Peaceful Settlement of the South China Sea Disputes:

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Graduate School of Asia-Pacific Studies Waseda University

Doctoral Thesis

Peaceful Settlement of the South China Sea Disputes:

An Analysis of New Legal Approaches under UNCLOS and ASEAN Framework

Vo Thanh Dat 4013S324

AY 2016

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Acknowledgements

Writing this dissertation was an enormous task, which I believe to be impossible without constant and tireless support from my supervisor at the Waseda Graduate School of Asia-Pacific Studies: Professor Yukio Kawamura. His vast knowledge in international law and strict attention to every detail encouraged me to develop my own appreciation for the rule of law in the peaceful settlement of international disputes. During my time working as his assistant, I have learned many valuable communication and research skills, which no doubt would greatly benefit me in my future career.

I am also indebted to my deputy supervisor: Professor Sachiko Hirakawa, for always providing me with robust ideas and tough inquiries during my study. Your strong belief in the future of the Southeast Asia region is very inspiring. Without your advices and consultations, I would have found myself facing many more obstacles during the research. I would like to express my gratitude to Professor Terumi Hirai and Professor Toshio Obi of the Guidance Committee for reading and making comments on my dissertation.

My special appreciation goes to the Ministry of Education, Culture, Sport, Science, and Technology of Japan for giving me the generous grant to conduct my research. In the end, I would like to thank my family for their continued support since I began my study away from home. Though we are oceans apart, it is heart warming to know everyone back home is always standing beside me. To my wife: Thư, without whose love and patience to keep me going, I would not have finished writing this dissertation.

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List of Abbreviations

ADMM ASEAN Defense Minister’s Meeting

AJWG ASEAN Joint Working Group

AMM ASEAN Ministerial Meeting

AMF ASEAN Maritime Forum

APSC ASEAN Political-Security Community

ARF ASEAN Regional Forum

ARF DOD ARF Defence Officials’ Dialogue

ASEAN Association of Southeast Asian Nations ASEAN SOM ASEAN Senior Officials Meeting

CBD Convention on Biological Diversity

CLCS Commission on the Limits of the Continental Shelf

COC Code of Conduct in the South China Sea

DOC Declaration on the Conduct of Parties in the South China Sea

EAMF Expanded ASEAN Maritime Forum

EAS East Asia Summit

EC European Community

EEZ Exclusive Economic Zone

EU European Union

ICJ International Court of Justice

ITLOS International Tribunal for the Law of the Sea

KIG Kalayaan Island Group

LTE Low-tide elevation

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PCA Permanent Court of Arbitration

PRC People’s Republic of China

ROC Republic of China

TAC Treaty of Amity and Cooperation in Southeast Asia UK United Kingdom of Great Britain and Northern Ireland

UN United Nations

UNESCO United Nations Educational, Scientific and Culture Organization UNCLOS United Nations Convention on the Law of the Sea

UNSC United Nations Security Council

US United States

ZoPFF/C Zone of Peace, Freedom, Friendship and Cooperation

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List of Figures

Figure 1. Map of the South China Sea ... 3

Figure 2. Legal research styles ... 9

Figure 3. Effect of different vertical data on sea level ... 35

Figure 4. Different types of insular features under UNCLOS ... 36

Figure 5. Closing methods for bays under UNCLOS ... 40

Figure 6. Northern Sector of the South China Sea with reference to the Scaborough Shoal ... 117

Figure 7. Southern Sector of the South China Sea with reference to features identified in the Philippines’ submissions ... 118

Figure 8. Nominal Exclusive Economic Zones of coastal states in the South China Sea ... 159

Figure 9. Outer limits of continental shelves in the South China Sea submitted by Malaysia and Vietnam ... 168

Figure 10. Straight baseline claim of Vietnam ... 228

Figure 11. Straight baseline claim of China along the coast and the Paracel Islands ... 229

Figure 12. Archipelagic baseline claim of the Philippines ... 230

Figure 13. Maritime zones claim of Western Malaysia... 231

Figure 14. Maritime zones claim of Eastern Malaysia ... 231

Figure 15. The ‘Nine-dash line’ Map attached in Note Verbale CML/17/2009 from China ... 232

Figure 16. 200 nm Exclusive Economic Zones submitted by Malaysia and Vietnam ... 233

Figure 17. Outer limits of the extended continental shelf submitted by Malaysia and Vietnam... 234

Figure 18. Outer limits of the extended continental shelf in the North Area submitted by Vietnam ... 235

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Chapter 1: Introduction to the Dissertation

1. Background

The series of maritime and territorial disputes in the South China Sea is one of the longest and most difficult disputes the world has ever seen. From its beginning in 1974, the series of disputes has spanned almost four decades, with five coastal states directly involved in the disputes. A larger number of states, with different levels of interests in the peace and stability of the region, have been partially concerned as well. Despite the fact that all claimants in the South China Sea disputes are states parties to both the United Nations Charter (UN Charter) and the United Nations Convention on the Law of the Sea (UNCLOS), there have been raising concerns over actions contradicting international law by major claimants in recent years.

International community has long considered UNCLOS as one of its most noticeable successes in modern time, considering how its birth changed the relationship between national states and the oceans of the world. Covering over 70% of the Earth surface, the oceans are integral to most of human activities in modern day, ranging from simple fisheries activities to strategic movements of arm forces around the world. Nation states for centuries had realized this fact and gradually came to utilize the fundamental characteristics of oceans to their advantage: its maneuverability for trade and commerce, easy accessibility to natural resources, and most important of all is the sustainability of states’ sovereignty in their respective region. During the course of history, coastal states’ interactions with one another soon resulted in conflicts when one or more states tried to appropriate the seas as their extended territories. A consensus was formulated to limit the water area where each state might project its sovereignty at sea – in another word, its own territorial sea. The most traditional consensus was to limit a state’s territorial waters up to three nautical miles – the maximum range of a canon-shot

