Proceedings of the Second Manila Conference on the South China Sea: Managing Tensions, Revisiting Regional Efforts, and Fostering Cooperation (03-04 August 2016, Manila, Philippines)
FOREWORD
Developments in the South China Sea pose a challenge to ASEAN’s unity and regional security. This posits an urgent need to manage tensions and foster cooperation which many hope may loom large in the foreign policy considerations motivated the holding of the Second Manila Conference on the South China Sea 2016.
Thispublication presents the proceedings of the second Manila Conference on the South China Sea held on 3–4 August 2016. The conference was a follow- through of an initiative by the Philippines in 2011 to gather South China Sea scholars in a Track Two forum.
Bothof escalating the first tensionsand the second among Manila the claimant Conferences and relevant were held non-claimant against the states. backdrop The 2011 conference, with the theme “Toward a Region of Peace, Cooperation, and
Progress,”China Declaration was convened on the after Conduct a breakdown of Parties of in confidence the South inChina the 2002 Sea and ASEAN- in a legally-binding code of conduct the declaration had aspired to. Five years later, the 2016 conference, with the theme “Managing Tensions, Revisiting Regional Efforts, and Fostering Cooperation,” was conducted to cover the security and foreign policy implications of major developments on the ground, including China’s reclamation activities in the Spratlys and the Philippines’ arbitration case. In these junctures where Track One discussions seemed to have come at a standstill, the Foreign Service Institute (FSI) and its partners—the National Defense College of the Philippines and the Diplomatic Academy of Vietnam in
2011, and the Griffith University–Griffith Asia Institute, The Asia Foundation, andConferences the New Eraas a University–ASEAN modest Track Two Studies alternative Center for in 2016—offeredacademic discussion the Manila and friendly interaction on the possible ways forward on the South China Sea.
The FSI wishes to extend its deepest gratitude to the New Era University– ASEANthat the Studies ideas that Center have (NEU-ASC) transpired for during preparing the conference this publication are readily and availableensuring for interested readers and researchers. The FSI is also preparing a separate publication collecting the papers presented during the conference as an additional academic resource on the South China Sea. Together, these two publications are the humble contributions of Track Two institutions like the FSI
andpeace the in NEU-ASC the South toward China Sea.increasing the level of scholarship on building lasting
Claro S. Cristobal Director-General Foreign Service Institute MESSAGE
Theto have New its Era own University ASEAN (NEU) Studies is theCenter first academic(ASC). Inaugurated institution onin the February Philippines 29, 2016, the ASC aims at fostering academic discussions on the current state of affairs within the ASEAN. This is accomplished through close collaboration
between the University, the Eagle Broadcasting Corporation (EBC), and thethrough Development the ASEAN Academy Studies Center,of the shallPhilippines be an active (DAP).The participant New Era in theUniversity, ASEAN discourse. The learning institution shall be a gateway for both tangible and intangible items related to South East Asian education, politics, and
technology.venue for ideaWe furathergeneration envision and liaisonsthe University, among through professionals the ASC, and to serve scholars as a coming from the different ASEAN countries. Through partnerships and collaboration, we aim at producing meaningful and innovative studies for
theform benefit of curricular of our improvement,students, faculty, action and research, stakeholders. or policy These papers. may be in the
(FSI) in Recently,conducting the the University Second partnered Manila Conference with the Foreignon the SouthService China Institute Sea
Conflict.Institute andWe Theare alsoAsia fortunate Foundation to have as theco-sponsors Griffith University-Griffith for this undertaking. Asia With the theme "Managing Tensions, Revisiting Regional Efforts, and Fostering Cooperation," the two-day conference became a laboratory of knowledge sharing, eliciting critical thought pieces among the participants from the academe.
Being a senior educator, it is my sincerest belief that learning should go beyond the walls of the classroom. For a topic as sensitive and as controversial as the South China Sea dispute, we have to be extremely careful with the facts since public opinion on the matter is already heated. Conferences (such as this two-day affair) are a viable source of valuable learning experience, as the participants are able to access information
directlyThe academic from the approach experts of through the conference interactive offers discussion a well-balanced and clarification. and lucid discussion of the issues, while at the same time teaches students the methods in policymaking and international detente.
The conference is only one of the accomplishments of the ASC in its maiden year. Another concrete result of the ASC is the ASEAN Learning Resource Center housed within the College of Law Library at the Professional Schools Building, a by-product of the different linkages established last year. Beyond that, The ASC was able to establish contacts with the MGIMO
(MoscowCenter, ASEAN-lndia State Institute Center, for International and the ASEAN Relations) Secretariat University, in Jakarta, ASEAN-China Indonesia.
InPhilippines, the local whichfront, wehas have a center been ablethat to deals link upwith with Asian the studies. University Before of the year 2016 ended, highly esteemed Russian scholar Dr. Ekaterina Koldunova was able to share her insights on Russian politics and foreign policy, and its
significance to the ASEAN. In the coming months, the University, through the ASC, intends to offerwhich a aims Certificate at contributing Program on to International the Filipino Relations people's and understanding ASEAN Studies, of international relations, foreign affairs and ASEAN. Furthermore, as the NEU- ASCfor the celebrates year. its first anniversary, several publications are already lined up
Before we draw to a close, we would like to thank the Executive
Minister of the Iglesia ni Cristo, us the opportunity of a lifetime Brother to beEDUARDO able to V. reachMANALO, out for to allowing people beyondof Trustees, our especially national waters.its Chairperson, We would Atty. also Dorothy like to Kristinethank the M.NEU Orosa,Board for encouraging us to reach stratospheric heights of academic success.
Finally,and their we partner congratulate institutions the officers for a andjob wellstaff done.of the ThereNEU-ASEAN is more Studies work Center to be done, especially now that country is in the midst of preparations for the 2017
ASEANally in our Summit. mission As to such, enlighten may everythe NEU- Filipino, ASEAN and Studies every SouthCenter East be aAsian, staunch on the importance of the regional association.
Nilo L. Rosas President
New Era University
Table of Contents
MESSAGE FOREWORD
BACKGROUNDPROCEEDINGS ...... 12 Opening Remarks Hon. Claro S. Cristobal ...... 2 Keynote Address Secretary Perfecto R. Yasay, Jr...... 3 Session 1: Changes in Strategic Environment and Implications for Regional Security and Extra-regional Dynamics Professor Herman Joseph S. Kraft ...... 7 Professor Michael Heazle ...... 9 Ms. Sumathy Permal ...... 12 Open Forum ...... 15 Panel Chair’s Profile ...... 18 Session 2: The Application of International Law to the South China Sea Disputes A. The United Nations Convention on the Law of the Sea and the South China Sea Disputes ...... 19 Mr. Tullio Treves ...... 19 Hon. Henry S. Bensurto, Jr...... 23 Dr. Nguyen Thi Lan Anh ...... 26 Dr. Clive Symmons ...... 29 Open Forum ...... 31 Panel Chair’s Profile ...... 33 B. International Law On Principles Of Self-Restrain and Non-Use Of Force In Disputes ...... 34 Ambassador Shingo Yamagami ...... 34 Dr. Jay L. Batongbacal ...... 37 Professor Leszek Buszynski ...... 39 Open Forum ...... 42 Panel Chair’s Profile ...... 43 Session 3: International Norms and Rules: Lessons Learned From Other Disputes Dr. Lowell Bautista ...... 44 Mr. Damos Agusman ...... 48 Open Forum ...... 51 Panel Chair’s Profile ...... 53 Session 4: International Norms and Rules: The Code of Conduct and Other Remedies in the South China Sea Ms. Mary Fides A. Quintos ...... 54 Dr. Nong Hong ...... 58 Professor Robert Beckman ...... 62 Open Forum ...... 66 Panel Chair’s Profile ...... 69 Closing Session: Summary, Conclusion, and the Way Forward Synthesis ...... 70 Professor Charmaine Misalucha-Willoughby ...... 70 Reflections on the Way Forward ...... 72 Hon. Claro S. Cristobal ...... 72 Professor Ian Hall ...... 73 Closing Remarks Hon. Alfredo E. Pascual ...... 75 THE ORGANIZERS Foreign Service Institute...... 77 Griffith Asia Institute ...... 79 New Era University- ASEAN Studies Center ...... 80 The Asia Foundation ...... 81 APPENDICES Appendix 1: Programme...... 82 Appendix 2: Photos ...... 90 Proceedings of the Second Manila Conference on the South China Sea: Managing Tensions, Revisiting Regional Efforts, and Fostering Cooperation
The Manila Hotel Manila, Philippines 3–4 August 2016
BACKGROUND
The Foreign Service Institute (FSI), in partnership with Griffith Asia Institute (GAI) of Griffith University, Australia, and with support from The Asia Manila Conference on the South China Sea on 3-4 August 2016 at the Manila Foundation and New Era University-ASEAN Studies Center, hosted the Second Hotel, Manila, Philippines. This was a follow-up to the First Manila Conference held in July 2011, which focused on the need to calibrate regional cooperative activities in managing the South China Sea (SCS) disputes.
The Second Conference, with the theme “Managing Tensions, Revisiting Regional Efforts, and Fostering Cooperation,” assessed the current situation in the SCS and identified possible courses of action, with emphasis on the role of in managing and resolving disputes. The Track 2 conference gathered local and international law, including the UN Convention on the Law of the Sea (UNCLOS), international legal scholars, security experts, and practitioners.
1 PROCEEDINGS
Day One
Opening Remarks
Hon. Claro S. Cristobal Director-General Foreign Service Institute Department of Foreign Affairs Republic of the Philippines
1. In his opening remarks, Director-General Claro S. Cristobal of FSI highlighted how the SCS disputes have grown more complex to include not only issues of competing territorial and maritime claims, but also concerns about regional stability, freedom of maritime commerce, protection of the marine environment, great power competition, pursuit of dialogue and cooperation, and the promotion of rule of law.
2. He explained that the objectives of the Conference are to assess the regional developments both on the ground (or water) and on policy; to re-examine efforts by regional stakeholders and identify which have worked and which have not; and to propose measures that are practical and in full accord with international law.
3. Director-General Cristobal also noted that the high turnout for the Second Conference was an indicator that more people are concerned about the issue. He expressed hope that sober, well-meaning heads, would prevail in search for solutions for peace, stability, and cooperation in the troubled waters of the SCS.
