severity of recent incidents demonstrates that cooperation in their prevention and mitigation is an urgent necessity. One of the most important issues for promoting confidence building measures and practical maritime cooperation is to secure the involvement of the relevant parties and stakeholders. The main platform for management of the South China Sea issue at the present is through the ASEAN–China mechanism, focusing especially on the DOC implementation and COC negotiation. However, it is clear that while not all ASEAN members are directly involved in the South China Sea disputes, there are many interested extra-regional players. Peace, security, freedom of the seas and respect for international law are major concerns of all stakeholders. Some of the incidents that have occurred in the past (and which could happen again in the future) have involved those extra-regional players. Transnational criminals do not always differentiate the nationalities of their victims. It should also be noted that the Arbitral Tribunal ruling has identified a large doughnut-shaped area in the center of the South China Sea as “high sea.” This means that all parties to the UNCLOS have equal rights and obligations there. Therefore, transforming the South China Sea from a sea of tension to a sea of stability should be a priority of all the parties concerned. The promotion of confidence building measures and practical maritime cooperation in the South China Sea should either involve the littoral countries, ASEAN and China alone or, where appropriate, extra-regional stakeholders as well.

NOTES   1. John Ruwitch, “Satellites and Seafood: China Keeps Fishing Fleet Connected in Disputed Waters,” Reuters, July 28, 2014, accessed April 4, 2018, https://www.reuters.com/article/ us-southchinasea-china-fishing-insight/satellites-and-seafood-china-keeps-fishing-fleetconnected-in-disputed-waters-idUSKBN0FW0QP20140728.  2. Presentation by Kazumine Akimoto, Senior Research Fellow at the Ocean Policy Research Foundation, Japan, at The Second Arctic/Asia-Pacific Maritime Workshop on Sea Lines of Communication Security in Asia-Pacific and the Arctic, Co-organized by the China Institute at the University of Alberta and the National Institute for South China Sea Studies, June 6, 2014, accessed April 4, 2018, https://cloudfront.ualberta.ca/-/ media/china/media-gallery/conferences/maritime/2014maritimeworkshopprogram.pdf.   3. UN Convention on the Law of the Sea, accessed April 4, 2018, http://www.un.org/depts/ los/convention_agreements/texts/unclos/unclos_e.pdf.   4. “Beijing Says It Could Declare ADIZ over South China Sea,” July 13, 2016, accessed April 4, 2018, https://www.japantimes.co.jp/news/2016/07/13/asia-pacific/china-blamesphilippines-stirring-trouble-inherent-territory/#.WkS9NIU_m2w.   5. See Jonathan G. Odom’s chapter in this book (Chapter 9) for more details about the nature and purpose of FONOPs.  6. Press release by the Permanent Court of Arbitration (PCA) in the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China) concerning

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  7.   8.   9. 10.

11. 12. 13. 14.

Building a normative order in the South China Sea the Award issued by the Tribunal, accessed April 4, 2018, https://pca-cpa.org/wp-content/ uploads/sites/175/2016/07/PH-CN-20160712-Press-Release-No-11-English.pdf. Press release by the Permanent Court of Arbitration (PCA) in the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China) concerning the Award issued by the Tribunal. Press release by the Permanent Court of Arbitration (PCA) in the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China) concerning the Award issued by the Tribunal. See report by The Asia Maritime Transparency Initiative (AMTI) for more information about China’s construction activities on the islands after the Arbitration Award at https://amti.csis.org/constructive-year-chinese-building/ (accessed April 4, 2018). Keynote address by Prime Minister of Australia Malcolm Turnbull at IISS Shangri-La Dialogue 2017, accessed April 4, 2018, https://www.iiss.org/en/events/shangri-la-dialogue/ archive/shangri-la-dialogue-2017-4f77/opening-remarks-and-keynote-address-fc1a/keyn​ ote-address---malcolm-turnbull-4bbe. “A Blueprint for Fisheries Management and Environmental Cooperation,” September 13, 2017, accessed April 6, 2018, https://amti.csis.org/coc-blueprint-fisheries-environment/. UN Convention on the Law of the Sea, Article 123 on Cooperation of States Bordering Enclosed or Semi-Enclosed Seas, accessed April 6, 2018, http://www.un.org/depts/los/ convention_agreements/texts/unclos/part9.htm. Press release by the Permanent Court of Arbitration (PCA) in the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China) concerning the Award issued by the Tribunal. “Are Maritime Law Enforcement Forces Destabilizing Asia?” accessed April 6, 2018, https://chinapower.csis.org/maritime-forces-destabilizing-asia/.

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