Sharing the Resources of the South China Sea

Transcription

1 Sharing the Resources of the South China Sea MARK J. VALENCIA Senior Fellow, East-West Center, Honolulu, Hawaii, U.SA. JON M. VAN DYKE Professor oflaw, Wm. S. Richardson School oflaw, University of Hawaii, Honolulu, Hawaii, U.S.A. and NOEL A. LUDWIG Research Intern East-West Center, Honolulu, Hawaii, U.S.A. MARTINUS NIJHOFF PUBLISHERS THE HAGUE / BOSTON / LONDON

2 TABLE OF CONTENTS ACKNOWLEDGMENTS XI I INTRODUCTORY OVERVIEW 1 II THE REGIONAL POLITICAL CONTEXT OF THE PROBLEM 5 Claims and Activities (Plates 1 and 2) 8 The "Oil" Factor 9 III ANALYZING THE SOUTH CHINA SEA CLAIMS UNDER INTERNATIONAL LAW 17 The Sovereignty Issues 17 China's Claim to the Spratly Islands 20 Weaknesses in China's Claim to the Spratly Islands 22 Does China Claim Maritime Zones Based on Its Claims to the Spratly Islands? 24 Does China Also Claim the Waters and Resources of the South China Sea? China's "Nine Interrupted-Lines" Historic-Waters Claim (Plate 4) 24 The Role of Taiwan 29 Vietnam's Claim to the Spratlys 30 Weaknesses in Vietnam's Claim 32 The Philippines' Claim 33 Weaknesses in the Philippines' Claim 35 Malaysia's Claim 36 Weaknesses in Malaysia's Claim 37 Brunei's Claim 38 Weaknesses in Brunei's Claim 38 Application of International Law Principles to These Sovereignty Claims 39

3 Table of Contents Boundary Delimitation Issues 40 What Is the Relevance of the Law of the Sea Convention in This Dispute? 41 Features That Are Submerged at High Tide Cannot Generate Maritime Zones 41 Do Any of the Spratly Islets Have the Capacity under Article 121 to Generate EEZs or Continental Shelves? 41 Should Some of the Spratly Features Be Characterized as "Artificial Islands," and, If So, What Would Their Legal Status Be? 45 Can Any of the Claimant Nations Claim the Area as Archipelagic Waters? 46 Are the Spratly Islets That Are Above Water at High Tide Entitled to Generate 12-Nautical Mile Territorial Seas? 47 What Continental Shelf Claims Can Be Made by the Claimant States? 48 What Is the Role of the Continental Shelf Commission? 49 What Principles Govern the Delimitations of Maritime Boundaries? 49 The Provisional Arrangement Requirement 54 Will High Seas Areas Remain After the Maritime Boundaries Are Delimited, and, If So, How Will This Area Be Governed? 55 A Shared Regional "Common Heritage"? 56 The Claimant States Have a Duty to Cooperate in Managing the Resources and Protecting the Environment of a Semi-Enclosed Sea 58 The Land-Locked and Geographically Disadvantaged States Have Certain Rights to Share in the Harvests of the Living Resources in the South China Sea 59 Navigational Freedoms Appear to be Respected by All Claimant States 59 j Summary and Conclusion 59 \ Each Claimant's Position Is Weak Under International Law and / Thus Each Should Consider a Shared Management Approach 59 IV THE POLITICAL DIMENSIONS OF THE DISPUTES 77 China: A Question of Intent 11 The Mischief Reef Incident 79 Why Is China Behaving the Way It Is? 82 A Glimmer of Hope? 88

4 Table of Contents vii China/Vietnam 90 China/Taiwan 95 China/ASEAN 97 Conclusions and Considerations for a Solution 99 V APPROACHES AND HALF-MEASURES 111 The South China Sea Track Two Process: Fear Racing Hope 111 An Eminent Persons Group? 115 Preventive Diplomacy 117 Bilateral Negotiation of Provisional Arrangements 118 Institutionalization of the Multilateral Dialogue 119 Miscellaneous CBMs 120 A Code of Conduct 120 A South China Sea Institute for Marine Resources Management (SCIMARE) 120 Joint Assessment and Survey of Hydrocarbon and Mineral Potential in the Multiple Claim Area under CCOP 124 A Maritime Safety and Surveillance Regime 125 VI THE DANGER OF THE STATUS QUO 129 VII THE ALLOCATION OPTION 133 Allocadon of Only the Features 133 Allocation of the Features and Maritime Space 134 Legal and Geographie Analysis 134 General Direction Lines and Equidistance 135 Allocation Scenarios 143 Scenario Scenario Scenario Scenario Scenario VIII THE REGIONAL MULTILATERAL COOPERATIVE REGIME OPTION: MANAGED SHARING OF A REGIONAL COMMONS 149 Relevant Precedents and Lessons Learned 149 Marine Regionalism 149 International Organizations 153 Structure 156

5 viii Table of Contents Authority 156 Secretary-General 162 Secretariat 163 Council 164 Voting 165 Chambers 165 Consensus 167 A Survey of Individual Organizations 168 UN (United Nations) 168 IMO (International Maritime Organization) 168 ILO (International Labour Organization) 169 INMARSAT (International Maritime Satellite) 169 IMF (International Monetary Fund) 170 ASEAN (Association of Southeast Asian Nations) 170 Conclusions 171 The Antarctic and Svalbard Treaties 171 The Antarctic Treaty System 172 The Original Treaty 172 The Amendments 173 The Convention on the Regulation of Antarctic Mineral Resource Activities and the Protocol on Antarctic Environmental Protection 176 Third World Objections 178 Relevance of the Antarctic Treaty System 178 The Svalbard Treaty 181 Joint Development Precedents 183 The Role of a Marine Park or Preserve 187 IX AN IDEAL MARITIME REGIME 199 Origin and Elements 199 Principles 202 Objectives 203 General Observations on Asia-Pacific Confidence and Security Building Measures (CSBMS) 204 The Critical and Controversial Elements 204 Definition of the Area 205 Organizational Structure 206 Membership 208

6 Table of Contents ix Decision-Making 208 Allocation of Executive Positions 209 Sample Regimes and Allocation of Costs and Benefits A Robust Spratly Management Authority Governing the Equidistant Area 210 Weighted Voting with General and Weighted Votes 214 A Combined Chambered System 215 Claims Set Aside, But Not Abandoned 215 Demilitarization and Nonnuclearization of the Features 216 Resolving the Remaining Issues The Equidistant Area and Multiple Joint Development Companies (Plate 18) The "Archipelagic Option" with a Robust Spratly Management Authority (Plates 16 and 17) 218 Conclusion 222 Appendix 1: Descriptions of Spratly Features 225 Appendix 2: Proposais for Cooperation Emanating from the South China Sea Dialogue 237 List of Figures 247 List of Tables 249 List of Plates 251 Index 273 About the Authors 279