2 Keynote Address
“Come Let Us Reason Together”
Secretary Perfecto R. Yasay, Jr. Department of Foreign Affairs Republic of the Philippines
4. The keynote message of Secretary of Foreign Affairs Perfecto R.
Yasay, Jr. titled “Come Let Us Reason Together” was delivered on his address emphasized the role of policy discourse and debates in a behalf by DFA Undersecretary for Policy Enrique A. Manalo. The thriving democratic society like the Philippines. The Second Manila Conference on the South China Sea, as a Track Two event, can provide a marketplace of ideas toward the expansion of the body of knowledge on the subject, and the promotion of the rule of law in the region. Track Two diplomacy can also contribute to persuading governments to respect international law.
5. Secretary Yasay’s address also underscored that the importance of the SCS – and maritime security in general – to maritime commerce, regional stability, and the establishment of a rules-based regional security architecture. Thus, the Philippines continues its efforts in
effectively implementing the ASEAN-China Declaration on the Conduct upholding UNCLOS in the peaceful management of the disputes and in of Parties in the South China Sea (DOC) in its entirety. It was also noted that the principle of “full respect for legal and diplomatic processes” toward a rules-based approach to the resolution of disputes has now become recognized by ASEAN Foreign Ministers as a fundamental ASEAN norm.
6. The address also noted the Philippines’ full respect for the Award released by the Arbitral Tribunal on the SCS case. The Philippines hopes that the Award can contribute to the resolution of the disputes
3 and also reiterates how the rule of law is a great equalizer for both small and big states toward the creation of a more stable and predictable regional and global environment.
7. The address concluded with an assurance that the Philippines is ready
forward in the SCS disputes. Guided and bound by its constitution, to engage all stakeholders, especially the claimants, in finding a way the Philippines is committed to pursuing an independent foreign policy, protecting its national sovereignty and territorial integrity, and fostering amity with all nations. The country hopes that trust
peace and cooperation. This could be facilitated by Track Two dialogue and confidence among the claimants will be developed toward future and by having all stakeholders ‘reasoning together’.
4 Speaker’s Profile Perfecto “Jun’’ Yasay Jr. was appointed by President Rodrigo R. Duterte as Secretary of Foreign Affairs on 30 June 2016.
Secretary Yasay, former Securities and Exchange Commission (SEC) Chairman, was cited by Business Week Magazine as one of the “Stars of Asia” along with 50 other prominent
Asianfoundation leaders, for Asia as being by mending at the forefronta social fabric of change torn by and crisis. striving He also for areceived firmer the EDSA People Power Freedom Award for his advocacy for transparency and
the fight against corruption in government service. Jun Yasay is an outstanding lawyer, with experience in both the Philippines
andimmigration the United cases States. under He the litigated Philippine numerous and American corporate, legal civil, and and judicial criminal systems and and in various quasi-judicial and administrative bodies. He authored numerous articlesPhilippine and newspaper commentaries and magazines on various and fields was a of host law of published live radio broadcast in US-based in Metro New York, giving commentaries and counsel to program listeners with
specialPhilippine legal newspapers concerns. forHe successfullywas featured representing and editorialized and championing in various US-basedthe cause of Filipinos in criminal and in deportation and de-naturalization proceedings in
the United States. He also served as visiting Professor of Law at the Richardson School of Law, University of Hawaii.
5 A practicing lawyer specializing in Corporate Law and Securities Regulation,
SecretaryPhilippines, Yasay Bachelor obtained of Arts, his Major Bachelor in Political of Laws Science degree from from Central University Philippines of the
UniversitySchool in 1961. in Iloilo City and secondary education in Davao City National High
Secretary Yasay is the author of two books to date: Out of the Lion’s Den: The Travails and Triumphs of a Public Servant and Terminal Four: Corruption in America’s Only Colony in Asia. Born on 27 January 1947, he is married to Cecile
JoaquinStephanie. Yasay. They have five children, namely Nino, Oliver, Richie, Raveena, and
6 Session 1: Changes in Strategic Environment and Implications for Regional Security and Extra-regional Dynamics
This panel examined the regional strategic environment in the South China Sea, including power dynamics in the region, incidents that heighten tension, and the issue of militarization, among others. Speakers gave their views on the impact of these developments on the security outlook of ASEAN member-states and extra-regional powers, trends in regional and international security, and threat perceptions that can affect the dynamics in managing the disputes in the South China Sea.
***
Professor Herman Joseph S. Kraft Associate Professor Department of Political Science
University of the Philippines 8. Prof. Kraft examined the current security environment in the Asia-
has become less predictable than it was a decade ago as the security Pacific region as an overlay to the SCS disputes. He noted that the region order shifts from an order that is driven by multilateral institutions and shared norms and principles, to one that is increasingly dominated
In addition, security hotspots such as the Korean Peninsula, Taiwan, by the great power dynamics, particularly between the US and China. and the territorial disputes in Senkaku/Diaoyu, among others, also contribute to the uncertainties in the region.
of several countries in the region, including their respective responses 9. The US-China competition colors the strategic calculations and choices to the SCS disputes and the release of the Final Award of the Arbitral Tribunal on the Philippines v. China case.
10. Prof. Kraft also noted the re-emphasis on traditional security, with many countries embarking on military modernization programs and strengthening of alliances and partnerships. China is seeking to develop anti-access/area-denial (A2/AD) as it becomes more
7 assertive in the SCS. The US is having its own pivot to Asia which includes deploying 60 percent of its naval assets in the region. Japan and Russia, while remaining as regional players, have a more limited presence.
11. Prof. Kraft argued that the resurgence of traditional security concerns should be acknowledged and addressed. Given the uncertainties, it is
and institutionalized, and that disagreements are addressed through more important that trust and confidence among countries are created the rule of law.
12. Prof. Kraft also noted that the role of ASEAN, which has been envisioned as the driving force of the evolving regional architecture, has been weakened. Thus, there is a need to strengthen the ASEAN Community in order to reinforce the organization’s centrality and relevance in the
competitiveness and address development gaps. They should also Asia Pacific. ASEAN Member States should increase their economic promote peace and stability in the region through peaceful and amicable settlement of disputes and cooperation in non-traditional security issues.
Prof. Herman Joseph S. Kraft is an Associate Professor at the Department of Political Science, College of Social Sciences and
courses in International Relations (particularly on International Philosophy, University of the Philippines, where he teaches
Democratization and Human Rights in Southeast Asia). He is Security broadly defined) and Comparative Politics (including the former Executive Director of the Institute for Strategic and
informal dialogue mechanisms on security in Southeast Asia Development Studies. He has been involved in unofficialand and book chapters on regional security and security issues involving the Philippines and and the broader Asia Pacific region since 1993. He has worked on and published articles Southeast Asia.
***
8 Professor Michael Heazle Associate Professor School of Government and International Relations
Griffith University, Australia 13. Prof. Heazle drew from theories of International Relations in explaining China’s behavior in the SCS as a ‘revisionist power’. He noted that according to the realist theory, the security dilemma explains why
dilemma results from the uncertainty about the different states’ otherwise peaceful and status quo states go to war. The security intents and differences in balance of threat perceptions in an anarchic system. However, the security dilemma is a paradox – the more secure a country tries to be, the less secure it becomes.
14. Prof. Heazle explained that revisionist states are those that seek to
argued that China can be considered as a revisionist state that “covets change the status quo either due to insecurity or greed, or both. He what it wants more than it values what it has”, and continues to be chronically insecure because of its century of humiliation. In addition, China is insecure because of its lack of genuine allies outside of North Korea, and also the concern of the Chinese Communist Party (CCP) in preserving its domestic legitimacy. Thus, while states are generally careful about what signals they send to others given the security dilemma, China’s behavior and statements about the SCS indicate otherwise.
15. Prof. Heazle also explained the challenges in managing relations with a revisionist state. On the one hand, if a country is slow to balance and tries to accommodate a revisionist state, it will be tantamount to conceding advantage – and even appeasement – in an uncertain security environment. On the other hand, if a country balances too
quickly and labels the other as a ‘revisionist’, then it risks making an enemy unnecessarily and can even raise the risk of a conflict.
9 16. Prof. Heazle argued that a revisionist China can be managed through
collective balancing and unified opposition not only by the major powers such as the US and Japan, but by ASEAN countries as well. ASEAN in responding to China’s activities in the SCS. However, he noted the difficulty in forging a collective stance within
17. ASEAN countries are too diverse in terms of their positions on regional issues with some having strong threat perceptions of China while others seeking to bandwagon with it instead. There is also no clear and common vision or objective shared among ASEAN members on security issues. This is unlike the North Atlantic Treaty Organization (NATO) which has the goal that can be summarized as “keeping the Russians out, the Americans in, and the Germans down.”
the SCS can render the regional organization irrelevant and push the 18. The differences within ASEAN and the lack of a unified response in major powers at the center of the issue. The split in ASEAN also allows
better argue the legitimacy of its actions in the SCS. In addition, the China to incrementally challenge the status quo, control the area, and lack of effective balancing (military and political) can also raise the
likelihood of conflict as many ASEAN states threatened by China turn instead to the US and other great powers for help. This gives a bigger role, as well as risks, for the US network of alliances in the region. 19. Prof. Heazle also explained that Australia is becoming less ambivalent in its position in the SCS due to China’s continued challenge to the
status quo, the increasing threat perceptions toward China, and the Australia is making a stand on the issue by supporting the rule of growing pressure on alliance burden sharing with the US. But while law, it is not taking sides. Prof. Heazle however noted that the recent
a stand without being perceived as taking sides. decision of the Arbitral Tribunal makes it difficult for Australia to take
10 Dr. Michael Heazle is an Associate Professor with the
Government and International Relations where he teaches Griffith Asia Institute and the Griffith University School of International Relations and Politics. From 1992 to 2000, Dr. Heazle was a regular contributor to the Far Eastern Economic Review and wrote for a number of other domestic and international media. Dr. Heazle has researched and published in the areas of energy, human, and environmental security, policy-making and the treatment of specialist advice, and Australia- Japan and China-Japan relations. His works include a collection of books and edited volumes with various university presses and publishers and research articles in peer reviewed journals including Marine Policy, Environmental Science and Policy, Intelligence and National Security, and the Australian Journal of International Affairs. Dr Heazle also provides occasional op-ed policy commentaries on the Australia-Japan relationship in The Australian, and contributes to Australia-Japan related discussion on The Interpreter (Lowy Institute).
