10 years agoThe Solution for the Spratly Islands Ought to Look Like This
.. speaking in terms of competition for power and influence, if it were a less competitive and more cooperative and rational world in the hallowed/haloed, better hollowed, corridors of the top this solution sounds reasonable and might be feasible ..
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By Mark J. Valencia, Jon M. Van Dyke and Noel Ludwig Published: October 10, 1995
HONOLULU— China's pledge in July, at the annual meeting of the Association of South East Asian Nations, that it would negotiate disputes over ownership of the Spratly Islands in the South China Sea according to international law, and discuss the issue with ASEAN as a group, has set the stage for a solution.
The six claimants — China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei — start fresh talks with Indonesian officials this Tuesday to try to ease renewed tension over the disputed area, a potentially rich zone for undersea oil and natural gas.
What does international law say about possible solutions? The main guidance is provided by previous international agreements, rulings by the International Court of Justice, and the 1982 United Nations Convention on the Law of the Sea. Beijing has said it will use the convention as a basis for negotiations, although of the six claimants only the Philippines and Vietnam have actually ratified it.
The precedents in international law suggest that all the claims to sovereignty over the Spratly Islands — a group of tiny islets, sand cays and reefs scattered widely over the southern sector of the South China Sea — are weak.
The historic record supporting the claims of China, Taiwan and Vietnam is incomplete and intermittent, and would probably be unconvincing to the International Court of Justice.
None of the claims to the Spratlys, including the more recent claims of Malaysia, the Philippines and Brunei, is supported by the requisite continuous and effective control, administration and governance.
Even if some of the sovereignty claims were to prevail, these tiny outcrops in the sea do not appear to be legally qualified to generate surrounding exclusive economic zones out to 200 nautical miles, or the even more extensive continental shelves. According to the Law of the Sea Convention, rocks that cannot sustain human habitation or an economic life of their own cannot be the basis for such zones; nor can artificial islands.
Only some 26 features in the Spratly chain are above water at high tide. The largest has a land area of less than half a square kilometer, and only six others are bigger than 0.1 square kilometer. None of them has ever sustained a permanent population. Vietnam has already taken the position that these islets should not generate extended maritime zones, and other countries in the region seem to be moving toward this view.
Even if the Spratlys were deemed to be the source of extended zones, they would not have equal weight to do so in relation to the larger land masses that surround the South China Sea. The International Court of Justice and other tribunals have consistently ruled that small islands do not play an equal role in determining maritime boundaries, and sometimes are ignored altogether.
For example, Vietnam and Malaysia have continental shelf claims extending well into the Spratly area, and these claims would be considered superior to any claims based on the islets.
If the court were asked to determine the maritime boundaries in the area, it would probably define the area in dispute, measure relevant coastlines and identify significant geographical features to be taken into account. It would develop provisional boundaries based roughly on median lines, check to see whether those lines violated "equitable principles," focusing in particular on the relative coastline lengths and relying on a rough sense of fairness to each claimant. It would then adjust the lines accordingly.
In a maritime boundary settlement following such principles and ignoring the Spratlys and the Paracel Islands in the northern part of the South China Sea (which Chinese forces seized from Vietnam in 1974), China-Taiwan, Vietnam and the Philippines would gain roughly equal areas.
Although most of the Macclesfield Bank southeast of the Paracels would go to China-Taiwan, it would not get any of the Spratly geologic block further to the south. The Philippines would get the northwestern portion of the Spratlys, including the Reed Bank. Malaysia would get two sizable sectors off its states of Sarawak and Sabah separated by Brunei's narrow corridor.
Sovereignty over the Spratlys themselves might be allocated based on the sector in which they are situated, or might eventually fall to the present occupants. But in either case, sovereignty would be limited because the islets would generate only a 500-meter safety zone or perhaps a territorial sea out to 12 nautical miles. The Spratlys would be demilitarized and open to access for peaceful purposes by other claimants.
If the claimants could not agree to an allocation scheme, the UN Law of the Sea Convention requires them to establish a provisional arrangement. The convention also urges cooperation in semi-enclosed seas as well as sharing of the resources in areas beyond 200-nautical-mile exclusive economic zones.
