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The Impact of the Law of the Sea Convention on Conflict and Conflict Management in the South China Sea

2013; Taylor & Francis; Volume: 44; Issue: 3 Linguagem: Inglês

10.1080/00908320.2013.808935

1521-0642

Yann-huei Song, Stein Tønnesson,

Arctic and Russian Policy Studies

Abstract This article examines the impact of the UN Law of the Sea Convention on conflict behavior and management in the South China Sea during four periods: during its negotiation (1973–1982); from its signing to the entry into force (1982–1994); from then until the China-ASEAN Declaration on the Conduct of Parties in the South China Sea (1995–2002); and from the setting of a timeline for outer limits of continental shelf submissions to the events following the 2009 submissions (2003–2013). Ambiguous effects were found. On the one hand, the Convention has generated or exacerbated conflict by raising the stakes, failing to resolve key legal issues, and encouraging overlapping zone claims. On the other hand, it has provided obligations, language, and techniques for conflict management and resolution. The conflict-enhancing impact was found to have been more substantial than the peace-promoting effects. Nevertheless, the balance has shifted toward more emphasis on conflict management and also some utilization of the Convention's peacemaking potential. If this long-term trend continues and the Convention is more rigorously respected and applied, the Convention may in the end be found to have contributed to regional peace. Keywords: dispute resolutionSouth China SeaUN Convention on the Law of the Sea Acknowledgments This article builds on a paper presented at the workshop "Securing Maritime Peace in East Asia: The Role of International Law," held at the University of Central Lancashire, Preston, England, 23–24 April 2012. The authors thank all workshop participants for helpful suggestions and comments. Notes 1. U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397, adopted at Montego Bay, Jamaica, on 10 December 1982 (entered into force on 16 November 1994). 2. "A Constitution for the Oceans," remarks by Tommy T. B. Koh, Singapore, president of the Third United Nations Conference on the Law of the Sea, adapted from statements on 6 and 11 December 1982, available at www.un.org/depts/los/convention_agreements/texts/koh_english.pdf. 3. On 12 January 1983, Republic of China foreign minister Chu Fu-sung declared at the sixth plenary session of the Committee on Foreign Affairs of the seventh session of the Legislative Yuan (the Parliament) that "[a]fter the Law of the Sea Convention enters into force, our attitude is that in principle we will comply with its terms." See Kuo-Tsai Chao, "The Republic of China and the Law of the Sea," in The Law of the Sea: Problems from the East Asian Perspective, eds. Choon-ho Park and Jae Kyu Park (Honolulu: Law of the Sea Institute, 1987), 347. 4. These questions were first discussed in Stein Tønnesson, "International Law in the South China Sea: Does It Drive or Help Resolve Conflict?" 3, paper presented at the third "International South China Sea Conference," Hanoi, Vietnam, 4–5 November 2011. 5. Territorial Sea and Contiguous Zone Convention, 29 April 1958 (entered into force 22 September 1964), 516 U.N.T.S. 205; High Seas Convention, 29 April 1958 (entered into force 3 January 1963), 450 U.N.T.S. 11. 6. See Bangkok Summit Declaration, Bangkok, 14–15 December 1995, available at www.aseansec.org/5189.htm. 7. Chairman's Statement at the third meeting of the ASEAN Regional Forum, Jakarta, 23 July 1996, para. iv, available at cil.nus.edu.sg/1996/1996-chairman%e2%80%99s-statement-of-the-3rd-asean-regional-forum-issued-on-23-july-1996-in-jakarta-indonesia/. 8. Chairman's Statement at the sixth East Asia Summit, Bali, Indonesia, 19 November 2011, para. 5, available at www.aseansec.org/documents/19th%20summit/EAS-CS.pdf. 9. See Phnom Penh Declaration on ASEAN: One Community, One Destiny, adopted at the twentieth ASEAN Summit, Phnom Penh, Cambodia, 3 April 2012, para. 5, available at www.aseansec.org/documents/pp_declaration_3%20April_FINAL.pdf. 10. 