***
11 Ms. Sumathy Permal Senior Researcher Centre for Maritime Security and Diplomacy Maritime Institute of Malaysia
20. Ms. Permal noted that the situation in the SCS has become increasingly precarious and unpredictable, with tensions on the ground and in the diplomatic circles, as well as new legal developments including the 12 July 2016 ruling of the Arbitral Tribunal. But apart from the claimant states, the actions and reactions from other regional stakeholders are
also significant as they can indirectly add up to the tensions. 21. Ms. Permal noted that majority of the claimant states, namely the Philippines, Brunei, Malaysia, and Vietnam, as well as other regional states such as Singapore and Indonesia, have either given their nod to the ruling or have urged all parties to exercise self-restraint. In
rejected any proposal or action based on the Award. China even contrast, China has firmly opposed the arbitration and has resolutely reiterated that it is pushing through with its development plans in the features that it is claiming.
22. Ms. Permal also provided a timeline of recent China’s strategy and actions in the SCS:
• 2010 –China included the SCS as core interest in its defense policy. • 2009 – China submitted its nine-dash line map to the United Nations. • 2011 –China’s white paper was released indicating a pledge for peaceful development with a focus on enhancing its military and coast guard • 2012 –China’s strategy was to have more authority in the seas. China’s military and coast guard were seen coming closer to coastal states
East China Sea. Concerns arose among involved parties if • 2013 –China declared air defense identification zone (ADIZ) in the
12 China will declare ADIZ over SCS. • 2014 – China began island fortification. It intensified land reclamation • 2015 –China launched the OBOR project – projecting itself as a as well as regulation of fisheries activities. global player and China began operationalizing lighthouses in its claimed land features
23. In early January 2016, China also test-landed an aircraft on the newly
military personnel and facilitating regular patrols by the Chinese Navy. completed airfield in the Fiery Cross Reef which is capable of sustaining This further raises concern about China’s possible declaration of an
the Chinese government, maintain radio communication, respond to ADIZ in the SCS that will require any aircraft to report flight plan to
nationality. Other activities that need to be monitored are China’s identification inquiries, maintain radar transponder, and exhibit clear twenty marine nuclear platforms being planned and the Joint Sea exercises with Russia in September 2016.
24. Ms. Permal regarded all these activities as part of China’s strategy
its aspiration to become a regional power. Viewed from a realist of demonstrating its growing military capabilities and fulfilling perspective, China’s militarization strategy is based on the assertion that there is a correlation between state power and military capabilities.
25. China’s activities have also elicited responses from other regional
Navigation Operations (FONOPs) near the contested areas. It has also stakeholders. The United States (US) has conducted Freedom of reassured security commitments with allies, and has reviewed treaty provisions to clarify its obligations. Japan, in its Defense Review, has expressed deep concern over China’s refusal to adhere to the award by
to coordinate European navies to conduct regular and visible patrols the Arbitral Tribunal. France has also urged the European Union (EU) in the SCS.
13 26. While activities by different regional actors are expected to contribute to the tensions, Ms. Permal argued that military confrontation remains unlikely. The short term concern would be potential for unplanned encounters between navies or law enforcement vessels, as well as unexpected air-to-air incidents. Ms. Permal noted that ASEAN, China, and other regional actors are working toward a more cooperative rather than competitive security environment.
27. Moving forward, Ms. Permal stressed that need to effectively implement the DOC and expedite the COC. She also raised the role of diplomatic
good offices in addressing the situation in the SCS.
Ms. Sumathy Permal is a Senior Researcher with the Centre for Maritime Institute of Malaysia. Her research areas are geo-politics,
geo-strategy,publications include,and maritime among security others, in “China’s the Asia Military Pacific. HerCapability recent and Anti-Access Area Denial Operations,” Maritime Affairs: Journal of National Maritime Foundation (2014); “Maritime
CooperationContemporary with Issues United and States Challenges and China: for Malaysia,” Examination Journal on the of Defense and Security (2014); and “India’s Look East Policy and Maritime Cooperation in Southeast Asia” (2012). Ms. Permal is on the editorial board of the Australian Journal of Maritime & Ocean Affairs (Australia) and is an Associate Member of the Corbett Centre for Maritime Policy Studies.
***
14 Open Forum
On ASEAN (Dis)unity and Centrality
28. During the open forum, the issue of lack of ASEAN unity on the SCS issue was further discussed, particularly with the failure of the organization to come up with a statement following the release of the ruling by the Arbitral Tribunal. The speakers reiterated that ASEAN Member States are politically and socio-economically diverse and do not share a common strategic view of the region. While there are common aspirations enshrined in ASEAN documents, there remain problems with operationalization given the need to accommodate both national and collective interests. In addition, China’s assistance
toparticularly and influence on the over SCS some issue. Member States allow it to divide ASEAN,
29. Ms. Permal, however, argued that the lack of a common ASEAN
positionThe SCS disputeson the SCS are is much not amore question complex of integrity as these ofinvolve the organization. not only the claimants or ASEAN, but external parties that also have interests of their own. In addition, the SCS is not the only issue that ASEAN should be concerned with as the organization also focuses on other objectives of regional, social and economic integration.
30. Despitemechanisms the inadequaciescan still provide and thea platform criticisms, for ASEAN China andto discuss ASEAN-led SCS matters. ASEAN can still play a major role in maintaining peace in the region but it will depend on the creativity and skills of governments and diplomats on how to attain such.
15 China-ASEAN relations
31. One of the participants noted that despite the pessimistic view and the ‘doomsday mode’ about the future of the SCS, it has to be underscored that China needs ASEAN as much as ASEAN needs China. Economically and strategically, there is a high level of interdependence between the two. Prof. Heazle, however, argued that China may not see the relationship with ASEAN as that of co-dependency. China has
benefitedThus, China from is more the existing keen on regional revising order, how the and regional yet it tries order to changeoperates. it.
On the escalation of tensions
32. OnChina the to question cross the on line what and could turn beto theviolence, tipping Prof. point Kraft for opined the US that and while neither superpower is looking at going to war, the series of actions undertaken by parties contribute to the unpredictability of the situation which may bring about the possibility for the line to be crossed. He added that if China acts in ways that clearly contradict the terms of the Arbitral Tribunal award, then it might open up possible
stronger actions by other countries, particularly the US.
33. Prof.the great Heazle powers also argued are running that conflict out isof becoming space to moremaneuver likely becauseand, to accommodate actions by the others without giving up too much advantage and losing face. The security environment is at a point where China cannot back down without losing much face domestically.
Thewill undermineUS also cannot its power afford in to the back region. down or not take action because it
16 On the Philippines’ next steps after the ruling
34. The Philippines has no regrets in taking the issue to arbitration because the Philippines went to The Hague with a clear objective, which is the
desire for clarifications – which it got. 35. Prof. Kraft explained that the Philippine domestic politics is an important consideration in handling the SCS issue. The previous and current administrations have been involved in the arbitration in different periods and this has prompted different perceptions
andDuterte, approaches the concern to the award.was what For Aquino,to do with it was it andvindication, turn it butto our for advantage. The current administration’s soft stance has gotten more criticism than good remarks, but the challenge remains as to how the Philippines will use the gains to its advantage while maintaining diplomatic relations with China.
36. The reasons for the underwhelming response from others following the ruling might be the concern to not further antagonize the other party and escalate the tension. Moreover, it was not fair to ask other parties to make a stronger statement as the Philippines’ response was
alsoPhilippines sober. Ultimately, is going. other countries are more curious to where the
37. Another conference participant noted that sociological and cultural aspects of China’s relationship with its neighbors must not be overlooked. In improving ties with China and effectively managing the SCS disputes, there may be a need to consider Chinese lineage within ASEAN cultures and its socio-cultural contributions particularly to the Philippines.
17 Panel Chair’s Profile
Hon. Claro S. Cristobal Director-General Foreign Service Institute Department of Foreign Affairs Republic of the Philippines
Ambassador Claro S. Cristobal is the Director-General of the Foreign Service Institute, a chartered government agency attached to the Department of Foreign Affairs (DFA). He is a senior career Foreign
Philippine Ambassador to the Arab Republic of Egypt from 2011 to 2015. Service Officer who served, immediately prior to his current designation, as the
Since joining the Department in 1988, Amb. Cristobal has served as Assistant
Director of the Office of Asian and Pacific Affairs (1988–1990), Special Assistant at the Office of Undersecretary for Policy (1997–1998), Special Assistant at the Office of the Secretary (1998–2000), and Department Spokesperson New York (1990–1993), Consul at the Philippine Consulate General in New (2007–2009), Second Secretary at the Philippine Mission to the United Nations,
(2000–2002), Minister and Consul General at the Philippine Embassy in Tokyo, York (1993–1997), Minister at the Philippine Mission to the UN in New York Japan (2002–2007), and as Philippine Consul General in Hong Kong (2009– with a degree of Bachelor of Arts (Philosophy) in 1974 and a Master of Arts 2011). Ambassador Cristobal graduated from the University of the Philippines (Economics) in 1979.
18 Session 2: The Application of International Law to the South China Sea Disputes
A. The United Nations Convention on the Law of the Sea And the South China Sea Disputes
This session discussed the application of international law to the South China Sea particularly with regard to Art. 121 of UNCLOS, the concept of historic rights and titles, the exercise of sovereign rights in the exclusive economic zone, and the peaceful settlement of disputes. The speakers identified the political, diplomatic, economic, and legal dimensions that have helped states in other maritime and territorial disputes come to a peaceful resolution.
***
Mr. Tullio Treves Senior International Law Consultant Curtis, Mallet-Prevost Colt & Mosle LLP, Milan
and merits by the Arbitral Tribunal constituted for Philippines v. China 38. Mr. Treves posed the question of whether the awards on jurisdiction represent progress or complication toward the settlement of the SCS
“real dispute” between the claimant-states. He noted that the SCS is a disputes. He then argued that the final award fails to address the theater for a myriad of disputes, only some of which are between China and the Philippines and only some of which have been submitted for arbitration. The disagreement between the coastal states concerns not
land features in the SCS, but also the delimitation of their maritime only the application of UNCLOS to their maritime claims and to the boundaries and the right to exercise their sovereignty over those features. These latter two issues constitute the real dispute, but they were not covered in the present arbitration case. For Mr. Treves, the
the disputes. final award is therefore highly unlikely to result in the elimination of
19 39. Mr. Treves stressed the importance of addressing the real dispute instead of the resulting secondary disputes. He said that while getting down to the core of the dispute is not crucial for international adjudication it remains decisive in international relations, particularly in the maintenance of international peace and security. He cited the
where the awards by the International Court of Justice (ICJ) on the United States v. Iran hostage Case and Georgia v. Russia as examples respective parties’ secondary disputes rather than the underlying disputes ultimately failed to settle their disagreements.
resolving the SCS disputes does not totally depend on China’s non- 40. Mr. Treves consequently argued that the failure of the final award in acceptance of the decision. He mentioned that China’s early reactions to the award may be misleading and emphasized the need to distinguish between a state’s political statements and its actual attitude, the latter of which is better gauged once the euphoria has subdued. Instead,
award. what is at fault are the very contents and legal consequences of the
claimant-states even if the real dispute involves them. Hence, they 41. Mr. Treves also clarified that the award has no effect on the other cannot invoke the award against China to have the same legally binding effect.
