Geopolitics of South China Sea: The Arbitral Tribunal
| Geolocation: | 15° 12' 12.1024", 114° 29' 13.7476" |
|---|---|
| Total Population | 2,0002,000,000,000 millionmillion |
| Total Area | 3,685,0003,685,000 km² 1,422,778.5 mi² km2 |
| Climate Descriptors | Moist tropical (Köppen A-type), Monsoon |
| Predominent Land Use Descriptors | industrial use, mining operations |
| Important Uses of Water | Fisheries - wild, Industry - non-consumptive use, Mining/Extraction support |
| Water Features: | sea |
| Riparians: | china, philippines, Vietnam |
| Agreements: | UNCLOS, DOC |
Contents
- 1 Summary
- 2 Natural, Historic, Economic, Regional, and Political Framework
- 2.1 1.1 Geographic Outline
- 2.2 1.2 Historical background : Famous Nine-Dash Line
- 2.3 1.3 Key disputes
- 2.4 EVOLUTION OF THE DISPUTE
- 2.5 3 MAIN STAKEHOLDERS & INTERESTS
- 2.6 Philippines vs China: Arbitration of the Spratly Island
- 2.7 4 WHAT HAVE THEY DONE SO FAR
- 2.8 5 Current Outlook: Consequences of the Awards
- 2.9 6 Why Is It Not Working?
- 2.10 7 Water Diplomacy Framework (WDF) Recommendations
- 3 Issues and Stakeholders
- 4 Analysis, Synthesis, and Insight
- 5 Key Questions
Summary
China’s claim of its ‘indisputable sovereignty over the South China Sea’ based on the historical rights of the infamous ‘Nine-Dash’ line has caused complications and contention among the ASEAN stakeholders including the Philippines, Vietnam, Malaysia, Indonesia, Brunei as well as Taiwan and Japan. The Nine Dash Line overlaps with the exclusive economic zone (EEZ) and the continental shelve of the maritime territory of the neighboring states. The undercurrent interests for the stakeholder’s claims over maritime boundary and the insular features are associated with the acquisition of rights to exploit the abundant natural resources including fishery and hydrocarbon reserved on the South China Seabed. The growing conflict was reignited in 2013 when the Philippines submitted claims against China and unilaterally initiated an external dispute resolution mechanism of arbitration. The arbitral tribunal proceeding, served by the Permanent Court of Arbitration (PCA), had announced recent jurisdiction award on July 2016, stating the invalidity of China’s Nine-Dash line claim, spurring the cooperation between the conflicting parties and hinders future collaboration.
Natural, Historic, Economic, Regional, and Political Framework
1.1 Geographic Outline
The South China Sea is part of the western Pacific Ocean formed by the East China Sea and the South China Sea, bordering the Southeast Asian mainland. It covers the area of 1,423,000 sq. mile (3,685,000 sq. kilometers) with a mean depth of 3,976 feet (1,212 meters). Geographically, it is located;
- South of China; - East of Vietnam and Cambodia; - Northwest of the Philippines; - East of the Malay peninsula and Sumatra, up to the Strait of Malacca in the western, and - North of the Bangka–Belitung Islands and Borneo
[MAP-02] : 200 nautical miles maritime boundary and rights from the regional stakeholders are overlapped by the Nine-Dash Line claim. Main stakeholders in recent arbitration proceeding are highlighted including China, the Philippines and Vietnam.
South China Sea provides a potential of massive oil and gas reserves in its seabed and the main course of protein in maritime for the South East Asia as well as one-third of global trade route. The underlying drivers to the contention of the sovereign rights, maritime boundary and the maritime features are, in fact, associated with interests to acquire rights to exploit this geographic abundant. To put it simply, geography of South China Sea determines numerous potentials for strategic economic, military and environment prosperity and development of the East Asia and its wider Indo-Pacific regions. Demonstrated by figures, the area boasts the 4th ranking in the annual marine production worldwide contributing to more than 7 million tons with 3.39 million tons from catch production – supporting 27,430 Chinese fish vessels. The richest area for marine catch is observed around Spratly islands and their adjacent waters. By virtue of its geography, South China Sea provides vital route for maritime trade and transportation of East Asia. It is adjacent to the Malacca and Singapore straight which are the most important trading passage for over 70,000 merchant fleets annually.
1.2 Historical background : Famous Nine-Dash Line
The dispute originally arose after World War ll, when the littoral states and China competed over claims for the islands lying in the South China Sea. Chinese exploration and study of the maritime resources to review maps and atlases in 1933 has led Chinese government to internally circulate atlas in 1947, drawing an ‘Eleven-Dash line’ to consolidate its authority and total sovereignty over the territory earlier than any other countries surrounding the South China Sea. The eleven dashed line encompassing the collective survey of 286 bits of rock and turf was drawn into map by Yang under Kuomintang government – the Nationalists – referring the territory as the “South China Sea Islands”. The eleven-dash was finally reduced to the ‘Nine-Dash’ line following Chairman Mao’s decision to hand over Gulf of Tonkin to Vietnam during the Cultural Revolution. Since then, the historical ‘Nine-Dash’ line has been, held by China, a legitimate claim to its ‘indisputable sovereignty’ over the South China Sea.
[MAP-03] : China’s early maps drawn in the 1933 showing an eleven-dash line claim over South China Sea
The existence of this historical claim did not raise so much issue until the extensive geological survey was conducted in the late 1960s to early 1970s which uncovered the abundant natural resources, including untapped potential for gas and oil deposition in the South China Sea seabed. This immediately drew interest from the stakeholders within the area and intensify the dispute among the stakeholders.
In 2009, China has officially consolidated the Nine-Dash line map and submitted the claims to the United Nations stating that it has ‘indisputable sovereignty over the islands in the South China Sea and the adjacent water’. The action was strongly opposed by the Philippines, Vietnam, Malaysia and Indonesia. Vietnam and Malaysia in particular responded by request for the recognition of extended continental shelves which would allow them the rights to exploit more resources.
