Domesticating Public International Maritime Law: China and Global Maritime Norms and Practices (original) (raw)
Related papers
CHINA'S POLICY AND THE INTERNATIONAL LAW OF THE SEA
in Russia: arms control, disarmament and international security / IMEMO supplement to the Russian edition of the SIPRI Year-book 2016. Edited by A. Arbatov, S. Oznobishchev. – Moscow: IMEMO, 2017. – 205 p., 2017
in Russia: arms control, disarmament and international security / IMEMO supplement to the Russian edition of the SIPRI Year-book 2016. Edited by A. Arbatov, S. Oznobishchev. – Moscow: IMEMO, 2017. – 205 p. In the summer of 2016 the Permanent Court of Arbitration (PCA), an international arbitral tribunal located in The Hague, issued an award in a dispute initiated by the Republic of the Philippines against the People’s Republic of China. The Manila’s lawsuit was challenging the Chinese’s claims to extend its sovereignty and jurisdiction over a number of groups of island features and water areas of the South China Sea (SCS), based on the application of historic titles to them within the so-called ‘nine-dash line’. From the outset, Beijing did not recognise the jurisdiction of the international arbitral tribunal in this case. China has been insisting that any issues not related to the interpretation and application of the norms and provisions of the United Nations Convention on the Law of the Sea of 1982 but relevant to the issues of state sovereignty are beyond the competence of the International Court or arbitral tribunal. China has been trying for many years to follow this approach aimed at resolving all controversial issues in the SCS region on a bilateral basis without recourse to international judicial instances. Nevertheless, within the framework of the 1982 Convention, the absence of the other party to the dispute and its failure to submit its arguments are not an obstacle to arbitration proceedings. As a result, the PCA did not consider the arguments of the PRC as plausible and issued an award recognizing the claims of the Celestial Empire in the region of the SCS as completely illegitimate. That was the ultimate victory of the Philippines, a practical example of how a much less powerful state sues and wins against a permanent member of the UN Security Council. However, the award did not change the policy of China which continued to consider the water of the SCS as an area of its priority rights to project power and to control of marine activities of other states. The problem of ensuring a regional security in the area of the SCS for Beijing is still much more important than compliance with international, particularly maritime, law. In this respect, China seems to be moving along the path that two Cold War superpowers – the USSR and US – once travelled. It means that as the PRC is undergoing the transformation from a regional power into a country with interests at the highest global level, it is showing more interest in universal rules of behaviour which apply to the oceans as well. It seems premature to say that China has already completed this journey as evidenced by a number of facts below.
The South China Sea as a Challenge to International Law and to International Legal Scholarship
Berkeley Journal of International Law, 2018
The 2016 Arbitration Award of the PCA has set out the maritime legal questions in the South China Sea in great detail. This paper takes the Award as a starting point, but rather than focussing on maritime legal issues, it uses the South China Sea as a paradigm for the challenges that face not only international law as a normative order, but also international legal scholarship. First, the conflict in the South China Sea has weighty implications for the law of the sea, which, historically, has primarily served the interests of (Western) sea-faring nations. More importantly, the conflict in the South China Sea threatens the safeguarding of peace as one of the main tasks of international law, setting the United States against China in a reiteration of previous historical conflicts. These developments should serve as a cautionary contrast to the prevailing narrative of international law as a progressively successful normative order. The paper will analyse two aspects of that narrative: the gradual deterritorialisation and the advancing constitutionalisation of international law. It will be argued that while such concepts have their merits, the South China Sea exposes the (considerable) limitations that they are still subject to.
Sovereignty at Sea: The South China Sea Dispute and UNCLOS Implications
International Journal of Law Management & Humanities , 2023
The South China Sea dispute involves overlapping of territorial claims and maritime conflicts among nations like China, Vietnam, the Philippines, Malaysia, Brunei, and Taiwan. Central to this intricate issue is the interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS), an international treaty governing the rights and responsibilities of States concerning global ocean use UNCLOS regulating maritime jurisdictions, defining territorial waters, exclusive economic zones (EEZs), and continental shelf. Beyond regional stability, the South China Sea dispute carries global implications due to its impact on trade routes, valuable resources, and strategic alliances. The interplay between the South China Sea dispute and UNCLOS underscores the tension between territorial claims and international legal principles. A nuanced understanding of these complexities is essential for maintaining stability, upholding legal norms, and facilitating peaceful resolutions within the intricate landscape of maritime geopolitics. This article discussed in brief the different concepts under the UNCLOS 1982, and the violation of the provisions of the convention by the China and other states in South China Sea for their own interest in the sea.
Since 2000, the actions as well as articulations by the stakeholders in the South China Sea (SCS), by those directly involved (claimants) and some with strategic stakes (indirectly), have become particularly assertive. This has led to rising tensions and the serial/frequent occurrences of incidents of confrontationist nature are symbolic of deteriorating regional security environment. The SCS disputes are long-standing with two interesting mixes. Firstly, the combination of history, cartography, and, varying interpretations of doctrines and norms for inter-state delimitation by each claimant. The second mix is the complex web of overlapping, intersecting and intermeshed nature of these claims with varying degrees of sovereignty, territoriality and maritime entitlement implications. This main issues examined are some salient aspects of extant legal framework for deconstructing the sovereignty, territoriality and sovereign rights through the perspective of codified/treaty law and the case law. This paper (pre-publication draft with a few minor typos) forms a chapter of recent;y published edited volume titled "Maritime Dynamics in the Indo-Pacific".
UNCLOS and the South China Sea Arbitration: Into Lawfare’s Abyss?
