Major Law and Policy Issues in the South China Sea

European and American Perspectives

Yann-huei Song, Keyuan Zou

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317102694
• Edition: 1
• Topic: History
• Subtopic: Asian History
• Index: History

Major law and policy issues in the South China Sea are discussed mainly from the perspectives of leading American and European scholars in the study of the complex South China Sea disputes. The issues include regional maritime cooperation and regime building, Southeast Asian countries' responses to the Chinese assertiveness, China's historic claims, maritime boundary delimitation and excessive maritime claims, military activities and the law of the sea, freedom of navigation and its impact on the problem, the dispute between Vietnam and China, confidence-building measures and U.S.-Taiwan-China relations in the South China Sea, and Taiwan's role in the resolution to the South China Sea issues. Over the past three years, there have been several incidents in the South China Sea between the claimants, and also between the claimants and non-claimants over fisheries, collection of seismic data, exploration for oil and gas resources, and exercise of freedom of navigation. Third party concerns and involvement in the South China Sea disputes have been increasing as manifested in actions taken by the United States, India, and Japan. It is therefore important to examine South China Sea disputes from the legal and political perspective and from the view point of American and European experts who have been studying South China Sea issues for many years.

PART I
Introduction

Chapter 1

South China Sea Issues in European and American Perspectives: An Introduction

Yann-huei Song and Keyuan Zou

Background and Purposes

A new round of conflicts in the waters around the Paracel and Spratly Islands of the South China Sea between the claimants, in particular China, Vietnam and the Philippines, over the right to develop oil and gas resources has been seen since 2011. In January, the Vietnam-controlled media, citing Japanese newspaper Asahi Shinbum, reported that China had drawn up a military plan to seize control of islands in the South China Sea that are under effective control of other nations.¹ In March, the Vietnamese Foreign Ministry raised a protest against an anti-piracy exercise conducted by China’s eighth naval escort flotilla in the waters near the Spratly Islands, claiming that the exercises “seriously violated Vietnam’s sovereignty over the archipelago” and was in violation of the 2002 ASEAN–China Declaration on the Conduct of Parties in the South China Sea (DOC).² Again, in the same month, the Vietnamese Foreign Ministry registered its protest against China’s 12th Five-Year Socio-economic Development Plan, which mentioned creating plans for exploitation of resources in the Paracel and Spratly Islands and the surrounding waters in the South China Sea. It also planned to strengthen tourism development for the Paracel Islands.³

In February 2011, the Energy Department of the Philippines gave the go signal to the Forum Energy plc (FEP) of the United Kingdom to proceed with the exploration of the Reed Bank Basin near the disputed Kalayaan Island Group of the Spratly archipelago. In March, two Chinese marine surveillance vessels ordered MV Veritas Voyager, an FEP survey vessel⁴ operating at the area near Reed Bank, to leave. The government of the Philippines lodged a protest against the Chinese action, and dispatched an OV-10 bomber plane and a naval Islander light aircraft to Reed Bank area to protect its survey activities.⁵ The Philippine President, Aquino III, also sent Commission on Maritime and Ocean Affairs Secretary Henry Bensurto to China to discuss the incident.⁶ Moreover, officials of the armed forces of the Philippine Western Command recommended that the Latag (Lawak) and Patag Islands (Flat Island) in the Philippine-occupied Kalayaan Island Group be turned into tourist sites to strengthen the country’s territorial claims.⁷ Top Philippine military officials urged Senate President Pro Tempore Jinggoy Estrada to help pass legislation that would support the proposed revision of President Proclamation 72 to expand the security coverage to all service contracts.⁸ Furthermore, the Philippines bought a large Hamilton-class patrol craft from the United States to help guard its waters amid tensions over territorial claims in the South China Sea. The Philippines planned to acquire more patrol ships, aircraft and an air defense radar system, and to repair its worn-out airstrip on Pag-asa (Thitu Island) in the Spratly archipelago.⁹