These principles taken together favor a dramatically different option — multilateral joint development of an agreed area.
One logical approach would be for China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei to set aside their claims for now and establish a multilateral Spratly Management Authority.
The authority would administer the contested area, which could be defined in several possible ways. Our preferred option would be to define it as the area beyond a line halfway between the coastline of the South China Sea and the disputed features in the Spratlys.
The claimant states could be given weighted voting shares in a governing council and financial responsibility in the authority in rough relationship either to their coastline lengths or the original extent of their claims. In either case, China-Taiwan would have a substantial portion of shares, benefits and costs.
Decisions would normally be made by consensus, but when voting became necessary, substantive decisions on matters affecting the entire area would be taken by a two-thirds vote of the assigned shares.
Decisions affecting a particular location might require a majority of the votes in the governing council as well as a majority of the claimants to the affected area. Nonclaimant states in the region — and perhaps concerned maritime nations outside the region — might have a voice, but not a vote, in the operation of the Spratly Management Authority.
The multilateral joint development solution to the Spratlys imbroglio should be attractive, since all claimants would be sharing in the proceeds from the exploitation of resources in and under the disputed waters. The continuing discord and threat of conflict now dominating the region are discouraging investors.
If a cooperative solution could be developed, the claimants would be working together to explore and develop oil and gas, manage fisheries and maintain environmental quality. Such cooperation would greatly reduce the chances of miscalculation and dangerous confrontation.
Other powers not involved in the Spratlys dispute, including the United States and Japan, would be highly supportive because safety and freedom of navigation would be assured through the South China Sea, which is an important maritime highway for naval and commercial shipping of many nations.
Mr. Valencia is a senior fellow in the program on international economics and politics at the East-West Center in Hawaii. Mr. Van Dyke and Mr. Ludwig are specialists on international law and resources at the University of Hawaii. They contributed this comment to the International Herald Tribune.
The U.S. and China’s Nine-Dash Line: Ending the Ambiguity
"U.S., Chinese navy chiefs to discuss South China Sea on Thursday"
By: Jeffrey A. Bader
For the first time, the United States government has come out publicly with an explicit statement that the so-called “nine-dash line,” which the People's Republic of China (PRC) and Taiwan assert delineates their claims in the South China Sea, is contrary to international law. Assistant Secretary of State for East Asian and Pacific Affairs Danny Russel, in testimony before the House Committee on Foreign Affairs on February 5, said, “Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the 'nine-dash line' by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea."
-- Additional Resources
U.S. President Barack Obama and Chinese President Xi Jinping
BIG BETS & BLACK SWANS - Memorandum to the President
Return to the Asia Rebalance and the U.S.-China Relationship
The South China Sea encompasses several hundred small islands, reefs, and atolls, almost all uninhabited and uninhabitable, within a 1.4 million square mile area. The PRC inherited from the former Kuomintang government of China the nine-dash line, which draws a line around all of these islands, asserts sovereignty over all of them, and makes ambiguous claims about rights to waters within the line. Under the U.N. Convention on the Law of the Sea (UNCLOS), negotiated in the 1970s and 1980s, countries can claim exclusive rights to the fish and mineral resources within Exclusive Economic Zones, which can extend 200 nautical miles from a continental shore line or around islands that can support habitation. There is no provision in the convention granting rights to waters, such as in the South China Sea, without regard to land-based sovereign rights. So it has long been implicit in the U.S. interpretation of UNCLOS that claims to the mineral and fish resources of the South China Sea, unless they are linked to specific inhabitable islands, are invalid. Assistant Secretary Russel’s statement has made that position explicit.
U.S. attention to the South China Sea has increased visibly under the Obama administration. The first manifestation of that attention was a highly publicized statement by Secretary of State Clinton at an international gathering in Hanoi in 2010, in which she laid out principles governing U.S. policy in the South China Sea: respect for freedom of navigation, peaceful resolution of disputes, freedom of commerce, negotiation of a Code of Conduct for dispute resolution and, most relevant here, the view that claims to water could only be based on legitimate land-based claims. Clinton’s statement took a hitherto obscure, below the radar issue and made the South China Sea the subject of accelerated regional diplomacy, numerous analyses by commentators and national security specialists and in some cases sharpened rhetoric by the various claimants. It was welcomed by all of the Southeast Asian claimants (i.e., Vietnam, Philippines, Malaysia, Brunei), though resented by China.
