11 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 CIUA

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) CIUA

3 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) CIUA

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) CIUA

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

LOGO State Practice of Maritime Dispute management Dispute Management Negotiation Joint development Regional approaches jurisprudence - 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 Islands regimes U-shaped LineLaw enforcement

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… CIUA

Has China changed its strategy of maritime dispute management? China’s public relations management- a review of China’s maritime policy CIUA

Has China changed its strategy of maritime dispute management? China’s public relations management- a review of China’s maritime policy CIUA

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 : from bilateral to multilateral, interaction with ASEAN Post-2009: Passive response Unchanged: peace, stability, negotiation CIUA

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?) CIUA 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) CIUA

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 CIUA

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? CIUA