42. He then challenged the stature of the awards as authoritative legal precedents. He explained that the awards were the product of an
arbitration case and organized without China’s participation in the ad hoc tribunal constituted specifically for the Philippines v. China selection of the judges and in the proceedings. Therefore, a different international adjudicating body, especially permanent courts such as the ICJ, would be free to adopt different conclusions should a similar
jurisdiction. He contended that even though China’s arguments in its case be submitted to it. Mr. Treves specifically questioned the award on position paper were ultimately rejected by the tribunal, they remain serious counter arguments that undermine the award’s precedential authority. 20 43. Mr. Treves believed, however, that China and the Philippines cannot anymore resort to adjudication to resolve their real dispute, i.e., their sovereignty issues, because they have already practically exhausted their legal means. Instead, the only mutually satisfactory option for settlement seems to be negotiation. State-parties in a negotiation are
whatever issue they agree upon. They are also not obliged to seek not bound by a set definition of the dispute and are free to discuss resolutions consistent with international law because such resolutions may be reached through an agreement to a new legal regime.
Negotiation therefore provides them greater flexibility in shaping the
final arrangement. 44. Mr. Treves further cautioned that the Philippines cannot effectively invoke the award in its future negotiations with China. Negotiation is usually held before parties resort to adjudication, but in the present case, some possible subjects of bilateral consultation have already been settled by the tribunal. China, of course rejects the arbitration, so any discussion that starts from the award will likely be unsuccessful. Furthermore, over reliance on the award can be counterproductive. While the Philippines could invoke it in diplomatic exchanges and the
reclamation happen again in the future, doing so would only renew an UN General Assembly should incidents like illegal fishing and land opposition of views with China.
45. Mr. Treves recommended that any future negotiation between China and the Philippines encompass all the pending issues, including sovereignty on the disputed land features and delimitation of maritime boundaries, and consider them from scratch. The goal is
mutually satisfactory resolution in the interest of international peace to settle not a legal dispute but a legal-political conflict through a and security.
46. In conclusion, Mr. Treves defended his “overly pessimistic” tone.
possible application of international law, but the unavoidable International lawyers are under commitment to find the widest 21 in international courts guarantees that not all diverging views on logical consequence of allowing the unilateral submission of cases
raised for adjudication. This, in turn, inevitably renders the decisions matters of fact and law and not all interconnected questions may be to be incomplete, such as, according to Mr. Treves, what has happened in Philippines v. China.
1 Mr. Treves explored the United States case. The legal dispute concerned only the hostage-taking of the United States’ diplomatic and consular staff in Iran, not the broader discord between the two countries. As a result, the ICJ’s award failed to resolve the parties’ disagreement. According to Mr. Treves, the actual resolution only came years later through the Algiers Accords.
2 Mr. Treves thus commended the Philippines for not flaunting its clear victory and for urging re- straint and sobriety after the issuance of the award.
Mr. Tullio Treves was a Judge of the International Tribunal for the Law of the Sea from 1996 to 2011. Within the Tribunal, he was the President of the Seabed Disputes Chamber. Since he left the Tribunal, he had been nominated twice as judge ad hoc.
Prof. Treves was previously, among others, a Counsel of France in the arbitration with Canada on the delimitation in the Great Belt case; a Counsel of Peru in the maritime dispute with Chile; and of maritime zones in the area of Saint-Pierre-et-Miquelon; a Counsel for Finland a Counsel of Colombia in disputes against Nicaragua. In 2012 he joined Curtis,
Law Consultant. Prof. Treves has been a Professor of Public and Private Mallet-Provost, Colt and Mosle LLP, Milan Office, as Senior Public International
1980 (retired since November 2012; presently Professor Emeritus) International Law at the Law Faculty of the State University of Milano since
***
22 Hon. Henry S. Bensurto, Jr. Consul General Philippine Consulate General
San Francisco, California, USA 47. Atty. Bensurto explained that the problem in the SCS is that there are too many lines and issues intersecting with each other (i.e. overlapping maritime claims, excessive claims such as China’s nine-dash line). He
and argued that more durable solutions are necessary. He also warned cautioned against having a quick-fix solution and ‘fast food mentality’ against a defeatist attitude as it will only encourage bad behavior particularly from more powerful countries. He stressed that virtue,
perseverance and commitment to finding solutions are crucial. 48. Atty. Bensurto commended the Arbitral Tribunal for having the courage to decide on what is right instead of making a Solomonic and politically acceptable solution to the highly sensitive SCS disputes. He argued that the award of the Arbitral Tribunal will be a good foundation for a durable peace in the SCS. It is because the rule of law does not decide on the basis of who is politically more powerful; rather, it serves an
equalizing factor that ties the community of nations together. 49. Atty. Bensurto then proceeded with a thorough discussion of the Philippine arbitration case, including the 15 submissions. He stressed that the arbitration case was aimed at untangling some of
the issue of sovereignty. By enclaving which features have maritime the intersecting lines by classifying first the features before settling entitlements, gridlocks can be lessened and cooperation can be made more possible. Atty. Bensurto compared the arbitration process to treating people with infection: in order to cure the infected people, they must be isolated rather than have the entire population under
particularly the lawful maritime entitlements of littoral states, can quarantine. Similar to the SCS disputes, addressing some gridlocks, help in separating the ‘infected persons’ or the sovereignty disputes which may demand a long-term treatment or approach. 23 50. Atty. Bensurto added that clarifying which part of the SCS are disputed can also help in formulating the COC and can be a step forward in determining potential marine protected areas. Enclaving also allows
UNCLOS to contribute to cooperation, which was also the idea behind the previous Philippine proposal of a Zone of Peace, Freedom,
Friendship, and Cooperation (ZoPFFC). 51. The Tribunal ruled favorably on almost all of the submissions by the
dash line; it ruled that features in the Spratlys are either rocks or low Philippines. It nullified China’s historic rights claims on the nine- tide elevations; it upheld the Philippines’ rights with respect to the resources over its exclusive economic zone and continental shelf; and it stated that China violated its obligation to protect the marine environment though its land reclamation activities and harvesting of endangered species.
52. Atty. Bensurto also explained that contrary to criticisms, the Philippines has not lost the Scarborough Shoal as the Tribunal did not rule on
rights of Filipinos (and other nationalities) in the Shoal. the sovereignty. The Tribunal instead affirmed the traditional fishing
53. But despite the victory of the Philippines in the arbitration case, Atty.
is unlikely to easily give up its nine-dash line, and has little appetite Bensurto admitted that there are still significant challenges. China to resolve the disputes on a long-term basis. China is also likely to maintain its assertive and sometimes aggressive assertions in its exaggerated claims in the SCS.
54. Atty. Bensurto also added that the arbitration process was initiated by the Philippines because negotiations were not working at all. He even noted that while cycles of negotiations were conducted, these were not fruitful and only led to the Philippines losing something in the ground (i.e. China’s occupation of Fiery Cross Reef in the 1980s, and Mischief Reef in 1994). He added that it is worrisome when the other party agrees to negotiate on the one hand, but continues to change the situation on the ground–creeping assertion– on the other. A country that allows that to continuously happen loses self-respect and dignity. 24 55. The arbitration process is a peaceful modality; it is not the end but rather a building block in the continuing search for durable solutions in the SCS.
A career diplomat, lawyer, and professor, Mr. Bensurto is one
of the Philippines’ leading experts on the UN Convention on the Law of the Sea (UNCLOS) and West Philippine Sea (WPS)was appointed issue. For by histhe Philippine expertise onSupreme UNCLOS, Court Mr. as Bensurto Amicus Curiae (Friend of the Court) on the controversial case of Republic of the Philippines v. The Provincial Government of Palawan regarding the issue of Malampaya gas platform.
Mr. Bensurto in a concurrent capacity, was also the head of the Department of Foreign Affairs’ ad hoc Legal Group in the PH arbitration case against China. To complement the
“PrincipledAlbert Del Rosario, Foreign Mr. Policy” Bensurto of former found President and worked Benigno on the Aquino possibility III and of bringingformer Secretary China to compulsoryand formulated legal a arbitrationbasic legal frameworkunder UNCLOS on how in 2010–2011 to do it. That even framework without its formed participation, part of Paul Reichler’s and his foreign legal team’s overall legal architecture in the arbitration case before the Arbitral Tribunal in Den Hague.
Prior to his posting in San Francisco, Mr. Bensurto served as the Assistant Secretary of the West Philippine Sea Center (WPSC) in the DFA and the Secretary General of the Commission on Maritime and Ocean Affairs Secretariat (CMOAS), a cabinet level inter- agency coordinating body on the Law of the Sea and other maritime issues.
***
25 Dr. Nguyen Thi Lan Anh Vice Dean, International Law Faculty Diplomatic Academy of Vietnam
constitution for the oceans” which can facilitate the management and 56. Dr. Nguyen’s presentation centered on how UNCLOS is the “world’s settlement of disputes in the SCS:
57. UNCLOS defines the subject matter of the sovereignty dispute in the SCS.
a comprehensive legal framework for management of the sea by the Dr. Nguyen stressed that the main purpose of UNCLOS is to provide systematic attribution of rights and obligations to coastal and other
legal basis for territorial claims, it can be applied to determine which states. While UNCLOS concerns the seas and does not provide the maritime features can be subject to sovereignty claims, which in turn
could define the scope of the sovereignty disputes. 58. Dr. Nguyen explained that in the SCS arbitration case, the proper
application of the provisions of UNCLOS on the legal regime of islands, the scope of the territorial disputes over mid-ocean features of the SCS. low-tide elevations, artificial islands, and archipelagos can help clarify The arbitration award also discourages the claimants from occupying and building structures on low-tide elevations which cannot be appropriated as part of territory.
defines the scope and nature of maritime disputes in the SCS. Dr. Nguyen explained that the doctrine of “land dominates the 59. UNCLOS
generated from the title of territorial sovereignty. The SCS disputes are sea” codified in UNCLOS provides that maritime claims can only be complicated by different interpretations and application of maritime claims over features as well as historic claims (i.e. China’s nine-dash
line). The arbitration award clarified that the maritime disputes in features in the Spratlys. the SCS are confined to the 12 nautical mile territorial sea of high tide
26 60. UNCLOS provides options for dispute settlement and management of a dispute settlement mechanism aimed at helping parties resolve the SCS. Dr. Nguyen explained that Part XV of UNCLOS provides for their disagreements on the interpretation and implementation of the Convention by peaceful means: exchange of views and conciliation, resorting to the International Court of Justice or International Tribunal on the Law of the Sea, or compulsory arbitration.
