Law of the Sea in South East Asia

Environmental, Navigational and Security Challenges

Donald R Rothwell, David Letts, Donald R Rothwell, David Letts

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429664960
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The United Nations Convention on the Law of the Sea (LOSC) represents one of the most successful examples of multilateral treaty making in the modern era. The convention has 168 States parties, and most non-signatory States recognise nearly all of its key provisions as binding under customary international law, including the United States. Nevertheless, there remain significant differences in interpretation and implementation of the LOSC among States as well as calls, on occasion, for its amendment.

This book analyses the impact, influence and ongoing role of the LOSC in South East Asia, one of the most dynamic maritime regions in the world. Maritime security is a critical issue within the region, and it is separately assessed in light of the LOSC and contemporary challenges such as environmental security and climate change. Likewise, navigational rights and freedoms are a major issue and they are evaluated through the LOSC and regional state practice, especially in the South China Sea. Special attention is given to the role of navies and non-state actors. Furthermore, the book looks at regional resource disputes which have a long history. These disputes have the potential to increase into the future as economic interests and concerns over food security intensify. Effective LNG and fisheries resource management is therefore a critical issue for the region and unless resolved could become the focal point for significant maritime disputes. These dynamics within the region all require extensive exploration in order to gauge the effectiveness of LOSC dispute resolution mechanisms.

The Law of the Sea in South East Asia fills a gap in the existing literature by bringing together a holistic picture of contemporary maritime issues affecting the region in a single volume. It will appeal to academic libraries, government officials, think-tanks and scholars from law, strategic studies and international relations disciplines.

1 The law of the sea and South East Asia

Donald R. Rothwell and David Letts

1.1 Introduction

South East Asia is a unique maritime space which combines States and archipelagic States that cluster around the South China Sea and its related waters. It also includes very large coastal States, such as China, and much smaller island States, such as Singapore and Timor-Leste, a landlocked State in the case of Laos and a political entity that is not universally recognised as a State in the case of Taiwan. The region properly includes waters on either side of the Malay Peninsula and therefore encompasses the Andaman Sea, which encompasses Indian territories and maritime claims. Major powers have territories, and assert maritime claims, on the periphery of South East Asia, including Australia to the south, which shares a maritime domain with Indonesia and Timor-Leste, and Japan and South Korea to the north, who both share a maritime domain with China. The region is also one that has been heavily influenced by the events of the Second World War and the Vietnam War, the emergence of newly independent States and significant population growth and economic development. Partly due to the geography of the region where States share both land and maritime boundaries with the South China Sea at its centre, South East Asia has a very strong maritime focus. As a result, the law of the sea has historically and certainly in the twenty-first century been of great significance to the region. Notwithstanding the importance for South East Asian States of the Association of South East Asian Nations (ASEAN),¹ which other than China, India, Taiwan and Timor-Leste includes all regional States as members, and which provides a strong sense of regional purpose and unity, the States within the region all have their own distinctive national interests, which are also reflected in their maritime interests.

Partly as a result of these variable circumstances, the region has seen a variety of maritime claims asserted that are based upon the 1982 United Nations Convention on the Law of the Sea (LOSC),² but which interpret the LOSC differently. Extending from claims to straight baselines and historic bays that are the subject of protest, maritime claims throughout South East Asia encompass all those that are permissible under the LOSC to those which remain subject to recommendation by the Commission on the Limits of the Continental Shelf (CLCS). Claims have also been made that sit outside of the LOSC, such as China’s ‘Nine-Dash Line’ claim in the South China Sea that was the subject of consideration in the South China Sea arbitration.³

1 The ten members of ASEAN comprise Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. Timor-Leste applied to become a member of ASEAN in 2011 and the application remains pending.

2 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397 [hereafter LOSC].

This chapter seeks to set the scene for an understanding of the law of the sea in South East Asia. It does so by first defining the maritime domain of the region and considers the States that make up South East Asia. Consideration is also given to the international organisations and institutions which have been active in, and influential throughout, the region. An introductory assessment is then undertaken of some of the critical law of the sea issues confronting the region, ranging from disputes over the South China Sea to navigational rights and freedoms, maritime security, resource management and dispute resolution.

1.2 The South East Asian maritime domain

There has been long-standing academic debate and discourse over what comprises ‘South East Asia’⁴ and differing views exist amongst scholars which are partly influenced by their academic discipline. From a law of the sea perspective, there is no clearly defined region known as ‘South East Asia’ as referenced in the LOSC or related treaties. Legally, a starting point for defining the region is certainly ASEAN. While the ASEAN Charter does not identify any geographic limits, the ASEAN States are certainly at the core of what comprises South East Asia. The South China Sea and its related waters and gulfs are central to the South East Asian maritime domain, and accordingly all States which have territorial claims in and adjoining the South China Sea, whether they be recognised or contested, are States which make up the region. The maritime domain also includes the archipelagic waters of Indonesia and the Philippines. While these waters, consistently with the LOSC, fall within the national maritime domain of those archipelagic States, they are also waters that are within the remit of the LOSC with respect to navigational rights and freedoms and overflight for foreign flagged vessels and aircraft.

3 In the Matter of an Arbitration before An Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between The Republic of the Philippines and the People’s Republic of China, PCA Case no. 2013-19, Award of 12 July 2016 [South China Sea arbitration].