2002 Declaration on the Conduct of the Parties in the South China Sea, available at www.aseansec.org/13163.htm. 11. Chair's Statement at the twentieth ASEAN Summit, Phnom Penh, 3–4 April 2012, available at asean2012.mfa.gov.kh/documents/Chairman_Statement_20th_ASEAN_Summit_FINAL.pdf. 12. For the Chairman's Statement, see presspool.jp/asean/officialdocuments/459991.html. 13. For the Chairman's Statement, see www.asean.org/news/asean-statement-communiques/item/chairmans-statement-of-the-22nd-asean-summit-our-people-our-future-together. 14. See Stein Tønnesson, "The South China Sea in the Age of European Decline," Modern Asian Studies 40, no. 1 (2006): 3–57. 15. These were Ecuador and Argentina, 1966; Panama; 1967; Uruguay; 1969; and Brazil, 1970. See Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart, 2010), 10. 16. Continental Shelf Convention, 29 April 1958 (entered into force 10 June 1964), 499 U.N.T.S. 311. 17. UNCLOS III held 11 sessions from 1973 to 1982. 18. For a detailed account, see Lu Ning, Flashpoint Spratlys! (Singapore: Dolphin, 1995), 74–86. See also "Battle of the Paracel Islands," Wikipedia, available at en.wikipedia.org/wiki/Battle_of_the_Paracel_Islands; Marwyn Samuels, Contest for the South China Sea (New York: Methuen, 1982), 98–117; David Muller, China's Emergence as a Maritime Power (Boulder: Westview, 1983), 152–154; Gerald Segal, Defending China (New York: Oxford University Press, 1985), 197–210; Chi-Kin Lo, China's Policy Towards Territorial Disputes: The Case of the South China Sea Islands (New York: Routledge, 1989), 53–60; Greg Austin, China's Ocean Frontier: International Law, Military Force and National Development (St. Leonards, Australia: Allen & Unwin, 1998), 73–77. 19. 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Declaring Certain Area Part of the Philippine Territory and Providing for Their Government and Administration, Presidential Decree No. 1596, 11 June 1978, available at www.lawphil.net/statutes/presdecs/pd1978/pd_1596_1978.html. 28. Philippines, Establishing an Exclusive Economic Zone and for Other Purposes, Presidential Decree No. 1599, 11 June 1978, available at www.lawphil.net/statutes/presdecs/pd1978/pd_1599_1978.html. 29. Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone, and the Continental Shelf of Vietnam, Foreign Broadcast Information Service (FBIS), Daily Report: Asia & Pacific, 24 May 1977. See Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law of the Sea: An Analysis of Vietnamese Behavior Within the Emerging International Oceans Regime (The Hague: Martinus Nijhoff, 1998), 46, 101. 30. People's Daily, 27 April 1979, 5. 31. Chi-Kin Lo, supra note 17, at 126–128. 32. People's Daily, 27 September 1979, 5. 33. 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See Peter Kien-hong Yu, International Governance and Regimes: A Chinese Perspective (New York: Routledge, 2012), 83; and Wen Wei Po (Hong Kong), 10 April 1988, cited in Lee Lai To, China and the South China Sea Dialogue (Westport, Connecticut: Praeger, 1999), 14. 46. Yongshu Jiao (Fiery Cross Reef), Chigua Jiao (Johnson South Reef), Dongmen Jiao, Nanxun Jiao (Gaven Reef), Zhubi Jiao (Subi Reef), and Huahang Jiao (Guarteron Reef). See Pan Shiying, "The Nansha Islands: A Chinese Point of View," Window (Hong Kong), 3 September 1993, 29; and Lu Ning, supra note 18, at 87–93. See also Min Gyo Koo, Island Disputes and Maritime Regime Building in East Asia: Between a Rock and a Hard Place (London: Springer, 2009), 154. 47. Features above water at low tide are called low-tide elevations. See LOS Convention, supra note 1, art. 13. 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The government of the Republic of China (Taiwan) reiterated its sovereignty over the Spratly Islands and proposed a Spratly Initiative that focused on environmental protection instead of sovereignty disputes. Ministry of Foreign Affairs, Republic of China, 15 August 2008, available at www.mofa.gov.tw/EnPDA/News/Detail/4bf0f522-2c04-472b-b27d-b059f346fd5c?arfid=7b3b4d7a-8ee7-43a9-97f8-7f3d313ad781. 