61. The arbitration case initiated by the Philippines under the Annex VII
SCS disputes through judicial and legal means. Dr. Nguyen argued of UNCLOS marked the first attempt to settle some aspects of the that this has resulted in positive outcomes as it narrowed the scope of sovereignty and maritime disputes, and will have important implications for other similar disputes in other regions.
62. Dr. Nguyen also responded to the view that UNCLOS may be to blame encouraged parties to claim features in the SCS given the maritime for the tensions in the SCS. She explained that while UNCLOS may have entitlements that they can potentially generate, the Arbitral Tribunal award on the Philippines v. China case provided decisive answers that none of the Spratlys are legal islands. Thus, this can narrow down the scope of the disputes and reduce the ambitions of claimants over the features.
given the many other relevant documents and international laws, Dr. 63. On the question of whether or not UNCLOS can solve the disputes
does not address territorial claims, but on the other hand, it provides Nguyen explained it is both a yes and a no. On the one hand, UNCLOS a comprehensive framework not only for maritime claims but also for issues of conservation of resources, marine environment protection,
as the SCS. marine scientific research, and cooperation in semi-enclosed sea such
27 facilitating the interpretation of claims, setting the legal basis for 64. Dr. Nguyen concluded that UNCLOS has played a positive role in maritime claims toward the peaceful settlement of the SCS disputes.
and therefore applies to all states. Many of UNCLOS provisions form part of customary international law
Dr. Nguyen Thi Lan Anh is the Deputy Director General of the Institute for East Sea (South China Sea) Studies and the Vice Dean of the International Law Faculty of the Diplomatic Academy of Vietnam. She is responsible for analyzing the legal aspects of the South China Sea disputes as well as other issues related to ocean law and policy. In this role, she offers legal analysis and advisory opinions to political, diplomatic, and security deliberations. Dr. Nguyen often participates and leads the Vietnamese delegation to Track 1.5 and Track 2 conferences and workshops in order to engage other regional countries on ocean law and policy.
***
28 Dr. Clive Symmons Visiting Research Fellow, School of Law Trinity College, Dublin
an adjudicative body, the Arbitral Tribunal under Annex VII, has 65. Dr. Symmons’ presentation underscored how for the first time, interpreted the main optional exceptions to jurisdiction under
UNCLOS: 66. On the meaning of a dispute concerning “the interpretation or
contrary to China’s position, the Tribunal held that there was indeed application” of UNCLOS in Art. 298, Dr. Symmons explained that
Philippines v. China case. The subject matter of historic claims were a dispute over interpretation or application of UNCLOS in the part of the treaty regime (noting the “interaction of China’s claimed
historic rights with the provisions of UNCLOS”).
of maritime boundaries exception by underscoring how a dispute 67. The Tribunal also clarified the meaning and application of delimitation concerning the existence of an entitlement to maritime zones is distinct from a dispute concerning the overlap of entitlements. Thus, the Tribunal was able to declare jurisdiction over the Philippines’ submission of determining the legal maritime entitlements of features in the Spratlys, as these do not pertain to disputes over maritime boundary delimitation, as China has argued.
meaning and application of historic title exception. The Tribunal 68. Finally, Dr. Symmons explained how the Tribunal has clarified the concluded that it had jurisdiction over the Philippine submission on historic issues as China’s claim over the waters of the SCS is not about a historic title. The Tribunal ruled that the term historic rights is general in nature and may include sovereignty, but may also include
more limited rights such as fishing rights or rights of access.
29 Dr. Clive Symmons is currently a Visiting Research Fellow at
thewidely School on ofinternational Law, Trinity legalCollege, issues, University his books of Dublin. include Writing The
Maritimeand the Law Zones of ofthe Islands Sea, 1stin International ed. (1993) and Law 2nd (1979), ed. (2000),Ireland Historic Waters in the Law of the Sea: a Modern Re-Appraisal (2008), and editorship of Selected Contemporary Issues in the Law of the Sea (2011). He has been a member of several maritime law study groups and has acted as adviser on the law of the sea issues to the Irish Government, as well as an expert witness in two rounds of Supreme Court litigation
between the US Federal Government and the State of Alaska. Recently, he has acted as oneCommentary, of the commentators ed. A. Proelss. in the forthcoming UN Convention on the Law of the Sea: A
***
30 Open Forum
On China’s position regarding the arbitration
69. Two points were raised to clarify China’s position on the arbitration case. First, China is dismayed by the Philippines’ view that negotiations are not worth doing, which has become apparent when the latter
opted for third party adjudication under UNCLOS. China rejects the arbitration because the issue of the nine-dash (or U-shaped) line is international law, which the tribunal lacked jurisdiction to hear. not only about treaty law, like UNCLOS, but also about customary Second, China has never regarded the land features in the Spratlys as,
say, islands that generate 200-nm EEZs. Therefore, there is technically arbitration. no legal dispute on this matter with the Philippines that justifies the
negotiations with China even during the arbitration, but China’s 70. On the first point, it was clarified that the Philippines continued bilateral negotiating team continually insisted that they would only proceed if the Philippines withdraws the case. Thus, while China repeatedly calls for negotiation, its behavior at the table suggests that it is not open to its own calls. In fact, even as the parties engaged in talks before, China had continued its occupation and reclamation of features in the SCS. It was further emphasized that negotiation is not an end in itself but a means toward an end. As such, when negotiation is invoked to fend off international attention on the developments on the ground rather than to reduce tensions between the parties, it becomes meaningless. With this, the Philippines soon realized that negotiations with China were heading for a “cycle of nothingness” and failing to bring about the desired outcomes, putting the country at a decision point where it decided to go through arbitration.
31 71. On the second point, it was argued that the Philippine submission documented that China regards the Spratlys as a total archipelago
tribunal has already noted and rejected. capable of collectively generating a 200-nm EEZ, a position that the
On ASEAN’s position on ZOPFFC 72. ASEAN member-states have different national interests and calculations, making the hope for a united regional position bleak.
maritime layer, then, ASEAN could only probably agree on maritime Insofar as ZOPFFC divides the disputes into a territorial layer and a security issues, the second layer, because it does not take sides on
territorial issues, the first layer.
73. In addition, ASEAN has now shifted its focus on the COC. But even so,
already addressed its substantial points. The next step now is to address ZOPFFC has already become moot in a sense because the tribunal has the political aspects, such as where the COC would be implemented. The award, by clarifying maritime rights and entitlements, offers a
blueprint, but it must first be implemented. On the possibility of suing China for marine environmental damages
74. The tribunal has already declared China’s reclamation activities as
new administration on this matter cannot be preempted. Nevertheless, destructive to coral reefs and a violation of UNCLOS. The strategy of the it was stressed that the award does not go beyond saying that China has breached its international obligations.
32 Panel Chair’s Profile
Dr. Carlos C. Tabunda Jr. Executive Fellow, Development Academy of the Philippines
Director, New Era University-ASEAN Studies Center A senior government administrator, NGO practitioner, media practitioner, and a public administration educator with more than 20 years of experience in project management, curriculum development, research, project proposal preparation, broadcasting, evaluation and management with particular emphasis on social development, agricultural policy, public policy, governance, the Executive Fellow of the Development Academy of the Philippines, and the public fiscal administration, national security, and ASEAN affairs. He is currently program, “ASEAN in Focus” over Net 25, and the radio program, “ASEAN Hour” Director of the New Era University–ASEAN Studies Center. He hosts the TV over Radyo Agila.
33 B. International Law on Principles of Self-Restraint and Non-Use of Force In Disputes
This session explored the meaning of the obligation of self-restraint, non-use of force, and non-threat of force pursuant to general international law and to the the region interpret and apply these obligations in ensuring public order at sea United Nations Convention on the Law of the Sea. It also examined how states in despite the existence of disputes.
***
Ambassador Shingo Yamagami Director-General The Japan Institute of International Affairs
75. Amb. Yamagami stressed that the SCS matters to Japan because seaborne trade dominates the country’s trade, among which, key energy imports like oil and natural gas pass through the Malacca Strait. In addition, the SCS issue also directly relates to peace and
and international order, in particular, of a rules-based system, not just stability in the Asia-Pacific region. Hence, it is a matter of regional between the Philippines and China. As such, Japan will continue to talk about the issue and “will not shut up.”
76. Amb. Yamagami warned that if China undertakes reclamation and constructs a military facility in the Scarborough Shoal, it would complete a strategic triangle leading to an overwhelming control of the waters and airspace of the SCS. The reclamation of the shoal could thus be a red line as the SCS issue would no longer be an issue between and among the claimants, but rather a regional and international concern.
77. Amb. Yamagami called out the bullying and intimidation in the increasingly problematic regional environment, and assured the Philippines that it is not alone in facing China’s challenge in the SCS. 34 He noted that Japan is also facing the same challenge in the East China Sea, but, as far as it is concerned, it has exercised utmost self-restraint in order not to escalate the tension. He cited China’s intrusion into the waters around Senkaku Islands and unilateral natural-resources development in the East China Sea, and Japan’s repeated calls for the rule of law at sea as responses to these challenges.
78. Amb. Yamagami reiterated Prime Minister Shinzo Abe’s three principles on the rule of law at sea as expressed during the 2014 Shangri-La
on international law; 2) there should be no coercion and use of force; Dialogue in Singapore: 1) claims should be made and clarified based and 3) disputes should be settled peacefully in accordance with international law. Japan has articulated that it will continue to exert pressure, but not excessive, on China.
and calls on parties to fully implement the decision. Japan will also 79. On the arbitration case, Japan affirms the award as final and binding work hard on building deterrence and assisting regional partners through capacity-building (e.g. providing 10 patrol vessels to the
and conducting port visits in Subic). Philippine Coast Guard (PCG), leasing five TC-90 training airplanes,
80. Amb. Yamagami noted that Japan’s activities with different regional partners including joint drills and military exercises are about deterrence and not about ‘might is right’. He noted that the cold reality of geopolitics must also be acknowledged.