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– as proposed by Cornelius van Bynkershoek.¹ The three-mile limit, however, leaves the rest of the oceans around the world unclaimed and unregulated. Thus, major powers soon abused it in projecting their power further away from their coasts, and this situation lasted until the first half of 20^th century.²

The norm of major powers controlling the world ocean and the three-mile limit were opened to discussion for change following the establishment of United Nations. In 1982, the establishment of UNCLOS was a great step forward to define a better scope regarding the rights and responsibilities of nation states in using the world’s oceans. For the first time in centuries, the oceans have been divided to give equally benefits to all coastal states; states now have an estimated 30-40% of total sea area as their territories. UNCLOS has effectively limited the privileges major powers had been enjoyed for centuries, while attempting to empower many coastal states by allowing them to exploit natural resources now laying within their jurisdictions. Regardless of the well-intended attempt by the international community, UNCLOS soon unveil its inherent problem of treaty interpretation. The newly formulated territorial sea, the exclusive economic zone and continental shelf under UNCLOS have created overlapping claims and maritime disputes between coastal states around the world. The South China Sea disputes, containing all these issues, have placed a serious question on the credibility of national states to act in good faith when interpreting their rights and obligations in a specific setting.

1 Winston C. Extavour, Ed., (1979) The Exclusive Economic Zone: A Study of the Evolution and Progressive Development of the International Law of the Sea, Geneva: Institut Universitaire de Hautes Études Internationales, p. 15.

2 Ibid., p. 16.

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Figure 1: Map of the South China Sea. Source: Permanent Court of Arbitration (2015).

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The South China Sea is a semi-enclosed sea stretching 3.500.000 squared kilometers with three distinctive archipelagos: the Pratas Islands, the Paracel Islands, and the Spratly Islands. It is a rather unique area from the viewpoint of international laws, containing all features that may represent a mini model of the world. There are coastal states, island states, even a landlocked state in this region.

All states have their respective territorial water, Exclusive Economic Zone (EEZ), an international strait that requires cooperation to manage, and so on. Surrounding South China Sea are nine neighboring countries: China, Vietnam, Philippines, Malaysia, Indonesia, Brunei, Singapore, Thailand, and Cambodia. An estimated 500 million people live along the coasts with their main livelihoods directly coming from the sea or dependent on it. The semi-enclosed sea also holds the strategic intersection for commerce and shipping lines connecting three main areas: to the north is Northeast Asia, to the west is the Indian Ocean, and down south is the Pacific Ocean. Together with the other seas of Northeast Asia, they form the three main seas of East Asia region. Depending on where a coastal state is situated, that state might consider the South China Sea as either a front yard or back yard in its strategic defense of the major shipping lines.

As famously put by Themistocles, ‘he who controls the sea controls everything,’ it was clear to powers in 20^th century that the South China Sea was the shortest way to transport and exploit the riches of Southeast Asia, resulting in the region being carved up into zones of influence by Britain, France, and the Netherlands. Following the conclusion of World War II, the Allies and Japan signed the San Francisco Peace Treaty, ending most of the foreign powers’ involvement with the South China Sea. This did not spell the end to the turbulent fate of the South China Sea. The Vietnam War saw the maritime disputes being sidelined by major conflicts inland and near the coast. History took a sharp turn in 1974, when the People’s Republic of China (China) clashed with South Vietnamese garrison and took the Paracel Islands from them. It was the sparkplug for the race between China, the Philippines and Vietnam in gaining as much control over the remaining Spratly Islands before the fall

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of Saigon. The situation remained unresolved throughout the 1980s, with Brunei and Malaysia soon joined in the fray for territorial claims over the Spratly Islands.

At first, the international community paid little attention to the development in the South China Sea territorial disputes. The general belief was that this was an irreversible event. China was expected to complete its total control of the islands through force; yet this did not materialize.

UNCLOS’s prohibition on the use of force, the formation of Association of Southeast Asian Nations (ASEAN), new diplomatic relations between ASEAN countries and China, and other events rapidly acted as deterrence against direct military actions of coastal states throughout 1990s and 2000s.

Territorial disputes in the South China Sea continue to exist, but the choice of settlement has been narrow to either voluntary settlement procedures or compulsory mechanism under the provisions of UNCLOS – options that more or less put concerned parties on equal positions before international law.

2. Research problem and hypotheses

While saying that the South China Sea disputes currently limited to peaceful settlement procedures under UNCLOS, one must be reminded that it is still a long and tricky path to reach the final settlement. Concerned parties in the South China Sea disputes have been relying more and more on the interpretation of UNCLOS provisions to back up their claims, ranging from unique rights bestowed by historical facts to more scientifically defined limits. Maritimes disputes in the South China Sea are comprised of several disputes between Southeast Asian states and China. Among them, three concerned parties have major claims to the Paracel and Spratly Islands: China, the Philippines and Vietnam. Their conflicting claims regarding the two island groups can be roughly divided into two patterns.

In the first pattern, China and Vietnam have been sharing a similar view regarding their entitlement based on historic rights. Under this argument, both parties claimed to have exercised

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continuous territorial sovereignty over both the Paracel and Spratly Islands. The two island groups subsequently are considered to generate maritime zones described under UNCLOS, including a 12 nm territorial sea and the 200 nm EEZ. In the second pattern, the focal point is placed on current territory occupied by each state. This pattern of claim makes it necessary for state to ramp up their activities on occupied features – mostly on Spratly Islands – to display effective sovereign control over their territories. The main goal here, again, is to fortify the claim to the 200 nm EEZ surrounding these islands, as well as to the continental shelf lying below the surface.

From international law viewpoint, the two patterns of claim and the resulting disputes are no more complicated than several cases that had been resolved through legal mechanisms provided by the UNCLOS so far. Concerned parties to the disputes are allowed to submit their cases to the International Court of Justice (ICJ) under UNCLOS provisions to ask for a final judgment, provided that an agreement for such submission was reached beforehand. However, since the beginning of the territorial disputes in 1974, major claimants were not able to procure this agreement, mainly due to China’s opposition to the idea. China has consistently voiced its opinion to settle the overlapping claims and any dispute through bilateral negotiations and direct consultations, which are still well within the boundary of settlement methods acceptable by UNCLOS and the United Nations Charter.