1.3 Key disputes
1.3.1 Claims of Sovereignty: Overlapping Maritime Territory
The physical geography of the South China Sea surrounded by the PRC (People’s Republic of China), Taiwan ROC (Republic of China), the Philippines, Vietnam, Malaysia, Japan and Brunei complicates the dispute because maritime rights between each nations overlap with one another. This is further convoluted by the special claim of the ‘Nine-Dash line’ proposed by the Chinese government which covers almost all of the area in the South China Sea, going well beyond its legitimate zones and overlap with the legal claims such as the exclusive economic zone of the ASEAN states. China has called for an indisputable sovereignty over the area, persistently referencing the historical entitlement as the fundamental rights.
The historical rights which does not comply with and does not carry much substance in the international law was argued by the Chinese that it predates United Convention in the Law of the Sea (UNCLOS) – a revised agreement and guidelines for the international use of the world’s ocean that came into force only in 1994. China, therefore, has sought to put diplomatic pressure in the revision of the international law or to gain special exception to facilitate its ancestral claims without much flexibility to mutual gain or interests of the other parties.
In addition, the territorial entitlement will also extend to air rights defense zone in monitoring the ongoing activities offshore including trade route and resource extractions. This is particularly an important military and naval strategic zone for China whereby interference from international power such as the United States may disrupt the power over their actions. The United States aircraft, in support of the freedom of navigation in the international water, had made several attempts to intervene and monitor the Indo-Pacific region, catalyzing military confrontation with China’s authorities.
1.3.2 Exploitation of Resources
According to the United Nation Convention on the Law of the Sea (UNCLOS), the access to exploit the natural resources lies within the maritime territorial delimitation itself, therefore, making them an inseparable claim. The real issue is not so much about water itself but the association of water as the medium of power, rights and opportunities for the States’ access to resources, economic development as a by-product of the maritime territorial claims.
- Marine Life and Fisheries
The Department of Environment and Natural Resources of the Philippines provide a study of the water body as holding one third of the world’s biodiversity. The extensive runoff of nutrient-laden waters from the land and the upwelling of water contribute to rich fisheries and marine life of the South China Sea, thereby, provide a very important area for the ecosystem as well as a crucial source of protein for the densely populated Southeast Asian area. Majority of fisheries within South China Sea are wild catch for fresh and preserved local consumption including abundant species of high-value tuna, mackerel, croaker, anchovy, shrimp, and shellfish. The depleting fish stocks in the area becomes the main contention among surrounding the water, especially for the Southeast Asian
[Chart-01] : South China Sea and the figures of resources estimated to be uncovered within the region
countries whose economy largely depends on fishing industry, generating more than 3.7 job for 3.7 million people and billions of dollars annually. The fish stocks have been measured less than one-tenth now than it had six decades ago. The overfishing issue becomes a threat to the food security and the economic growth of the developing nations and stirs competition among fisherman extending the international maritime regulations and enforcement. Apart from the frivolous economic competition, the dwindling resources marks the potentially the worst collapse of global marine ecology and environment.
- Islands and Reef
Several islands in the South China Sea also fall into major interests among varying stakeholders due to the extent of the maritime boundary they may generate including the Spratly islands, the Paracel islands, the Pratas islands, the Macclesfield Bank, and the Scarborough Shoal. Spratly and Paracel Islands, are the two main groups of islands which are central to the competing claims.
[MAP-04] : The three main contentious group of islands includes the Spratlys, the Paracels and the Scarborough Shoal
- The Spratly Islands: claimed by China, Taiwan, The Philippines, Vietnam, Malaysia and Brunei.
The islands encompass the largest area in comparison to the rest of the islands in rivalries. The Spratly island spread over 810 by 900 km which include 175 identified insular features with the largest, Taiping Island (Itu Aba), being administered by Taiwan. The largest singular feature to the northeast of Spratly islands cluster is the Reed Bank which is 100 km wide seamount. China has rigorously been building off existing and artificial islands atop reeds to accommodate military installations. The State has also employed fishermen to strengthen their claims of the islands on regular patrolling of other nation’s fishing boats, which has escalated in the past three years, as claimed by the former Filipinos mayor of the Kalayaan municipality that includes islands in the Spratlys. The disputes of the militarized patrolling over fishing grounds has led to several armed conflict and confrontation.
- The Scarborough Shoal (a part of Spratly islands): claimed by the Philippines, China and Taiwan. - The Paracel Islands: claimed by China, Taiwan and Vietnam
- Hydrocarbon Reserve: Oil and Natural Gas
The Spratly and the Paracel Islands are estimated to contain great potential for oil resources as high as 105 billion barrels with the total estimation of 213 billion barrels to be recovered in the South China Sea region. Production levels has been estimated for the Spratly islands alone is at 1.9 million barrels per day. However, the most abundant hydrocarbon resource in the South China Sea is, in fact presumed to be the natural gas, which is estimated by USGS to constitute 60-70% of the region hydrocarbon resources. With a rising projection of gas consumption to increase by 5% in the next two decades or around 20 trillion cubic feet (Tcf) per year, the region becomes the target for competing hydrocarbon extraction. Several gas pipeline and infrastructure proposals have been made to connect gas production and consumption regions of the Pacific Rim of Asia where the geography makes South China Sea central to these connections. Although has not yet been confirmed, state-owned China National Offshore Oil Company (CNOOC), responsible for most offshore hydrocarbon development for China, approximates an untapped 500 trillion cubic feet of gas in the South China Sea region.
[Map-06] : Amount of crude oil trade flow within South China Sea represents a valuable and important economic power
[Map-07] : Numbers of ongoing offshore oil and gas field
EVOLUTION OF THE DISPUTE
The growing persistence of the Chinese government and its inflexibility in the sovereignty based on its Nine-Dash Line claim stirred more tension in recent years, accumulating to highly visible conflict – from heated negotiations to military confrontation and the involvement of legal avenue. The summary of timeline specific to the dispute and between China and the Philippines are marked by the important dates as following;
[TimelineDiagram-01] : Major events between the Philippines and China in the South China Sea dispute
Several attempts in the negotiations through joint agreement such as the Code of Conduct did not facilitate useful agreement nor reduced assertive unilateral claims and action from China. The Philippines, thus, resort to an alternative dispute resolution mechanism (ADR) bringing in an external facilitator, the arbitral tribunal, to equalize the dispute. This urge nation to play a politically sided alliance, leading to even more divisions for zero-sum game. At this point, not only that the previous conflicts have not been resolved, the initiation of the Arbitral Tribunal procedure followed by several minor flashpoints further worsen the situations. This demonstrates the dynamic of the negotiations where conflict, leading to war is becoming more evident. Such mechanism brought by the Philippines directs each stakeholder to focus more specifically on each of their own interests as a defend mechanism against legal jurisdiction which seek to present winning-losing situation more than encouraging true cooperation.
