博士論文審査報告書

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(1)早稲田大学大学院アジア太平洋研究科. 博士論文審査報告書論原題名 Original Title. 英訳 In Japanese. 文. 南シナ海における紛争の平和的解決 —国連海洋法と ASEAN フレームワークの下での新しい法的アプローチの分析—. 姓 Last Name. 名. Name 学籍番号 Student ID. 目. Peaceful Settlement of the South China Sea Disputes: An Analysis of New Legal Approaches under UNCLOS and ASEAN Framework. 申. 氏. 題. 請. 者. Middle Name. Vo. 名 First Name. Thanh Dat. 4013S324-1. ２０１６年. ０６月.

(2) 1. Summary: The study examines the peaceful resolution of the maritime disputes in the South China Sea, with special focus on the legal approaches proposed under UNCLOS and ASEAN. With tension continues to rise in 2016, the South China Sea disputes continue to be one of the most prolonged and problematic series of disputes in the region. Although China and littoral states in Southeast Asia are parties to the UNCLOS, there are worrying signs that some of their actions are not conforming to the Law of the Sea, or trying to sidestep and to deny the rules. The study focused on legal efforts proposed and practiced by directly involved parties to the disputes in order to facilitate more fruitful results. Another purpose of this study was to reveal the circumstances and context of ASEAN’s involvement in the peaceful settlement of the disputes, as well as the obstacles this institution has been facing so far. Based on the review of relevant articles of UNCLOS and the history of the disputes, the author explained that there have been three major legal attempts to facilitate the resolution of the South China Sea disputes. The first approach, proposed under ASEAN, was to create a set of rule for involved parties to follow, which eventually realized as the Declaration of Conduct (DOC). It gained unanimous approval but did not create strong and binding legal effects for states to follow. The second approach was the arbitration case between the Philippines and China. Though it is still unfolding, the case is critical to challenge unilateral actions by claimant to a maritime dispute. The third approach was the submission of Malaysia and Vietnam to the Commission on the Limits of the Continental Shelf (CLCS) to separate the dispute over islands from unaffected maritime zone entitlements in the South China Sea. This approach faced with a deadlock due to lack of consent from all involved states in the disputes. On their own, each approach does a modest role to move the disputes towards the final settlement, attributing to their own merits and demerits. But together, the legal approaches have headed the disputes within the acceptable interpretation of UNCLOS. The author also noticed that since the establishment of the DOC, the role of ASEAN seemed to diminish in recent years. However, it was by no mean that the organization has become irrelevant. The author pointed out those littoral states may try to tackle the legal issues separately, but they eventually need to gain a uniform stance and consent to achieve the final settlement. Based on the findings, the author suggested that littoral states continue to pursue stronger legal actions provided by UNCLOS, but it should be done in combination with more diplomatic actions under ASEAN to ensure equitable results for all parties. The result will not be realized in the short term, but all involved parties must make efforts for long-term peace and stability of the region.. 1.

(3) 2. Outline of the Dissertation: Chapter 1: Introduction to the Dissertation Background Research problem and hypotheses Methodology Literature review Significance of the study Limitations of the study Structure of the dissertation Chapter 2: Maritime Delimitation Framework and Practice under UNCLOS Introduction The territorial sea baselines The rules and general practice of maritime delimitation The treatment of islands in delimitation disputes Islands/rocks status of insular features in the South China Sea Summary Chapter 3: Maritime Dispute Settlement Attempts under ASEAN: the DOC and COC Introduction The Declaration of Conduct of Parties in the South China Sea Establishment of a Code of Conduct in the South China Sea ASEAN’s agreements from international law viewpoint ASEAN’s commitment in peaceful resolution of regional disputes Summary Chapter 4: The Philippines-China Arbitration’s Admissibility and its Implications Introduction The initiation of the South China Sea arbitration by the Philippines The Philippines’ amended Statement of Claim China’s objections to the admissibility of the arbitration The Tribunal’s decision to admit the arbitration and its implications Summary Chapter 5: The Submission by Malaysia and Vietnam to the Commission on the Limits of the Continental Shelf Introduction Maritime zones claims prior to 2009 in the South China Sea The establishment of continental shelf under Article 76 Continental shelf beyond 200 nautical miles in the South China Sea. 2.

