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A New Legal Arrangement for the South China Sea?

2009; Taylor & Francis; Volume: 40; Issue: 4 Linguagem: Inglês

10.1080/00908320903077209

1521-0642

Nguyễn Hồng Thảo, Ramses Amer,

Arctic and Russian Policy Studies

Abstract The South China Sea has long been regarded as a major source of tension and instability in Pacific Asia. Since 1990, many bilateral and multilateral efforts to manage the possible conflicts in the region have been recorded. The purpose of this article is to analyze and assess the progress made in terms of conflict management among the claimants. Keywords: dispute managementSpratlysSouth China Sea This article draws on the joint research of the authors on Vietnam's maritime disputes. It also draws on Nguyen Hong Thao's individual research on Vietnam and the law of the sea and on legal aspects of the South China Sea situation, and on Ramses Amer's research on conflict management and the South China Sea situation. Earlier versions have been presented at two conferences: “The South China Sea: Seeking a New Legal Arrangement for Promoting Stability, Peace and Cooperation,” prepared for the Inaugural Malaysian International Law Symposium, Petaling Jaya, Selangor, 7–8 August 2008; and “Towards a New Legal Arrangement to Promote Stability, Cooperation and Development in the South China Sea,” prepared for SCS 2008―The South China Sea: Sustaining Ocean Productivities, Maritime Communities and the Climate, a Conference for Regional Cooperation in Ocean and Earth Sciences Research in the South China Sea, University of Malaya, Kuantan, 25–29 November 2008. Notes 1. David Rosenberg and Christopher Chung, “Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities,” Ocean Development and International Law 39 (2008): 51. 2. About 70% of the fuel imports of Japan, China, and South Korea are transported by sea throughout the South China Sea. Ibid., at 51, 56, and 58; and Hasjim Djalal and Ian Townsend-Gault, “Preventive Diplomacy: Managing Potential Conflicts in the South China Sea,” in Herding Cats: Multiparty Mediation in a Complex World, ed. C. A. Crocker, F. O. Hampson and P. Aalland (New York: United States Institute of Peace Press, 1999), 107–133. 3. Rosenberg and Chung, supra note 1, at 59; and Vijay Sakhuja, “Maritime Power of People's Republic of China: The Economic Dimension,” Strategic Analysis: A Monthly Journal of the IDSA26 (February 2001), available at www.ciaonet.org/olj/sa/sa_feb01sav01.html (accessed on 22 October 2008). 4. Rosenberg and Chung, supra note 1, at 51–52. 5. For an analysis of the incident and its repercussions, see Sam Bateman, “Clashes at Sea: When Chinese Vessels Harass US Ships,” RISIS Commentaries (27/2009), available at the Web site of the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore at www.rsis.edu.sg/publications/Perspective/RSIS0272009.pdf (accessed on 5 May 2009). China's official explanation was that a “US naval surveillance vessel” had operated in China's EEZ without the authorization of the Chinese authorities and, consequently, China had reacted in accordance with the LOS Convention. See “Foreign Ministry Spokesperson Ma Zhaoxu's Remarks on US Navy Surveillance Vessel's Activities in China's Exclusive Economic Zone” (13 March 2009), available at the Web site of the Ministry of Foreign Affairs of the People's Republic of China at www.fmprc.gov.cn/eng/xwfw/s2510/t542172.htm (accessed on 5 May 2009). 6. Bruce Blanche and Jean Blanche, “Oil and Regional Stability in the South China Sea”, Jane's Intelligence Review 7, no. 11 (1995): 511. In 1987, the South China Sea Institute of Oceanology conducted a geophysical survey of portions of the Spratlys area and confirmed strong evidence of commercial oil fields. In 1989, China sent a survey vessel through the South China Sea and estimated that the Spratlys area held deposits of 25 billion cubic meters of natural gas, 370,000 tons of phosphorous, and 105 billion barrels of oil, with an additional 91 billion barrels of oil in the James Shoal area off the North Borneo coast. In 1988, U.S. geologists estimated reserves of 2.1 billion to 15.8 billion barrels of oil while Russian estimates were 7.5 billion barrels of oil equivalents, 70% of which probably are gas resources. 7. U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397. 