The South China Sea Dilemma: A Political Game of International Law

Journal of Political Risk, Vol. 4, No. 6, June 2016

By Nong Hong[1]

In this file photo from Wednesday, June 15, 2016, an F/A-18 Hornet takes off the deck of the nuclear-powered aircraft carrier the USS John C. Stennis during joint military exercise between the United States, Japan and India off the coast 180 miles east of Japan's southernmost island of Okinawa. The U.S. says at least one Chinese ship tailed the USS John C. Stennis daily during its recent cruise through the South China Sea, although no hostile incidents were reported. (AP Photo/Shizuo Kambayashi, File)

In this file photo from Wednesday, June 15, 2016, an F/A-18 Hornet takes off the deck of the nuclear-powered aircraft carrier the USS John C. Stennis during joint military exercise between the United States, Japan and India off the coast 180 miles east of Japan’s southernmost island of Okinawa. The U.S. says at least one Chinese ship tailed the USS John C. Stennis daily during its recent cruise through the South China Sea, although no hostile incidents were reported. (AP Photo/Shizuo Kambayashi, File)

Abstract

The existing territorial and maritime disputes in South China Sea have been pending for decades. Despite tremendous efforts on conflict management, the settlement of the decades-old maritime dispute in the South China Sea seems to be politically deadlocked. The Philippines, losing patience and confidence on negotiations on various levels, has stepped forward by utilizing the arbitration procedures under the United Nations Convention on the Law of the Sea and sued China on January 22, 2013. This paper attempts to answer such questions as, will the arbitration case resolve the dispute between the Philippines and China; what is the political and legal consequence following this; what is the impact of the Philippine’s arbitration initiative for the negotiation and drafting process of the Code of Conduct; what is the value and role of the UNCLOS in maritime dispute settlements in the South China Sea; and, in a broader sense, is the recent escalating tension in the South China Sea a consequence, explicitly or implicitly of the arbitration case. The author argues that despite the value ascribed  to the compulsory dispute settlement under UNCLOS, the South China Sea Arbitration Case does not resolve the problem between the two countries. Even more complicated, some have blamed the Philippines for triggering the negative reaction from China, which will lead to an uncertain post-arbitration situation. The author raises a question: Is the Philippines’ use of UNCLOS arbitration a genuine attempt to resolve its maritime dispute with China? Or is it merely a political game of international law?

Introduction

The South China Sea dispute is regarded as the most complex and challenging ocean-related regional conflict in East Asia. The security in the South China Sea is a concern for both regional countries, e.g. China, Vietnam, the Philippines, Malaysia, and extra-regional countries, e.g. the United States, Russia, India and Japan due to their strategic and economic interests in this region. The dispute springs from a number of sources, including competing historical claims on sovereignty, competition of access to energy, the significance of the region geographically, the threat it poses to maritime security, and overlapping maritime claims under the United Nations Convention for the Law of the Sea (UNCLOS). The latter in particular makes the South China Sea dispute even more complex than is the case in other regional disputes, involving the greatest number of parties [2] of any maritime dispute  in the world. Conflict in the South China Sea will pose a threat to regional and international security. Seeking a peaceful solution thus becomes an important agenda for foreign policy makers.

Despite tremendous efforts in conflict management, the decades-old maritime disputes in the South China Sea seem to be at a  political deadlock. A quick solution appears to be difficult, if not impossible to obtain. Small-scale conflicts occurred among the disputant countries in 1970s and 1980s. The South China Sea disputes seem to have remained quiet from 2002 to 2009, which may be attributed to the Declaration of the Conduct of Parties in the South China Sea (DoC) signed by China and the Association of Southeast Asian Nations (ASEAN) states in 2012. The agreement allowed parties to explore ways to build trust and confidence in accordance with international principles, including United Nations Charter, and on the basis of equality and mutual respect.

Starting in 2009, several major developments once again stirred up controversy in the South China Sea, highlighting the difficulties of maintaining stability in the region. Various claimant states have attempted to consolidate their claims by passing national legislation and running public relations campaigns. Some disputants have made submissions to the Commission of Limits of Continental Shelf (CLCS)[3] and, as a result, China submitted to the United Nations (UN) Secretary General a map depicting its U-shape Line,[4] which continues to arouse heated  reaction from other claimant states and stakeholders. The South China Sea became an even muddier pool in 2010 after the China-U.S. spat over China’s so-called ‘core interest’ statement[5] and the following counterpart statement on ‘national interest’[6] by then U.S. Secretary of State Hillary Clinton.[7] The tension in the South China Sea has continued to escalate, especially since January 2013 when the Philippines initiated an arbitration proceeding (referred to hereafter as the South China Sea Arbitration Case) against China under  UNCLOS.

The United States and Japan praised the Philippines for setting the precedent of utilizing a third-party compulsory settlement mechanism for the multiple overlapping claims, while others remained silent, including some ASEAN states. The legal and political implication of this arbitration case thus become a debatable question.  Will the South China Sea arbitration case resolve the dispute between the Philippines and China? What political and legal consequences would follow a successful resolution? What impact has the Philippines’ arbitration initiative had on the negotiation and drafting process of a system of cooperative guidelines for the region? What is the value and role of UNCLOS in maritime dispute settlements both in the South China Sea and more broadly? And lastly, is the recent escalating tension in the South China Sea a consequence—direct or indirect—of the arbitration case?

This article attempts to address the above questions. It first lays out the dispute settlement regime under Part XV of UNCLOS, and then explores the different approaches of the South China Sea claimant states towards a third-party compulsory settlement mechanism and state practice of maritime dispute settlement. I will examine the Notification and Statement from the Philippines and discuss the process and substance of it , then turning to an  evaluation of the effectiveness of the case in settling maritime disputes in the South China Sea from both a legal and a political perspective.[8] I argue that despite the value and credit given to the compulsory dispute settlement under UNCLOS, the South China Sea Arbitration Case will  not resolve the problem between China and the Philippines. To further complicate matters, it seems that the Philippines’s action in proceeding with arbitration has triggered a negative Chinese reaction, leading to uncertainty in a post-arbitration situation. Is the South China Sea Arbitration Case purely an attempt to resort to an international judiciary to solve the maritime dispute? Or is it merely a political game of international law?