=== 2.1 FLASHPOINTS: ===
In 2012, the tense standoff between the Philippines warships and China’s fishing boats at the Scarborough Shoal foreshadowed the initiation of the arbitration proceeding by the former party. In 2012 incident, the Philippines warships attempted to arrest Chinese fishermen from intrusion into its maritime territory was intercepted by Chinese surveillance craft causing a dangerous impasse. Initiation of the Interstate Arbitration under UNCLOS the Arbitral Tribunal. On the 22 January 2013, the Philippines submitted fifteen claims against China on the basis that the ‘Nine-Dash Line’ is ‘illegal, arbitrary and bereft of any validity’ under the international law constituted on the United Nations Convention on the Law Of the Sea (UNCLOS). Initiated under Article 287 and Annex Vll of the 1982 UNCLOS, the case was brought up by the Philippines to challenge the legality of China’s claims, resource exploitation and law enforcement action in the South China Sea.
China assertive claims and unilateral actions in the South China sea implies its power over the smaller ASEAN nations. Despite Chinese constant affirmation to collaborate, the statement often falls through as a diplomatic rhetoric than actual implementation. Due to their limited influence on China, the ASEAN counterparts felt the urge to strengthen their negotiation power through external member whose authority is compatible with China, thus resorting to international arbitration process. The smaller, less powerful nations such as the Philippines saw the necessity to voice their standing after several futile attempt of bilateral negotiations with China. On February 19th, 2013 China’s embassy released a Note Verbale to confirm its non-participation in the arbitration and reiterated its stance against the procedure published on a ‘Position Paper’ by the Ministry of Foreign Affairs on December 7th, 2014. The legal framework fractured the relations between the parties and did not keep up with the evolving conflicts of the dispute.
2.2 LEGAL FRAMEWORK: INITIATION OF THE ARBITRAL TRIBUNAL
The Philippines whose claims in the maritime boundary were ignored by Chinese invasion reached out to international legal avenue, the Permanent Court of Arbitration (PCA), to undergo the Tribunal Arbitration as the alternative dispute resolution mechanism. As the arbitration tribunal became involved, in contrast to China and the Philippines’ former agreement to contain the issue internally, the relationship between nations fractured and the dispute has escalated. The authority given to the tribunal also coincided with Mrs. Clinton’s statement on the ‘pivot’ – remarking the shift of the United States’ interests to Asia-Pacific region . The intervention from the Permanent Court of Arbitration (PCA) and the United States has largely shift the focus of the dispute beyond its regional cooperation to an international spotlight. These coinciding events mark turning points for stronger response and resistance from China to cooperate.
2.2.1 CHINA NON-APPEARANCE AND ITS CONSEQUENCES
China strongly opposed to the unilateral initiation of the interstate arbitration proceeding and adhered to the position of non-acceptance of and non-participation in the arbitration (PRC 2014). Despite, China’s lack of cooperation, the announcement of the Award on Jurisdiction and Admissibility was made by the Arbitration Tribunal on October 29, 2015. China refused to accept any revised rules given by the UNCLOS and firmly opted not to formally participate in the arbitration. Throughout the arbitration process, China has been responding through official statements including note verbales - a less formal diplomatic communication prepared in the third person and unsigned. This leveraged pushback from the Philippines in emphasizing China’s unreceptive intention and presents China, in the international sphere, as the only ‘non-cooperative’ state within South China Sea dispute. Other external judgement this reaction from China could easily be taken as a challenge and disobedience to the tribunal power.
On 12 July 2016, the tribunal ruled in favored of the Philippines, with an exclusion to adjudicate over territorial sovereignty dispute between the parties. It also ruled that China has no historical rights based on the nine-dash line map which was rejected by China remarking that, “the Tribunal Award was null and void and therefore had no binding effect on China”. After the initiation of the Arbitration Tribunal, the conflict seems to erupt with growing confrontation, with intermittent resolution effort to cooperate than before. The prospective glance of the dispute become less open and less flexible to negotiation after recent escalations from minor conflicts, yet, there are potential rooms in which crisis can be turned into an opportunity for more cooperation.
2.2.2 CHINA’S PERSPECTIVE : RATIONALE FOR NON-PARTICIPATION
China stated that the ‘arbitral tribunal does not have jurisdiction over this case.
1.) China clarify its decision of its non-acceptance and non-participation in the arbitration on the account of ‘preserving China’s sovereign right to choose the means of peaceful settlement of its own free will and the effectiveness of its 2006 declaration.’
2.) Legally speaking, the decision not to accept and to be absent from the jurisdiction is valid under ITLOS procedural strategy for the State to defend its rights and interests which does not necessarily imply disrespect for the tribunal in any way.
3.) China firmly opposed the proceedings, noting that the claims filed by the Philippines “contains serious errors in fact and law as well as false ‘accusations’ against China”.
4.) China uphold the solid basis of the ‘International Law’ but does not agree to abide with the amended Convention. The former international law bestowed sovereign rights upon historic titles which ‘has received general international recognition’. From Chinese perspective, the new Convention undermine ancestral, historical importance and disrespect its cultural integrity.
3 MAIN STAKEHOLDERS & INTERESTS
3.1 China-ASEAN Claimants
China’s growing population ensuing rising consumption leads to the higher demand in energy resources. In 2009, it has become the largest consumers of oil after the United States and is predicted to double by 2030, making it the world’s largest oil consumer. In an attempt to reduce its dependence on oil imports from the Middle East, Saudi Arabia and Angola, China has been diversifying its energy supplies by increasing offshore production around the Pearl River Basin and the South China Sea. China has been taken forceful measures to claim its right against the intrusion of other nations into ‘its water’ with Chinese vessels increasingly harass both Vietnam and the Philippines, accusing their oil exploration ship for invading its de facto maritime boundary. This sparked the Philippines to respond by lodging a formal protest at the United Nations and sought ASEAN support in forging a common positon over the issue. The Philippine crackdowned the possibility of the negotiation by announcing that it was renaming the South China Sea as the “West Philippine Sea” . The mutual interests in the oil business roots competition between China, Vietnam and the Philippine. Despite China’s opposition, the two nations proceed with exploration projects involving foreign companies.