In March 2011, China’s foreign ministry warned that “[o]il and gas exploration activities by any country or company in the waters under China’s jurisdiction without permission of the Chinese government constitute a violation of China’s sovereignty, rights and interests.”¹⁰ In May and June 2011, Chinese vessels were spotted in the area near Bombay Shoal, Reed Bank and Amy Douglas Bank, reportedly unloading building materials, erecting posts, installing plastic buoys and placing markers. It was also reported that China planned to install its most advanced oil rig in the disputed areas in the South China Sea.¹¹ Actions have also been taken by China to support its claim to sovereign right for the exploration and exploitation of nonliving resources in the waters encircled by the U-shaped line in the South China Sea. In May 2011, a Chinese marine surveillance vessel cut exploration cables of the Binh Minh 02 of the Vietnam National Oil and Gas Corporation that was operating in a contracted area called Block 148, which is located about 120 km (75 miles) off the south-central coast of Vietnam from the beach town of Nha Trang, and some 600 km (373 miles) south of China’s Hainan island.¹² This was followed by another cable-cutting incident that occurred in the contracted area called Block 136-03 in the vicinity of Vanguard Bank, which is one of the features in the Spratly archipelago, in June 2011.¹³

The rising tensions in the South China Sea could disrupt peace and stability, and therefore not only the countries in the region but also a number of non-South China Sea-bordering states such as the United States, India, Australia, Japan and even some European countries had raised concerns about the development of the situation in the South China Sea. These concerns were discussed at a series of meetings hosted by ASEAN, including the ASEAN Foreign Ministers Meeting (AMM),¹⁴ ASEAN Summit, ASEAN Regional Forum (ARF) and East Asia Summit (EAS), and can also be found in the official statements issued after these meetings, which include the 44th AMM (July 2011), the 18th ASEAN Regional Forum (July 2011),¹⁵ the 19th ASEAN Summit (November 2011),¹⁶ the 14th ASEAN–China Summit (November 2011)¹⁷ and the 6th East Asia Summit (November 2011).¹⁸ Paragraph 22 of the Joint Communique of the 44th AMM provides that the ASEAN Foreign Ministers “discussed in depth the recent developments in the South China Sea and expressed serious concern over the recent incidents.”¹⁹ Accordingly, they “stressed the importance of maintaining peace and stability in the South China Sea, the continued exercise of self-restraint by all parties concerned, and the promotion of confidence-building measures in this area.”²⁰ In addition, they also “further reaffirmed the importance and continued relevance of the Declaration on the Conduct of Parties in the South China Sea (DOC) of 2002, as a milestone document between ASEAN Member States and China, embodying their collective commitment to promoting peace, stability and mutual trust and to ensuring the peaceful resolution of disputes in the area, in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).”²¹ Moreover, they “called on all parties to respect the freedom of navigation in and over-flight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UNCLOS.”²²

The United States was also concerned about the escalation of tensions in the South China Sea. In July 2011, Secretary of State Clinton, when attending the 18th ASEAN Regional Forum held in Bali, Indonesia, expressed US concern about a number of naval incidents in the South China Sea that threatened peace and stability in the Asia-Pacific because these incidents “endanger the safety of life at sea, escalate tensions, undermine freedom of navigation, and pose risks to lawful unimpeded commerce and economic development.”²³ In October 2011, during his visit to Indonesia, U.S. Defense Secretary Leon Panetta asked the member states of ASEAN to continue working towards a binding code of conduct. He reiterated that the United States has a national interest in freedom of navigation and overflight, in unimpeded economic development and commence, and in respect for international law. In addition, he said, although the United States does not take a position on competing territorial claims, it hopes that in the interest of peaceful resolution all parties concerned need to clarify their maritime claims in terms consistent with customary international law, as reflected in the Law of the Sea Convention.²⁴ In November 2011, US President Obama stated at the 6th East Asia Summit, held in Bali, Indonesia, that the United States strongly opposes the threat or use of force by any party to advance its territorial or maritime claims or interfere in legitimate economic activity.²⁵