105. See Jonathan G. Odom, "The True 'Lies' of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be Concerned," Michigan State Journal of International Law 18 (2010): 411; Mark J. Valencia, "The Impeccable Incident: Truth and Consequences," China Security 5 (Spring 2009): 22; and see, more generally, Dutton, supra note 95. 106. 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China, Note Verbale, 7 May 2009, supra note 113, para. 2. 117. Vietnam, Note Verbale, 8 May 2009, supra note 113. 118. Malaysia, Note Verbale, 20 May 2009, supra note 113. 119. Indonesia, Note Verbale, 8 July 2010, supra note 113. 120. The Philippines, Note Verbale, 4 August 2009, supra note 113. 121. The Philippines, Note Verbale, 5 April 2011, supra note 113. 122. China, Note Verbale, 3 May 2011, supra note 113. The use of "is" after "islands" in China's English-language letter to the U.N. could represent a deliberate attempt to interpret the Spratlys as an island group (archipelago) instead of just a number of individual islands, reefs and atolls. On other occasions, however, China has spoken of the Spratly Islands and "their" adjacent waters. 123. "China's Largest Fishery Patrol Ship Starts Mission," Xinhua News, 11 March 2009, available at news.xinhuanet.com/english/2009–03/11/content_10993996.htm; "One More Ship to Patrol South China Sea," People's Daily Online, 15 May 2009, available at english.peopledaily. com.cn/90001/90776/90882/6658790.html; "Reinforced Patrol Sails from Hainan," China Daily, 19 May 2009, available at www.chinadaily.com.cn/china/2009-05/19/content_7790652.htm. 124. "Fishing Ban Starts in the South China Sea," Xinhua News, 17 May 2012, available at news.xinhuanet.com/english/china/2012–05/17/c_131592412.htm. 125. See, for example, "China Again Demands Money for Vietnamese Fishermen," Viet Channel, 7 July 2009, available at vietchannel.wordpress.com/2009/07/07/china-again-demands-money-for-vietnamese-fishermen/; "Vietnam Asks China to Return Seized Fishing Boats," Vietnews, 30 March 2010, available at www.vietnewsonline.vn/News/Politics/13803/Vietnam-asks-China-to-return-seized-fishing-boat.htm; and "China Navy Boards Vietnam Boat in Sea Spat," Agence France-Presse, 15 July 2011, available at www.abs-cbnnews.com/global-filipino/world/07/14/11/china-navy-boards-vietnam-boat-sea-spat. 126. "China Fired at Filipino Fishermen in Jackson Atoll," ABS-CBN News, 3 June 2011, available at www.abs-cbnnews.com/-depth/06/02/11/china-fired-filipino-fishermen-jackson-atoll. 127. In accordance with Section 2 of the Republic Act No. 9522, the baseline in the Kalayaan Island Group over which the Philippines exercises sovereignty and jurisdiction are determined as "Regime of Islands" consistent with Article 121 of the LOS Convention. Republic Act No. 9522, 10 March 2009, An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baseline of the Philippines and for Other Purposes, available at Lawphil Project, Philippine Laws and Jurisprudence Databank, at www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html. 128. China, Foreign Ministry spokesperson Jiang Yu's regular press conference, 20 October 2011, available at www.fmpre.gov.cn/eng/xwfw/s2510/2511/t869942.htm. 129. "Philippines Rejects Chinese Demand to Return Boats Seized from Disputed Area," BBC Monitoring Asia Pacific–Political, 23 October 2011. 130. "China Ratcheting Up Regional Tension," Asahi Shimbun, 24 July 2010, available at www.asahi.com/english/TKY201007230527.html. 131. "Why Is China Picking Fights with Indonesia?" Weekly Standard, 6 August 2010, available at www.weeklystandard.com/blogs/why-china-picking-fights-indonesia; "Is China a Neighbor to Indonesia," Jakarta Post, 8 August 2011, available at www.thejakartapost.com/news/2011/08/08/is-china-a-neighbor-indonesia.html. 132. Agreement Between Malaysia and Indonesia on the Delimitation of the Continental Shelf Between the Two Countries, 27 October 1969, available at the DOALOS Web site, supra note 37. 133. Agreement Between Vietnam and Indonesia Concerning the Delimitation of the Continental Shelf Boundary, 26 June 2003, Law of the Sea Bulletin, no. 67 (2008): 39. 