8. For a more detailed overview of the claims, see Nguyen Hong Thao and Ramses Amer, “The Management of Vietnam's Maritime Boundary Disputes,” Ocean Development and International Law 38, no. 3 (2007): 306–309. 9. For an analysis of the “nine dotted lines,” see Li Jinming and Li Dexia, “The Dotted Line in the Chinese Map of the South China Sea,” Ocean Development and International Law 34, no. 3–4 (2003): 287–295. 10. In this article, Taiwan is synonymous with Chinese Taipei, Taiwan Province of China, and the Republic of China (ROC). 11. For a detailed comparison between China's and Taiwan's claims and policies, see Chen Hurng-yu, “A Comparison Between Taipei and Peking in Their Policies and Concepts Regarding the South China Sea,” Issues and Studies 29, no. 9 (1993): 22–58. 12. On the issue of piracy in Southeast Asia, see Joshua Ho and Jane Chan, Report on Armed Robbery and Piracy in Southeast Asia 2006 (Singapore: S. Rajaratnam School of International Studies, 2007). More generally on piracy, see Zou Keyuan, “Seeking Effectiveness for the Crackdown of Piracy at Sea,” Columbia Journal of International Affairs 59, no. 1 (2005): 117–134. 13. For details, see Ramses Amer, The Sino-Vietnamese Approach to Managing Boundary Disputes, Maritime Briefing 3, no. 5 (Durham: International Boundaries Research Unit, University of Durham, 2002), 8–29. 14. For an analysis of the 1995 Mischief Reef incident, see Daniel J. Dzurek, “China Occupies Mischief Reef in Latest Spratly Gambit,” Boundary and Security Bulletin 3, no. 1 (1995): 65–71. 15. For the full text of “The Law of the People's Republic of China on Its Territorial Waters and Their Contiguous Areas,” see British Broadcasting Corporation, Summary of World Broadcasts, Part Three, Far East, 1316 C1/1-2 (28 February 1992). See also “People's Republic of China—Law of the People's Republic of China on the Territorial Sea and Contiguous Zone.” International Journal of Marine and Coastal Law 8, no. 1 (1993): 158–161. 16. British Broadcasting Corporation, Summary of World Broadcasts, Part Three, Far East, 2614 G/10-12 (17 May 1996). 17. British Broadcasting Corporation, Summary of World Broadcasts, Part Three, Far East, 3283 B/6 (20 July 1998). For a reproduction of the Chinese language version as well as an unofficial English language translation of the law, see Zou Keyuan, Maritime Jurisdiction over the Vessel-Source Pollution in the Exclusive Economic Zone: The Chinese Experience, EAI Working Paper No. 6 (Singapore: East Asian Institute, National University of Singapore, 1998), 29–36. 18. See Hasjim Djalal, “The South China Sea—The Long Road Towards Peace and Cooperation,” in Security and International Politics in the South China Sea: Towards a Co-operative Management Regime, ed. Sam Bateman and Ralf Emmers (London: Routledge, 2008), 175–189. 19. The text of the 1992 Association of Southeast Asian Nations (ASEAN) Declaration is reproduced as an appendix to Nguyen Hong Thao, “Vietnam and the Code of Conduct for the South China Sea,” Ocean Development and International Law 32, no. 3–4 (2001): 124–125. 20. Treaty of Amity and Cooperation in Southeast Asia, available at the ASEAN Web site at www.asesansec.org/1217.htm (accessed on 13 November 2008). 21. Reproduced in Nguyen, supra note 19, at 125–126. 22. Reproduced in ibid., at 126–127. 23. See ibid., at 113–115. See also Nguyen Hong Thao, “Declaration on Parties’ Conduct in South China Sea (the East Sea)—A Step Towards the Establishment of the Code of Conduct for the Region,” Vietnam Law and Legal Forum 9, no. 99 (2002): 19–21; and Nguyen Hong Thao, “The Declaration on the Conduct of Parties in the South China Sea: A Vietnamese Perspective, 2002–2007,” in Bateman and Emmers, supra note 18, at 207–222. 24. The text of the 2002 ASEAN-PRC Declaration on the Conduct of Parties is reproduced as an appendix to Nguyen Hong Thao, “The 2002 Declaration on the Conduct of Parties in the South China Sea: A Note,” Ocean Development and International Law 34, no. 1–2 (2003): 282–285; and at the ASEAN Web site at www.aseansec.org/13165.htm (accessed on 28 October 2008). 25. Ibid. 26. For a detailed overview and analysis of the management of Vietnam's maritime disputes, see Nguyen and Amer, supra note 8, at 305–324. 