3.1.1 China vs Philippines
Philippines’ illegal occupation over Nansha, or the Kalayan Island Group (KIG), which were claimed by China has caused an inherent dispute between both states since the 1970s. Permanent Court of Arbitration (PCA) doctrine of “effective occupation” framework derived in 1928 goes against China in its occupation of the Spratly Islands which is an archipelago off the coasts of the Philippines and Malaysia.
[Map-07]: Area of competitive interests between the Phillipines and China is largely in the Spratlys islands and the Scarborough Shoal.
Philippines vs China: Arbitration of the Spratly Island
Submission No.3, 4, 6, 7 ,10, 11 and 13 made by the Philippines which aligned with the jurisdiction power of the tribunal includes the conflicts of the following;
1 First Group of Claims – Maritime Area around islands:
The claims were not about UNCLOS as the legal basis of their claims to maritime zone but the extent in which the maritime zones are generated by these islands. The Philippines are anxious about the extent of the maritime zones in which China can claim around these islands and that would be encompassed within the Nine-Dash line.
Entitlement to the maritime features by definition:
ISLANDS – would generate its own territorial sea, 200 NM (nautical mile) of EEZ (Exclusive Economic Zone) and continental shelf or 12NM belt of maritime zone around its boundary. ROCKS – generate their own territorial sea and has 12 m. territorial rights
2 Second Group of Islands: The Philippines claimed illegal occupation of reefs by China The following reefs including: The Mischief Reef, MaKennan Reef, Gaven Reef and Subi Reef and the maritime rights around the reef were claimed by China which sought to exclude other states.
3 Third group of island concerning ‘Rock’-Status of certain reefs
The third group of claims including the Scarborough shoal, Johnson Reef, Cuarteron Reef and Fiery Cross reef were identified by the Philippines as ‘rocks’ and therefore generated only 12 M. maritime zone. The Philippines filed claims against China of the unlawful prevention of their vessels from living and non-living resource exploitation which is well beyond 12 M. from Johnson reef and Scarborough Shoal.
4 Forth group of claims concern the Philippines Claim to Maritime zones and Rights in the South China Sea
Philippines claims the entitlement generated by these group of islands under UNCLOS of 12 nm, 200 EEZ and the continental shelf measured from its archipelagic baseline. It also filed against China’s unlawful exploitation of the living and non-living resources in those maritime areas and the prevention of the Philippines from extraction of non-living and living resources.
5 Fifth group of claims concerning the Right to Navigation
Philippines has expressed its concerns of China unlawful interference with the Philippines rights to navigation and other rights under UNCLOS within and beyond the Philippines EEZ. China used the term ‘unlawful activities’ against the Philippines fishing vessels in the maritime boundary based on its own ‘lawful enforcement’ measures by Chinese coastguard vessels which enforce Chinese fisheries laws and regulation in Chinese claimed EEZ.
In correspond to the claims, the arbitral tribunal has ruled in favor of the Philippines as following:
1.) There was “no legal basis for China to claim historic rights” over the Nine-Dash Line as there has been no historical evidence of exercised exclusive control over the waters or the resources.
2.) On the environmental ground, the reclamation project and the extension of the artificial islands in the Spratlys by the China has caused severe harm to the coral reef environment.
3.) The Taiping island and other features on the Spratly Islands were ruled by UNCLOS as “rocks”, thus, has no entitlement to the 200 nm of Exclusive Economic Zone as claimed by China.
3.1.2 China vs Vietnam: The Paracels
Several naval standoff arised as the results of competitive interests between Vietnam and China to gain fishing grounds delimitation as well as the vigorous claim to ‘indisputable sovereignty’ over maritime features and territory of the Paracel Islands. Historical conflicts in 1974 and 1988 between naval vessels has resulted in number of deaths for Vietnam sailors. The Paracels are the strategic way station for Chinese submarine fleet where it has undergone construction of harbours, helipads and air base in the archipelago. Cumulative naval clashes has led the Communist-ruled Hanoi to strengthen its ties with the international power, thus, drawing the U.S. into the dispute, whose intervention are increasingly embraced by littoral States to compete against aggressive claims of China.
[Map-07]: Area of competitive interests between Vietnam and China is largely in the Paracel islands.
In 2012, the Chinese maritime surveillance vessels cut off the exploration cables of the Vietnamese oil survey ship searching for oil and gas deposit in Vietnam’s EEZ , which provoked a surge of anti-Chinese demonstrations throughout Vietnam. Again in May 2014, China’s unilateral action moved oil platform HYST 981 into waters south of the Paracel Islands claimed by Vietnam marking a low point in China-Vietnam ties. Following the situation was China’s initiation of a bilateral agreement established between the two government.
Vietnam’s damaging military confrontation with China prior to the arbitration proceeding results in a strengthened alliance between itself and the Philippines. The ASEAN ties back up their strong relationship even further, presenting the situation as small nations building up alliances with each other against China. Vietnam, in response to the outcome of the arbitral jurisdiction also took the opportunity to voice their neglected claims and request that the tribunal pay its due respect to its rights. Vietnam has reasserted its ‘indisputable sovereignty over the Hoang Sa (Paracel Islands) and Troung Sa (Spratly) which it has claimed to be based on an adequate historical evidence. This only amounts to
separation of interests without true collaboration or joint problem-solving resolution. At this point where the Philippines, leveraged by international back up and sympathy, the case drew obvious zero-sum negotiations and proclaim a one sided gain of ‘winner’ and ‘loser’ perspectives. Despite its reserved and balanced reaction towards the tribunal jurisdiction, Vietnam has expressed its concern at the possibility of ‘aggressive backlashes from an aggrieved China to compensate for major legal and diplomatic blow to its territorial claims’.
3.1.3 China vs The United States
The intervention of United States has become extremely crucial for the South China Sea dispute as it increases China’s concern for its political power and security. The United States’ interests over the Indo-Pacific water and its strengthened relations with the ASEAN claimants in the dispute worsen the situation and, by no means, ease tension between China and the littoral states. In 2010, US Secretary of State Hilary Clinton called for China to resolve the dispute, which coincided with the increasing rival in naval exercises between the two giant States, thereby, received a strong opposition by China for its intervention in the South China Sea dispute.