35 Amb. Shingo Yamagami is the Director General (Acting) of the Japan Institute of International Affairs since October 2015. After
graduatingthe Ministry from of ForeignUniversity Affairs of Tokyo (MOFA) (Faculty in 1984. of Law), His he previous entered posting was Ambassador for Policy Planning and International Security Policy, and Deputy Director-General of the Foreign Policy Bureau (2014–2015). His diplomatic experience includes being the Political Minister in London (2009–2012), Director of the Second North America Division (2014–2015), Consul in Hong Kong (1998–2000), and Deputy Director of the China and Mongolia Division (1996–1998). He has wide experience in legal and treaty affairs, where he served as Director of the Treaties Division (2004–2007) and then Deputy Director-General of International Legal Affairs Bureau (2012–2014). His engagement with treaty-making includes being the Counselor at the Permanent Mission in Geneva (2000–2003) as well as Deputy Director of World Trade
Organization Office of MOFA (1993–1996).
***
36 Dr. Jay L. Batongbacal Director Institute for Maritime Affairs and Law of the Sea
University of the Philippines 81. Dr. Batongbacal stressed in his presentation that the principle of non-
that all members “shall refrain in their international relations from use of force is enshrined in Art. 2(4) of the UN Charter, which states the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with
the purposes of the United Nations.” This provision is also found, jurisprudence also provide guidelines on what constitutes threat or almost verbatim, in Art. 301 of UNCLOS. In addition, international use force against a state, and when the use of force is permissible (e.g. MV Saiga, Guyana v. Suriname, and Arctic Sunrise case).
82. The 2002 ASEAN-China DOC also encourages parties to resolve disputes through peaceful means and “avoid threat or use of force” (par. 4). It also called on the parties’ “self-restraint in the conduct of activities that would complicate or escalate disputes,” including refraining from inhabiting presently uninhabited features (par. 5). The ruling of the Arbitral Tribunal reminded parties about their responsibility for self- restraint in good faith.
that “there exists a duty on parties engaged in dispute settlement 83. Para. 1169 of the final award on the Philippines v. China case also asserts procedure to refrain from aggravating or extending the dispute or disputes at issue during the pendency of the settlement process.” This
principle is also found in UNCLOS Art. 74 as well. 84. Dr. Batongbacal also explained that the only exception provided by customary international law to the non-use of force is in a state’s exercise of its right to individual or collective self-defense. This is
jurisprudence notes that a state’s right to self-defense shall be based also enshrined in Art. 51 of the UN Charter. However, international
on necessity and proportionality 37 (i.e. Nicaragua v. USA, 1986). 85. Dr. Batongbacal noted that in a post-arbitration environment, it is more relevant that the principles of self-restraint and non-use of force are upheld
restraint and non-use of force cover only military vessels or other public by all parties. He posed a question on whether the obligations of self- vessels as well. He also emphasized that if states observe self-restraint and extend courtesy to each other, there would be a better chance at arriving at a peaceful solution to disputes.
Dr. Jay Batongbacal is the Director of the University of the Philippines (UP) Institute for Maritime Affairs and Law of the Sea. Hegraduated. is also an He Associate holds a master’sProfessor degree at the UPin Marine College Management of Law, where and he
ain doctorate Canada. inHis the research Science ofinterests Law, both include from Dalhousie marine Universityterritorial and jurisdictional issues, international maritime boundary
negotiations,maritime security, high seasand archipelagic fisheries, seafaring, studies. shipping, marine environmental protection,
Dr. Batongbacal was also a member of the technical team that prepared and successfully defended the Philippines’ claim to a continental shelf beyond 200 nautical miles in the
Benhamof the Continental Rise Region Shelf made pursuant in a Submission to the provisions filed with of Article the Commission 76 of the Law on theof the Limits Sea Convention.
***
38 Professor Leszek Buszynski National Security College
Australian National University foundations of power (thus making it secondary to the concerns 86. Prof. Buszynski observed that while international law requires the of geopolitics), it can also serve a function in restraining power. He considered why there has not been a war yet in the SCS given that China has used forced in the past. He argued that China has recently preferred low-key harassment and fait accompli tactics to avoid responses from external actors. Its actions have been carefully calibrated, contrary to its blatant use of force in the 1974 Battle of Paracels and the 1988 Johnson South Reef Skirmish.
87. Prof. Buszynski warned that China’s growing maritime and aerial control of the SCS can not only intimidate the other claimant states but also be used as leverage in negotiations, changing the calculus for these states to either accept China’s position, or be blocked from the SCS. China has, of course, vowed to protect freedom of navigation, but adherence to international law is often a better guarantee of respect for the maritime rights of other countries than assurances from
reminded China that ignoring and/or disparaging the arbitral tribunal political leaders, which can fluctuate over time. Prof. Buszynski thus
award will reflect on the extent it respects international law. 88. Prof. Buszynski noted that the arbitral tribunal has addressed issues
that China itself has never clarified regarding its claim, particularly the validity of its historic rights under UNCLOS.
and maritime law enforcement agencies in the disputed waters. These 89. Prof. Buszynski also raised concern about incidents involving fishermen agencies are unlike the navy, whose personnel are more professional, can be trained, and have clear sets of protocols. Fishing captains are
to control; an example being the ramming of a Japan Coast Guard also likely to carry out free-wheeling activities which can be difficult
39 vessel by a Chinese fishing vessel in 2010 which created a diplomatic incident between the two countries. In addition, there is also a danger that China’s central government may be fed with wrong information,
particularly in its hotline with the United States. 90. In this situation where there is a danger of potential escalation (through,
Operations), there is also an incentive for ASEAN to promote the COC for instance, an increase in the United States’ Freedom of Navigation and link it with the activities of external partners. Prof. Buszynski suggested that it should perhaps be extended to embrace both the
ASEAN. United States and China, even if the idea might go against the grain of
91. In conclusion, Prof. Buszynski argued that while he shares the pessimistic view about the future of the SCS disputes, he still thinks that there will be changes in China’s stance given its concern about the international legitimacy of its actions. By avoiding open escalation, China has been trying to show the international community that its actions in the SCS are right and legitimate. The Arbitral Tribunal’s award further takes away the facade of legitimacy of China’s claims
and actions and defines what should and should not be done by the to come to terms with the situation and negotiate a way out, possibly claimant-states with respect to UNCLOS. This somehow forces China through the aforementioned extended COC.
40 Prof. Leszek Buszynski is a Sessional Lecturer and PhD Supervisor at the National Security College, Australian
Nationalprofessor Universityof International (ANU). Relations From 1997 at tothe 2010,International he was
UniversityDean of the ofGraduate Japan (IUJ). School From of International 1997 to 2001, Relations he was at the
IUJHe was and also concurrently the Director Director of the of Research the IUJ Research Institute Institute.of Asian Development from 1995 until 1997. Dr. Buszynski was Associate Professor in the
InternationalSenior Research University Fellow andof Japan Coordinator from 1994 of the until Graduate 1997. From Program 1987 in to Strategic 1993, he Studies was a at the Strategic and Defence Studies Centre, ANU. Before then, he was a Lecturer and laterSingapore Senior from Lecturer 1980 at until the 1987.Department His latest of Political book publication Science at isthe Negotiating National University with North of Korea: The Six Party Talks and the Nuclear Issue.
***
41 Open Forum
On fisheries law enforcement
92. Fishing activities can spark serious incidents. The Philippines cannot avoid dealing with this issue which necessitates the creation of a COC.
agencies of the claimant-states could also be set up to minimize Communication protocols among the fishermen and law enforcement tensions. There should be an agreement on what is unacceptable
point for the eventual resolution of the disputes. conduct, such as on fishing methods, which could be a good starting
On the dispute between China and Japan
93. Japan has been trying to establish talks with China regarding the maritime disputes, but it has not been successful. There is no crisis management mechanism in place to prevent incidents or intrusions from escalating into more serious tensions. It must be noted, however, that China and Japan are major trading partners, and this fact weighs heavily on China’s leadership and its actions against Japan.
On the use of force and self-restraint
94. The issue of sovereignty cannot justify the use of force except only in matters of self-defense.
95. Self-restraint could have different interpretations among claimants. Also, there are no assurances that this wave of self-restraint among
the ground can at times overtake the situation. claimants could be sustained for a significant period of time. Events on
On the application of the rule of law in the South China Sea
42 96. The Philippines, through its arbitration case, has been a frontline state in promoting the rule of law. While different perceptions and interpretations exist, all countries as responsible members of the international community, should work on persuading China to follow international law. Some portions of the Chinese society are already beginning to accept the application of international law to the SCS. Thus, the Philippines, Japan, and other members of the international community should never give up on integrating China into a rules- based society.
Panel Chair’s Profile
Mr. Julio S. Amador III Deputy Director-General Foreign Service Institute Department of Foreign Affairs Republic of the Philippines
Julio Amador III is Deputy Director-General of the Foreign Service Institute. He provides policy analysis and strategic advice on ASEAN issues, Southeast Asia security and international relations, and foreign policy to
several offices in the Department of Foreign Affairs. He earned a Master of Arts as a Fulbright Graduate Scholar at the Maxwell School of Citizenship and Public in International Relations and a Certificate of Advanced Study in Security Studies
Fellow at the East-West Center in Washington from May 27 to November 27, Affairs, Syracuse University for 2012–2013. He was an Asia Studies Visiting 2013. Mr. Amador has published in peer-reviewed journals, book chapters, and
and De La Salle–College of St. Benilde and is currently a lecturer at the Ateneo op-eds/commentaries in online news media. He taught at De La Salle University
De Manila University’s Department of Political Science.
43 Day Two
Session 3: International Norms and Rules: Lessons Learned From Other Disputes
This session examined international law from the perspective of compliance. It analyzed why international law is perceived as the “great equalizer” between strong and weak states. This session also analyzed significant lessons learned from countries that have successfully settled their disputes and how they were able to proceed following the ruling of the court.
*** Dr. Lowell Bautista Lecturer School of Law University of Wollongong, Australia
97. Dr. Bautista emphasized the abandonment of a “David and Goliath” mindset, that bigger states prevail over smaller ones, in international relations. This perspective contradicts the backbone principle
former secretary of foreign affairs Albert del Rosario articulated it, of international law that states are sovereign equals. Indeed, as
International law becomes especially important when the threat of international law is the “great equalizer” in international relations. use of force or use of force itself is not an option in dispute resolution.