Furthermore, in 2006, Chinese government stepped up its strategy on the maritime dispute settlement through a Declaration regarding Section 2 of Part XV of UNCLOS. In short, this declaration denies all compulsory procedures under Section 2, which states China is not obliged to settle any dispute regarding sea boundary delimitation, historical bays or titles, military and law enforcement activities.³

3 China (2006), Declaration made after ratification. UN: Division for Ocean Affairs and the Law of the Sea. Available at

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%

20ratification

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The situation gives rise to a very important legal question: in the absence of some major settlement mechanisms under Part XV, how do states parties of the South China Sea disputes continue to follow the peaceful settlement of the disputes? The question here constitutes the raison d’être for this study in understanding states’ recourse during the search for a peaceful resolution of ongoing maritime disputes. As mentioned before, the lack of readily available options that states might rely on, namely the ICJ and the International Tribunal for the Law of the Sea (ITLOS) also makes it important to ask two substantial questions: What other legal mechanisms/procedures are there that can facilitate the resolution of the South China Sea disputes? How effective are these options in relation to the unique characteristics of the situation in Southeast Asia?

In order to answer these questions, this study is carried out with the aim to test the following hypotheses. The first hypothesis is as followed: the main drive for concerned parties to the South China Sea disputes is to achieve settlement through voluntarily reached agreement – especially one that is mediated through international organizations or agencies. The particular organization to be considered within this study is ASEAN. The second hypothesis aims to explain the sub questions:

there are still available entry points for parties who wish to persuade compulsory settlement by court under UNCLOS as the South China Sea disputes are not only about overlapping claims of territory.

Generally speaking, the steps for settlement of any type of disputes in the field of international law are more or less the same, including: negotiation, inquiry, legal offices, mediation, conciliation, arbitration and passing final judgment. The 1982 UNCLOS largely adheres to this rationale, requires its member states to consider peaceful settlement of any dispute arises from the interpretation or application of the Convention. More specifically, UNCLOS lays out two main paths for parties to the disputes to choose: following voluntary dispute settlement procedures or if all have failed, filing for compulsory dispute settlement procedures. For the case of the South China Sea disputes, it is clear that China has been trying to limit the power of compulsory settlement procedures; going as far as making a reservation to eliminate dispute that might trigger Part XV mechanism. In another word, China as a

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concerned party has enacted its right to limit the number of legal offices that might be deemed competent in judging the case. As devastating as it may sound, this action is not harmful to the procedure of peaceful settlement as a whole, though any judicial office will have to take longer to justify its competence in relation to the case. It is with this understanding that the hypotheses of the study were formulated.

3. Methodology

Considering that the main questions mentioned above are of legal nature, the study subsequently has been decided to adopt the socio-legal research approach, which is also commonly known as the law reform research approach. The term ‘law reform research’ was first described by Canadian law scholar Harry Arthurs (1983) in a report on major research methods in academic legal study field.⁴ A traditional academic legal disciple would prefer to follow the expository research/

‘black letter law’ approach in dealing with the conventional treaties and articles, which is also the dominant approach legal research.⁵ This ‘black letter law’ approach would aim to reduce the study to a fundamentally descriptive exploration of a large number of provisions or technical rules to be found in the primary source – the 1982 UNCLOS in this case. However, such simplification of the situation would not be enough for a clear explanation of the South China Sea disputes as it can only answer the question of ‘It this law applicable for the situation?’ but not the question of ‘How the law being followed and interpreted?’ or ‘Why the law is/ is not effective?’

4 Paul Chynoweth, ‘Legal research’ in Andrew Knight and Les Ruddock, Eds. (2008), Advance Research Methods in the Built Environment, West Sussex: Wiley-Blackwell, p. 28.

5 Richard Card (2002) The legal scholar. Reporter: Newsletter of the Society of Legal Scholars, 25, pp. 5-12.

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Figure 2: Legal research styles (Arthurs, 1983). Source: Advanced Research Methods in the Built Environment (Knight & Ruddock, 2008).

The law reform research is more optimal in answering such questions. In addition to the analysis to provide a descriptive understanding of the primary source, the socio-legal approach also takes in factors such as historical, social or political context. The purpose of this approach is to facilitate new understanding and possible change either to the law itself, or in the manner of its interpretation/administration (Chynoweth, 2008).⁶ This greatly coincides with the objectives of the study: to understand how the Southeast Asian countries and China have been navigating the disputes under the fixed provisions of the 1982 UNCLOS, and at the same time find out what legal mechanisms remain viable to facilitate the peaceful settlement in long term.

6 Chynoweth, supra note 4, at pp.30-31.

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Having stated the advantage of following the socio-legal research approach, it should not be forgotten that the approach is still within the tradition of applied academic legal study, regardless whether its concerned with domestic or international law. As a result, there is an inherent disadvantage that the author is well aware when proceeds with this study regarding the difficult nature of legal research: being narrative and majorly composed of description. To borrow the words of another scholar on this glaring disadvantage, one could say that the legal researches tend to comprise of many legislation and intellectual puzzle pieces scattered among large area of description.⁷ In order to ease the difficulty in following the flow of the narrative, it is important to understand that there exists a framework for most legal studies to base on. The framework has three parts: ‘the major premise’

identifies a general rule of law that entails a specific outcome when particular conditions are met in a situation, ‘the minor premise’ describes the factual situation and ‘the conclusion’ states whether the rule in the major premise is applicable to the facts in the minor premise, and whether the entailed legal outcome takes effect.⁸

Translating this framework into the study of the South China Sea disputes, the major premise for consideration is the 1982 UNCLOS itself. More specifically, there are several provisions within this Convention giving concerned parties possible disputes due to its normative and general wording.

As a result, Part XV of the Convention specifically emphasizes that the rule of law is to follow provided mechanisms to settle any dispute related to the interpretation or application of the provisions.