134. Ian Storey, "China and the Philippines: Implications of the Reed Bank Incident," China Brief 11, no. 8 (6 May 2011): 6–8, available at www.jamestown.org/uploads/media/cb_11_8_03.pdf. 135. Carlyle A. Thayer, "Security Cooperation in the South China Sea: An Assessment of Recent Trends," 16–17, paper presented at the first Manila conference on the South China Sea, "The South China Sea: Toward a Regional of Peace, Cooperation, and Progress," 5–6 July 2011, Makati City, the Philippines. See also Michaela P. del Callar and Mario J. Mallari. "RP Gov't Protests China's Planned Oil Rig, Constructions in Reeds, Spratlys," Daily Tribune, 2 June 2011, available at www.tribuneonline.org/headlines/20110602hed4.html. 136. Andrew Higgins, "In South China Sea, a Dispute over Energy," Washington Post, 18 September 2011, available at www.washingtonpost.com/world/asia-pacific/in-south-china-sea-a-dispute-over-energy/2011/09/07/gIQA0PrQaK_story.html. 137. "Manila Rejects New Chinese Claim to Territory Just 50 Miles Away from Philippine Province," Washington Post, 14 November 2011, available at www.washingtonpost.com/world/asia-pacific/manila-rejects-new-chinese-claim-to-territory-just-50-miles-away-from-philippine-province/2011/11/14/gIQAv3lmJN_print.html. 138. "Vietnam Demands China Stop Sovereignty Violations," Thanh Nien Daily, 29 May 2011, available at www.thanhniennews.com/2010/Pages/20110530011353.aspx. 139. "Vietnam Alleges High-Seas Interference," iStockAnalyst, 10 June 2011, available at www.istockanalyst.com/business/news/5222203/vietnam-alleges-high-seas-interference. 140. "China, Vietnam Sign Accord on Resolving Maritime Issues," Xinhua, 12 October 2011, available at news.xinhuanet.com/english2010/china/2011-10/12/c_131185606.htm (accessed 24 October 2011). 141. Ibid. On the talks up to 2010, see Carlyle Thayer, "The Tyranny of Geography: Vietnamese Strategies to Constrain China in the South China Sea," Contemporary Southeast Asia 33 (2011): 350. 142. See supra note 97 and accompanying text. 143. Reported in M. Taylor Fravel, "Clarifying China's Claim," The Diplomat, 5 March 2012, available at the-diplomat.com/china-power/2012/03/05/clarification-of-china%E2%80%99s-claim/comment-page-1/#comment-7077. 144. Ben Bland, et al., "US Gas Find Off Vietnam Adds to China Tension," Financial Times, 26 October 2011, available at www.ft.com/intl/cms/s/0/e5674186-ffe5-11e0-ba79-00144feabdc0.html#axzz1dqfBMYBw. 145. "Vietnam Introduces Maritime Law," VietnamNet, 17 July 2012, available at english.vietnamnet.vn/fms/government/24535/vietnamintroduces-maritime-law.html. The full Vietnamese text is in Carlyle A. Thayer, "Viet Nam Law of the Sea," Thayer Consultancy Background Brief, 5 August 2012, available at www.scribd.com/doc/101998223/Thayer-Vietnam-s-Law-on-the-Sea. 146. "Notification of Part of Open Blocks in Waters Under Jurisdiction of the People's Republic of China Available for Foreign Cooperation in the Year of 2012," 23 June 2012, available at en.cnooc.com.cn/data/html/news/2012-06-23/english/322127.html. 147. Teddy Ng, "New City to Run Disputed Island Chains," South China Morning Post, 22 June 2012. 148. "Philippines Slams China's Establishment of Sansha City in South China Sea," VOA News, 23 July 2012, available at www.voanews.com/content/philippines-slams-chinese-establishment-of-city-in-south-china-sea/1443944.html. 149. James Hookway, "Philippine Warship in Standoff with China Vessels," The Wall Street Journal, 11 April 2012, available at http://online.wsj.com/article/SB10001424052702303815404577336550439399694.html 150. See Ding Gang, "More 'Doing' Required in the South China Sea," Huanqiu Shibao (Global Times), 29 August 2012, English translation, available at southseaconversations.wordpress.com/2012/08/30/more-doing-required-ding-gang-brings-the-taoguang-yanghui-debate-to-the-south-china-sea/. 151. Secretary of State Hillary R. Clinton, "Remarks with Secretary of Defense Leon Panetta, Philippines Foreign Secretary Albert del Rosario, and Philippines Defense Secretary Voltaire Gazmin After Their Meeting," 30 April 2012, available at www.state.gov/secretary/rm/2012/04/188982.htm. 152. "VN Opposes Taiwanese Officials' Visit to Spratly," States News Service, 10 May 2012. 