The Dispute Settlement Regime of UNCLOS

Compared to many international laws, UNCLOS has an elaborate set of parameters for dispute settlement. Part XV of UNCLOS established a comprehensive system for settling disputes that involves the interpretation and application of the convention. It requires state parties to settle their disputes by peaceful means, as stated in the UN Charter. Section 1 of Part XV sets out the fundamental principles concerning dispute settlement.[9] According to Section 2, however, if parties to a dispute fail to reach a settlement by peaceful and voluntary means, they are obliged to resort to a compulsory dispute settlement procedure, which results in  binding decision subject to certain limitations and exceptions.[10]

Section 3 of Part XV includes two important articles: Articles 297 and 298, which are critical for defining the jurisdiction of the arbitral  tribunal.   Article 297 sets out the various categories of disputes that are subject to Section 2 procedures, together with a number of general limitations. These limitations are ‘general’ in the sense that  state parties are automatically entitled to opt-out of participation in dispute settlement in certain cases described  under the article.  [11]  For example, the Article establishes that disputes concerning fisheries are subject to Section 2 procedures, but states that Parties are not obliged to submit the dispute to settlement if it relates to their establishment of an allowable catch size.  Other limitations are set out on such issues as  freedom of navigation,  the protection and preservation of the marine environment, and fishing and marine scientific research.[12]

Article 298 sets out optional exceptions to the applicability of Section 2 procedures. These exceptions are optional in the sense that, if a state party wishes to exclude any of the specified categories of dispute from the application of Section 2 procedures, it must make a written declaration to that effect.[13] Article 298 excludes three categories of disputes from compulsory settlement: (1) disputes over sea boundary delimitations or historic bays or titles; (2) disputes over military activities and certain types of law enforcement; and (3) disputes in respect of which the UN Security Council is exercising the functions assigned to it by the UN Charter.[14]

Compulsory Dispute Settlement Practice in the South China Sea

None of the South China Sea claimant states have made a declaration under Article 287[15] to choose a forum for compulsory settlement procedures. This means that any dispute that occurs among these states, assuming none of them makes a declaration under Article 298, will be brought before the arbitration tribunal according to Annex VII of UNCLOS, unless they make a declaration on the choice of forum in the future.

Compared with African and Latin American states, ASEAN member states bring fewer cases of dispute settlement to the international judiciary. However, there are still examples of ASEAN states submitting cases dealing with disputes of sovereignty. In 1998, Indonesia and Malaysia jointly brought a dispute of sovereignty over the Pulau Ligitan and Pulau Sipadan islands to the International Court of Justice. (ICJ)[16] In 2003, Malaysia and Singapore jointly submitted a dispute concerning sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge to the ICJ.[17] Malaysia submitted a request for the prescription of provisional measures on land reclamation activities in and around the straits of Johor to the International Tribunal for the Law of the Sea (ITLOS) against Singapore in September 2003.[18]

The scenario of resorting infrequently to the international judiciary may change in the future should the proposed ASEAN Court of Justice, comprised of judges nominated by each member state, comes to fruition.[19] However, whether a third-party forum will be welcomed in settling the sovereignty of islands and maritime delimitation in the South China Sea remains an unanswered question. During interviews with scholars and government officials of foreign affairs or marine affairs from Indonesia, the Philippines, Vietnam, Malaysia, and Brunei, individuals were reluctant to express their personal opinions, even though they were encouraged to be candid, rather than relay the government’s position.

The Philippines broke with this legal culture and tradition of infrequently using third party dispute settlement mechanisms on 22 January 2013, when the government  submitted to China a Notification and Statement of Claim (hereafter referred to as Notification and Statement) under Article 287 and Annex VII of UNCLOS, in order to initiate arbitral proceedings over their maritime dispute in the South China Sea. On 31 January 2013, China rejected and returned the Notification and Statement, and stated its opposition to the Philippines’ request to take the South China Sea disputes to an arbitration tribunal. A five-member Arbitral Tribunal was set up in July 2013. Judge Thomas A. Mensah of Ghana chairs the tribunal, and the other members are Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland, Professor Alfred Soons of the Netherlands, and Judge Rüdiger Wolfrum of Germany.

The first meeting of the Members of the Arbitral Tribunal was held at the Peace Palace in the Hague on 11 July 2013.[20] The Arbitral Tribunal decided that the Permanent Court of Arbitration would act as the registry in the proceedings. In the first Procedural Order, the Arbitral Tribunal formally adopted the Rules of Procedure and fixed 30 March 2014 as the date on which the Philippines should submit its Memorial.[21] On 1 August 2013, China addressed a Note Verbale to the Permanent Court of Arbitration in which it reiterated its position that China “does not accept the arbitration initiated by the Philippines” and declining to participate in the proceedings.[22] On 30 March 2014, the Philippines submitted its Memorial to the Arbitration Tribunal.[23] In Procedural Order No. 2, the Arbitral Tribunal set 15 December 2014 as the date for China to submit its Counter-Memorial responding to the Philippines’ Memorial.[24] The Philippines on 15 March 2015 filed a supplemental written submission addressing the Arbitral Tribunal’s Request, and China had until 16 June 2015 to provide any comments in response to the supplemental written submission of the Philippines.[25] China did not do so. The court ruled on October 29 2015 , 2015, that the case was “properly constituted” under the United Nationals Convention on the Law of the Sea, that  China’s “non-appearance” did not prevent the Court’s jurisdiction, and that the Philippines was within its rights in filing the case. The case will therefore be moved forward. [26]

The Legal Dimension of the South China Sea Arbitration Case

Although the Philippines did not specifically discuss the territorial dispute with China in the Notification and Statement, the core of the China-Philippine dispute is their competing territorial claims over the Nansha (Spratly) islands and Huangyan Island (Scarborough Shoal). This following section will compare the legal argument of China and the Philippines in this arbitration case.

Claims of the Philippines

In its Notification and Statement of Claims, the Philippines makes four distinct claims: (1) China’s nine-dash line is invalid; (2) China has occupied mere rocks on Scarborough Reef rather than significant features; (3) China’s structures on submerged features are illegal; and (4) Chinese harassment of Philippine nationals at sea is also illegal.[27]

Within the opening of the hearing on jurisdiction and admissibility, the Philippine’s submission on the merits of the Parties’ dispute as follows:[28]

  • First, that China is not entitled to exercise what it refers to as ‘historic rights’ over the waters, seabed and subsoil beyond the limits of its entitlements under the Convention;
  • Second, that the so-called ‘nine-dash line’ has no basis whatsoever under international law insofar as it purports to define the limits of China’s claim to ‘historic rights’;
  • Third, that the various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone or continental shelf. Rather, some are ‘rocks’, within the meaning of Article 121(3); others are low-tide elevations; and still others are permanently submerged. As a result, none are capable of generating entitlements beyond 12 miles, and some generate no entitlements at all. China’s recent massive reclamations activities cannot lawfully change the original nature and character of these features;
  • Fourth, that China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and
  • Fifth, that China has irreversibly damaged the regional marine environment, in breach of [the Convention], by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ [exclusive economic zone], by its destructive and hazardous fishing practices, and by its harvesting of endangered species.