The minor premise is set in the South China Sea, together with all claimants to the territorial and maritime disputes. It should be notice that within this minor premise, there is in fact more than one case to review the applicable rule of law, and possibility of more than two direct involved parties to the entailed outcome.

7 Tony Becher (1981) Towards a definition of disciplinary cultures, Studies in Higher Education, 6, p.

111.

8 Chynoweth, supra note 4, at p. 32.

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Based on the two premises, it is deemed important to review some of the 1982 UNCLOS provisions on the matter of maritime zone definition like territorial water, EEZ, continental shelves and so on. This would provide the understanding to legal basis that concerned parties to the South China Sea disputes have been relied on till now. The primary sources of information comes from the archive of United Nations, the International Court of Justice and other major international tribunal organizations themselves, mostly comprised of published treaties, judgments and declarations by/for concerned states in the South China Sea disputes. Data, communiqués, press releases by governmental agencies also fall within this category. Another part of this research will be dedicated to the analysis of several historically important maritime dispute cases that had been resolved through the International Court of Justice (ICJ). The resolved cases will provide a form of comparative case study with insight into customary law and norms that had been accepted and practiced in delimitation of territories and maritime zones around the globe. Some cases also hold decisive geographical similarities and backgrounds to the South China Sea, which are vital to understand international tribunals’ general rationale in deciding over the disputes. Contemporary maritime dispute cases, both resolved and unresolved, will also be reviewed and explained to provide a more holistic view at the current stage of development in the peaceful settlement of disputes in the South China Sea.

4. Literature review

The literature review for the study contains two parts. The first part deals with the analysis of major political theories on the South China Sea disputes and the states involved. Descriptions and criticisms from the three major school of thinking: realism, liberalism and constructivism would help to generalize the motivations, expectations and consequential behaviors of states involved in the South China Sea disputes. The second part deals more extensively with the review of legal ideas and findings by scholar from the starting date of the South China Sea disputes in 1974 till the latest event.

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Beginning with the realist school of thinking, it is the fundamental argument of the survival of states that push them into acting the way they are in international system. As Waltz (1979) put it, states worry about their own survival, so this worry put the stress and condition the behavior accordingly.⁹ Put into the context of this study, realism would say it is the fact that UNCLOS was a normative convention, which allows its member states free hand in interpreting the provisions, that help the Convention to come into force since 1982. As the international system is basically decentralized and even anarchic without agencies that hold absolute power to enforce decisions or judgments, member states of the Convention may violate part of the law provided without having to fear about consequential repercussion. At the same time, they can hand pick the provisions within the treaty that suitable for increasing the likelihood of their survival and national gains while participating in the international system. Thus, realists would say the fragile and ambiguous UNCLOS, like many other treaties and even organizations, continues to exist as it provide states with a sense of survival gain to participate in – which is coincidentally counted towards the relative gains members enjoy over outsiders.¹⁰ Going back to the lack of absolute power to enforce the will of the international community, realism provides a rather straightforward reason: the fixation on survival limits how states may allow itself to be influenced by outside force, to the point that it would consider ignoring the system when deemed appropriate. Therefore, one should not expect international organizations or treaties to facilitate cooperation and understanding between members, as such institutions would have minimum influence on each state’s behavior.¹¹ This limitation is further expected to apply not only between small states, but they go further to include those considered as region powers and even the most powerful states. International law, and the Law of the Sea in this context, is largely considered as frontage to cover the interest of regional powers when dealing with smaller states and each other.

9 Kenneth N. Waltz (1979), Theory of International Politics, Reading, Mass.: Addison-Wesley Publishing Company, p. 105.

10 Ibid., p. 106.

11 John Mearsheimer (1994), ‘The False Promise of International Institutions,’ International Security, Vol. 19, No. 3, p. 7.

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The skeptical view on cooperation and the rule of law hold by realists does not limit to UNCLOS, it goes further to criticize ASEAN, the organization which has been playing the medium role for the discussion on the South China Sea disputes as well. Not only on the occasion where five out of its ten members are having maritime disputes with the regional power China, ASEAN has been facing criticism for failures in many issues because member states’ national interests are being overprotected. It is this strong resistance to the creation of a supranational authority by member states that strengthen the attack of realist commentators on its very existence. The Association is deemed productive only when the interest of member states coincide, therefore in case of divided opinions, the most it can do is to produce a frontage of unity while trying to postpone the discussion indefinitely.

Unless it can make a better appeal of gain than China to the rest of the members, states with high stakes in territorial disputes in the South China Sea cannot push the institution beyond what it can sustain during meetings and negotiations.¹² The criticism shown by realists does not bode well for understanding the changing nature of dispute settlement in the South China Sea. Such pragmatic opinion about the sole importance of national interests in the interaction in international system and law is vehemently rejected and in turn criticized by both institutional liberalists and constructivists.

The liberals, perhaps, have the most contradicting view and opinion towards what have been stated by realists. The brunt of liberalist argument rests on the belief that there is a genuinely attempt for cooperation between member states in the international system. Maybe it is not purely out of consideration for one another, but coming from the fact that there has been enormous growth in interdependence between states. This increasing interdependence is also accounted for the transaction costs and possible consequences in doing business between states. Where there are reciprocal costly effects of transactions, there will be interdependence – although it does not mean these costs will be

12 Shaun Narine (2002), Explaining ASEAN: Regionalism in Southeast Asia, Colorado: Lynne Rienner Publishers, p. 33.

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equal for both sides, as smaller states might face with more losses.¹³ It is through their participation in institutions, signing of treaties and agreements that states would be able to reduce the effects on transaction costs. At the same time, member states would be able to facilitate negotiation to conclude even more agreements for long-term gains. The 1982 UNCLOS, in this context, is seen as part of the larger institution – the United Nations – that help to create the conditions where member states may orderly interact through the multilateral setting, making clear what is considered as legitimate action and not. In doing so, the rule of law is upheld by member states who benefits from the reduced transaction costs and increased symmetric information flow between small states and regional powers.¹⁴