The presence of the United States warship and aircraft to monitor the activities within the South China Sea was based on the freedom of navigation rights. The freedom of navigation operations (FONOP), designed to avoid conflict over China’s sovereignty claims, had been conducted in the area to deter China from the expansionism and land reclamations over the South China Sea. The response from China on the intervention of U.S. military vessels had always been aggressive, scrambling of fighter jets and the deploy of naval assets to shadow the U.S. ship during its passage had resulted in growing war. China has now shifted its assertive response through a diplomatic and rhetorical strategy based on legal interpretations of the UNCLOS. Under Article 19 that the ‘innocent passage’ – claimed by the U.S. – cannot be applied to warships and therefore should be deterred from the region’s surveillances. Again, the initiation of UNCLOS has been drawn by the stakeholders with a purposeful intention to distort and misfit the interpretation for their own interests, weaponizing a geopolitical rhetoric within the regional dispute.
4 WHAT HAVE THEY DONE SO FAR
4.1 FORMER MECHANISM OF NEGOTIATION RESOLUTION
4.1.1 Bilateral agreement
China has always insisted its preference for the bilateral agreement on the South China Sea dispute and strongly disapproved the unilateral initiation of arbitral procedure. China saw the violation of the Declaration on the Conduct of Parties (DOC) and the joint statement of 2011 by the Philippines as a serious breach to the commitment both States had initially agreed upon.
China also reiterated its interest in direct negotiations between States over South China Sea dispute in accordance to the international laws and historical facts asserting that its government do not support the practice of bullying from big and strong countries on small and weak nations. It also brought about the precedent success in the dispute resolution through bilateral negotiation with Vietnam in 2000 where both States signed the Agreement on the Delimitation of Maritime Zones in the Beibu Gulf, followed by the Agreement on the Basic Principles Guiding the Settlement of Sea-related Issues in October, 2011. The state heavily opposes the internalization of the dispute testifying that it will only disturb peace and stability in the South China Sea while putting forward the only proper and realistic means for resolving the complex issues involved ‘friendly talks and negotiation’. China seems optimistic that its proposition to push forward ‘shelving disputes and going in for joint development with regards to the disputes that cannot be resolved in short-term’ will unravel a better future of the South China Sea dispute.
4.1.2 Joint Development Authorities
The authorities been set up to resolve the overlapping claims suggesting joint development without settling sovereignty issue and to ensure stability against armed conflict. While the ASEAN nations and littoral states prefer a multilateral mechanism to the South China Sea resolution as an equitable leverage with the powerful China, the latter seeks to maintain negotiation bilaterally. Coastal states of the South China Sea recourse to the compulsory dispute settlement procedures of Part XV of UNCLOS when they are frustrated by the slow pace of other means of peaceful dispute settlement.These two peaceful means include:
1.) ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC)
Specifically refers to UNCLOS 1982 as part of the legal basis for resolving territorial and jurisdictional disputes in the South China Sea. There was constant reaffirmation of the commitments in the DOC and persistent effort from all sides to work for a Code of Conduct (COC) in the South China Sea that would promote ‘peace and stability’. In 2011, the president of the Philippines and China issued a Joint Statement over the dispute negotiation emphasizing the South China Sea cooperation “in a peaceful and friendly manner through consultations on the basis of equality and mutual respect”.
2.) The Treaty of Amity and Cooperation in South East Asia (SEA) The treaty, established by the Association of Southeast Asian Nations (ASEAN), provides friendly consultations and negotiations between the Southeast Asian countries. China and India were the first two outside ASEAN to sign the treaty in 2003, followed by the U.S. and the European Union (EU) in 2009 when the non-states accession was amended. The principle of the treaty is primarily to promote peace, ever-lasting amity and co-operation among the people of Southeast Asia upon the principles of mutual respect, renunciation of threat or use of force and effective co-operation, for example.
Effectiveness of the so-called ‘Joint-Agreement
Joint agreement and bilateral agreement offered diplomatic negotiation and political rhetoric at mere surface but does not suggest a fruitful mobilization of collaborations for mutual gain between the parties. This has been exemplified by the consecutive violations of rules based on the Code of Conduct (COC) between parties and growing unilateral actions such as forceful intervention of Chinese patrol boats on the Philippines fishing boats or the extension of the existing islands as well as artificial islands constructed by China. This reflects in the ineffectiveness of the agreement and undermines the power of ASEAN entity, who established the joint agreement, to negotiate with the powerful state China.
4.2 CURRENT MECHANISM OF THE DISPUTE SETTLEMENT
4.2.1 UNCLOS
The United Nations Convention on the Law of the Sea (UNCLOS) is an international agreement on the rights and responsibilities of nations with respect to the use of the world’ oceans established in 1982 as a result of the United Nations Conference on the Law of the Sea. It replaced four 1958 treaties and came into force in 1994, a year the 60th ratification from Guyana and later come into force for China in June 1996. The agreement also provides for a dispute resolution mechanism regarding maritime boundaries in which member states can choose either one of the four methods. Unless the two states agree to elect a mechanism, which China and Philippines did not, shall the third option – the Arbitral Tribunal – is used.
1.) International Tribunal for the Law of the Sea (ITLOS) 2.) International Court of Justice (ICJ) 3.) Arbitral Tribunal (constituted in accordance with Annex VII, (UNCLOS) or 4.) Special Arbitral Tribunal (constituted in accordance with Annex VIII).
The legible disputes specific to the South China Sea case and in line with UNCLOS refers to the Article 297 includes issues with regards to; (1) freedom and rights of navigation and (2) international rules and standards for the protection and preservation of the marine environment. Therefore, China’s Article 298 of exception from the arbitration is not valid to bar the tribunal’s jurisdiction over the claims made by Philippines which fall under these categories. This include Submission no.10; China’s unlawful prevention of Philippines fishermen at the Scarborough Shoal; Submission no.11 on China’s violation of its obligations under UNCLOS to preserve and protect the marine environment at Scarborough Shoal and Thomas Shoal; and Submission no.13 on China’s breach of its obligation under UNCLOS by operating its law enforcement vessels in a forceful manner causing a serious risk of collision with the Philippines.