China’s Response

On 23 January 2013, the day after the Philippines filed its Notification and Statement of Claims, the Chinese Foreign Ministry spokesman stated that China has “indisputable sovereignty” over the South China Sea under “abundant historical and legal grounds.”[29] He blamed the dispute on the Philippines’ “illegal occupation of some of the Chinese islets and atolls of the Spratly Islands,” and claimed that China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability.”[30]

On 19 February 2013, China officially refused to participate in the proceedings.[31] In addition, China accused the Philippines of making factually flawed accusations and of violating the DoC.[32] Chinese Foreign Ministry spokesman Hong Lei mentioned the consensus that China and ASEAN member states reached when they signed the DOC in November 2002 that disputes should be solved through talks between the nations directly involved.[33]

China considers the act of initiating arbitration proceedings unfriendly and damaging the Sino-Philippine relations. China complained that, “the Philippine side had failed to notify the Chinese side, not to mention seeking China’s consent, before it actually initiated the arbitration.”[34] Reasons why China rejected the arbitration include: (1) China has insisted its position on resolving the disputes between Beijing and Manila through bilateral negotiations; (2) under international law, China has the right to turn down the request from the Philippines for the arbitral proceedings because it has made a declaration under Article 298 of UNCLOS; and (3) the act of filing the arbitration case sets an obstacle for the two countries to develop their friendly relations.

In addition, China also questioned whether the Arbitration Tribunal has jurisdiction over this case.  Although the Philippines did specifically discuss the territorial issue in its Notification and Statement, it is impossible to discuss most of its claims without first clarifying Chinese and Philippine sovereignty over island features in the South China Sea. For example, the majority of the Philippines’ claims assume that China only has territorial sovereignty over a few “rocks,” such as Chigua Jiao (Johnson Reef), Huayang Jiao (Cuarteron Reef) and Yongshu Jiao (Fiery Cross Reef) in the Nansha (Spratly) Islands,[35] while intentionally ignoring the fact that China has claimed sovereignty over the entire Nansha (Spratly) Islands. Hence, the Philippines’ claims are essentially maritime delimitation claims that involve questions of territorial sovereignty. Such questions, however, are excluded from UNCLOS arbitration under article 298. Thus, China believes that its rejection of the arbitration has a solid basis in international law.

Responding to China’s argument against the jurisdiction and admissibility, the Philippines emphasizes that it does not ask the Tribunal to rule on the territorial sovereignty aspects of its disputes with China and only seeks e essentially maritime delimitation claims that involve questions  China presented a number of preliminary objections to jurisdiction which were addressed by the Philippines during the preliminary phase of the proceedings. For instance, the Philippines holds that, regardless of which State has sovereignty, the entitlements of any feature to any one, some, or all of the maritime zones under UNCLOS is “a matter for objective determination.” [36] Some Chinese scholars have written counter-argument papers challenging the Philippines’ defence of its position. [37] Others hold that China could have made a better and stronger case if it is given a chance to appear before the Tribunal to present China’s legal analysis on why it challenges the award of the jurisdiction and admissibility.[38]

Legal Debate between the United States and China

The Arbitration Case triggered legal and political debates not only between China and the Philippines, but also between China and the United States, as well as other members of the international community. The report issued by the U.S. Department of State (referred to as the No. 143 Report) analyzing China’s maritime claims in the South China Sea and the position paper China’s Ministry of Foreign Affairs released on matters of jurisdiction in the South China Sea reflect the legal dimension of Beijing and Washington’s debate.[39] While the two papers may not be considered so-called replies or rejoinders, underneath the legal arguments, they do reflect the policy choices of the two countries concerning maritime domains in the South China Sea. Additionally, Vietnam’s Statement with the Permanent Court of Arbitration that shows its interest in future intervention in the arbitration case drag both these claimant states into this seemingly legal fight, which in essence is a geopolitical competition.[40]

Legally, the South China Sea issues concern territorial sovereignty, maritime entitlement, maritime delimitation, and the interpretation of rights and obligations of coastal and user states.[41] The two papers address some of the issues as analyzed below:

Territorial Sovereignty:  As emphasized in China’s position paper, “the essence of the subject-matter of the arbitration is (the) territorial sovereignty.”[42] Paragraph four of China’s position paper elaborates the historical and legal evidence on which China bases its claims of territorial sovereignty over the four archipelagic groups in South China Sea. These groups are known internationally as the Pratas Islands, Paracel Islands, Macclesfield Bank, and the Spratly Islands and, in China, respectively, as the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, and the Nansha Islands.

The United States, in its statement in 1995,[43] stressed its neutrality in the dispute: “The United States takes no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls, and cays in the South China Sea.”[44] The No. 143 Report reiterates this stance: “China’s sovereignty claims over islands are disputed.” The footnote of this sentence stressed the neutrality in the 1995 Statement.[45]

Why does China purport that the Philippines’ claims—for example, its claim that China is violating its jurisdictional rights as a coastal state—are claims of territorial sovereignty? Because the waters to which the Philippines points are overlapping areas that both countries claim as Territorial Sea (TS) or Exclusive Economic Zone (EEZ) depending on the feature over which they claim territory. The territorial dispute needs to be settled before the maritime delimitation can be finalized. Until then, a country has no legal ground to claim that another country violated its jurisdiction rights as a coastal state.

Maritime Entitlement: Paragraphs 15 through 22 of China’s position paper reflect China’s belief that the maritime entitlements of certain maritime features in the South China Sea cannot be considered separately from issues of sovereignty.[46] These paragraphs state that, “without determining the sovereignty over a maritime feature, it is impossible to decide whether maritime claims based on that feature are consistent with UNCLOS.” [47]To consolidate its argument, the policy paper points out that the Philippines selected only a few features for the Arbitral Tribunal to decide on their maritime entitlements. China considers this to be an attempt to deny China’s sovereignty over the Nansha Islands (Spratlys) as a whole.[48]

In the No. 143 Report, the United States concluded that the maritime claims found in China’s domestic law could generally be considered consistent with the UNCLOS if the following explanation proves in line with China’s position.  “China’s mainland coast and Hainan Island are entitled to a territorial sea, contiguous zone, EEZ and continental shelf, including the areas that project into the South China Sea; Other islands, as defined by Article 121 (1) of UNCLOS, claimed by China in the South China Sea would likewise be entitled to maritime zones as above; Islands that constitute “rocks” under Article 121 (3) would not be entitled to an EEZ and a continental shelf.”[49]

In principle, China’s interpretation of maritime entitlement in its position paper does not contradict what the United States determined in the No. 143 Report.

Maritime Delimitation:  China argues in paragraphs 57 to 74 of its position paper that it has a maritime delimitation issue with the Philippines.[50] The two sides have yet to begin negotiations on maritime delimitation, given that the disputes related to territorial sovereignty over relevant maritime features and maritime entitlement remain unresolved. China, in its 2006 Declaration based on Article 298 of UNCLOS, excluded maritime delimitation from the compulsory maritime disputes settlement.