ASIEN – The German Journal on Contemporary Asia, 2017
In July 2016, the Permanent Court of Arbitration (PCA) announced its highly anticipated award on the Philippines’ case against China’s claims in the South China Sea. However China declared that it would accept neither the tribunal’s proceedings, conducted under the United Nations Convention on the Law of the Sea (UNCLOS), nor the award itself. Even though China remained absent throughout the arbitration process, the issued award has had an impact on the conflict as well as on the future of international law itself. Since the Philippines first invoked the tribunal in late 2013, both states have increasingly accused each other of violating international law. Observers tend to use the term “lawfare” in reference to the current relationship between the two states. I will argue that the use of this neologism — a combination of “law” and “warfare” — appears to be a double-edged sword in the context of this dispute. As an analytical tool, lawfare is useful to understand that by invoking international law, military objectives — for example reclamation of territory, access or denial of access to waters — are achievable. The concept may even have a positive impact on international law, as long as the phenomenon to which it refers unfolds within the rule of law. Nevertheless, one has to reflect in a critical manner on a bourgeoning normative and political instrumentalization of the term. While lawfare as an analytical tool is revealing of today’s power reach of international law, the strategic use of this term is at the same time paradoxically also a burden to the future rule of law.
NDCP Policy Brief, 2016
Capturing worldwide attention, the ruling on the Philippine v. China case about the South China Sea (SCS) dispute was released on 12 July 2016. The decision went largely to Manila’s favor. Against the backdrop of the Sino-American rivalry, the SCS dispute has placed at the forefront the viability of international law, specifically the United Nations Conventions on the Law of the Sea (UNCLOS), in promoting guidelines on maritime issues and the pacific settlement of disputes. As an exploratory study, this paper aims to discuss the implications of the SCS dispute, as the operational theater of the emerging power shifts in the APR, for the UNCLOS. Specifically, this article seeks to address the following questions: (1) How do power shifts affect the development and efficacy of international law? (2) What does control of the SCS mean for regional power shifts; (3) How does the Philippines use UNCLOS to resolve portions of the dispute to clarify maritime entitlements and sovereign rights, and how does China respond to the legal challenge posed by the Philippines?; and (4) What are the possible implications of the geopolitical dynamics of the SCS for UNCLOS as a legal framework for maritime issues including pacific settlement of maritime disputes? http://www.ndcp.edu.ph/wp-content/uploads/publications/3.%20EPB%20re%20Power%20Shifts%20and%20International%20Law\_v2.pdf
The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to " lawfare " on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty—which are barred from UNCLOS proceedings—to the determination of all other legal issues being contested between the parties. This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region's various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants. Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on " discovery " and " conquest " could at least potentially be ruled out, leaving only " cession "-based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional " epistemic community " of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors.
Troubled Waters: China's Claims and the South China Sea
Orbis, 2012
Among China's unresolved frontier questions, the South China Sea has become the most complex and troubled, and arguably the most significant and disconcerting. The economic and security stakes are high and the stake-holding states numerous and diverse. The claims that China (and others) make about the region reflect such interests but they are, ultimately, legal claims. Beijing's assertions of rights to the disputed areas have rested on three conceptually distinct grounds. Each presents a different mix of challenge and accommodation to international legal norms and the interests of other states, including China's neighbors, near-neighbors and the United States. hile China's behavior (as well as that of other interested states) has been more and less assertive at various times, China's three basic arguments claiming rights to the region have been comparatively stable. Both China's pattern of multiple legal arguments and fluctuating actions and rhetoric do little to resolve the debate over whether a rising China will be deeply disruptive of the regional and international order or whether it can-with sufficient skill and tolerable adjustments-be accommodated and integrated. Although China's stance on rights in the South China Sea may be partly the accidental product of conflicting agendas and shifting assessments, Beijing's embrace of three distinct lines of legal argument arguably constitutes a strategy that serves China's interests given the factual, legal and strategic environment that China faces.
Ruling Against a Superpower: What can be learnt from maritime claims in the South China Sea?
On July 12th, 2016 The Hague sided with the Philippines against Chinese territorial claims in the South China Sea, ruling that Beijing cannot exercise exclusive economic rights nor continue reclamation efforts on contested reefs and shoals. While countries such as the United States and Japan have openly supported the decision, requesting China adhere to The Hague’s jurisdiction, Beijing has wholly rejected the ruling, maintaining the position that it is allowed to assert exclusive maritime sovereignty over the region. While rejection of the ruling by Beijing comes as no surprise, it does illustrate an important development for the disputed claims and China’s role in the region, yet perhaps not in the way many believe. Critics of China’s maritime expansion were quick to attack Beijing, arguing that if the ruling is not respected it will deal a serious blow to the country’s international standing and, potentially, ‘further’ alienate the country in the region. However, such critiques often ignore that the South China Sea dispute has been ongoing for years with few repercussions being brought to bear on Beijing despite foreign pressure, nor do they reflect on past maritime rulings against large powers, such as the United States, and their responses, which often have also been rejection without consequence. This paper will begin by analyzing The Hague’s ruling and Beijing’s response, comparing it to past maritime decisions, arguing that China’s regional, and international, position will actually improve from the decision and subsequent rejection. Expanding on this point, it will provide insight on to how and why Beijing has been able to maintain its position in the face of ongoing international criticism, as well as what policy options are available for China and other stakeholders in the region moving forward. Finally, the paper will briefly look into Canada’s interests in regards to the ruling, and highlight the takeaways from the situation that may be of importance when dealing with our own maritime claims in the arctic circle.