4 D.K. Emmerson, ‘“Southeast Asia”: What’s in a Name?’ (1984) 15 Journal of Southeast Asian Studies pp. 1–21.

The South East Asian maritime domain then, for the purposes of this chapter and the book, encompasses all of the waters of the South China Sea extending as far north as the Gulf of Tonkin and Luzon Strait to as far south as the Strait of Singapore. The waters of the Indonesian and Philippine archipelago are included, as are those of Timor-Leste. In the west, the Andaman Sea is included, encompassing the maritime domain generated from the Andaman and Nicobar Islands, the western Malay Peninsula and Myanmar. In the east, the Indonesian and Philippine archipelagos facing the Pacific are the outer limits of South East Asia in that sector and as such the Federated States of Micronesia, Palau and Papua New Guinea are beyond the region. This area is illustrated in Figure 1.1.

Figure 1.1 South East Asian Maritime Domain.

1.3 South East Asia and the LOSC

South East Asian States had much to gain from the conclusion of the LOSC and played an active role in negotiations at the Third United Nations Conference on the Law of the Sea from 1973 to 1982. This was perhaps best illustrated by the role played by Ambassador Tommy T.B. Koh (Singapore) as the President of the Conference (1981–1982), who had, in turn, succeeded another Asian diplomat, Hamilton Shirley Amersinghe (Sri Lanka) who was elected President from the opening session. All then-existing States participated in the conference deliberations, and all signed the LOSC in 1982 other than Brunei (1984) and Cambodia (1983). Except Cambodia, all then subsequently ratified the Convention, whereas Timor-Leste which gained independence in 2002 acceded to the LOSC in 2013. This level of enthusiasm for the LOSC amongst regional States is understandable given the significant benefits to be gained from being a party to the Convention, especially with respect to maritime claims and entitlements. This is perhaps no better illustrated than the situation of both Indonesia and the Philippines, who gained recognition as archipelagic States under Part IV of the Convention but also for the so-called ‘Strait States’ of Indonesia, Malaysia,⁵ and Singapore who benefitted from the clarity Part III of the LOSC gave to the navigational regime through the Straits of Malacca and Singapore and in particular the recognition of their specific entitlements as the adjoining coastal States.

Consistent with Article 310 of the LOSC, seven States from within the region have made declarations other than with respect to Part XV elections (which deal with dispute resolution).⁶ A number of these declarations relate to maritime claims and should be noted. India’s 1995 declaration stated that it

… understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State.⁷

China’s 1996 declaration upon ratification referred to its entitlement to claim a 200 nautical mile exclusive economic zone (EEZ) and continental shelf and its sovereignty over certain archipelagos and islands as identified under Chinese law. It also made clear its position with respect to requiring prior notification or advance approval before foreign warships could seek to exercise the right of innocent passage.⁸ Malaysia’s 1996 declaration had a particular focus on navigation rights under Articles 22 and 23 with respect to the requirement of ships carrying nuclear and other dangerous cargoes to obtain prior authorization until such time as other measures were adopted, and reiterated certain safeguard mechanisms under Article 233.⁹ Thailand’s 2011 declaration stated with respect to navigation in the EEZ that

5 For a general discussion of Malaysia’s position with respect to the law of the sea, see M.J. Valencia, Malaysia and the Law of the Sea, Kuala Lumpur: Institute of Strategic and International Studies, 1991.

6 Those States are China, India, Malaysia, the Philippines, Thailand, Timor-Leste and Vietnam.

7 India (29 June 1995), ‘United Nations Convention on the Law of the Sea: Declarations Made upon Signature, Ratification, Accession or Succession or Anytime Thereafter’, available online at www.un.org/Depts/los/convention_agreements/convention_declarations.htm#India upon ratification.

8 China (7 June 1996), ‘United Nations Convention on the Law of the Sea: Declarations Made upon Signature, Ratification, Accession or Succession or Anytime Thereafter’, available online at www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China upon ratification.

9 Malaysia (14 October 1996), ‘United Nations Convention on the Law of the Sea: Declarations Made upon Signature, Ratification, Accession or Succession or Anytime Thereafter’, available online at www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Malaysia upon ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• List of contributors
• Foreword
• Preface
• Table of cases
• Table of treaties and other international instruments
• 1 The law of the sea and South East Asia
• 2 Maritime claims in South East Asia
• 3 An incomplete maritime map: progress and challenges in the delimitation of maritime boundaries in South East Asia
• 4 Maritime security in South East Asia
• 5 Advancing marine environmental security in South East Asia: challenges and opportunities
• 6 Climate change and the law of the sea in the Asia Pacific
• 7 The limits of the natural state doctrine: rocks, islands and artificial intervention in a changing world
• 8 The Law of the Sea, status and message ambiguity
• 9 The United Nations Convention on the Law of the Sea in South East Asia: Smooth sailing or stormy seas?
• 10 ‘Do As I Do, Not As I Say’ – navigational freedom and the Law of the Sea Convention
• 11 Regimes of navigation and maritime security in South East Asia
• 12 Crossing the Rubicon: Singapore’s evolving relations with China in the context of the 2016 arbitral award
• 13 Saving the South China Sea fishery
• 14 Dispute resolution and the law of the sea following the South China Sea arbitration
• 15 Challenges for the law of the sea in South East Asia: Resolving current controversies and addressing horizon threats
• Index