27. The text is reproduced as an appendix to T. L. McDorman, “Malaysia-Vietnam,” in International Maritime Boundaries, ed. J. I. Charney and L. M. Alexander (The Hague: Martinus Nijhoff, 1998), 2341–2344. 28. The text is reproduced in Law of the Sea Bulletin 39 (2000): 23. 29. This agreement is not yet available in English. 30. The text is reproduced as an appendix to Nguyen Hong Thao, “Maritime Delimitation and Fishery Cooperation in the Tonkin Gulf,” Ocean Development and International Law 36, no. 1 (2005): 41–44. 31. The text is reproduced as an appendix to ibid., at 35–41. 32. Information derived from “Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea. Answer to Correspondent by Mr. Le Dzung, the Spokesman of the Vietnamese Ministry of Foreign Affairs on 14th March 2005,” available at the Web site of the Vietnam Ministry of Foreign Affairs at www.mofa.gov.vn/en/ttbaochi/pbnfn/ns050314164241/ (accessed on 22 March 2005). 33. Abigail L. Ho, “RP, China, Vietnam Pursue Spratlys Project,” Philippines Daily Inquirer (2 November 2007), available at the Web site of Inquirer.net at business.inquirer.net/money/topstories/ view_article.php?articleid=48824 (accessed on 22 October 2008). 34. “China, Philippines, Vietnam Sign Joint South China Sea Oil Search Accord,” Manila Times, 14 March 2005. 35. “Tripartite Agreement: Le Dzung, Answer,” supra note 32. 36. Nguyen, “Declaration 2002–2007,” supra note 23. 37. “Report of the Second Meeting of the ASEAN-China Joint Working Group on the Implementation of the Declaration on the Conduct of Parties in the South China Sea,” Sanya City, Hainan, China, 8–9 February 2006. 38. See Nguyen, “Declaration 2002–2007,” supra note 23. 39. According to MarketWatch, China's imports of crude oil in the period from January through May totaled 75.97 million metric tons (659.8 million barrels). Douglas McIntyre, “China Oil Consumption Jumps,” posted 11 June 2008, available at www.bloggingstocks.com/2008/06/11/china-oil-consumption-jumps/ (accessed on 22 October 2008). 40. Ibid. 41. “Oil Gas Resources and Shipping Terminals in South China Sea,” 9 May 2006, available at www.oilgasarticles.com/articles/474/1/Oil-Gas-Resources-and-Shipping-Terminals-in-South-China-Sea/Page1.html (accessed on 22 October 2008). See also supra note 6. 42. See supra note 9. 43. Brian McCartan, “Roiling the Waters in the Spratlys,” Asia Sentinel (4 February 2008), available at www.asiasentinel.com/index.php?option=com_content&task=view&id=1026&Itemid=31 (accessed on 22 October 2008). Regarding BP-Conoco Phillips, see “Vietnam's Action on Nansha Islands Infringe in China's Sovereignty, FM Spokesman,” 10 April 2007, available at the Web site of the Peoples Daily (English ed.) at english.peopledaily.com.cn/200704/10/eng20070410_365316.html (accessed on 16 January 2009). See also Andrew Symon, “China, Vietnam Spar over Gas,” Asia Times Online (1 May 2007), available at www.atimes.com/atimes/Southeast_Asia/IE01Ae01.html (accessed on 22 October 2008). On the ONGC, see Anupama Airy, “ONGC's Vietnam Foray Illegal Says China,” available at the Web site of The Financial Express at www.financialexpress.com/news/ONGCs-Vietnam-foray-illegal-says-China/246000/ (accessed on 16 January 2009). On Exxon, see “China Confirms Telling Exxon to End Vietnam Oil Deal” (22 July 2008), available at the Web site of Reuters at www.reuters.com/article/rbssEnergyNews/idUSPEK26391320080722 (accessed on 16 January 2009). 44. Wang Yin, “CNOOC Plans $29 Billion South China Sea Exploration (Update 2)” (last updated 24 November 2008), available at the Web site of Bloomberg at www.bloomberg.com/apps/news?pid=20601080&sid=aXVBShwT6cbY&refer=asia (accessed on 2 February 2009). 45. McCartan, supra note 43. 46. “Secret Sanya—China's New Nuclear Naval Base Revealed,” Jane's Security News (21 April 2008), available at www.janes.com/news/security/jir/jir080421_1_n.shtml (accessed on 22 October 2008). 47. For a recent study on the maritime disputes in Northeast Asia, see Suk Kyoon Kim, “Understanding Maritime Disputes in Northeast Asia: Issues and Nature,” International Journal of Marine and Coastal Law 23, no. 2 (2008): 213–247. 48. J. M. Van Dyke and D. L. Bennett, “Islands and the Delimitation of Ocean Space in the South China Sea,” Ocean Yearbook 10 (1993): 54, propose a 12-mile territorial sea for all rocks and other features in the Spratly Islands area. See also John M. Van Dyke and Robert A. Brooks, “Uninhabited Islands: Their Impact on the Ownership of the Ocean's Resources,” Ocean Development and International Law 12, no. 3–4 (1983): 265. 