The No. 143 Report cites Articles 15, 74, and 83 of UNCLOS, which set provisions on the delimitation of maritime boundaries between opposite and adjacent states.[51] As reflected in U.S. policy on the South China Sea in 1995, “The United States takes no position on the relative merits of competing sovereignty claims. It does not favor one country’s claim over another’s.” The No. 143 Report does not assess maritime delimitation in the South China Sea.

In addition to the maritime delimitation of TS, EEZ, and the continental shelf, the potential entitlement of these claimant states to the extended continental shelf remains an unresolved issue. On 6 May 2009, Malaysia and Vietnam submitted jointly to the Commission on the Limits of the Continental Shelf (CLCS), information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured in respect of the southern part of the South China Sea. China, in its submission of preliminary information to the CLCS in 2009, also indicated that it was preparing to submit information on the outer limits of the continental shelf. According to UNCLOS, the CLCS may recommend delineation and leave the delimitation of the extended continental shelf for the disputants to resolve.

The U-shaped line: The first part of the Philippines’ claim asks the Arbitral Tribunal to rule that, “China’s assertion of the ‘historic rights’ to the waters, seabed and subsoil within the ‘nine-dash line’ beyond the limits of its entitlements under UNCLOS is inconsistent with the Convention.”[52] In response, China argues that, “only after the extent of China’s territorial sovereignty in the South China Sea is determined can a decision be made on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention.”[53] The Chinese paper uses neither the term “U-shaped line” nor “historic rights.”

The main point of the No. 143 Report is to explain the legal status of China’s U-shaped Line. It examines three possible legal interpretations and the extent to which they would be  consistent with UNCLOS. The three possible legal interpretations are (1) Dashed line as a claim to islands; (2) Dashed line as a national boundary, and (3) Dashed line as a historic claim).  The Report urges China to clarify the intended legal meaning of the line, indicating the U.S. position that only the first interpretation could possibly be consistent with the international law of the sea as reflected in UNCLOS.    .[54]

Approaches to Maritime Dispute Settlement: Paragraphs 30 to 56 of China’s position paper explain that China and the Philippines have agreed to settle their disputes in the South China Sea through negotiations.[55] Thus, the Philippines is debarred from unilaterally initiating compulsory arbitration. This assertion reflects China’s coherent policy in favor of negotiation as the main channel to address maritime disputes with its neighbors.

The United States, in its 1995 policy paper on the South China Sea, emphasized two principles among the five listed[56]—peaceful resolution of dispute and neutrality in disputes.[57] The United States still upholds its principle of neutrality, but it now interprets it differently. For instance, one U.S. government official pointed out that the “U.S. does not take sides on the territorial sovereignty claims, but it does take sides on what approaches that the claimant states choose to settle the maritime dispute.”[58] Many senior U.S. officials provided the strongest endorsement of the Philippines’ action in taking its territorial dispute with China to international arbitration. For example, according to Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel, “We fully support the right of claimants to exercise rights they may have to avail themselves of peaceful dispute settlement mechanisms. The Philippines chose to exercise such a right last year with the filing of an arbitration case under the Law of the Sea Convention.”[59]

However, not all U.S. scholars agree. Michael McDevitt, a retired U.S. Rear-Admiral, stated in his commentary on the Center for Naval Analysis’ website:

There is no one preferred format for negotiated outcomes. Bilateral negotiations should not be dismissed or portrayed as less desirable. The reality is that because of overlapping claims, solutions that are negotiated directly by the claimants are inevitable.[60]

Both the U.S. and Chinese position papers include legal argumentation on this issue.  – The No. 143 Report does present the legal arguments under the framework of the international Law of the Sea and serves as a U.S. white paper on the South China Sea. China’s position paper is also regarded as an important document that voiced its legal argument to challenge the jurisdiction of the Arbitral Tribunal.

Both papers were issued before December 15, 2014, the deadline the Arbitral Tribunal gave China to submit its counter-memorial. Because China has clearly expressed from the beginning that it does not accept and will not participate in the proceedings, the Tribunal may not consider the points that the Chinese paper expressed. Many analysts thus interpret China’s position paper being issued at this sensitive time as a gesture to the arbitrators that China has a strong legal argument questioning the Tribunal’s jurisdiction. Some scholars, such as Peter Dutton of the U.S. Naval War College, praise China’s action as a step forward that shows it is taking a serious attitude toward international dispute settlement.[61] Others are skeptical of whether the Arbitral Tribunal will ever take this position paper into consideration. The No. 143 Report, while not referring to the Arbitral Case, does address many issues pertaining to the claims made by the Philippines, historic rights, the U-shaped line, and maritime entitlement. While it is regarded as a professional legal piece, it also faces the criticism that it is an U.S. attempt to influence the decision of the Arbitral Tribunal.

While the two papers reflect the different legal interpretations of many issues pertaining to the South China Sea,  under the surface they also reflect their countries’ respective interests and policy choices. China’s major concern is to make sure its territorial and maritime claims are not jeopardized by the misuse of arbitration procedure by the Philippines, whereas the Untitled States seems to base its engagement in the South China Sea on balancing China’s growing influence in this region through the interpretation of freedom of navigation. The United States’ role in the South China Sea thus becomes another dimension to the dispute; while China considers it to be an interference, other claimant states hope the United States will act as a counterweight to growing Chinese power. Both China and the United States face a policy dilemma, since while they both seek to achieve satisfactory resolution of the issues in the South China Sea, they also face a big perception gap and disagree on how the disputes should be resolved.

The Post-Arbitration Reality and Scenario

The South China Sea has witnessed escalating tension since 2009, and especially since 2013. Some have posited a link between the arbitration case and this escalation, as analyzed below:

The CoC Process

By signing the DoC in 2002, China and ASEAN established a political foundation for a peaceful and stable environment in the South China Sea. To address the so-called “no teeth” problem—i.e. that the DoC is not legally binding—China and ASEAN have been slowly working towards drafting a Code of Conduct (CoC), which would have legal binding force. In the meantime, the question of how to implement the DoC is still considered an important issue. In July 2011, China and ASEAN members reached a consensus on applying the DoC, creating a solid foundation for practical cooperation in the South China Sea.[62] The parties agreed that they should bring the consultations on the guidelines to an early conclusion, implement the DoC in earnest, and enhance practical cooperation.

Subsequently, Chinese Premier Wen Jiabao stated at the 14th China-ASEAN Summit on 18 November, 2011 that China would establish a three billion RMB (approximately half a billion U.S. dollars) China-ASEAN maritime cooperation fund,[63] which both ASEAN states and China could use to promote cooperation in the fields of marine scientific research, search and rescue, marine environment protection, etc.