It is at this point that liberals launch a counter argument at realist claim on the relative gains assessed by states. If cooperation is desirable as long as it increases the welfare of state, then how can a state measure whether its gain is greater than those gains of other states? Keohane doubt that the gains here can be correctly calculated, for it may spread beyond simple economic terms, sometimes entangled with much more complicated matters of socio-cultural issue of societies, geo-political relations within or outside the region and so on.¹⁵ This counter argument by liberals is basically trying to explain the situation of Southeast Asia and ASEAN’s involvement in the disputes. From their view, ASEAN works because the member states of the disputes can utilize the organization to become the channel to counter China during the negotiation, making it costly for China, as well as any state within the institution to make any unilateral attempt in gaining the upper hand without following the law. The only problem is that those states have been continuously thinking ASEAN in balance of power terms,

13 Robert O. Keohane and Joseph S. Nye (2001), Power and Interdependence, London: Longman, p. 8.

14 Robert O. Keohane (1984), After Hegemony: Cooperation and Discord in the World Political Economy, US: Princeton University Press, p. 244.

15 Robert O. Keohane (1998), ‘International Institutions: Can interdependence work?’ Foreign Policy, Vol. 110, p. 88.

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which is not the only option to utilize such promising institution in the mutual goal of peaceful settlement of disputes in the region.

The constructivists add a rather unique viewpoint, supporting the liberals in this discussion.

They notice that the initial ideas and norms of cooperation are among the variables as to explain why countries agree to work together, even to the point of placing sets of law and supervising agencies (ICJ, ITLOS, etc.) to overlook the implementation of the law. It is identified as the mutual feeling of a community that is relevant in the integration of states into a system. The so-called ‘we-feeling,’ trust and mutual consideration become the perpetual dynamic process of mutual attention, communication, perception of needs and responds during the decision making.¹⁶ This understanding proposed by constructivists is closely identified with one of the most basic principle found in all treaties signed by the international community – pacta sunt servanda.¹⁷ For the setting of international organization and treaties, this principle requires every treaty is binding upon the parties who have agreed to it and they must perform with good faith. A state may exercise its right under the agreement, knowing that other states in the group would be able to share the rights and responsibilities to upheld the same rules.

In this sense, it is understandable why the constructivists rejected the idea of total anarchy and its underlying result of a self-help world by realist scholars. Anarchy, for constructivists, is just one of the many scenarios that can take place in the world. What they really want to focus on are the norms and ideas leading to the realization of such scenarios, familiar and new scenarios alike. This including the process of signaling, interpreting, and responding that complete an action that gives meaning to what have taken place (Wendt, 1992).¹⁸ The repeated interactions, in due time, would create the venue

16 Karl W. Deutsch, et al. (1957), Political Community and the North Atlantic Area: International Organization in the Light of Historical Experience, New Jersey: Princeton University Press, p. 123.

17 Latin for ‘Agreements must be kept’.

18 Alexander Wendt (1992), ‘Anarchy is what States Make of it: The Social Construction of Power Politics,’ International Organization, Vol. 46, No. 2, p. 397.

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for the internalization of norms and behaviors, and contributes to the interest of the group. For the states connected to the South China Sea disputes, it is clear to see why ASEAN has been called upon many times to mediate the discussion. The argument for the five concerned states is in line with constructivist thinking: to create unified interests under the Southeast Asian identity facing China. The disputes are being proposed as not just individual national matters, but a regional matter that requires regional unity. What is this regional matter and how important is it? We must remember that ASEAN works because member states have been socializing for a long period, this helps internalize shared norms and fostered a common identity for the ten countries. As Acharya (2009) pointed out, there are crucial settings within the current institutions that help member to develop their social practices, and then make them understood, accepted and shared by the rest of the group. He also mentioned the important fact that there has been a long-standing practice of peaceful interaction between members of the group, with the use of force ruled out in settling any type of disputes.¹⁹

The problem with constructivist viewpoint proposed is whether the mentioned peaceful norms and practice is truly shared and understood by every member in the group. As only five countries are directly involved in the South China Sea disputes, the remaining countries: Cambodia, Laos, Myanmar, Singapore and Thailand are left to decide whether they want to get onboard the discussion.

It is at this point that realist critic strikes back, saying that ASEAN as an institution is motivated by minimal internalized interests (Narine, 1997).²⁰ A large problem, especially one concerned with a regional power like China, is too much for ASEAN to handle effectively due to the inability to hand down strong decisions and enforce the rule of law. To what extend this claim is true is a matter of theoretical debate, for this study, however, it is better to assume that there is a fundamental difference in the understanding of how powerful a regional organization can be perceived by the concerned

19 Amitav Acharya (2009), Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order, London: Routledge, p. 1.

20 Shaun Narine (1997), ‘ASEAN and the ARF: the limits of the ASEAN way,’ Asian Survey, Vol. 37, No. 10, pp. 973-974.

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parties to the disputes. In term of coercion power and domination, which realists tend to focus on, the Association is not powerful at all. But in term of generating norms of discussion and regulating the behavior of its members and China, the Association is doing quite a good job to prevent conflict. This point would continue to be reflected in the opinions of legal scholars on the role of organization in the settlement of the disputes.

As shown by the analysis of major theories, the studies carried out on the South China Sea disputes would base on either liberal or constructivist viewpoint, with the former being the majority no less. To understand how academic scholars began to take interest in the regional dispute, it is better to understand the situation surrounding the 1974 event. The end of World War II left Southeast Asia in a state of chaos where former colonial powers tried to regain their control over colonies lost to Japan during the war. South Vietnam as a puppet state for France was entitled to the sovereignty of the Paracel Islands and Spratly Islands following the signing of the San Francisco Peace Treaty in 1951.