Secretary Clinton made the statement in response to growing concern among China’s neighbors that China was advancing its claims through political and military means and in the absence of any diplomatic process to reduce tensions. In 1994-1995, there had been a similar period of heightened tensions when China built installations on Mischief Reef in the Spratly Islands, claimed by the Philippines. A deterioration in Chinese relations with Southeast Asian countries led the Chinese leadership, spearheaded by then State Councilor Qian Qichen, to negotiate a regional Declaration of Conduct and a pledge not to take actions that would change the status quo. Sporadic seizure of fishing vessels by one party or another continued, and countries, principally Vietnam, granted exploration rights to oil companies in disputed areas, but none of these episodes triggered war alarms.
In the last several years, however, there has been a growing concern in the region, and in the U.S., that China had turned its back on diplomacy and was using military and legal means to advance its claims to all of the South China Sea. Statements to U.S. diplomats characterizing the South China Sea as an issue of prime importance to China involving sovereignty and on which it would not accept interference raised the ante. In 2012, China expelled Filipino fishermen from traditional fishing grounds around Scarborough Shoal, less than 125 miles from the main Philippine islands, and has used its coast guard to maintain control. In 2012, it established an administrative and military district covering portions of the claimed Paracel Islands. In establishing an Air Defense Identification Zone over portions of the East China Sea in late 2013, Chinese spokesmen indicated an intention at some point to establish a similar zone in the South China Sea, which inevitably would cover at least some areas claimed by others.
The South China Sea is a complicated issue for the United States. We have no territorial claims there. We do not take sides on the respective sovereign claims of the parties, nor should we. It is highly unlikely that any country can establish effective means of projecting power from South China Sea islands that would threaten U.S. ships, military or otherwise, in the region. While there are believed to be considerable unexploited reserves of oil and gas within the South China Sea waters, they are not commercially viable for production on a large scale and are not expected to be for some time.
But the U.S. does have important interests in the South China Sea. They are:
* To ensure freedom of navigation, not as a favor from any country but as an international right in an area through which 50 percent of the world’s oil tankers pass, that is a major thoroughfare of international commerce, and where U.S. military vessels deploy and operate consistent with international law.
* To prevent use of force or coercion to resolve claims either to territory or to maritime rights.
* To advocate for respect for international norms and law for resolving all such issues.
* To ensure that all countries, including the U.S., have the right to exploit the mineral and fish resources outside of legitimate Exclusive Economic Zones.
* To prevent a U.S. ally, the Philippines, from being bullied or subject to use of force.
* To ensure that the rights of all countries, not merely large ones, are respected.
There are tensions between differing elements of U.S. interests. The U.S. does not wish to see China gain control over the area through coercion. But at the same time the U.S. does not have an interest in making the South China Sea a venue of confrontation or conflict between the U.S. and China. Frontal challenges to Chinese claims, if not founded on international norms and consistent with U.S. principles, run the risk of inciting heightened Chinese nationalism and paranoia over U.S. intentions and producing more aggressive Chinese behavior in the region that would victimize the other claimants without an effective U.S. response. On the other hand, a passive U.S. posture would undercut the interests outlined above and would persuade the other claimants that the U.S. was abandoning both them and our principles, thereby making a mockery of the Obama administration’s “rebalancing” toward Asia and badly damaging regional receptivity to U.S. presence and influence.
By explicitly rejecting the nine-dash line, Assistant Secretary Russel and the administration have drawn our own line in the right place. They have made clear that our objection is a principled one, based on international law, not a mere rejection of a claim simply because it is China’s. So long as our approach to the South China Sea remains firmly grounded on principle and international law, the U.S. can accomplish our objectives, strengthen the position of other claimants with respect to their rights and avoid the appearance of seeking confrontation with China over a sovereignty issue.