The difficulty of negotiating a CoC has two aspects. First, among the ten ASEAN members, it is hard to reach a consensus on many issues. For example, the question of which maritime areas should be included in the CoC remains contentious, as Vietnam wants to include Paracel Islands in the CoC,while China and other states  suggest inclusion only of the Spratlys. Whether a third-party compulsory settlement mechanism should be included in the CoC—as the Philippines insists—is another unresolved issue. Second, China does not like being left behind during the negotiation process. It wishes to participate in the negotiations from the very beginning, but the ASEAN states prefer to reach a consensus among themselves based on which they will negotiate with China. China seems it as an unfair approach..

It is impossible to predict when the CoC will be finalized given these difficulties. The South China Sea Arbitration Case seems to add new complications to the process. So far, there has been no official response from the other claimant states, except Vietnam, in support of the Philippines. BA Hamzah,a senior Malaysian South China Sea analyst,  notes that “their silence results possibly from disagreement with the manner the Philippines handled a vital matter in the light of Statement on ASEAN’s Six Point Principles on the South China Sea” and adds that “however, many see Manila’s action as a desperate act—a publicity stunt to regain international prestige following the Scarborough Shoal fiasco ”[64] There is also skepticism from within the Philippines. In a special interview with Alberto A. Encomienda, , a career Foreign Service Officer of the Philippines retired with the rank of Chief of Mission, Class I , Seokoo Lee, Professor of International Law, Inha University, South Korea, noted that “neither party has invoked UNCLOS Article 283 (1)[65] which should have been the first step.”[66] Although no one can predict the future of the CoC, ASEAN will very likely encounter pressure from China in the negotiation process given that China insists that the negotiation be conducted with ASEAN in an equal manner—China hopes to participate in the consultation process from the very beginning rather than waiting for ASEAN members to reach a consensus among themselves. The unity of ASEAN will again be challenged.

Chinese Land Reclamation

Since 2014, China has attracted tremendous attention regionally and internationally by conducting land reclamation activities that involve certain features under its control in the Spratlys, namely Gaven Reef, Cuarteron Reef, Johnson South Reef, and Fiery Cross Reef. Despite the criticisms and concerns expressed by many stakeholders, China justifies its reclamation as a necessary strategy to keep up with other claimants who have earlier occupied features in the disputed Spratlys, notably since 1976, and built up military and civil facilities thereafter.[67]

There are different views on the legality and impact of China’s reclamation activities. China’s efforts will increase control over the reefs, and its ability to protect and defends its maritime interests. But the reclamation will not have any impact on China’s claims of sovereignty over the Spratly Islands, which is governed by principles of international law, e.g. acquisition and effective control. The reclamation will not enhance China’s maritime claim, as an island is defined under Article 121 of UNCLOS as a “naturally formed area of land surrounded by and above water at high tide.” China’s justification on its land reclamation is based on Article 60, which provides coastal states with the exclusive right to construct, operate, and use artificial islands, installations, and structures in their EEZ. Pending the maritime delimitation of China’s EEZ and continental shelf in the South China Sea, the so-called land reclamation at the four mentioned features has been conducted within 12 nautical miles of the reefs, an area which would be considered as a country’s TS and thus is defined as a state’s sovereign area. More importantly, the artificial islands, installations, and structures would not interfere with the legal status of these features. Nevertheless, China may still be blamed for ignoring the duties of due notice, appropriate publicity, and undertaking environmental impact assessments.[68] There are provisions of UNCLOS regarding the protection and preservation of the marine environment that apply to reclamation work. The Ministry of Foreign Affairs Spokesperson addressed it in her statement on April 9, 2015: “China’s construction projects on the islands and reefs have gone through scientific assessments and rigorous tests…We will take further steps in the future to monitor and protect the ecological environment of relevant waters, islands and reefs.”[69]

Legal justification does not address the political implications and strategic calculations in this messy picture of the South China Sea. What puts China in a questionable situation, in addition to explicit criticism from other claimant states, especially the Philippines and Vietnam, is the overwhelming concern of the United States. A treaty ally of the Philippines, the United States sees itself as an ally of many countries in the region, a protector of the Freedom of Navigation doctrine, and a strategic competitor with China in the Asia-Pacific maritime domain.

In the most recent report released by the U.S. think tank the Center for New American Security titled “Preserving the Rules: Countering Coercion in Maritime Asia,” Patrick Cronin proposes adopting “cost-imposing measures” to address the post-reclamation situation led by China in the South China Sea[70] The report puts forward seven recommendations:

  • Further institutionalize military-to-military and high-level civilian-led engagement with China;
  • Mobilize regional and international opinion swiftly and relentlessly when encountering the use of coercion;
  • Mobilize support around positive behaviors to foster a rules-based community, including the support of the Philippines vs. China Arbitration Case in the South China Sea;
  • Focus on building up greater maritime domain awareness;
  • Raise the non-military costs of coercion by considering a binding code of conduct among allied and like-minded states, a mechanism open to China, but ready to leave China behind if it is not actively engaged;
  • Help allies and partners deny and offset Chinese gains from massive military modernization and tailored coercion by assisting them with their own national capacity;
  • And enhance capacity building with respect to security assistance, key leadership exchange and exercise.[71]

The above recommendations convey many important messages. Though the United States has openly welcomed a rising China as a constructive competitor and a responsible stakeholder in the existing international order, the long-standing territorial and maritime disputes in the South China Sea, especially the most recent developments, have put China in an awkward position in which it has to deal with the United States, in addition to the other claimant states. Reclamation is not the only major cause of tension in the disputed South China Sea. The divergent legal interpretations of ‘the legitimacy of military activities in the foreign EEZs’, as well as the gap in perceptions of the legal culture, the maritime dispute settlement mechanism, and its role in the South China Sea disputes are the long-standing issues that China and the United States need to address. The land reclamation activities just add another layer to the already complex situation.

It is certainly not in China’s interest to have its actions labeled as maritime coercion, nor is it in its interest to see a code of conduct form outside of the framework of the China-ASEAN community. An increasing U.S. military presence in the South China Sea, in the name of responding to maritime coercion and maintaining freedom of navigation, and an enhanced alliance between other claimant and non-claimant states, led by the United States in the name of creating cost-imposing strategies, do not align with China’s desired method of solving the South China Sea disputes through negotiations among the claimant states, be they bilateral (preferred) or multilateral. What then is the strategic choice for China?

China’s National Defense White Paper

“China’s Military Strategy,” released on 26 May 2015, is China’s ninth national defense white paper since 1998.[72] For the first time, it comprehensively elaborates the missions and strategic tasks of China’s armed forces in the new political environment and emphasizes the strategic concept of active defense. The white paper highlights four critical security domains: outer space security; strategic sea lines of communication (SLOCs) and overseas interests; nuclear capacity; and cyber security.