In 1954, France formally withdrew from Vietnam, leaving the South Vietnamese government to decide whether they want to claim actual control over the two island groups, the government in Saigon prioritized a quick takeover of the Paracel Islands. As the Vietnam War intensified, both North Vietnam and South Vietnam pushed their claims on the two island groups; the Philippines and Taiwan had already also stationed troops on some features in the Spratly Islands by 1971.²¹

Between 1964-1971, there were several reports of naval clash between South Vietnam and China in the area, however none was report as serious battle. Towards the end of the Vietnam War, in 1974, tension between China-South Vietnam reached the peaked when the two clashed over the control of the Paracel Islands. Faced with overwhelming Chinese force, the South Vietnamese garrisons collapsed in two days, leading to the total withdraw of South Vietnamese presence from the

21 Bill Hayton (2014), The South China Sea: The Struggle for Power in Asia, New Haven: Yale University Press, pp. 95-96.

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Paracel Islands. This tipped the fragile situation in the Spratly Islands, North Vietnam, in the closing weeks prior to the fall of Saigon, launched an ‘East Sea Campaign’ to take control of all the islands that were under South Vietnamese control in the Spratly Islands.²² By the time China decided to find local estate in the Spratly Islands, there was little to choose from but rocks and reefs, or it has to take some islands from the other tenants: Filipino, Taiwanese, or Vietnamese.²³ It was 1987, and the situation no longer favored unilateral military action without a just cause, so China refrained and made do with their artificial islands instead.

The event of 1974 soon gathered the attention of the international community, with China and Vietnam sending communiqués confirming their ‘rightful sovereignty’ over the two island groups based on historic titles. As Hayton (2014) explained, observers, scholars and government officials of this time were yet to understand the full scale of the problem at hand, that what they saw were the beginning of the propaganda war to lay the foundation for more solid arguments under international law, more specifically the Law of the Sea that was still in the negotiation process. Legal scholars of this period provided further understanding on Hayton’s observation. The prevalent view perceived that disputes in the South China Sea are not only about the sovereignty over the islands sitting at the center of the South China Sea, but also including the question over who have the ownership over the natural resources near them (Park, 1978).²⁴ The complicated part is that concerned parties during 1970s expected that the answer of the sovereignty would entitle the state to the rights over the resources as well. Park further analyzed that due to the linkage of sovereignty with natural resources, the two claimants with highest level of interaction – China and Vietnam – would play the setting role in the

22 Ibid., p. 102.

23 Ibid. 21, p. 106.

24 Choon-ho Park (1978), ‘The South China Sea Disputes: Who Owns the Islands and the Natural Resources?’, Ocean Development & International Law, Vol. 5, No. 1, p. 28.

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course of the South China Sea disputes.²⁵ He, however, was skeptical of the possibility of a peaceful settlement between states less a legal one. This is a direct reference to the ongoing negotiation deadlock of the Law of the Sea at United Nations in 1978, which eventually took until 1982 to complete. To make matter worse, the introduction of a 12 nm territorial water and the concept of 200 nm Exclusive Economic Zone would greatly influence the complexity of current claims by each country. The better scenario, for the national interest of each country, is conduct unilateral mobilization to take over the rest of the islands. For China, the task is to remove both the Vietnamese and the Filipinos from the Spratly Islands. For Vietnam, and similarly for the Philippines, it had to remove the Chinese and Filipinos/Vietnamese from both the Paracel and Spratly Islands.²⁶ It was obvious that in case of conflict, China would have the upper hand when it comes to manpower. Yet, by the end of 1970s, all the main claimants have virtually neither experience with naval warfare, nor substantial resources to encourage risky landing on occupied islands. China and Vietnam, on the other hand, were embroiled in a different conflict over the border resulting in heavy casualties for both sides. It would take years to recover and rebuild should they make a wrong move in the South China Sea. But a provocation would justify the use of force regardless, a point that China was well aware of, as it continued to tempt the Vietnamese force on Spratly Islands to open fire through a series of incidents, but to no result as Vietnam kept total silence.²⁷

On December 10^th 1982, the world’s governments finally came to an agreement on the rights and responsibilities of coastal states – UNCLOS had come to. Within the text of UNCLOS, unilateral use of force to resolve dispute was condemned, and various organizations were listed to help facilitate more mild approaches. The prediction had come to pass, and so long gone was the easy realist

25 Ibid., pp. 34-35.

26 Ibid. 23, pp. 43-44.

27 Mark J. Valencia (1988), ‘The Spratly Islands: Dangerous ground in the South China Sea,’ The Pacific Review, Vol. 1, No. 4, pp. 440-441.

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scenario of another Caribbean in the South China Sea.²⁸ The 1980s was critical for the fate of the South China Sea in two ways. First, the years saw the temporary end of potential conflict. The Philippines and Vietnam, through signing the Convention, were able to gain precious time in considering their moves, and revise the strategies to cope with the international law. Secondly, newly developed provisions of UNCLOS extended the range of states that may benefit from claiming territory in the South China Sea. Brunei, Indonesia and Malaysia pushed their presence in the Spratly Islands. The fait accompli posed by the newcomers, as Buszynski and Sazlan commented, together with the three main claimants, had further complicated the politics, making the unilateral use of force by concerned parties undesirable under any circumstance.²⁹

State behaviors showed signs of change following the conclusion of UNCLOS, possibly not for the better scenario in the South China Sea. A general observation made by scholars found that the signing of UNCLOS gave states partied to the Convention the legal means to further extend their existing claims, and strengthened the attempt for natural resource grab (Nishimoto, 2013).³⁰ At the same time, major claimants in the South China Sea disputes also showed more clearly defined paths of their own from this point on. For Vietnam, its alienation from the rest of Southeast Asia region after the war had proven devastating to the economic development. The country was in a serious situation to decide its approach to the South China Sea dispute. According to Tønnesson (2000), small coastal state like Vietnam had two choices for the future: first, it could try to continue bending the UNCLOS

28 Robert D. Kaplan (2014), Asia’s Cauldron: The South China Sea and the end of a stable Pacific, New York: Random House, pp. 48-49.

29 Leszek Buzynski and Iskandar Sazlan (2007), ‘Maritime Claims and Energy Cooperation in the South China Sea,’ Contemporary Southeast Asia, Vol. 29, No. 1, p. 147.

