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State Practice of International Law and the South China Sea Dispute Management

Dr. Hong Nong

University of Alberta/ National Institute for South China Sea Studies

November 25, 2014, Ottawa

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To consider…

Does International law help? (State practices of international law, including UNCLOS by the SCS claimant states)

What works in reality? (Practices of dispute management/ settlement in the region)

Has China changed its strategy of maritime dispute management? (China’s public relations management)

Is China a follower of international norms? (China’s approach to international law, including UNCLOS)

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The South China Sea Issues

Islands Regime

Historic Concepts

Other Maritime Regimes

Resources Management

Freedom of Navigation

Marine Environment

3

Part XV of UNCLOS

(Third-party compulsory settlement

mechanism)

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Among the claimants

• Old story continues (island regime, maritime delimitation, historic vs. modern claims…)

• New dimensions (CLCS submissions, national legislations, public relations campaign )

External players

• Geopolitical calculation

• “Freedom of navigation”

• “internationalism” “regionalism” “bilateralism”

What is the nature of the escalation of the SCS dispute since 2009?

Does International law help?

(State practices of international law, including UNCLOS by the SCS claimant states)

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What works in reality?Practices of dispute management/ settlement

in the region

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LOGO State Practice of Maritime Dispute management

-China/Vietnam-The Philippines/ Indonesia-Vietnam/Thailand-Vietnam /Indonesia-Malaysia/Indonesia-Malaysia/Thailand-Malaysia/Indonesia/Thailand-Malaysia/Brunei-Malaysia/Indonesia

-Malaysia/Singapore

-China/Brunei-Vietnam/Malaysia-Malaysia/Thailand-China/Philippines/Vietnam

-Indonesia Informal Workshop-China-ASEAN Maritime Cooperation Fund-DoC and CoC

The SCS Arbitration Case

Legal and Political Implication from the Arbitration Case

• In the short-term, the action has increased tensions and delayed cooperation and progress towards the CoC.

• In the longer-term, it may clarify some legal issues, but at the risk of undermining the international dispute settlement process.

• Positive outcomes possible if the Philippines succeeds in winning some of its case• But do these possible longer-term benefits for maritime security outweigh the costs

– both short-term and longer-term• An example of the interplay of politics and the law. The Philippines had political

objectives in putting case forward - hoped to isolate China and gain international support for its position

What next…

• Sino-Philippine relations in SCS will not be improved due to this litigation

• Problems will get more complicated

• It will be more difficult for peace and order

• What should we do with such a situation benefitting nobody…

• Core disputes should be addressed first, before everything else…

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Has China changed its strategy of maritime dispute management?

China’s public relations management- a review of China’s maritime policy

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Has China changed its strategy of maritime dispute management?

China’s public relations management- a review of China’s maritime policy

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Evolution of China’s Policy on the SCS

Pre-1970s: Announcement of sovereignty

From early 1970s to late 1980s: Announcement of sovereignty + Resuming control of some features

Since 1990s: Shelving the dispute, promoting cooperation

2002-2009: from bilateral to multilateral, interaction with ASEAN

Post-2009: Passive response

Unchanged: peace, stability, negotiation

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Case 1: China vs. Vietnam in the Paracels waters

• Location: China’s Haiyang Shiyou 981 drilling rig in waters around the Paracel Islands

• Actors:

Vietnam: naval and coast guard ships, fishing vessels

China: Patrol vessels , vessels involved in oil rig projects

Some facts

• China: not having rigs in the SCS

• Call for joint development

• Story about Vanguard Bank (Wan an tan)

• Constrain itself to Paracels

• Timing? (China-Vietnam Dialogue on Maritime Cooperation, US president’s visit to Asia and SCS policy?)

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http://thediplomat.com/2014/06/china-internationalizes-south-china-sea-dispute/

• Actors:

The Philippines: Warship the Gregorio del Pilar

China: Fishing vessels, Marine Surveillance Vessels

• Location: Scarborough Shoal

• Post-standoff consequence

Case 2: Scarborough Shoal

Is China a follower of international norms?

(China’s approach to international law, including UNCLOS)

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• Attitude Towards International Law (e.g. Five Principles of Peaceful Coexistence)

--Sovereignty= independence, internal powers of independence such as legislation, establishment of national system; external powers of freedom to deal with international affairs, participations in international conference and signing treaties.

--Strict adherence to the principle of inviolability of sovereignty has become a distinctive feature of foreign policy of the PRC and is treated as the basis of international relations and the cornerstone of the whole system of international law

• Participation in UNCLOS Process• Maritime Legislation Review• Practice Of Dispute Settlement

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Some Observations

• International and regional legal framework: Comprehensive

• National legislation: a consolidation of maritime claims

• Means of dispute settlement/management: various approaches

• China’s policy: evolved but remained unchanged in principle

• Way forward: more regional efforts, more practical cooperation, less nationalism propaganda, less public relations campaign

Thank you

Questions? Comments?

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