According to the strategy paper, in general, the People’s Liberation Army (PLA) is seeking to shift from a narrow focus on defending its territory and near-periphery to the ability to defend and secure Chinese national interests further abroad. For the PLA Navy, that will mean moving from an emphasis on offshore waters’ defense to an equal focus on offshore waters defense and open seas protection. Likewise this will require switching from air defense to both offense and defense. China wants to play a greater role in protecting the security of strategic SLOCs and overseas interests and participate in international maritime cooperation, as these will provide China with strategic support for becoming a maritime power.

What caught the international community’s attention is that in the section of the white paper on the National Security Situation, China lists a few examples of external impediments and challenges, includin  “US’s rebalancing strategy and increasing military presence and enhancement of military alliances in this region,” “Japan’s effort of dodging the post-war mechanism,” and “some offshore neighbors taking provocative actions and reinforcing their military presence on Chinese reefs and islands that they have illegally occupied.”[73] Some question thetiming of paper’s release, which coincides with the South China Sea dispute’s increasing tensions. Coincidence or not, China has shown its strong political will and determination to secure and maintain its territorial integrity and sovereign rights in the South China Sea and the East China Sea in accordance with international law, including UNCLOS. This could be reflected in task number one out of the eight strategic tasks for China’s armed forces—“to deal with a wide range of emergencies and military threats, and effectively safeguard the sovereignty and security of China’s territorial land, air and sea.”[74]

U.S. Engagement

Though it does not directly blame the United States, the white paper shows China’s deep concern over increasing U.S. engagement in the South China Sea. The U.S. Navy P-8 Poseidon surveillance aircraft directly flying over a Chinese administered artificial island constructed atop the Fiery Cross Reef is not constructive to the management of the South China Sea dispute, nor is it helpful for fostering a healthy Chinese-U.S relationship in the maritime domain. There has been a debate between the U.S. and China whether all types of military activities in a foreign country’s EEZ fall under the scope of freedom of navigation. In addition to the question of the legitimacy of the United States’ activities under UNCLOS, activities of this kind have the potential to trigger accidents at sea, like EP 3 in 2001, which is not in the either China’s or the United States’ interest.

The Way Forward

The Philippines was praised for setting the precedent of utilizing a third-party compulsory settlement mechanism for resolving the multiple overlapping claims in the South China Sea. The value of the compulsory dispute settlement mechanism UNCLOS provides should not be underestimated. However, the impact of the Arbitration Case on regional security should not be overlooked either, given the complex nature of the disputes involving both sovereignty and maritime delimitation. In the short term, the Arbitration Case has increased tensions in the South China Sea and further delayed both cooperation and progress towards an agreed CoC, in addition to the existing obstacles.. In the longer term, it might clarify some legal issues, but this is at the risk of undermining the international dispute settlement process under UNCLOS. Article 298  allows states to opt out of the compulsory settlement mechanism in disputes related to sovereignty, maritime delimitation, military activities, among others. This article was achieved through a lengthy negotiation as a compromise to meet the demands of some states that did not wish to address certain disputes through a third party. The utilization of Article 287 in such a case as the South China Sea Arbitration, which obviously involves sovereignty and maritime delimitation, could set an example undermining the true spirit of the dispute settlement mechanism of UNCLOS. Given the obvious and predictable result-any award provided by the Arbitration Tribunal won’t be able to solve the real dispute between China and the Philippines –  the Arbitration Case is an example of a political game using  international law.  It will  serve only to humiliate China’s international image .

Equally, there is no single answer to the South China Sea dispute to be found within the ASEAN cultural approach to resolving problems. Although Southeast Asian countries are not as active as their African and Latin American counterparts in using legal means for dispute settlement, they frequently and usually use political mechanisms, particularly direct negotiation and consultation, or regional arrangements. This was reflected in the agreements reached among the ASEAN members and those between ASEAN members—individually or as a group—and China. Through its operations, a unique ASEAN way has been created, a loose arrangement that includes “informal processes, weak regional institutions, and decisions by consensus.”[75] It contains three core values: (1) consultation—due to various diversities between and among the states in Southeast Asia, regional integration must rely on consultation rather than on coercion; (2) harmony—ASEAN regards itself as a harmonious entity of states, like an orchestra consisting of its individual members, that settles disputes peacefully without interfering in others’ domestic affairs; and (3) cooperation—unlike the European Union’s (EU) use of hard law, ASEAN adopts the soft version that emphasizes cooperation.[76] The ASEAN way has been instrumental in establishing regional order, constructing a platform for states from outside to participate in dialogue, maintaining regional stability, and balancing big powers’ influences.[77]

China could unlock the impasse in the South China Sea by using soft power and diplomacy. At the February 2015 meeting of the United Nations Security Council, the Foreign Minister of China spelled out the elements to which China subscribes in the conduct of its foreign policy: peace not conflict, cooperation not confrontation, justice not hegemony, and a win-win rather than a zero-sum approach[78]. The Chinese claim to believe in these principles, however these ideas are more rhetorical than real. Conveying this message to the international community is an important, but challenging task. China’s image has been jeopardized by an international public relations campaign in which the other claimant states have secured the moral high ground. This has not been difficult for the other disputants due to their identities of being smaller and weaker nations when contrasted with China. China needs to undertake tremendous legal and diplomatic efforts to achieve its strategic goal of maintaining peace and stability in the South China Sea. This includes enhancing its communication to foster a better international understanding of China’s South China Sea policy, encouraging Chinese scholars to publish academic work in English, and explaining its policy’s legal basis in a way that is professional and understandable, rather than reiterating the strong wording, e.g. ‘indisputable’, which does not reflect a desire and willingness to negotiate with its neighbors.

As previously discussed, in 2011 China announced the China-ASEAN Maritime Cooperation Fund, with an initial investment of three-billion RMB (about 478,785 USD), primarily to support marine scientific research, connectivity, and navigational safety in the South China Sea. In 2013, Chinese President Xi Jinping proposed that China work together with ASEAN to build a maritime silk road in the 21st century. In 2014, China called for cooperation proposals from ASEAN states for the second round of competition for projects for the cooperation fund. China and ASEAN have also declared 2015 the “ASEAN-China Year of Maritime Cooperation.” [79]

Though challenged by the trend towards ASEAN claimant states welcoming  a stronger U.S. military presence in the region, there is great hope for China and ASEAN members to resolve their differences in the South China Sea in a peaceful way as the above multilateral proposals suggest. But for China and the United States, it is a different story. Washington may upgrade its regional offensive capabilities—presence, operations, force structure, building partner capacity—beyond the strategic pivot policy if China continues its current approach in the Spratlys.