30 Kentaro Nishimoto (2014), ‘Strategies and Prospects for Settlement of Maritime Disputes in the South China Sea under Part XV of UNCLOS,’ Japan Chapter of the Asian Society of International Law, Tokyo: Conference paper.

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radically just as China done to maximize its national interests; or second, trying to take the Convention more seriously and realize national interests within confines of a justifiable interpretation of the text.³¹ Vietnam decided on the latter approach, signaling by its success in joining ASEAN in 1995. It was not long until Vietnam, the Philippines and the rest of the Association mounted the first multilateral attempt in negotiation with China to set up the conducts in disputed areas in the South China Sea.

Commenting on the changing tactic, Tønnesson (2000) believed Vietnam’s move toward more regional, less nationalist approach was very important key change to promote more feasible approaches in peaceful resolution of the disputes. By limiting its own interests in the overlapping claims, Vietnam and the Philippines – as two major claimants – are showing willingness to submit their national security interests to promote the matter as a regional security issue. And there was no other regional organization that could fit the bill to deal with such a security issue than ASEAN itself.

Legal scholars had high hope for ASEAN during the negotiation for the Code of Conducts in the South China Sea (COC) between 1992-1999. Southeast Asian countries continue to change their approaches to settle of territorial disputes, with important agreements reached between Malaysia and Vietnam, China and Vietnam on the Gulf of Tonkin, and so on. These agreements seemed to send out the signal that the time was right for a multilateral agreement in the managing the overlapping claims.³² Soon after the signing of the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002, however, the opinions were rather negative, with scholars calling it a ‘missed opportunity’ or a ‘failure’ (Buszynski & Sazlan, 2007). The DOC was considered a lesser vision of the intended COC, with ASEAN failed to get any solid geographical scope or binding requirement into the text of the document itself.³³ From here, the DOC was practically sidelined by legal academic

31 Stein Tønnesson (2000), ‘Vietnam’s Objective in the South China Sea: National or Regional Security?’, Contemporary Southeast Asia, Vol. 22, No. 1, p. 208.

32 Nguyen Hong Thao (2001), ‘Vietnam and the Code of Conduct for the South China Sea,’ Ocean Development & International Law, Vol. 32, No. 2, pp. 112-113.

33 Nguyen Hong Thao (2002), ‘The 2002 Declaration on the Conduct of Parties in the South China Sea: A note,’ Ocean Development & International Law, Vol. 34, No. 3-4, p. 281.

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scholars, most turned away from more in-depth evaluation of how the DOC may have influence or continue to influence the course of the South China Sea disputes. Instead, the attempts by individual claimant returned to the spotlight for a new round of interpretation of UNCLOS.

At the other end, China had been persistently sticking to its historic titles and historic water under UNCLOS since the Convention established. As a growing regional power, China needs every source of natural resources to support future growth, as well as the waterways for expanding its naval power. As the best scenario drawn up by Park (1978) did not realize, China saw the situation became more and more complicated, with the remaining claimants banded together under ASEAN and demanded for multilateral negotiation. It complied, while continued to voice its own opinion that bilateral negotiation directly is the preferable choice. Hyer (1995) gave a fairly straightforward reasoning behind China’s action in 1990s: they needed time too.³⁴ Its interest in dealing with the South China Sea has always been, and will continue to be, the Chinese interest in becoming the new naval power in Asia. During the preparation period, scholars have found Chinese foreign policies toward the other claimants and the rest of the international community rather dodgy on matters that might strain the relationship with its neighbors, which could be referred to as rather strategic ambiguous.³⁵

As China decided to ramp up its legal claim under the historic titles and historic water, a controversial piece of map began to surface along side the plethora of historical accords and books presented by China as evidence to its historical control of the South China Sea. Initially drawn for private use by an official of the ROC, this map dated back to 1947 when the Kuomintang government was still in control of Mainland China. The original map contained a line of 11 dashes running across the South China Sea, encompassing the Paracel and Spratly Islands in the South until Taiwan Island to

34 Eric Hyer (1995), ‘The South China Sea Disputes: Implications of China’s Earlier Territorial Settlements,’ Pacific Affairs, Vol. 68, No. 1, p. 35.

35 Robert Beckman (2013), ‘The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea,’ American Journal of International Law, Vol. 107, No. 1, p. 156.

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the Northeast. After the Communist Chinese government took over control, the map was found and edited again in 1953. After removing two dashes in proximity to the Gulf of Tonkin, the map finally came to be known as the nine-dash line map in the South China Sea (Yoshida, 2015).³⁶ The important feature of the nine-dash line map was that the claimed sea area in its coincided with the range of maximum claim China had been pushing using UNCLOS, excepting for the fact that no specific coordination provided within the map itself. During the period of 1980-90s, scholars from both China and Vietnam were conscious of its existence, but regarded it as a supplementary source for the documentation of Chinese historical involvement in the South China Sea only. The exact meaning of the area covered within the nine segments was not clearly provided by the publisher, to which Chinese legal scholars also varied on how to interpret the map. Gao (1994) interpreted the map itself as an extension of the land border of China at sea; the broken lines are similar to denote Chinese sovereignty over all the islands and the adjacent generated maritime zones.³⁷ Pan (1996), on the other hand, went for the radical explanation of how the nine-dash line was similar to the maritime China should be entitled to as internal water due to its historic titles and historic water in the South China Sea.³⁸ China, however, never input a direct explanation regarding the true intention of the map, or how it should be related to specific provision under UNCLOS even after the formal submission of the map to protest against Malaysia and Vietnam’ submission to the Commission on the Limits of the Continental Shelf in 2009.

36 Yoshida Yasuyuki (2015), 南シナ海における中国の「九段線」と国際法―歴史的水域及び歴

史的権利を中心に― translated as ‘China’s nine-dash line in the South China Sea and International Law: Focusing on the historic waters and historic rights,’ Japan Maritime Self-Defense Force and Staff College Review, Vol. 5, No. 1, pp. 4-5.

37 Zhiguo Gao (1994), ‘The South China Sea: From Conflicts to Cooperation?’, Ocean Development &

International Law, Vol. 25, No. 3, p. 346.