4.2.2 The Arbitral Tribunal
Following four Procedural Order by the PCA, the tribunal had decided to bifurcate the jurisdiction of the South China Sea dispute from the merits of the dispute – allowing the admissibility of the seven claims to be ruled over. China did not submit a counter memorial to defend itself from the Philippines’ claims and instead published a ‘Position Paper’ which challenge the tribunal’s jurisdiction over the dispute.
The Arbitral Tribunal is under an obligation before making its award to satisfy itself not only that it has jurisdiction over the dispute but also that the claims brought by the Philippines are well founded in fact and law (UNCLOS Annex VII, article 9) The Philippines had filed the total of fifteen claims against China which, through the bifurcation process, the arbitral tribunal only have the rights to exercise its power on over seven of the claims.
The United Nations Convention on the Law of the Sea (UNCLOS) adhere to geographic water boundary as the baseline to allocation of rights and resource access including the exclusive economic zoning (EEZ) and continental shelf. The UNCLOS does not support any claims that goes beyond these two maritime zones which determine the extent to which claims would fall under its jurisdiction. The Convention does not deal with questions of territory or sovereignty and other rights over land territory, as well as historic titles and rights. The bifurcation process allows the separation of issues that would fall within tribunal ruling power in order for the admissibility of the case. Hence, the choice of the mechanism primarily undermined the success to conjoin stakeholders’ discussion and entirely omit China which fixates largely on the rights to sovereignty.
4.2.3 Permanent Court of Arbitration (PCA)
The Permanent Court of Arbitration (PCA) located in The Hague served as the registry in the arbitral proceedings for the South China Sea case. The arbitrator members comprised of international juries from Ghana, France, Germany, the Netherlands and Poland. The PCA was responsible for:
- Serves as the administering institution and registry for the arbitration case - Tribunal issued the Rules of Procedure regulating the arbitration process - Published press release in the proceedings, deadlines.
5 Current Outlook: Consequences of the Awards
The non-participation and the reaction from China has played a crucial consequences following the awards rendered by the arbitration on July 2016. China has stated clearly its non-acceptance position to the awards given by the tribunal despite the international recognition and reiterate its long standing position that ‘the award is null and void and has no binding effect on China’. Such statement marks growing hostility against its counterparts and foreshadow a shift from ‘cooperation’ to a more divided unilateral actions within the region. The division between the parties, has been made more prominent by the arbitration process, results in growing visible armed conflicts which leads to political and insecurity between the claimants. Naval operations have been employed and strengthened to solidify power once the negotiation and the dispute resolution failed to create a safe platform for all stakeholders to collaborate.
6 Why Is It Not Working?
6.1 Arbitral Tribunal
1.) There is no time-limit for the negotiation, thus, failed to keep pace with the recent development of the dispute. The prolong process of the tribunal does not evolve with the situations between the stakeholders to reduce political and security tension in the area. The inflexibility of the resolution had escalated the dispute into several more flashpoint of conflicts.
2.) Rigid and formal structure of the legal basis fundamentally constitutes the mechanism, therefore, the tribunal acts on the basis of the principles and rules of the international law which undermines the decisive factors caused by and ever-changing tension between parties.
3.) The mechanism main focus has been the establishment of its jurisdiction to deal with the dispute to maintain the integrity of the UNCLOS, thus, does not essentially create a cooperative platform of communication between the conflicting parties. This was insisted by the bifurcation process whereby issues that does not fall under the tribunal ruling responsibility were separated from those which could be ruled by the entity which legitimately bestowed power to the tribunal adjudication over the dispute.
4.) The arbitration process emphasizes the idea of ‘limited’ and ‘scarce’ resources associated with water. This is further highlighted by legal rights defined under UNCLOS framework and its ground of jurisdiction to allocate resources by definition of EEZ and continental shelf only. Obviously, this raises more competition among the stakeholders.
LACK OF EXCHANGE IN INTERESTS
1.) National sovereignty and entitlement became an epicenter of the discussion which outrun regional cooperation and produce counterproductive collaboration. This domestic and nationalism in the South China Sea often ignites unilateral actions which contribute little room for further international and multilateral cooperation of shared or mutual gain and benefits.
2.) Lack of true communication with increasing confrontation of different values which hinder attempts to understand the situation of the counterparts. This creates an adverse domino effect in the trust building process, mainly in the political domain. The growing tension increasingly internationalize the conflict from regional to worldwide scales, thus, placing the cooperation between China and ASEAN nations on the global spotlight and intervention which is consented by a relevant stakeholder.
3.) Stakeholders interests as well as fears were not being addressed with transparency nor meaningfully. For example, the specific interest pertains to historical interest respected by China has been completely neglected in the international sphere as mere sentimentality. The smaller claimant States whose interests lies in the protection of their rights and vulnerability to economic, natural resources and maritime security, only see themselves being threatened by China’s unequivocal claims.
LACK OF TRUST AND CLARITY
1.) The U.S. increasing engagement in the region and the strategic rebalance in the Indo-Pacific region through diplomatic and military components in its cooperative strategy exaggerated the tension and further complicate the political landscape between stakeholder’s trust, especially for China, whose power is now challenged by U.S.
2.) Legal instrument of the 1982 UNCLOS is ambiguous and by no means further enhance value creation or mutual gains between relevant stakeholders. It rooted more division among the counterparts. ‘Final’ and ‘binding’ nature of the awards is also highly inflexible and emphasize the zero-sum game between the parties. The initiation of the mechanism by bringing the conflict to court, in itself, reaffirm the limits of mutual negotiation and hinders trust among the stakeholders.
3.) Legal framework has been employed as a leveraging tool for national power than for true cooperation between states. The involvement of the third party mechanism, in this case, highlight the unwillingness of China to conjoin and stresses even more on the differences between the stakeholder’s individual interests.
7 Water Diplomacy Framework (WDF) Recommendations
There had been previous attempts of cooperation and precedent case study such as the Tripartite agreement between the ASEAN nation over the area in the Gulf of Thailand, contiguous to the South China Sea. The issue lies in the fact that the mechanism needs to be flexible and adaptive with the ever changing political, economic and environmental aspects of the shared water boundary.
1. REGAIN TRUST AND RELATIONSHIP
Considering the situation after the arbitral proceedings, trust building process should be prioritized to rebuild ties between the stakeholders first and foremost. This might be done through a mediator entirely outside the South China Sea framework to ensure fairness including the close observers, non-claimant ASEAN nations. The communication should emphasize exchange of interests between parties or even general sovereign rights and formal legality relative to the military, politics or economic development of the individual stakeholder.