Taiwan is one of the claimants to sovereignty and maritime rights in the South China Sea and has effectively controlled the Pratas Islands and Taiping Dao (Itu Aba), the largest island in the Spratly archipelago, since 1956. However, due to the policy consideration of the so-called “One China” principle by the ASEAN member states and China, Taiwan has been barred from attending the regional security dialogue process that deals with the South China Sea issue, such as ARF, the expanded ASEAN Defense Ministers Meeting (ADMM+) and EAS. Although Taiwan has been participating in the Council for Asia-Pacific Security Cooperation (CSCAP), and the Indonesia-sponsored Informal Workshop on Managing Potential Conflicts in the South China Sea, the nature, status and functions of Taiwan’s participation in these Track II-level meetings had been constrained. In particular, since the signing of the DOC in November 2002, seven ASEAN–China joint working group meetings for the implementation of the declaration had been held, but Taiwan had never been invited to participate in the discussion.

Recent developments in the South China Sea give rise to a number of policy questions that need to be answered carefully by Taiwan’s Ma Ying-jeou administration. These include the following: (1) what actions should be taken by Taiwan with a view to pushing China and ASEAN member states to consider it necessary to include Taiwan in the regional dialogue process that deals with the implementation of the DOC and the formulation of a regional code of conduct in the South China Sea in the years ahead and (2) what actions could be taken by Taiwan to obtain the support of the US government so that Taiwan could be invited to participate in the “collaborative diplomatic process by all claimants for resolving the various disputes in the South China Sea” that were referred to in the statement made by the US Secretary of State at both the 17th and 18th ARF meetings.

In order to avoid being further marginalized and being excluded from the regional mechanisms that deal with the South China Sea issue, it is necessary for Taiwan to raise its voice internationally and take actions to increase its participation in the international and regional dialogue processes, at both the Track I and Track II levels. One of the actions that was proposed and adopted by Taiwan’s government is to convene international conferences or workshops in Taiwan by inviting eminent international scholars who are experts on the South China Sea issues.

These complex issues include disputes over territorial sovereignty, disputes over maritime claims to sovereign and jurisdictional rights over waters and seabed, and disputes over the rights and duties of the countries that border the South China Sea and other countries that use the seas, including for military purposes, in accordance with generally recognized rules and principles under international law, as reflected in the 1982 UNCLOS. Over the past three years, there have been several incidents at sea between the claimants, and between the claimants and non-claimants, in the South China Sea over fisheries, collection of seismic data, exploration for oil and gas resources, and exercise of freedom of navigation. Third parties’ concerns and involvement in the South China Sea disputes have been increasing, as manifested in actions taken by the United States, India and Japan. It is therefore important to examine the South China Sea dispute from legal and political perspectives and from the viewpoints of American and European experts who have been studying the South China Sea issues for years.

Structure and Contents

The book is divided into six parts and 15 chapters. The first part is the Introduction, with the introductory chapter prepared by the editors. The second part deals with the general assessment of South China Sea issues, including two chapters written by lawyers and political scientists.

Chapter 2 introduces the regional maritime cooperation in the South China Sea. This chapter serves as a tribute from all the contributors of this book to Jon M. Van ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Figures and Tables
• List of Editors and Contributors
• Acknowledgments
• PART I INTRODUCTION
• PART II GENERAL ASSESSMENT OF SOUTH CHINA SEA ISSUES
• PART III MAJOR LEGAL ISSUES IN THE SOUTH CHINA SEA
• PART IV MAJOR POLICY ISSUES IN THE SOUTH CHINA SEA
• PART V TAIWAN’S PARTICIPATION IN THE SOUTH CHINA SEA DIALOGUE PROCESS
• PART VI CONCLUSION
• Index