What else can and should the U.S. do? Several things:
* The U.S. should ensure that its approach is not seen as unilateral. It is not, but sometimes other countries are publicly quiet but privately supportive. The U.S. government should make clear to the other claimants, and to other ASEAN countries like Singapore and Thailand, that we expect them to be public in their rejection of the nine-dash line under international law.
* The U.S. should discuss with Taiwan whether it can clarify its position on the nine-dash line, to make clear that its claims are consistent with UNCLOS.
* The U.S. should continue to make a high priority negotiation of a Code of Conduct between China and the ASEAN states, as we have done since Secretary Clinton announced that objective in Hanoi. Indeed, the decision by China and ASEAN to begin talks on a Code of Conduct was one of the beneficial outcomes of Secretary Clinton’s statement.
* The U.S. should urge the Chinese not to establish any new Air Defense Identification Zone in the South China Sea. While a public position on this is necessary, private diplomacy is likely to be more effective in influencing Beijing.
* The U.S. should discuss with all the claimants possible agreement on exploitation of mineral and fish resources without regard to sovereignty, including the use of joint ventures between companies.
* The Senate should ratify the U.N. Convention on the Law of the Sea. That would give the U.S. legal and moral standing to participate more actively and effectively in decisions on the future of the South China Sea. All former U.S. Secretaries of State support such a decision. So does the U.S. Navy and former Chiefs of Naval Operations and Pacific Commanders. So does the overwhelming majority of concerned U.S. companies. We should put our money where our mouth is.
Blunting China’s Realpolitik Approach: Liberalism through UNCLOS Arbitration
"U.S., Chinese navy chiefs to discuss South China Sea on Thursday"
Renato Cruz de Castro January 21, 2015
The 2012 Scarborough Shoal stand-off between the Philippines and China was the proverbial tipping point caused by China’s pattern of protracted, aggressive actions against the Philippines that began two years earlier.
Analysis: A path for dispute resolution in the South China Sea
By Renato Cruz De Castro (philstar.com) | Updated October 7, 2016 - 9:44am
Each claimant seeks to extend its sovereignty and jurisdictional claims over more than a hundred islets, reefs, and rocks and their surrounding waters. Philstar.com/File photo
Located in the heart of Southeast Asia, the South China Sea is a semi-enclosed sea surrounded by China and several small and militarily weaker Southeast Asian powers such as the Philippines, Vietnam, Malaysia and Brunei. Since the mid-1970s, these states have been involved in a chronic competition as each one seeks to extend its sovereignty and jurisdictional claims over more than a hundred islets, reefs, and rocks and their surrounding waters.
Despite this competition, the South China Sea dispute hibernated in the late 1990s and the early 2000s after China and the Association of Southeast Asian Nations (ASEAN) signed the 2002 Declaration on the Conduct of Parties in the South China Sea.
China’s seven-year strategic shift
The maritime row flared up in 2009 when China assumed an assertive posture, attempting to consolidate its jurisdictional claims in the South China Sea by expanding its military reach and pursuing coercive diplomacy against the other claimant states. China increased its naval patrols (using submarines, survey ships, and surface combatants) in Japan’s Exclusive Economic Zone (EEZ) and territorial waters, and intimidated foreign oil companies that tried to operate in the South China Sea.
Since 2009, China has shifted its strategy from one that delays the resolution of the dispute to one that emphasizes its sovereignty over the contested waters, to deter other claimant states like the Philippines and Vietnam from cementing their claims and to negotiate with these small powers from a position of strength. Recently, the dispute has become more problematic as the claimant states have been inclined to deploy naval assets in controlling the disputed offshore territories, and to demonstrate their resolve to keep them.
-- " Since 2009, China has shifted its strategy from one that delays the resolution of the dispute to one that emphasizes its sovereignty over the contested waters. " --
Major powers enter the fray
The South China Sea dispute is one of four potential flashpoints in East Asia, along with the Korean Peninsula, the East China Sea and the Taiwan Straits. In the past years, China’s efforts to control 80 percent of the South China Sea have alarmed smaller claimant states, such as the Philippines and Vietnam; in response, these two countries invited two major naval powers into the fray, the United States and Japan.