1.1) Informal Seminar
Ad hoc meetings between ASEAN and China can ignite useful argument and reveal more interests between the stakeholders. The formality and legal perspectives has overshadowed South China Sea dispute, giving drawbacks to once initiated as ‘friendly’ means of negotiation. WDF is interested in a creative mechanism which opens up possible platform of discussion, thereby, suggesting a gathering of neutral experts in the South China Sea, would be useful to dissolve some of the political climate within the South China Sea perspectives. Diplomatic responses had been employed by each states as a way to navigate their own interests rather than as a collaborative tie – it is thus, crucial for devising seminar to reshape the attitude to diplomacy in order to conceive implementation. The following topics are recommended to paint better attitude for the stakeholders at the opportunities of shared values.
1.2) Shared interests, concerns and value creation
1.2.1) Open up discussion towards future environmental conservation and the enhancement of the natural reserve
Environmental issue can be introduced to enhance ‘more’ resources for all instead of focusing on the existing resources as being ‘limited’, thus, contentious between individuals. All stakeholders may shift focus to strengthen their reserves through joint development on natural reserve and conservation. In order to delineate geographic demarcation and rules, which by far have impeded meaningful collaboration between stakeholders, value creations can be made if China and the ASEAN member foresee opportunities to protect, nurture and shared environmental concerns of the resources in order to provide more availability of resources.
1.2.2) Joint-fact finding and transparency of information sharing
The natural resource exploration and survey has been competitively conducted by the stakeholders as a way to extract individual benefit without joint international experts on resource management among the States. In order to reduce contention for individual gain – mutual gain may be created through information sharing platform by non-state institutions to establish collaborative research and resources. Competition is undeniably rigorous in South China Sea case because of the abundant fisheries, natural gas and oil as well as rights to trade route. Therefore, the mechanism that will allow for data to be gathered, analyzed and shared in real-time could become useful in the joint-fact finding stage – for all stakeholders to convene on the same ground of knowledge based on facts and science if that can potentially get them to come together.
1.2.3) Contingency plan for future global risks
Is there a way in which future global crisis becomes the key platform to initiate cooperation in South China Sea discussion? A meaningful dialogue may begin with consideration of the shared risks in climate and natural disasters projection of the East Asia. All stakeholders should be able to come together to seek for solution, mitigation and contingency plan that would prepare them for future uncertainties in order to navigate from unfruitful contention over sole rights to resources. China has been expressing great ambition to conquer climate mitigation plan represented by energy intensity reduction and stabilization of GHG emissions in 2014. The result also suggests that there has been some progress in meeting the climate targets. This could potentially set examples for the collaborative mitigation efforts over the South China Sea and East Asia in particular.
2. ADAPTIVE FRAMEWORK
WDF suggests that it is important to keep in mind the evolving nature of the water dispute. South China Sea dispute should look beyond the dispute over resources and maritime delimitation to the global magnitude of the future political and economic impact within the region. By way for joint-development to strengthen South China Sea as a cooperative regional development in the East Asia, may offer prospects for larger, mutual gain of economic prosperity.
2.1) Reiteration of previous formal joint agreement, document and description to provide greater flexibility and clarity
In order for the ASEAN claimants and China to converge on the same discussion and platform, simple flexibility and clarification in the formal agreement should be understood and accepted on the same ground by all parties from the initial stage. This may benefit the parties in the future when formal binding document may be used as reference to frame equity and fairness in the negotiation process.
2.2) Joint development areas and adaptive regulations
Nevertheless, if South China Sea dispute cannot be made separate from territorial issue, informal workshop can be used to provide more discussion based on the main issue of maritime delimitation in such way that joint ‘demarcation’ be made. Due to the problematic lines of representation, it may be recommended that maps of the area be included in a seminar to invite stakeholders to clarify their interests by conceiving the map together. Informal seminar may invite them to maximize overlapping zone as ‘joint development’ area where a set of joint board authorities can be set up to oversee true cooperation and shared mutual gain from living and non-living extraction therein along with adaptive measures to monitor the activities within the area. Joint development had been studied and appeared in international law in 1970s suggesting “co-operation between States with regard to the exploration for and exploitation of certain deposits, fields or accumulations of non-living resources which either extend across a boundary or lie in an area of overlapping claims”.
2.3) Vocabulary in the Binding Agreement
The case of the 2002 joint agreement made by President Arduino lll with China had proved to trigger more mistrust since there is no flexibility or adaptability to the agreement (vaguely stating cooperation through ‘friendly’ means which has no real meaning and standard). This is also reflected in the vocabulary used under 1982 UNCLOS lll to define maritime rules and rights. Since open sea trans-water boundary provides no clear geographic definition and can be deviated or interpreted in several ways, the States employ this opportunity to attack others and align legal framework with their own interests. Exemplified by the notorious breakthrough of the so called ‘joint-development agreement’ between China and Vietnam in 2011, the ambiguity of the vocabulary and different translation clearly led to murky actions. The clarity in the communication often create pitfall to what former Vietnamese Consul General in Guangzhou, Duong Danh Dy, referred to as ‘diplomatic rhetoric’ than genuine cooperation action. Therefore, parties should continue to adapt its agreement to match the communication
2.4) Nine-Dash Line: Rationality and legitimacy in the international framework
It is less then useful to retract discussion to the ‘Nine-Dash line’ claim from the point of sovereign rights which sparks the entangled dispute of the South China Sea case in the first place. In order to move the discussion forward, all parties should be able to express their concerns without labelling the ‘Nine-Dash Line’ claim entirely invalid as, from the Chinese perspective, reflects national cultural tradition value and ancestral respects. Surprisingly, ‘Nine-Dash Line’ is the term coined and used frequently outside of China but rarely appear in the Chinese media itself. This speaks to the gap created by the smaller States to emphasize China’s sovereignty more than it may be originally intended for ‘humanitarian spirit’. Littoral states should not condemn nor disregard the legitimacy of this perspective in order to communicate with China. The atmosphere, created with WDF devising seminar, should be arranged with high precaution on these cultural sensitivities, to facilitate safe space for all concerns, opinions and complaints to be generated by inclusive stakeholders.
