{"id":8006,"date":"2021-03-18T08:50:23","date_gmt":"2021-03-18T07:50:23","guid":{"rendered":"http:\/\/east-sea.de\/?p=8006"},"modified":"2021-03-18T08:50:23","modified_gmt":"2021-03-18T07:50:23","slug":"english-south-china-sea-the-disputes-and-southeast-asias-culture-of-international-law","status":"publish","type":"post","link":"https:\/\/east-sea.de\/en\/2021\/03\/18\/english-south-china-sea-the-disputes-and-southeast-asias-culture-of-international-law\/","title":{"rendered":"South China Sea: The Disputes and Southeast Asia\u2019s Culture of International Law"},"content":{"rendered":"Pham Minh Trang<\/p>\n

Most observers usually look at the South China Sea disputes with pessimistic eyes. After capturing the attention of the world in 2009, when China for the first time officially introduced the nine-dash-line map, the conflicts in the region has continued to grow, tensions between the interested parties increasing. Furthering tensions, China ignored the judgment of an international tribunal in a 2016 suit against Beijing\u2019s expansive claims. Thereafter, some observers have claimed that the disputes are too complicated to settle by law. But such pessimism ignores the fact that Southeast Asian countries have a culture of heeding international law. Whether judging from a realist lens or not, the law remains a useful tool for small countries to protect their interests.<\/p>\n

\"\"<\/p>\n

Not So Complicated<\/b><\/p>\n

From a legal perspective, disputes in the South China Sea are not as complicated as they may seem. There are two reasons for that statement.<\/p>\n

First, all the claimants in the South China Sea \u2013 Brunei, China, Malaysia, the Philippines, and Vietnam \u2013 are parties to the two most important legal mechanisms dealing with multilateral disputes: the United Nations Charter (UN Charter) and the United Nations Convention on the Law of the Sea (UNCLOS). Under the regimes of these conventions, state parties have the obligation to settle their disputes by\u00a0peaceful means<\/a>, such as\u00a0negotiation, regional arrangements, international arbitration, or courts\/tribunals. Unlike the UN Charter, UNCLOS goes a step further and prescribed detailed methods of solving conflicts at sea for its parties in Chapter XV. In general, the consent of states is placed at the center of all dispute settlement mechanisms. However, UNCLOS particularly opens a chance for a state party individually to bring its conflict with another state before an international court or arbitration when it comes to certain types of disputes. These are called compulsory procedures, entailing binding decisions in section 2 of chapter XV of UNCLOS. When a state signed and ratified the Convention, it is understood that it has agreed with this settlement means in advance. This was the strategy the Philippines employed in its litigation against China in\u00a0the South China Sea arbitration<\/a>.<\/p>\n

The second reason is that the whole situation in the South China Sea can be classified into specific legal categories, which could be settled separately by law.<\/p>\n

The first category is related to conflicting claims of sovereignty over offshore maritime features. China and Vietnam claim sovereignty over all the features in the Paracels. For the Spratlys, the claimants include China, Brunei, Malaysia, the Philippines and Vietnam.<\/p>\n

The second category concerns normal maritime boundary demarcation exercises of littoral countries. Coastal states usually have maritime zones overlapping with their opposite and\/or adjacent neighbors, and so do the claimants in the South China Sea. For example,\u00a0Vietnam and Malaysia<\/a>\u00a0have overlapping exclusive economic zones (EEZ) and continental shelves, or Brunei when extending its EEZ and continental shelf has\u00a0recognized the future delimitation of boundaries with neighbors in the future<\/a>. And there is China, which claims a maritime zone comprising 80 percent of the South China Sea within the\u00a0infamous nine-dash-line<\/a>. This claim, however, was rejected by the arbitral tribunal in the case between the\u00a0Philippines and China in 2016<\/a>.<\/p>\n

Another group of disputes is related to the legal status of maritime feature in the South China Sea. According to UNCLOS, offshore features can be classified as \u201cislands,\u201d \u201crocks\u201d or \u201clow-tide elevations\u201d with different legal effects. The Tribunal in the South China Sea case decided that\u00a0all the features in the Spratlys Islands are not \u201cislands.\u201d<\/a>\u00a0They are either \u201crocks\u201d or \u201clow-tide-elevations,\u201d and while \u201crocks\u201d can generate a 12 nm maritime zone around them, \u201clow-tide-elevations\u201d are unable to have any independent maritime zone, regardless of being made into artificial islands or not.<\/p>\n