(4) Temporary outer limits of continental shelf beyond 200 nm in the absence of final and binding limits Summary Chapter 6: Conclusion Bibliography Appendices Appendix I Additional maps relevant to the South China Sea disputes Appendix II Selected documents relevant to the South China Sea disputes 3. Content of the Dissertation: Chapter 1 presents the discussion on the background of the study, research objectives and the hypotheses, reviewing of the history of the South China Sea disputes and set the limit for the study. Chapter 2 examines the establishment of the territorial sea baselines based on the prescriptions provided by UNCLOS. Coastal states are expected to follow the nominal baseline establishment method, and only apply a different method known as the straight baseline method if certain criteria are met. Island states are also allowed to establish their baselines under the unique archipelagic baseline drawing method. The author found out that most of the claimants in the South China Sea disputes are not conforming to the nominal baseline measuring method, while opting for the straight baselines without clear justification. This problem is particular problematic when the Paracel and Spratly island groups were used to define the territorial seas of certain states. This warrants the need for consideration of how islands may affect the maritime delimitation process of areas with overlapping claims. The author noticed that international courts and tribunals, since the establishment of UNCLOS, have developed a progressive guideline for maritime delimitation cases. However, the presence of islands in the disputed zones does not guarantee positive effect on the result of such delimitation, with result varies from case to case. Chapter 3 assesses the impact of the ASEAN proposed DOC for the South China Sea. It is widely viewed as a failure as the DOC has not been able to hold back unilateral actions and rising tension since its establishment in 2002. Based on the historical review of the event leading to its establishment, it is revealed that the DOC was not intended to be a binding legal instrument, a point further confirmed in the judicial opinion of the South China Sea arbitral tribunal in 2015. The author pointed out that ASEAN’s true intention is the attainment of a final binding code of conduct, and there are several attempts under ASEAN to achieve this end in recent years.. 3.

(5) Chapter 4 examines the first phase of the South China Sea arbitration case between the Philippines and China. The focus of this analysis is placed on the admissibility of the case and the implications it might have. Prior to the arbitration, China and some littoral states believe that the disputes cannot be brought to international courts, largely due to China’s declaration to exempt compulsory settlement procedures under UNCLOS. The Philippines, however, made an exceptional attempt by questioning this belief and invoked its right to call on arbitration under Annex VII of UNCLOS. The author found that the belief is dispelled, and it is clearly the case that there are various entry points for littoral states to ask for judgment or judicial opinions without stepping on the territorial issues exempted by China. The author further argued that arbitration would clarify many ambiguous claims proposed by China, and set the new norms for claimants to follow. Chapter 5 analyses the submissions made by Malaysia and Vietnam to the CLCS regarding their continental shelves beyond 200nm. Under article 76 of UNCLOS, all coastal states are entitled to claim their continental shelf, provided that they submit the claims within 10 years of their ratification of the Convention. The interesting part of the procedures done by Malaysia and Vietnam, in the author’s opinion, is that they downplayed the importance of the disputed Paracel and Spratly Islands in relations to the continental shelf entitlement. The author assessed that this is a clear attempt to separate the deadlock over the disputed islands from the manageable delimitation of maritime zones. All parties would be able to gain equitable part of the semi-enclosed sea should they agree to the plan, but it did not realize. China has been strongly opposing to the submissions, and continues to insist that it rather negotiate that matter directly with each country. Regrettably, UNCLOS does not contain clear remedies for the establishment of a temporary continental shelf limits in case of dispute. The author, however, pointed out that there are still clear rules for involved parties to follow in disputed areas, and they are enforceable under UNCLOS. Chapter 6 concluded the dissertation. Main findings in each part are briefly summarized and evaluated. It also provides reflection on the disputes, and the implication that study may have for future dispute settlement cases. 4. Discussion at the Oral Defense: The oral defense of the dissertation was held on March 28, 2016. Questions and discussion were focused on two issues. The first was about recent activities of ASEAN that could be considered as positive changes towards a rule-based organization to settle. 4.