3. EXTERNAL BENEFITS: MORE VALUE CREATION
Since it is obvious that China’s strong opposition to internationalize the dispute may present an obstacle to an ‘all-inclusive’ approach of the negotiation, it may consider the benefits of drawing in more opinions from the ASEAN nations including Laos, Cambodia, Thailand, Myanmar and Singapore or external players whose offers and interests may align with the that of China and the littoral states. Media outlet and civil society may be incorporated through web-based media to mediate between civic sectors across nations or to generate a neutral platform where legal and political perspectives towards the dispute can be dissolved through multiple lens. Independent think tank websites such as Council of Foreign Relations (www.cfr.org) may be used as a portal for collections of opinions from civil society.
ROLE OF THE ASEAN STATES
Currently, ASEAN nations are bystanders to the South China Sea case, devoid of opinions in an attempt to stay ‘neutral’ in the conflict. The equalizer may be initiated regionally, and not internationally, if it hinders negotiation from moving forward such as the concerns of U.S. intervention from China. The non-claimants ASEAN states who were not parties to the South China Sea conflict may become key actors to ease tension and drive more positivity towards collaboration if not resolving the South China Sea conflict such as taking initiative in drawing the China-ASEAN Cooperation Fund and “work together to build a 21st century maritime Silk Road”, which was put forward by China in 2013 to increase opportunity and development in East Asian economy. It is very important to encourage non-claimant states to voice their interests as well as to feed more input into the situations in order to help create additional values.
Interestingly, the inclusion of ASEAN counterparts as the neutral facilitator of the South China Sea dispute may be successful or not remain largely upon the relationship between China and the non-claimant parties in the Lower Mekong Basin transboundary water management. The hydroelectric power project which has been initiated by China at the upper Mekong basin (known as Lancang in Chinese) is an influential factor to the environmental and socio-economics development for the downstream riparian states including Myanmar, Lao PDR, Thailand, Cambodia and Vietnam. The hydroelectric power project has been a controversial issue especially among the stakeholders who are engaging in agricultural sector and fishery along the Mekong basin. Strategically approaching the negotiation, on November 2015, China has initiated a Landcang-Mekong Cooperation (LMC) as a way to upgrade sub-regional cooperation and to promote the Silk Road Economic Belt and 21st Century Maritime Silk Road Initiative it had put forward in 2013. Either the move was implemented for China to play a dominant role within the sub-regional cooperation framework or to attempt at true regional cooperation, the initiation of such platform has high potential to nurture value creation, as well as to bring together the stakeholders from the sub-regions to the same table. This might as well be applied to the joint development authorities for the South China Sea dispute.
Littoral states may take the opportunity of China’s fear in U.S. intervention as a negotiating argument to keep the issue therein if China is willing to exchange, shared and build interests and begin to communicate with the other claimants beyond its assertive ‘indisputable sovereignty’.
Issues and Stakeholders
The ‘Nine-Dash Line’ claimed by China has caused an international competition over territorial sovereign rights and natural resources associated with overlapping maritime delimitation in the South China sea. The conflict has tarnished collaborations between China and ASEAN nations including the Philippines, Vietnam, Malaysia, Indonesia, Brunei as well as Taiwan and Japan. The paper specifically focuses on the conflict between China and the Philippines which have arisen since early 1970s over islands and reefs and has been escalated by the recent arbitral tribunal procedure. Following the warships confrontation, the Philippines brought the conflict against China to an interstate arbitration in January 2013 which was opposed by the defendant State as a breach to the ASEAN-China Declaration of the Conduct of Parties in The South China Sea and bilateral joint agreement made between the nations in 2002 and 2011 consecutively. China and the ASEAN claimants posed different views on the international dispute resolution through the compulsory arbitration system based on the United Nation Convention on the Law of the Sea (UNCLOS) Annex VII. To defend their interests through legal framework, China uphold the regulation of the customary international law for the historical rights whereas the ASEAN nations followed the revised regulations implemented by the United Nation Convention on the Law of the Sea (UNCLOS). This divide impedes the attempt for negotiation and increase tensions over the dispute, muting the communication between states.'
NSPD: Governance, Assets, Values and Norms
Stakeholder Types: Sovereign state/national/federal government, Supranational union, Non-legislative governmental agency
The ‘Nine-Dash Line’ claimed by China has caused an international competition over territorial sovereign rights and natural resources associated with overlapping maritime delimitation in the South China sea. The conflict has tarnished collaborations between China and ASEAN nations including the Philippines, Vietnam, Malaysia, Indonesia, Brunei as well as Taiwan and Japan. The paper specifically focuses on the conflict between China and the Philippines which have arisen since early 1970s over islands and reefs and has been escalated by the recent arbitral tribunal procedure. Following the warships confrontation, the Philippines brought the conflict against China to an interstate arbitration in January 2013 which was opposed by the defendant State as a breach to the ASEAN-China Declaration of the Conduct of Parties in The South China Sea and bilateral joint agreement made between the nations in 2002 and 2011 consecutively. China and the ASEAN claimants posed different views on the international dispute resolution through the compulsory arbitration system based on the United Nation Convention on the Law of the Sea (UNCLOS) Annex VII. To defend their interests through legal framework, China uphold the regulation of the customary international law for the historical rights whereas the ASEAN nations followed the revised regulations implemented by the United Nation Convention on the Law of the Sea (UNCLOS). This divide impedes the attempt for negotiation and increase tensions over the dispute, muting the communication between states.'
NSPD: Governance, Assets, Values and Norms
Stakeholder Types: Sovereign state/national/federal government, Supranational union, Non-legislative governmental agency
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Key Questions
Transboundary Water Issues: How can mutual trust amongst riparians be nurtured? What actions erode that trust?
China'a indisputable Nine-Dash Line claim has caused contentions among the stakeholders. The initiation of an arbitration process, thought to have equalized the situations has, on the contrary, created a serious zero-sum game and strained relations between the parties.
Transboundary Water Issues: What kinds of water treaties or agreements between countries can provide sufficient structure and stability to ensure enforceability but also be flexible and adaptable given future uncertainties?
There are existing agreements in place which do necessarily provide useful mobilization for equitable share and development of the South China Sea region due to its rigid and formal structure.
Tagged with: sovereignty arbitration south china sea UNCLOS historical rights