Statements from Washington have previously indicated that its leadership is troubled by China’s bullying behavior towards the smaller claimant states, as well as any behavior that could impact America’s ability to sail in or fly over the South China Sea in line with law.
Japan, on the other hand, is pressured by China over the Senkaku/Diaoyu islands and, consequently, has become interested in the South China Sea disputes as well. In Japan’s thinking, the way in which the South China Sea disputes are resolved (or not) will have a bearing on Japan’s interests in the East China Sea.
The presence of these three major naval powers—US, Japan, and China—in the South China Sea has generated a stable but fragile security situation. This security situation is marked by an old-fashioned strategic balancing of a major regional power by two small powers that depend on extra-regional maritime powers to maintain the status quo for the unforeseeable future.
-- " The presence of these three major naval powers—US, Japan, and China— in the South China Sea has generated a stable but fragile security situation. " --
The balance of power in the South China Sea dispute has prevented an armed conflict among the claimant states. However, this situation has two major flaws: first, it features a very fluid situation in which any armed confrontation may escalate and drag the other maritime powers into a major systemic war. Second, while the balance of power system has stabilized the situation, it has simply failed to resolve the dispute and created a tense strategic impasse.
Resolving the strategic impasse
It is this second feature, the strategic impasse that could transform the balance of power system into a schema of stable peace. To achieve it, the probability of war, especially among the major powers, must be minimized. This requires each country to lower the possibility of resorting to violence to pursue their strategic and political objectives. When applied to the South China Sea disputes, this process could involve the following stages:
The first stage necessitates one party in the dispute to initiate a unilateral accommodation by sending a message of benign intent to the other parties. As the biggest and powerful state in East Asia, China needs to modify, if not abandon, its strategy of delaying the resolution of the dispute. By delaying the resolution, it is able to consolidate its expansive claim and prevent other claimant states from consolidating their own claims.
-- " As the biggest and powerful state in East Asia, China needs to modify, if not abandon, its strategy of delaying the resolution of the dispute. " -- The second stage involves the implementation of individual acts of unilateral accommodation, in order to pave the way for reciprocal restraint by the other disputing states. China and the ASEAN states should finalize and sign a binding Code of Conduct on the South China Sea and even an Incident at Sea Agreement (INCSEA) that will define how their naval and coast guard units should operate in the disputed waters.
The third stage involves the intensification of direct contacts of the claimant states’ civil societies that will lead to joint economic ventures in the disputed waters. These moves could include joint development of hydrocarbon and fisheries resources by the claimant states’ private companies and their foreign partners.
The fourth and final stage is the establishment of a stable peace in the South China Sea is the generation of a new narrative about how the disputing states’ relations are transformed from conflict to reconciliation. China’s move
With its size and location in East Asia, robust economy and military prowess, China is the most able among the claimant states to initiates a policy of unilateral accommodation in the South China Sea. Such a policy would require China to be conciliatory and flexible to prevent the small littoral states from adopting a balancing policy that involves bringing both the U.S. and Japan into the strategic equilibrium.
Unfortunately, instead of being conciliatory to the small Southeast Asian powers, China is still embarking on a policy of maritime expansion. The current Chinese leadership feels confident that with their country’s new political and economic clout and a powerful People’s Liberation Army, China can advance its core interests in the maritime domain.
-- " Instead of being conciliatory to the small Southeast Asian powers, China is still embarking on a policy of maritime expansion. " -- However, China’s assertive power-based approach in imposing its expansive claim in the South China Sea has rekindled both Japanese and American strategic attention and interests in the region. These developments inevitably increase the uncertainty in the disputed waters and direct us into a scenario where “Asia’s uncertain future will be Europe’s bellicose and violent past.”
This worst-case scenario will be prevented if stable peace will break out in East Asia. For this to happen, China must change its realpolitik approach to the dispute. The long-term resolution of the imbroglio will only begin by China’s unilateral accommodation of the views and interests of the small claimant states. Taking this first step entails enormous restraint as well as diplomatic flexibility and, more importantly, humility on the part of the emergent power.
Many of his supporters will love it .. 'shake 'em up!', will clog the twitter zone .. it will put his give-away Carrier deal on the sideline .. ooi, is it a first for an American president-elect?
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