38 Pan Shiying (1996), ‘The petropolitics of the Nansha Islands: China’s indisputable legal case,’

Economic Information & Agency.

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Ever since its release to international community, legal experts continuously put the nine-dash line map under scrutiny. The major question for legal academic scholars to ask here is whether this map constitutes any legal evidence or understanding under UNCLOS. Zhiguo Gao and Bing Bing Jia, two prominent Chinese legal experts, seemed to agree on the explanation that the map itself referred to the sovereignty of China over the Paracel and Spratly Islands situated within the nine dashes.³⁹ In doing so, it was implied that the nine-dash line map was legitimate and non-contradicting source for supporting the Chinese historic waters claim. The Chinese scholars further suggested that Chinese position continued to be justified by its historic title to the South China Sea in any case. This explanation, however, failed to notify the exact scope on where this map should belong to under current regime of UNCLOS. It was suspected that the release of the map is another step within Chinese foreign policy of ambiguity. Critics soon pointed out Chinese decision to radically interpret the Law of the Sea to fit its own national interests, worrying about the selective implementation deployed by China in its attempt to promote the historical rights over the ocean. As a party member of UNCLOS, it was expected to perform in good faith to provide all information regarding the drawing technique, reasoning behind the coordinate calculation and so on, but China withheld on these data.

The result was the lack of basis for testing of legal status of the nine-dash line in international law and customary law practice, thus it should not be considered further in relation to the South China Sea disputes, at least until China decides to officially justify the map (McDorman, 2014).⁴⁰ Yoshida (2015) also pointed to the same line of argument, stating should China decide to continue its historic rights

39 Zhiguo Gao and Bing Bing Jia (2013), ‘The Nine-Dash Line in the South China Sea: History, Status, and Implications,’ The American Journal of International Law, Vol. 107, No. 1, p. 243.

40 Ted L. McDorman, ‘Rights and jurisdiction over the resources in the South China Sea: UNCLOS and the nine-dash line,’ in Jayakumar S., Koh T. & Beckman R., Eds. (2014), The South China Sea Disputes and Law of the Sea, Northhampton: Edward Elgar Publishing, p. 149.

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and historic waters, the nine-dash line would be unlikely to provide good evidence for arbitration. The author also asked whether the implementation of this map in relation to the rights of EEZ by neighboring states in the South China Sea under Article 311 of UNCLOS.⁴¹ Yoshida provided an important comment regarding the fact that China decided to employ the map without official backup information would greatly reduce its credibility. Even with current literature published in defense of the nine-dash line map, those are still restricted in status and not equal to official legal position.

On August 25^th 2006, China sent a Declaration saying ‘it does not accept any of the procedures provided under Section 2 of Part XV of the Convention with respect to all category of disputes referred to in paragraphs 1(a), (b) and (c) of Article 29.’⁴² As Hayton (2013) contemplated, should it was ever asked to adjudicate, the ICJ would have to unravel a very complex web of claims by all concerned parties.⁴³ It may take a very long time for the court to deliberate on the uncertain final judgment. China simply did not want this scenario, therefore the most effective way would be to block out the option completely. This particular action contributed to the antagonizing effect that continues to plague the relationship between China and other major claimants: the Philippines and Vietnam. In the attempt to counter China’s increasing rogue behavior, legal scholar found the two claimants taking up two separate approaches. In 2009, Malaysia and Vietnam decided to send a Joint submission to the Commission on the Limits of the Continental Shelf regarding the two countries’ outer limits near the Spratly Islands. A second submission by Vietnam was made to declare its outer limits near the Paracel Islands soon followed. Interestingly, Park (1979) was the first to mention of the possibility for coastal states in the South China Sea to view the ocean in layers. After observing how China and Vietnam continued to justify their ‘rightful ownership’ with foreign literature and cartographies, the author commented that these documents would play a minimal role in the legal discussion, as the documents’

41 Yoshida Yasuyuki, supra note 34, p. 30.

42 China’s Declaration under Article 298, supra note 3.

43 Bill Hayton, supra note 21, p. 108.

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credibility would be ‘doubtful at best.’⁴⁴ The disputes over islands would continue to escalate, but there was a separate area that was able to move forward from territorial claim deadlock – the continental shelves of the South China Sea. Park foresaw that agreements would be required to delimit the seabed separately from the surface, favorably under the mediation of a regional organization of Southeast Asia. It would take until Elferink (2014) for this argument to return to the focus of legal scholars. This author asked the question whether the semi-enclosed sea in Southeast Asia constitute an overlapping between the 200 nm areas generated by the islands with the possible existence of continental shelf beyond 200 nm.45 There was in fact an overlapping area at the center of the South China Sea, and the author pointed out that Malaysia and Vietnam could have stumble upon one possible new interpretation for the current disputes.

On a separate move, the Philippines decided to take its rising dispute with China to international court, albeit not the ICJ itself. On January 22^nd, 2013 the Philippines initiated legal proceedings against China based on Annex VII of UNCLOS. The procedure was submitted to the Permanent Court of Arbitration (PCA) and China was notified through diplomatic communiqué. The case gathered instant attention from all concerned parties. Opinions on the legal attempt by Filipino government are mixed. Those favoring the case indicated that the Philippines had made a right step in asking for arbitration, especially when facing China’s unreasonable in recent confrontation at sea. By calling upon the arbitration court, it was important to show the severity of the situation to the international community, at the same time demonstrated Philippines’s willingness to opt for win-win

44 Choon-ho Park, supra note 24, p. 34.

45 Alex O. Elferink (2014), ‘Do the coastal states in the South China Sea have a continental shelf beyond 200 nm?’ in Jayakumar S., Koh T. & Beckman R., Eds. (2014), The South China Sea Disputes and Law of the Sea, Northhampton: Edward Elgar Publishing, p. 166.

Peaceful Settlement of the South China Sea Disputes:

Graduate School of Asia-Pacific Studies Waseda University

Doctoral Thesis