In order to resolve this paradox, China and the United States have no choice but to engage each other and maintain regular communications on how they can coexist with their respective core interests. After all, the Asia-Pacific region is big enough for both countries to share and exert their respective influence without pointing fingers at each other. As China’s rise stands a good chance of triggering a regional power shift, the United States needs to acknowledge China’s core interests of ensuring its sovereignty and maritime claims in the South China Sea. Similarly, China must respect the legitimate interests of the United States in the South China Sea, especially freedom of navigation in line with UNCLOS, which is also in China’s interest. What would work to serve in both countries’ best interest is to explore the fields of developing maritime cooperation between China and the United States, e.g. search and rescue and humanitarian aid. Joint efforts in anti-piracy in the Gulf of Aden have provided one successful example. Providing search and rescue at sea and humanitarian assistance would be areas for these countries to jointly take a lead in this region with their naval capacity. The South China Sea has a complicated past and an uncertain future, but cooperation and consideration among nations could stabilize the region and bring tranquility to this important sea-lane.

JPR Status: Working Paper

Archived: 6/26/2016

Endnotes

[1] Dr. Nong HONG heads the Institute for China-America Studies (ICAS), an independent, non-profit academic institution launched by the Hainan Nanhai Research Foundation. She also holds a joint position of research fellow with National Institute for South China Sea Studies (NISCSS) and China Institute, University of Alberta (CIUA).

[2] The South China Sea conflict involves mainland China, Vietnam, the Philippines, Malaysia, Indonesia, Brunei and China’s Taiwan (Taiwan).

[3] The purpose of the Commission on the Limits of the Continental Shelf (the Commission or CLCS) is to facilitate the implementation of the United Nations Convention on the Law of the Sea (the Convention) in respect of the establishment of the outer limits of the continental shelf beyond 200 nautical miles (M) from the baselines from which the breadth of the territorial sea is measured.

[4] The U-shaped line refers to a line with nine segments off the Chinese coast in the SOUTH CHINA SEA, as marked on Chinese maps. It is also called the nine-dash line and the nine-dotted line, among other names. It was first marked by a Chinese cartographer, Hu Jinjie in 1914, when it included only the Dongsha and Xisha Islands. It was outlined in reaction to the recovery of Dongsha (Pratas) Islands from the Japanese. However, it was later modified due to the cartographer’s increased understanding of China’s claim to the island features in the South China Sea.

[5] In March 2010, as first reported by the Japanese and followed by U.S. media outlets, Chinese officials told two visiting senior Obama Administration officials that China would not tolerate any interference in the SOUTH CHINA SEA, now part of China’s “core interest” of sovereignty. Zhu Feng, a Chinese political scientist, clarified that the Chinese officials did use the term “core interest,” but the original text is that “the peaceful resolution of the south China sea is the core interest of Chinese government,” which was misinterpreted by the media.

[6] At a regional security forum in Vietnam in 2010, U.S. Secretary of State Hillary Rodham Clinton said “The United States has a national interest” in resolving the claims” (of the South China Sea)

[7] Some Chinese officials appeared to have floated that idea in early 2010 in private conversations with their American counterparts. Several American officials told reporters in Beijing and Washington in 2010 that one or more Chinese officials had labeled the South China Sea a “core interest.” In July 2010, Secretary of State Hillary Rodham Clinton said in Hanoi that the United States had a “national interest” in the area.

[8] The Notification and Statement of Claims, issued by Department of Foreign Affairs of Republic of the Philippines in Manila to the Embassy of the People’s Republic of China in Manila, serial no. 13-0211, January 22, 2013, available online: http://www.dfa.gov.ph/index.php/downloads/doc_download/523-notification-and-statement-of-claim-on-west-philippine-sea.

[9] See United Nations Convention on the Law of the Sea (UNCLOS) Article 279, 280, 281.

[10] See UNCLOS, Article 286. See UNCLOS, Article 297, 298.

[11] E.D. Brown, “Dispute Settlement and the Law of the Sea”, in Marine Policy, vol. 21, no.1, (1997), pp.17-43, at p.21.

[12] Natalie Klein, Dispute settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005), pp.125-221.

[13] E.D. Brown, “Dispute Settlement and the Law of the Sea”, in Marine Policy, vol. 21, no.1, (1997), pp.17-43, at p.21.

[14] See UNCLOS, Article 298.

[15] Under Article 287 of UNCLOS, when signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; 
(b) the International Court of Justice; (c)  an arbitral tribunal constituted in accordance with Annex VII; 
(d)  a special arbitral tribunal constituted in accordance with 
Annex VIII for one or more of the categories of disputes 
specified therein.

[16] For the judgment, see http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=df&case=102&code=inma&p3=4

[17] For the judgment, see http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=2b&case=130&code=masi&p3=4

[18] See http://www.itlos.org/start2_en.html

[19] Jusuf Wanandi, “ASEAN Future Challenges and the Importance of an ASEAN Charter”, Asien: Deutsche Zeitschrift fuer Polik, Wirtschaft und Kulture, no.100, 2006, p.87

[20] First Press Release (English), dated 27 August 2013, at http://www.pca-cpa.org/showpage.asp?pag_id=1529

[21] Ibid.

[22] Ibid.

[23] First Press Release (English), dated 27 August 2013, at http://www.pca-cpa.org/showpage.asp?pag_id=1529

[24] Second Press Release, dated 3 June 2014, at http://www.pca-cpa.org/showpage.asp?pag_id=1529

[25] Third Press Release, dated 17 December 2014, athttp://www.pca-cpa.org/showpage.asp?pag_id=1529

[26] http://www.reuters.com/article/2015/10/30/us-philippines-china-arbitration-idUSKCN0SN26320151030

[27] Summary from The Notification and Statement of Claims, issued by Department of Foreign Affairs of Republic of the Philippines in Manila to the Embassy of the People’s Republic of China in Manila, serial no. 13-0211, January 22, 2013

[28] AWARD ON JURISDICTION AND ADMISSIBILITY

“AWARD ON JURISDICTION AND ADMISSIBILITY” of PCA Case No 2013-19IN THE MATTER OF AN ARBITRATION, at http://www.pcacases.com/web/sendAttach/1506

[29] “China reiterates islands claim after Philippine UN move”, BBC, Jan. 23, 2013, available at http://www.bbc.co.uk/news/world-asia-21163507.

[30] Ibid.

[31] “China rejects Philippines’ arbitral request”, China Daily, Feb. 19, 2013, available at http://www.chinadaily.com.cn/china/2013-02/19/content_16238133.htm.