98. In territorial and maritime disputes, however, neither UNCLOS nor customary international law specifies a prevailing method of dispute solution.” As such, disputing states have the choice, under art. 33 of resolution, only that the objective should be to have an “equitable
include negotiation, mediation, conciliation, arbitration, and judicial the UN Charter, over the means of peaceful settlement, which can settlement.
99. In such kinds of disputes, Dr. Bautista believed that territorial and 44 maritime boundary delimitation presents a durable solution. It is an
management of living marine resources and the preservation and essential requirement to ensure the comprehensive and sustainable protection of the environment. Conversely, disputed sovereignty over land features and overlapping entitlements to maritime rights and jurisdiction impair maritime security, hamper interstate cooperation, compromise sustainable use of scarce natural resources, and hinder
delimitation in Articles 15, 74, and 83. the flow of goods and resources. UNCLOS presents some guidelines for
100. Territorial and maritime boundary delimitation, however, often faces challenges arising out of the following: domestic resistance and pressure, irredentist claims enshrined in domestic legislation, preservation of one’s internal and external images, and limited time and resources. Nonetheless, parties can overcome these challenges through the following: establishing trust between the claimant states; using competent external experts; conducting a realistic assessment of the validity of the claims and the domestic political repercussions
having neutral third parties, if there is one available. of settlement; having sufficient resources to sustain the process; and
101. Even though the present arbitral award does not cover maritime boundary delimitation, Dr. Bautista still believed that it can contribute toward the peaceful resolution of the SCS disputes. However, the
award needs to be enforced first. Compliance may be induced through the strength of global public opinion. Dr. Bautista emphasized that the the following. First, states can use their external political influence and burden has now shifted from the lawyers to the diplomats to explore issues not covered by the award. Second, states can employ the
substance of the judgment itself. Third, they can look for a definitive impose appropriate sanctions against the offending state. solution and influence internal political support for it. Finally, they can
45 102. Moreover, the award leaves some crucial questions unanswered. First, There remain issues of reparation and dismantlement, liability for what happens to China’s artificial islands and reclamation works? marine environmental damage, and navigational hazards. Second, what is now the Philippines’ negotiating strategy before bilateral talks
resume? And third, how is the award binding on other claimant states and what is the possibility of them filing similar cases against China? 103. Nonetheless, practical aspects remain to enforce the award,
enforcement activities, and provisional arrangements of a practical including traditional fishing rights access, oil concession blocks, law nature. In addition, positive aspects have been introduced. First, the rules have become clearer. There is now a better basis for negotiations and more certainty on the status of the disputed features. Second, an impetus now exists for all the claimant-states to cooperate toward the
implementation of the award and, eventually, a final resolution. Third, that the costs are high for ignoring the award. Lastly, China now there is a positive cost-benefit ratio for implementation, meaning has the opportunity to serve as a regional hegemon providing good implementation examples.
104. In conclusion, Dr. Bautista underscored that the precedential weight of the award must not be ignored and must serve as a basis for negotiations. The award makes a positive contribution to
interpretation of art. 121 on difference between islands and rocks). As international law for clarifying certain provisions of UNCLOS (i.e., its such, Dr. Bautista maintained that the disconcerting allegations made by Chinese diplomats and scholars casting aspersions against the
He advocated the continued use of diplomatic and other peaceful integrity and impartiality of the tribunal judges must not be dignified.
the pursuit of a rules-based approach based on international law, means, the exercise of self-restraint and non-use of force, and finally,
including UNCLOS, in resolving the SCS disputes.
46 105. As additional final thoughts, Dr. Bautista added that the post- arbitration situation will likely be defined by a belligerent and the Philippines will be able to mend and restore bilateral relations by defiant China. However, he expects in the long term that China and focusing on issues that bind them together and ensuring that their
engagements are not defined solely by the SCS disputes.
Dr. Lowell Bautista is a Lecturer at the School of Law and a Staff Member at the Australian National Centre for Ocean
Bachelor of Arts and Bachelor of Laws degrees from the Re-sources and Security, University of Wollongong. He holds
University of the Philippines, a Master of Laws degree from Dalhousie University in Canada, and a Doctor of Philosophy in include territorial and maritime boundary issues in the law from the University of Wollongong. His areas of research maritime piracy and terrorism, international humanitarian law, underwater Asia-Pacific, the South China Sea, Philippine maritime and territorial issues, cultural heritage, and international environmental law, on which topics he has also published. Dr. Bautista has participated in numerous research and consultancies, as well as in the preparation of submissions, opinions, and reports for government department and agencies in Australia and in the Philippines, as well as for regional and international organizations.
***
47 Mr. Damos Agusman Secretary of Legal Affairs and International Treaties Ministry of Foreign Affairs Republic of Indonesia
106. Dr. Agusman shared some lessons learned from Indonesia’s experience with international rules and norms. First, he discussed Indonesia’s “dynamic” attitude towards international law, which has dramatically evolved through the years. In the period following independence, in 1945 to 1966, Indonesia entered into a nationalistic regime which attempted to dispose colonial vestiges, including international law. It unilaterally declared its archipelagic-state status, nationalized foreign
superseded by the military regime in 1966 to 1998. Indonesia then enterprises, and withdrew from the UN. The nationalistic regime was recognized the importance of international law when it served the
that it should be making instead of breaking international law. country’s strategic interests, like in UNCLOS. Indonesia thus realized Afterwards, it entered the current reformed regime in 1998, when it became more compliant with international law, as it demonstrated in the 1999 East Timor case and the 2002 Sipadan and Ligitan Islands case with Malaysia.
States in Asia usually shelve their differences “under the carpet,” 107. Dr. Agusman then reflected on the Asian culture of dispute resolution. especially on sovereignty issues, which are considered “taboo”. Settlement thus is hardly achieved through negotiation, even though it remains the best way to exchange positions and clarify claims, because states start with nationalist/absolutist positions and often insist on
seek the intervention of third parties to settle the dispute or clarify the the indisputability of the features in question. Instead, the trend is to
keep the dispute unresolved, or pursue joint development. claims (like the Philippines’ appeal to an UNCLOS arbitral tribunal),
48 108. Nonetheless, Southeast Asia boasts of a set of best practices in resolving disputes peacefully. It includes the 1928 Island of Miangas
case between Thailand and Cambodia, the 2002 Sipadan and Ligitan case between the Netherlands and the US, the 1962 Preah Vihear Islands case between Indonesia and Malaysia, the 2008 Pedra Branca case between Malaysia and Singapore, and possibly the 2013 SCS case between the Philippines and China.
109. In the Sipadan-Ligitan case, Indonesia and Malaysia asked the ICJ to decide on their overlapping territorial claims made in 1969. The two countries had previously entered into negotiations in 1988 to 1996, but they could not settle because of their absolutist positions, domestic pressures from public opinions and by their parliaments, and, thus, a
international adjudication instead in 1997. Indonesia agreed because lack of room for quid pro quo. They decided to bring the dispute to third-party settlement presented a face-saving formula. In 2002, the ICJ rendered its decision in favor of Malaysia. Indonesia accepted and acknowledged its obligation to comply with the judgment. This successfully closed the bilateral dispute and allowed the two countries to move on to maritime boundary delimitation.
110. Another of Indonesia’s experience in peaceful dispute resolution is the 1999 East Timor case. Indonesia claimed East Timor from Portugal in 1976 based on the 1975 Balibo Declaration and on historical title.
Indonesia and Portugal agreed to hold a referendum for East Timor. The matter was included in the UN agenda then until 1999 when East Timor chose independence. Indonesia accepted the result and arranged for East Timor’s peaceful separation. This was to show to the international community that Indonesia is a responsible state.
111. On the SCS arbitration award, Indonesia released an official statement rule, the award is binding only to the parties, but for Dr. Agusman, urging respect for international law, including UNCLOS. As a general
its interpretation has formed part of those provisions themselves. the tribunal has interpreted relevant provisions of UNCLOS and 49 Therefore, Indonesia is bound by the provisions as interpreted by the tribunal.
112. Dr. Agusman concluded that no country that has challenged the concept of the rule of law has survived. International law is not only
domestic dilemma, a lost without losing face, and a solution without a a “great equalizer”, but could also provide a gracious exit from a
attitude towards international adjudication, be the outcome positive “scapegoat.” For Dr. Agusman, the key is therefore to adopt a dignified or negative.
Dr. uir. Damos Dumoli Agusman graduated from the Faculty
of Law in Indonesia in 1987. He acquired his master’s degree in international law at the University of Hull, UK, in 1991. He completedfurt, Germany his in doctoral 2014 after degree defending at Goethe his dissertation University “The of Frank- Legal Status of Treaties under Indonesian Law: A Comparative Study of China, South Africa, Germany and the Netherlands.” Dr. Agusman is currently the Secretary to the Directorate General of International Treaties and Legal Affairs of the Ministry of Foreign Affairs of Indonesia, especially in-charge with the law of sea and maritime issues. His practical ex-periences with international law and intensive engagements as a representative of Indonesia in many diplomatic conferences have led him to write “The Law of Treaties: Theory and Practices of Indonesia” ( in 2010). His recent book in English is Treaties under Indonesian Law (in 2014).
***
50 Open Forum
On a hope for compliance and peaceful dispute-settlement
113. Even though international law is constantly contested and do not always accord with the ideal principles of justice, it remains generally followed by states, which acknowledge that an international system regulated by rules is preferable to that regulated by none. Indeed, China’s challenge to the integrity of the ruling and of the tribunal itself is not fundamentally a challenge to international law. China has a precedent of settling territorial disputes legally, for instance, through its 2004 boundary agreement with Russia. Therefore, there is hope for a way forward in a legal context in the Philippines’ present dispute with China.
114. In addition, there have been cases in the region where settlement has been reached bilaterally. State-parties should approach negotiations
when there is power disparity. Clear rules are helpful in dispute constructively and to engage in confidence-building activities even settlement as they serve as a basis for negotiations and a source of opportunities for cooperation.
On the possibility of sanctions for non-compliance
115. With regard to what possible sanctions the Philippines could impose against China to address non-compliance with the ruling, imposing sanctions of any sort is not a viable measure even worth considering for the Philippines because of a clear power asymmetry vis-à-vis China.
