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The Third International Workshop on SCS

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This paper examines the implications of China’s realpolitik approach in its territorial claim over theSouth China Sea on regional security. It observes that China is using the following power-politics tactics with regard to its territorial claims: a) citing a historic claim; b) applying bilateral approach to weaken the ASEAN; c) relying on a divide and rule stratagem in dealing with individual ASEAN member states and creating a wedge between the ASEAN and the United States; and d) buttressing its naval capabilities to enable it resolve the territorial dispute according to its own terms. In conclusion, the paper argues that China’s use of realpolitik approach in resolving the South China Sea dispute will cause East Asia’s future to become Europe’s past.

 

This paper discusses the juridical debate between the two positions, labeled for this purposes as, on one hand, the nationalist position vis-à-vis the modernist position. The nationalist position would adhere to the expansive claim over maritime zones created by the 1898 Treaty of Peace whereby Spain, the erstwhile colonizing power, ceded the Philippine archipelago to the United States. Themodernist position would adhere to the calibrated but widely accepted maritime zones as defined in the Law of the Sea Convention. Both positions are based on treaties binding on the Philippines, the first by succession, the second by ratification.

It explores the persistence of the nationalist position and why the modernist argument has not overwhelmed it despite the recent Baselines Law, as demonstrated by the Supreme Court’s recent decision. The Court could have categorically stated that with the passing of the new Baselines Law, the Philippines  had officially cast off the 1898 treaty lines which have been obsolesced by the radically new approach using baselines. In other words, far from being the triumph of the modernist view, the Magallona v. Executive Secretary ruling actually demonstrates the rhetorical and symbolic power of the nationalist position.

The paper outlines and examines how China and Vietnam deal with tensions relating to their territorial disputes in the South China Sea. It looks specifically at the tension caused by incidents in late May and early June 2011 and how the tension was brought under control by the two countries. These developments are then examined in the broader context of the Sino-Vietnamese approach to managing border disputes in the period since full normalisation of relations in late 1991, both progress made in terms of conflict management and challenges faced in terms of tension are addressed. The implications and lessons drawn from the developments in May-June 2011 and from the broader period since late 1991 is outlined. Furthermore, the challenges for China and Vietnam to properly manage their disputes and related tension in the South China Sea are discussed.

The South China Sea is a convergence of concerns about maritime security. With regard to traditional security, the escalating of conflicting territorial and maritime claims can lead to the ‘sound of cannon’ in the South China Sea. In the perspective of non-traditional security, the degrading biodiversity of marine environment, the over-exploitation of marine resources, the menacing of freedom and safety navigation and over flight and the instability of livelihoods of coastal residents are the current threats. All of these prospects put maritime security in the South China Sea at a high alert. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is a multilateral and comprehensive legal framework which helps the countries promote peaceful, equitable and sustainable use and management of the sea with due regard to sovereignty of each other. With this objective, UNCLOS provides the basis for the countries in the South China Sea to curb and manage threats to maritime security. Although not create legal basis for solving sovereignty disputes, the Convention can be use to help the parties identify and narrow the subject of a sovereignty dispute. The Convention can provide a basis for the parties to make legitimate maritime claims and determine respective the rights and obligations of coastal states and other states. UNCLOS also establishes a mechanism for cooperation on environmental protection, marine scientific research and in particular cooperation obligations between littoral countries in the semi-enclosed seas. Dispute settlement mechanism of the Convention can be used to narrow down and proceed to resolve the dispute, in which countries are obliged to achieve temporary arrangements while pending for the final dispute settlement. In order to properly apply the provisions of the Convention to the specific situation of the South China Sea, countries should consider the Convention as legal basis to develop a legally binding code of conduct for the region.

The paper strives to justify the adoption of this zone to control piracy, as such a course of action could promote freedom of commercial shipping and navigation supplementing flag State jurisdiction and may assist shippers who are not allowed to carry weapons and use force in self-defence against pirates and who cannot exercise universal jurisdiction but without infringing the right of overflight under the 1944 Chicago Convention on Civil Aviation. It would also be a lawful exercise of state responsibility by coastal States as permitted by Article 105 on “A seizure of a Pirate ship or Aircraft”, 1982 LOSC under the principle of universal jurisdiction.  The three areas of discussion are first, the incidents of piracy and armed robbery in the South China Sea; second, the legal framework of maritime and air defence identification zones and finally the establishment of a limited purpose South China Sea Maritime and Air Defence Identification Zone.  The consequences of littoral States inaction would probably leave shippers, with the sole responsibility of combating piracy occurring on their ships as the threats increase. 

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South China Sea Studies

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