[32] Declaration on the Conduct of Parties in the South China Sea, Nov. 4, 2002, available at http://www.asean.org/asean/external-relations/china/item/declaration-on-the- conduct-of-parties-in-the-south-china-sea.  Article 5 states that “[t]he Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”

[33] Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on October 28, 2014, http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1204813.shtmlForeign Ministry Spokesperson Hong Lei’s Regular Press Conference on November 23, 2015, http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1317589.shtml

[34] Press Conference By Chinese Embassy On Philippines’ Submission of a Memorial to the Arbitral Tribunal on disputes of the South China Sea with China, in the web site of Embassy of the People’s Republic of China in the Republic of the Philippines, April 1, 2014, at http://ph.china-embassy.org/eng/xwfb/t1143166.htm (Last visited April 28, 2014)

[35] See Republic of the Philippines, Department of Foreign Affairs (DFA), Notification and Statement of Claim, No. 13-0211, 22 January 2013, p. 12-13, accessed 22 September 2014, http://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/unclos/216-sfa-statement-on-the-unclos-arbitral-proceedings-against-china.

[36]  Award on Jurisdiction and Admissibility, para. 144(a).

[37] Michael Shengti Gau, “Errors in the Jurisdictional Award of the South China Sea Arbitration”,  China International Studies,  Issue 2, 2016, on March 15, 2016, pp.100-26.

[38] One of these scholars is Professor Ling Bing from Law School of Sydney University.  He criticized Chinese government’s position not to participate in the proceeding.

[39] “Limits in the Seas, No. 143 China: ‘Maritime Claims in the South China Sea,’ ”, Office of Ocean and Polar Affairs Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, December 5, 2014, available at http://www.state.gov/documents/organization/234936.pdf (accessed on December 7, 2014). Chinese government’s Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines, December 7, 2014, available at http://news.xinhuanet.com/english/china/2014-12/07/c_133837498.htm (accessed on December 7, 2014).

[40] “Vietnam Launches Legal Challenge Against China’s South China Sea Claims”, at Diplomat, December 11, 2014, http://thediplomat.com/2014/12/vietnam-launches-legal-challenge-against-chinas-south-china-sea-claims/

[41] A coastal state means a state which owns the TS, EEZ and CS when it is applicable, while a user state refer to a country which does to claim the above mentioned maritime zones, but enjoys different navigation regimes in different maritime zones.

[42] Chinese government’s Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines, see note 32

[43] The United States first articulated its policy during the tensions that occurred in 1994 in the South China Sea. In a May 1995 statement by a State Department spokesperson, the United States outlined its policy, which contained five elements.

[44] http://dosfan.lib.uic.edu/ERC/breifing/daily_briefings/1995/9505/950510db.html

[45] Limits in the Seas, No. 143 China: ‘Maritime Claims in the South China Sea, see note 31.

[46] Chinese government’s Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines, see note 32

[47] Chinese government’s Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines, see note 32

[48] Ibid

[49] Limits in the Seas, No. 143 China: ‘Maritime Claims in the South China Sea, see note 31

[50] Chinese government’s Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines, see note 32.

[51] Limits in the Seas, No. 143 China: ‘Maritime Claims in the South China Sea, see note 31

[52] The Notification and Statement of Claims, issued by Department of Foreign Affairs of Republic of the Philippines, see note 4.

[53] Chinese government’s Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines, see note 32

[54] Limits in the Seas, No. 143 China: ‘Maritime Claims in the South China Sea, see note 31

[55] Chinese government’s Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines, see note 32

[56] Peaceful resolution of disputes, peaceful and stability, freedom of navigation, neutrality in disputes, respect of international principles.

[57] http://dosfan.lib.uic.edu/ERC/breifing/daily_briefings/1995/9505/950510db.html

[58] One of the governmental officials explained this during a round table discussion at Center for Naval Analysis, on June 20, 2014.

[59] Testimony by Daniel R. Russel, Assistant Secretary, Bureau of East Asian and Pacific Affairs, before the House Committee on Foreign Affairs Subcommittee on Asia and the Pacific, Washington, DC, February 5, 2014

[60] Michael McDevitt, “The South China Sea: Navigating the Most Dangerous Place in the World”, available at http://warontherocks.com/2014/11/the-south-china-sea-u-s-policy-and-options-for-the-future/#_ (accessed on December 8, 2014)

[61] A talk with Peter Dutton at the U.S.-China Track Ii Dialogue On Maritime Affairs & International Law Washington, D.C. April 17-18, 2015

[62] Abdul Khalik and Desy Nurhayati, The Jakarta Post, Nusa Dua, Bali | July 21 2011, http://www.thejakartapost.com/news/2011/07/21/south-china-sea-guidelines-agreed.html

[63] Premier Li Keqiang’s keynote speech at 10th China-ASEAN Expo, September 4, 2013 , English.news.cn, http://english.mofcom.gov.cn/article/zt_10thchina/column1/201309/20130900287593.shtml

[64]  BA Hamzah, “Manila and ASEAN: Upping the ante on the South China Sea”

FEBRUARY 6, 2013 https://dinmerican.wordpress.com/2013/02/06/manila-and-asean-upping-the-ante-of-the-south-china-sea/

[65] Article 283 (1) “When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.”

[66] Seokoo Lee’s special interview with Alberto A. Encomienda, available at http://www.observerindia.com/cms/sites/orfonline/modules/southchina/attachments/issue1_1359813399581.pdf.

[67] “China criticizes Vietnam and the Philippines for land reclamation in the South China Sea ”(BBC Chinese), at http://www.bbc.com/zhongwen/trad/china/2015/04/150430_china_south-china-sea_islands

[68] Jay Batongbacal,” Environmental Aggression in the South China Sea”, AMTI, http://amti.csis.org/environmental-aggression-in-the-south-china-sea/

[69] Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on April 9, 2015

at  http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1253488.shtml

[70] Patrick M. Cronin and Alexander Sullivan, “Preserving the Rules: Countering Coercion in Maritime Asia ”, http://www.cnas.org/sites/default/files/publications-pdf/CNAS%20Maritime%20Strategy%20Series%20Capstone.pdf

[71] Ibid.

[72] Full text: China’s Military Strategy, http://www.chinadaily.com.cn/china/2015-05/26/content_20820628.htm

[73] “China’s Military Strategy”, in The State Council Information Office of the People’s Republic of China May 2015, Beijing, http://eng.mod.gov.cn/Database/WhitePapers/

[74] Ibid

[75] Rodolfo C. Severino, “Framing the ASEAN Charter: An ISEAS Perspective”, in Rodolfo C. Severino (comp.), Framing the ASEAN Charter: An ISEAS Perspective (Singapore: Institute of Southeast Asian Studies, 2005), p.4

[76] Zhang Yunlin, “The Valuable ASEAN Way”, People’s Daily (in Chinese), 8 August 2007, p.3

[77] Ibid.

[78] Wang Yi Presides over Security Council Open Debate on Maintaining International Peace and Security, February 24, 2015, at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1240731.shtml

[79] Chairman’s Statement of the 7th ASEAN-China Summit, November 13, 2014, Nay Pyi Taw, Myanmar, at http://www.mofa.gov.mm/wp-content/uploads/2014/11/Chairmans-Statement-of-the-17th-ASEAN-China-Summitfinal.PDF.pdf