Islands and Rocks in the South China Sea Post-Hague Ruling Islands and Rocks in the South China Sea Post-Hague Ruling James Borton Copyright © 2017 by James Borton. Library of Congress Control Number: 2017901835 ISBN: Hardcover 978-1-5245-8241-8 Softcover 978-1-5245-8240-1 eBook 978-1-5245-8481-8 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner. Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only. Certain stock imagery © Thinkstock. Print information available on the last page. Rev. date: 04/17/2017 To order additional copies of this book, contact: Xlibris 1-888-795-4274 www.Xlibris.com [email protected] 754869 TABLE OF CONTENTS Part 1: Legal status of islands, rocks in international law The Award of 12 July 2016 and Its Impact on the Clarification of Article 121 (3) LOSC Erik Franckx ...............................................................................1 The Juridical Island: From the Island of Palmas to the South China Sea Alyosius Llamzon ....................................................................19 Philippines vs China: Islands after the Arbitration Jay L. Batongbacal and Bertrand Theodor L. Santos .....................................................31 Legal Status of Islands, Rocks in International Law and Countries’ Practice in the South China Sea Nguyen Quy Binh .....................................................................36 Part 2: Sovereignty dispute over the Paracel and Spratly Islands Sovereignty Assertion in the South China Sea: Militarization and the Construction of Artificial Islands Carlyle A. Thayer ......................................................................55 Land Reclamation and Militarization in the Paracel and the Spratly Islands Go Ito ........................................................................................83 Developments related to Chinese Assertiveness in SCS Shekhar Dutt .............................................................................88 A Study on the China’s “Nine-Dash” Line: The Award of PCA (July 12, 2016) Jeong Gab Yong .........................................................................99 The South China Sea Conflict: Impact of the Paracel Oil Rig Incident and the PCA Award relevant to Three Warfares Koichi Sato ..............................................................................106 Part 3: The Arbitration Award on the case between the Philippines and China The Permanent Court of Arbitration’s Award on the South China Sea Dispute between the Philippines and China: Views from America Nguyen Manh Hung ...............................................................116 India’s Approach to Strategic and Legal Implications of PCA’s Award (abridged) Vinod Anand ...........................................................................129 The Award on the marine environment of the South China Sea in the Philippines vs. China arbitration case Nguyen Chu Hoi .....................................................................135 Giant Clams in Despair: The Urgent Need for Environmentally Conscious Cooperation in the South China Sea and Implications for ASEAN and Concerned Countries Around the Globe Dai Trang Nguyen ..................................................................144 New challenges and new reality in the conflict in the South China Sea Dimitry Mosyakov ..................................................................154 The Award by the Permanent Court of Arbitration: Challenge or Chance for China? Gerhard Will ...........................................................................158 ASEAN’s strategies after the PCA Decision Kavi Chongkittavorn ...............................................................165 Legal bases for moving forward Ngo Vinh Long .......................................................................170 Building a New Security Architecture in the South China Sea and Beyond Harry Krejsa ............................................................................175 The Impacts of PCA Ruling on Regional Strategic Environment in the South China Sea Siswo Pramono ....................................................................181 The Strategic Importance of Strengthening Vietnamese- U.S. Cooperation: Critical Timing, Prospects And Challenges Anders Corr ............................................................................192 Vietnam’s Possible Action Plan on the Land Features in South China Sea (Biên Ðông Sea) After the Arbitral Award in the Philippines v. China Case Ta Van Tai .............................................................................. 206 Map Source: Prepared by Clive Schofield and Andi Arsana of the Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia. The map appeared in the January 2013 issue of the American Journal of International Law, Vol.107 (January 2013): 95, ©2013 American Society of International Law. ACKNOWLEDGEMENTS T his collection of timely and valuable papers would not have been possible if it were not for the generous support and direction from Dr. Trang Si Trung at Nha Trang University, and Dr. Pham Dang Phuoc of Pham Van Dong University in Vietnam. This project becomes another valuable installment in an examination of the international law of the sea, the United Nations Convention on the Law of the Sea (UNCLOS), and the recent arbitration ruling made in The Hague, Netherlands. Academics, delegates and other scholars gathered at an international workshop held in Nha Trang, Vietnam on the “Legal Status of Islands and Rocks under International Law and Practice in the South China Sea” on August 16-18, 2016. There they reaffirmed the principle of resolving international disputes by peaceful means on the basis of international law, including the 1982 UNCLOS. This book is also dedicated to the thousands of fishermen who daily cast their lines in the South China Sea. They remain caught up in the ocean’s political fray and remain on the dangerous frontlines of one of Asia’s ongoing maritime boundary disputes. xi PREFACE Islands and Rocks in the South China Sea: Post Hague Ruling James Borton Ocean governance remains a critical issue in the contested South China Sea, due to continued territorial disputes, fishing exploitation, and ASEAN’s power shift alignment towards China. The Hague’s unanimous ruling in 2016 made it clear that under the United Nations Convention on the Law of the Sea, China had no legal basis to claim historic rights over most of the contested waterway. In the favorable sweeping ruling for the Philippines, the decision stated that China had breached several UNCLOS articles, governing safety, the marine environment, and navigation at sea. UNCLOS was adopted in 1982 and by June 2011, 162 nations had accepted it. The convention succeeded in defining such terms as “territorial sea,” “exclusive economic zone” (EEZ), and “continental shelf.” It also plainly set the rules on the utilization, exploitation, and conservation of maritime resources. The law of the Sea Convention remains the most important international agreement on ocean policy, since it codifies accepted international law and spells out generally accepted rules of law of the sea, including the right of free passage, demarcation of the territorial sea, and freedom of the high seas. The five-judge tribunal condemned China’s behavior in its aggressive attempts to establish sovereignty by dumping tons of dirt and crushed coral to transform small reefs and rocks into artificial islands complete with airstrips and other military structures. Beijing has already established at least seven such bases, all of them equipped with access channels, helipads, xiii James Borton radar facilities, gun and missile emplacements, piers, and other objects of strategic importance. To all claimant nations and the world as a whole these actions are disturbing. However, the Philippines and other nations appear to be reluctant to challenge China, or even address the significance of The Hague’s ruling. The Law of the Sea treaty sets rules for establishing zones of control over oceans based on distances to coastlines. In addition to China and the Philippines, Malaysia, Vietnam, Brunei, Indonesia and Taiwan all make territorial claims in the South China Sea. However, the tribunal’s mandate is to address only maritime disputes, not the underlying land claims to the islands, reefs and rocks. With no authority to enforce its ruling, and China, which has denounced the verdict and boycotted the legal process, the result is a test of international law. Over the past several months, China’s continued policy of “might makes right”, reflected in the number of coast guard ships patrolling the sea and often accompanied by their fishing trawlers, only serves to heighten rather than diffuse tensions. Of course, Vietnam and other Southeast Asian nations, who were not party to the arbitration, find their own sovereign EEZ rights bolstered by the ruling. This includes Indonesia and Malaysia, since both have experienced encroachment into portions of their EEZ by Chinese fishing vessels in areas China claims as its traditional fishing grounds. Philippine President Rodrigo Duterte’s failure to pursue their nation’s maritime claims against China in the post