153. Joint Communiqué of the forty-third ASEAN Foreign Ministers Meeting, "Enhanced Efforts Towards the ASEAN Community: From Vision to Action," Ha Noi, Vietnam, 19–20 July 2010, available at www.aseansec.org/24899.htm. 154. Secretary of State Hillary R. Clinton's remarks made on 23 July 2010, available at www.state.gov/secretary/rm/2010/07/145095.htm. National Convention Center, Hanoi, Vietnam; 17th ASEAN Regional Forum. 155. Nirmal Ghosh, "Asean Meeting Fails to Reach Agreement on Joint Statement; Lack of Accord Unprecedented, Blow to Grouping's Credibility: Shanmugam," Straits Times (Singapore), July 14, 2012. 156. Statement of ASEAN Foreign Ministers on ASEAN's Six-Point Principles, available at www.mfaic.gov.kh/mofa/default.aspx?id=3206&utm_source=buffer&buffer_share=b1430. 157. Joint Statement of China and ASEAN, 19 November 2012, "Full Text of ASEAN-China Joint Statement," available at english.cri.cn/6909/2012/11/20/191s733809.htm. 158. Chairman's Statement at the twenty-second ASEAN Summit, "Our People, Our Future Together," Bandar Seri Begawan, 24–25 April 2013, available at www.asean.org/news/asean-statement-communiques/item/chairmans-statement-of-the-22nd-asean-summit-our-people-our-future-together. 159. "Notification and Statement of Claim on West Philippine Sea," The Philippines to the People's Republic of China, No. 13–0211, 22 January 2013, available at www.dfa.gov.ph/index.php/newsroom/dfa-releases/7300-statement-by-secretary-of-foreign-affairs-albert-del-rosario-on-the-unclos-arbitral-proceedings-against-china-to-achieve-a-peaceful-and-durable-solution-to-the-dispute-in-the-wps. 160. Ibid. 161. China's 2006 Declaration is available at www.un.org/Depts/los/convention_agreements/convention_declarations.htm. 162. "Chinese Spokesperson Hong Lei's Remarks on China Returned the Philippines' Notification on the Submission of South China Sea Issue to International Arbitration," 19 February 2013, available at ph.china-embassy.org/eng/xwfb/+1014903.htm. 163. "Polish Judge Picked for Phl-China Arbitration," Philippine Star, 26 March 2013, available at www.philstar.com/headlines/2013/03/26/924087/polish-judge-picked-phl-china-arbitration. 164. "ITLOS Appoints 3 Members of UN Tribunal," Philippine Star, available at www.philstar.com/headlines/2013/04/26/935048/itlos-appoints-3-members-un-tribunal. "New Arbitrator and President Appointed in the Arbitral Proceedings Instituted by the Republic of the Philippines against the People's Republic of China," Press Release, TLOS/Press 197, 24 June 2013, available at http://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_197_E.pdf 165. An excellent map showing the maximum extent of an EEZ claim based on the Spratlys and Paracels (falling far short of the U-shaped line) is in Sarah Raine and Christian Le Mière, Regional Order: The South China Sea Disputes (London: International Institute of Strategic Studies, 2013), 7. 166. "Statement by Secretary of Foreign Affairs Albert del Rosario on the UNCLOS Arbitral Proceedings Against China to Achieve a Peaceful and Durable Solution to the Dispute in the WPS [West Philippines Sea]," available at www.dfa.gov.ph/index.php/newsroom/dfa-releases/7300-statement-by-secretary-of-foreign-affairs-albert-del-rosario-on-the-unclos-arbitral-proceedings-against-china-to-achieve-a-peaceful-and-durable-solution-to-the-dispute-in-the-wps. See also Raine and Le Mière, supra note 165, at 217–220; and Carlyle A. Thayer, "The Philippines' Claim to the UNCLOS Arbitral Tribunal: Implication for Vietnam," presentation at the international workshop, "The Sovereignty over Paracel and Spratly Archipelagoes―Historical and Legal Aspects," Pham Van Dong University, Quang Ngai City, 27–28 April 2013. 167. Carlyle A. Thayer, "ASEAN's Code of Conduct in the South China Sea: A Litmus Test for Community-Building?" The Asia-Pacific Journal, Vol. 10, Issue 34, No. 4, August 20, 2012, available at http://www.japanfocus.org/-Carlyle_A_-Thayer/3813; Carlyle A. Thayer, "Deference/Defiance: Southeast Asia, China, and the South China Sea," 20–26, paper presented at the annual meeting of the International Studies Association, San Francisco, 5 April 2013.