(6) regional disputes. While the author did mention several legal aspects of the ASEAN Political-Security Community blueprint in Chapter 3, the Committee thought that this section could use additional work. The Committee suggested the author to provide analysis of not only the APSC blueprint, but also of the ASEAN Charter and ASEAN-led meetings to demonstrate the Association’s commitment to peaceful settlement of disputes. The author adopted the suggestion and revised the chapter accordingly. The revised dissertation sufficiently showed that ASEAN now being considered as a competent organization by both the UN Security Council and the ICJ. The second issue was mainly of technical matters. The Committee recognized that the author used various maps and figures within the dissertation to illustrate the disputed areas. While many maps came from credible governmental sources, the Committee believed that original maps drawn by the author would significantly increase the value of the dissertation. Thus, the Committee suggested the author to provide better graphic map and original ones if possible. A list of figures was also requested for easier checking. The author also accepted this suggestion and created several original maps in the revised dissertation. 5. Evaluation: This dissertation contributes significantly to deepen the understanding of the issues and agenda regarding the South China Sea disputes. First, the author provided a comprehensive approach both in legal and diplomatic aspects for peaceful settlement of the disputes. In the disputes, all claimants are parties to both the UN and the UNCLOS. However, under the circumstances, there have been many concerns over actions contradicting international law by major claimants, affecting the good faith of the states and the credibility of ASEAN, which is a major regional institution. From international law’s point of view, this type of territorial claim and the resulting disputes of the parties are no more complicated than other cases that have been resolved through mechanisms provided by UNCLOS, provided that the parties agreed to such legal recourses. In fact, Chinese government has already stepped up its strategy in 2006 by declaring the exclusion of all compulsory procedures under Section 2 to part XV of UNCLOS, creating more obstacles to achieve the settlement. Secondly, the author provided some decent perspectives and found out the three major legal attempts made by littoral states in the region. The first one is the multilateral mediation under ASEAN; especially the DOC. Second one is the arbitration attempt by the Philippines government against China since 2013. Third one is the separation of disputed islands from undisputed maritime zones by submissions to the. 5.

(7) CLCS by Malaysia and Vietnam. Thirdly, the author made a suitable suggestion by emphasizing the role of ASEAN to mediate the peaceful settlement. As an indispensable function of regional international organization, ASEAN has a pivotal role, which member states had agreed since the establishment of the DOC for the South China Sea. Finally, it is significant that the author suggested that the goal of reaching a peaceful solution for the South China Sea disputes should be implemented through a combined mechanism. On one hand, negotiations and settlement procedures within the acceptable interpretation of UNCLOS must be pursued. On the other hand, more diplomatic solutions by ASEAN member states would keep the stability of the disputed area. These empirical analyses made by the author in this dissertation, which were carefully conducted, would contribute to the development of new approach for maritime disputes settlement in the new 21st century. 6. Decision of the Committee: After careful assessment of the merits of the submitted dissertation, which are presented in Section 5, and the aptly adjustments from the oral defense mentioned in Section 4, the Committee members came to a unanimous decision that VO Thanh Dat, the author of the submitted dissertation, should be granted a Ph.D.. 6.

(8) 申請者名：Vo Thanh Dat 博士論文審査委員会主査. Chief Examiner：. 氏名 N a m e : 川村亨夫㊞(Signature) 所属 A f f i l i a t i o n : 早稲田大学アジア太平洋研究科職位 T i t l e : 教授学位 D e g r e e :修士（比較法）取得大学 C o n f e r r e d 専門分野 S p e c i a l t y :国際法、国際関係論副査. Head Deputy Examiner:. 氏名 N a m e : 平川幸子㊞(Signature) 所属 A f f i l i a t i o n : 早稲田大学留学センター職位 T i t l e :准教授学位 D e g r e e :博士（学術）取得大学専門分野 S p e c i a l t y :国際関係論副査. b y ：マイアミ大学法科大学院. C o n f e r r e d b y ：早稲田大学. Deputy Examiner:. 氏名 N a m e : 小尾敏夫㊞(Signature) 所属 A f f i l i a t i o n : 早稲田大学アジア太平洋研究科職位 T i t l e : 教授学位 D e g r e e :博士（国際情報通信学）取得大学 C o n f e r r e d 専門分野 S p e c i a l t y :国際公共政策副査. b y ：早稲田大学. Deputy Examiner:. 氏名 N a m e : 平井照水㊞(Signature) 所属 A f f i l i a t i o n : 特定非営利活動法人フォーラム自治研究職位 T i t l e : 研究員学位 D e g r e e :学士取得大学 C o n f e r r e d b y ：津田塾大学専門分野 S p e c i a l t y :予防外交、平和研究. ２０１６年０６月１６日. 7.

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