The last groups of disputes mostly involve China. China\u2019s artificial island building activities have harmfully affected the maritime environment in the area; in addition, China has disturbed economic activities of\u00a0Malaysia, the Philippines and Vietnam<\/a>\u00a0in their EEZs and continental shelves.<\/p>\n

All of the above-mentioned issues are addressed by international law, from treaty laws to customary international law. Except for the first two groups of disputes, which require explicit consent of both parties in order to bring them before an international judicial body, the rest do not need the same requisition. In fact, they fall neatly into the compulsory procedure under part XV of UNCLOS. More significantly, according to\u00a0the decision on the jurisdiction<\/a>\u00a0of the Arbitral Tribunal in the South China Sea case, the dispute concerning the legal status of maritime features can be distinguished and settled separately from the dispute of their sovereignty.<\/p>\n

In short, some disputes in the South China Sea can be settled first, paving the way for dealing with the more difficult issues later. In addition, not all issues in the South China Sea involve China; hence, other disputing parties can work together to solve problems between themselves. Fortunately, for those countries, international law is always an option.<\/p>\n

Southeast Asia\u2019s Culture of International Law<\/b><\/p>\n

Except for China, the other claimants in the South China Sea (Brunei, Malaysia, the Philippines and Vietnam) are members of the Association of Southeast Asian Nations (ASEAN), and the countries in this organization have a\u00a0culture of international law<\/a>. For example, Singapore and Malaysia asked the International Court of Justice (ICJ)\u00a0to make the final decision<\/a>\u00a0on problems concerning sovereignty over maritime features. Similarly, Indonesia and Malaysia have also settled\u00a0a sovereignty dispute over some islands by the ICJ<\/a>. Myanmar and its neighbor, Bangladesh, brought their maritime delimitation issues to\u00a0International Tribunal for the Law of the Sea (ITLOS)<\/a>. The Philippines made history when initiating a case against China before an international arbitral tribunal, marking the first lawsuit about the South China Sea disputes. Furthermore, the member states of ASEAN have also approached to maritime problems, especially maritime boundary issues,\u00a0with good faith, flexibility and modest cooperation<\/a>.<\/p>\n

Those countries also have a convenient tool to solve their regional disagreements: ASEAN. Indeed, the friendly and partnership environment of a myriad ASEAN meetings could be better for negotiation between relevant disputed states. Besides, according to article 23 of the ASEAN Charter, member states can request the chairman or the secretary-general of ASEAN provide good offices, conciliation and mediation.<\/p>\n

Therefore, it is tenable to argue that ASEAN countries should settle disputes among themselves in the South China Sea first, especially delimiting their maritime borders. This practice will help them to build up more weight on the negotiation table with Beijing. Another lawsuit against China in the South China Sea, regardless of its consent, is also a possibility. Then, they will achieve certain pressures making China reconsidering its illegal activities at sea.<\/p>\n

Trang Pham is a lecturer at Vietnam National University. She was a research fellow at the International Tribunal for Law of the Sea (ITLOS) in 2015. And, now she is current Fulbright visiting scholar at US-Asia Law Institute, New York University.<\/i><\/p>\n

This article was first published on The Diplomat.<\/em><\/p>\n<\/section>\n\n

Aufrufe: 630<\/p>","protected":false},"excerpt":{"rendered":"

Pham Minh Trang Most observers usually look at the South China Sea disputes with pessimistic eyes. After capturing the attention of the world in 2009, when China for the first time officially introduced the nine-dash-line map, the conflicts in the region has continued to grow, tensions between the interested parties increasing. Furthering tensions, China ignored …<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[41],"tags":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts\/8006"}],"collection":[{"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/comments?post=8006"}],"version-history":[{"count":1,"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts\/8006\/revisions"}],"predecessor-version":[{"id":8007,"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts\/8006\/revisions\/8007"}],"wp:attachment":[{"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/media?parent=8006"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/categories?post=8006"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/tags?post=8006"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}