49. This can be seen from the Chinese line of argumentation in its disputes with Vietnam in the South China Sea in the 1990s in relation to areas located to the east of the Vietnamese coast and to the west of the Paracel and Spratly archipelagos. For details and analysis, see Amer, supra note 13, at 8–28 and 43–45. 50. Lira Dalangin-Fernandez, “House OKs Baselines on 3rd Reading: Disputed Islands Included in Nat'l Territory” (2 February 2009), available at the Web site of Inquirer.net at newsinfo.inquirer.net/breakingnews/nation/view/20090202-187025/House-OKs-baselines-bill-on-3rd-reading (accessed on 2 February 2009). 51. “Foreign Ministry Spokesperson Jiang Yu's Remarks on the South China Sea Issue” (3 February 2009), available at the Web site of the Ministry of Foreign Affairs of the People's Republic of China at www.fmprc.gov.cn/eng/xwfw/s2510/t535094.htm (accessed on 6 February 2009). 52. “Regular Press Briefing by MOFA's Spokesman on 5th February 2009,” available at the Web site of the Vietnam Ministry of Foreign Affairs at www.mofa.gov.vn/en/tt_baochi/pbnfn/ns090205173454 (accessed on 6 February 2009). The question put to the spokesman referred not only to the House bill, but also to the Bill SB 2699 passed by the Senate of the Philippines on 27 January 2009 which, according to the question, “does not include these islands in the baseline and accordingly these islands are managed under the ‘regime of islands’ as enshrined in Article 121 of the UN Convention of the Law of the Sea.” In this context, the term “islands” refers to “some islands of the Spratly archipelago.” 53. The text of the Republic Act No. 9522 can be found as one of the documents submitted by the Philippines to the United Nations as part of the “Deposit by the Republic of the Philippines of a List of Geographical Coordinates of Points, Pursuant to Article 47, paragraph 9, of the Convention,” M.Z.N.69.2009.LOS (Maritime Zone Notification) (21 April 2009), available at the Web site of the United Nations at www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/PHL.htm (accessed on 5 May 2009), and at www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html (accessed on 5 May 2009). In relation to KIG and Scarborough Shoal, the Republic Act No. 9522 was in line with SB 2699 and not with HB 3216. 54. “Foreign Ministry Spokesperson Ma Zhaoxu's Remarks on Philippine President Arroyo Signing Baselines Act” (13 March 2009), available at the Web site of the Ministry of Foreign Affairs of the People's Republic of China at www.fmprc.gov.cn/eng/xwfw/s2510/t542168.htm (accessed on 5 May 2009). 55. Letter from the Permanent Mission of the People's Republic of China to the Secretary General of the United Nations, 13 April 2009, CML/12/2009 (in both Chinese original and English translation) as part of M.Z.N.69.2009, supra note 53. 56. Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment of 17 December 2002, available at the Web site of the International Court of Justice at www.icj-cij.org/docket/files/102/7714.pdf (accessed on 22 October 2008). 57. Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008, available at the Web site of the International Court of Justice at www.icj-cij.org/docket/files/130/14492.pdf (accessed on 22 October 2008). 58. Case Concerning Pulau Ligitan, supra note 56, para. 149. 59. Ibid., paras. 147–148. 60. Case Concerning Pedra Blanca, supra note 57, para. 276. 61. Ibid., para. 290. 62. Ibid., para. 299. 63. Nguyen, supra note 19, at 109. 64. See Robert C. Beckman, “Legal Regimes for Cooperation in the South China Sea,” in Bateman and Emmers, supra note 18, at 222–236. 65. See Choon-ho Park, “Malaysia-Thailand (Gulf of Thailand Continental Shelf) (1979)” in J. I. Charney and L. M. Alexander, International Maritime Boundaries (Dordrecht: Martinus Nijhoff, 1993), 1099–1110; and Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South-East Asia (Oxford: Oxford University Press, 1987), 100–103 and 189– 194. 66. See supra note 27; and Nguyen Hong Thao, “Vietnam and Joint Development in the Gulf of Thailand,” Asian Yearbook of International Law 8 (1998–1999): 142–148. 67. See supra note 31. 68. Djalal and Townsend-Gault, supra note 2. Ji Guoxing, Jurisdiction in the Three China Seas: Options for Equitable Settlement, IGCC-PP No. 19 (November 1995), 25–26, available at the Web site of the Institute on Global Conflict and Cooperation (IGCC) at igcc.ucsd.edu/pdf/policypapers/pp19.pdf (accessed on 16 January 2009), refers to the “Doughnut Formula” as an Indonesian proposal. 69. China's then prime minister Li Peng launched the Chinese proposal and model for joint development in 1990. For information about the proposal as well as a detailed overview of China's policies toward the South China Sea in the 1990s, see Lee Lai To, China and the South China Sea Dialogues (Westport, CT: Praeger, 1999). 70. See, for example, Nguyen Hong Thao, “China's ‘Nine Broken Line’ in the Bien Dong Sea (South China Sea) in the Light of International Law,” Vietnam News, 18 May 1997, 4; and Long Bao, “The Spratly Islands Question Surfaces Again,” Vietnam Law and Legal Forum 1, no. 88 (January 1998), pp. 19–21. 71. See Amer, supra note 13, at 43–45. 72. See supra note 32. 73. Ma Paola J. Syyap, “PNOC Submits Disputed Oil Exploration to House, Confidentiality Clause Prevents Exposure” (3 May 2008), available at the Web site of GMA News and Public Affairs at www.gmanews.tv/story/93049/PNOC-submits-disputed-oil-exploration-to-House-confidentiality-clause-prevents-exposure (accessed on 22 October 2008). 74. Ibid. 75. Abigail L. Ho and Juliet Labog-Javellana, “Arroyo Hit on Spratlys Deal. Drilon: Her Lawyer Worried Pact Basis to Impeach,” Philippines Daily Inquirer (7 March 2008), available at the Web site of Inquirer.net at newsinfo.inquirer.net/inquirerheadlines/nation/view/20080307-123244/Arroyo-hit-on-Spratlys-deal (22 October 2008); and Nerijavier Colmenares, “Spratlys Deal Unconstitutional: Joint Marine Seismic Undertaking Void” (17 March 2008), available at the Web site of GMA News and Public Affairs at www.gmanews.tv/story/85173/Spratlys-deal-unconstitutional-Joint-Marine-Seismic-Undertaking-void (22 October 2008). 76. See supra note 75. 77. “Answer to Correspondent by Mr. Le Dzung, the Spokesman of the Vietnamese Ministry of Foreign Affairs on 9 September 2004,” available at the Web site of the Vietnam Ministry of Foreign Affairs at www.mofa.gov.vn/en/tt_baochi/pbnfn/ns041028222202 (accessed on 29 September 2004). 78. “China, Japan Reach Principled Consensus on East China Sea Issue” (18 June 2008), available at the Web site of China View at news.xinhuanet.com/english/2008-06/18/content_8394206.htm (accessed on 22 October 2008). 79. “Joint Press Conference by Minister for Foreign Affairs Masahiko Koumura and Minister of Economy, Trade and Industry Akira Amari (Regarding Cooperation Between Japan and China in the East China Sea)” (18 June 2008), available at the Web site of the Ministry of Foreign Affairs of Japan at www.mofa.go.jp/announce/fm_press/2008/6/0618.html (3 November 2008). 80. Ibid. 81. Zhou Shan, “China and Japan Agree on Joint Gas Exploration in East China Sea, Agreement Met with Online Criticism and Group Protest,” Epoch Times (27 June 2008), available at the Web site of the Epoch Times at en.epochtimes.com/news/8-6-27/72597.html (accessed on 22 October 2008). 82. Ibid. 83. “CNOOC to Share Investment, Risk on Development of East China Sea” (China Daily) (27 June 2008), available at the Web site of China Daily at www.chinadaily.com.cn/bizchina/2008-06/27/content_6801444.htm (accessed on 3 November 2008); and “China's Rights over Chunxiao Not Negotiable” (China Daily) (updated 25 June 2008), available at the Web site of China Daily at chinadaily.com.cn/bizchina/2008-06/25/content_6794064.htm (accessed on 3 November 2008). 84. See supra note 83. 85. For a discussion relating to the potential challenges posed by joint development efforts with a focus on the East China, see Gao Jianjun, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation,” International Journal of Marine and Coastal Law 23, no. 1 (2008): 39–75. 86. See, for example, Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff, 1997). 87. See, for example, Mark J. Valencia, Malaysia and the Law of the Sea: The Foreign Policy Issues, the Options and Their Implications (Kuala Lumpur: Institute of Strategic and International Studies (ISIS Malaysia), 1991). 88. See Djalal and Townsend-Gault, supra note 62.