116. China, however, may not be the only one in non-compliance on the basis of the tribunal’s interpretation of the legal status of rocks
and maritime rights that are inconsistent with the interpretation. So, under UNCLOS. The US and Japan, for instance, also claim features
51 before using the award against China, these countries should first examine their own policies. Conversely, though, China itself may not be able to effectively use the award against these countries because it would be an inherent recognition of the validity of the ruling.
On how Indonesia manages disputes with China over the Natuna Islands
117. Indonesia does not recognize China’s maritime claims in the waters around Natuna because, unlike Vietnam’s and Malaysia’s (whose overlapping claims Indonesia recognizes), China has failed to clearly communicate its claim and to provide its bases for those claims.
Some ways to move forward
118. The SCS disputes must not affect people-to-people relationship between China and the Philippines, noting that other countries have been successful in maintaining such ties even in the fact of disagreement. The cases of Indonesia and Malaysia are examples where territorial disputes were isolated from the other areas of their relationship.
119. The challenge is for diplomats and policymakers to ensure that the ruling of the Tribunal does not escalate the tensions. International law can only do so much. The Philippines should not become too foolhardy and reckless to the point of tearing bilateral relationship with China apart. Instead, there should be greater pragmatism on how to move forward.
120. The Asian way of dispute resolution would be for the Philippines to
should not play the issue out in the press to avoid creating additional set aside the award for a moment and pursue quiet diplomacy. Parties
room for more accommodation and maneuver. tensions. Allowing governments to work quietly will also provide
52 Panel Chair’s Profile
Professor Ian HALL
Acting Director, Griffith Asia Institute Ian Hall is a Professor in the School of Government and
International Relations, Griffith University, Brisbane, Australia, and the Acting Director of the Griffith Asia Institute. He holds degrees from the Universities of editor of a number of books, including “The Engagement of India: Strategies and Oxford and St. Andrews in the UK. He is the author and Responses” ( in 2014), and has published more than 50 articles on the history of international thought and Indian foreign policy. He is currently working on a project on India and the liberal international order.
53 Session 4: International Norms and Rules: The Code of Conduct and Other Remedies in the South China Sea
This session covered the impact of current developments in the South China Sea on discussions for a Code of Conduct (COC), adherence to the provisions of ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC) including the principles of self-restraint and non-use of force, and other security management mechanisms in the region. It also explored other practical remedies that complement the legal measures in fostering cooperation among claimant states pending the final resolution of disputes without prejudice to respective claims.
*** Ms. Mary Fides A. Quintos Senior Foreign Affairs Research Specialist Center for International Relations and Strategic Studies Foreign Service Institute
121. Ms. Quintos’ presentation offered some prospects on how to move forward with respect to the SCS issue. The proposals are based on available international and regional mechanisms that can be utilized to
help ease tension and restore relations among the conflicting parties. 122. On the COC, which would simply present general guidelines to avoid tensions in the SCS and maintain peace and stability in the region, Ms. Quintos noted that several factors need to be considered. These include the geographical scope of its application, permitted and prohibited
possibility of accession by other states, the review mechanism, the activities in specific areas, the extent to which it would be binding, the dispute settlement process, and the possibility of penalties for non- compliance.
123. Because the COC has yet to be agreed upon by the parties and ASEAN is
other avenues for productive engagements need to be explored as ways demonstrating some difficulty in achieving consensus on the SCS issue, 54 forward. One option is to establish cooperative arrangements even
that are less sensitive or trans-boundary in nature, which eventually on specific areas. Another is to cooperate in specific functional areas can serve as building blocks for a broader, more comprehensive COC.
2002 ASEAN-China DOC. These cooperative arrangements are found in UNCLOS as well as the
124. Indeed, UNCLOS mandates states to enter into provisional and 83, para. 3). These arrangements are temporary and a product arrangements on disputed waters pending final delimitation (Art. 74 of mutual consent through negotiations. They encourage the conduct of certain activities in the disputed areas but sets limitations on the range of allowable conduct and still preserves the rights of the parties.
125. There are several cases of provisional arrangements in areas similar to the SCS where there are also overlapping maritime zones and standing sovereignty disputes. These cases, in turn, may be considered for replication. They are the following:
Arab Emirates signed a memorandum of agreement that allowed a.) In the Persian Gulf, Iran and the Emirate of Sharjah of the United them both to exploit resources in the territorial sea of the disputed
maritime disputes, littoral states can still likewise exploit non- Abu Musa island and share the revenues equally. Thus, despite living resources with the agreement of the other claimant-states.
in the waters surrounding the contested Dokdo/Takeshima b.) In the East China Sea, Japan and South Korea agreed to joint fishing
islets. In 1999, the two countries designated joint fishing zones recommendations for the maintenance of living resources in the and established a joint fisheries committee that rendered
most important considerations. disputed waters. In the SCS, the issue of fisheries is also one of the
55 c.) In the Caribbean Sea, a semi-enclosed sea, like the SCS, littoral states recognized the economic and social value of the marine environment and adopted the Cartagena Convention. The
which are oil spills, specially protected areas and wildlife, and convention contained protocols for specific functional areas, land-based sources of marine pollution.
d.) Lastly, in the SCS itself, the Philippines and Vietnam agreed in
Research Expedition (JOMSRE) to enhance their understanding the 1990s to hold the Joint Oceanographic and Marine Scientific of natural processes and resources in the disputed waters.
provisional arrangement in the SCS: of a trans-border peace e.) In addition, Ms. Quintos also floated the following ideas for a park in the Spratly Islands, no-build zones in certain areas, or a JOMSRE-type of arrangement with a focus on marine environment degradation.
126. With respect to the full and effective implementation of the DOC,
pending a comprehensive and durable settlement of the disputes. para. 6 reflects relevant provisions of UNCLOS related to cooperation Therefore, ASEAN member-states and China have already enumerated areas for cooperation such as marine environment protection, marine
search and rescue operations, and combating transnational crimes. scientific research, safety of navigation and communications at sea, Moreover, the ASEAN Vision 2025 has included in its action lines the enhancement of maritime security and the promotion of maritime cooperation in the ASEAN region.
127. Ms. Quintos concluded her presentation by highlighting three key takeaways. First, cooperation is possible despite the existence of disputes. Second, there is no absolute standard on the type of cooperative arrangement that should be done. This still remains to be a product of negotiations. As such, creativity in diplomacy may be employed and may even in fact be a critical factor to achieve a win-win situation. Third, political will is paramount to carry out cooperative arrangements.
56
Ms. Mary Fides Quintos is a Senior Foreign Affairs Research Specialist at the Foreign Service Institute of the Philippines.
Nippon Foundation of Japan Fellowship Programme for She is a recipient of the 2015–2016 United Nations–The
and law of the sea. advanced research and training in the field of ocean affairs
Ms. Quintos also has several articles published by the Foreign Service Institute and East West Center in Washington on regional security and the South China Sea disputes. Her published works include the following: “UNCLOS Part XII and Protecting the Marine Environment in the Impact on Regional (In)security” (2015), and “Moratorium in the South China South China Sea” (2015), “Artificial Islands in the South China Sea and their Sea: Charting a Course Towards Peace” (2015). She was also one of the speakers in the 8th ASEAN Regional Forum Inter-Sessional Meeting on Maritime Security.
***
57 Dr. Nong Hong Executive Director and Senior Fellow
Institute for China-America Studies, USA 128. Dr. Hong raised four points to clarify misleading narratives about China’s attitudes with regard to the application of international law on the SCS disputes. First, she pointed out alternative ways of viewing China’s responses to the Philippines’ arbitration case in order to enrich discussions on the issue, which are also taking place domestically among the Chinese.
a.) China’s decision not to participate in the arbitration does not mean that it does not respect international law and the general principle of rule of law. Dr. Hong pointed out that China’s participation in various multilateral processes and international conventions, especially in commercial arbitration in the World Trade Organization, counters the claim that it rejects third-party fora for dispute resolution. She added that China has not yet ruled out the possibility of entering into a third-party forum in the future.
b.) China has often been called upon to “clarify” or “narrow down” its
might pose obstacles to the resolution of the disputes. claims in the SCS. It believes, however, that attempts at clarification
c.) China rejects the notion of a “big state–small state” dynamic,
especially when dealing with conflicts. All states should be treated itself in any sense a “big state” that is predisposed to use power as equals in the international arena. And China does not consider rather than international law. Just like other states, China also makes use of international law to advance its interests.
d.) Indeed, domestic actors in China had been divided over the government’s decision not to participate in the arbitration. Some had the view that China should have joined in the proceedings, but these “rational voices,” as she put it, were overpowered by 58 the hardliners and further weakened after the tribunal found jurisdiction to hear the case.
e.) China is being “bullied” to comply with the arbitral award, but it simply cannot be compelled to. It has, from the beginning,
disputes. Besides, there are precedents for non-compliance with questioned the jurisdiction of the tribunal in addressing the SCS international judicial decisions, so the reality of international relations is that states sometimes ignore these rulings.
129. Second, Dr. Hong discussed China’s own views on the arbitration case. China believes that going into arbitration was a response to the
of patience with the negotiations on the COC, even though ASEAN had United States’ dissatisfaction and a signal of the Philippines’ own loss already agreed to speed up the process. But with or without the arbitral award, China maintains consistency with its position. It continues to abide by the DOC and believe that all the SCS claimant-states have a duty to exercise self-restraint, pursue peaceful means of settlement, and cooperate with each other.
130. Third, Dr. Hong believed that while international law is important, it does not present a comprehensive remedy to the disputes. Other remedies are available, including functional cooperation, Track Two
dialogues, confidence building, and preventive diplomacy. a.) The two countries can pursue functional cooperation on marine environment protection. Dr. Hong advocated that China make public its environmental impact assessment of its land reclamation activities in the SCS to reduce skepticism from the international community.
b.) They can also pursue functional cooperation on fisheries disputed areas. Dr. Hong believed that now is the right time for management and conservation since both rely on fishing in the this aspect of the disputes.
59 c.) They should also reconsider the socio-cultural dimension of their bilateral relations.
d.) The Philippines could also reconsider some of China’s proposals already in place. One is the One Belt, One Road Initiative, which focuses on infrastructure development and partnerships across a wide range of sectors, such as transportation, telecommunications, and energy. Another is the ASEAN-China Maritime Cooperation Fund, which is in line with art. 6 of the DOC. These initiatives, Dr.
the claimant-states because China is well-intentioned to support Hong said, should not be seen as an effort to exert influence over functional cooperation.
SCS disputes with those in other regions. Dr. Hong also reiterated e.) To revive confidence and trust, parties should stop comparing the that China recognizes the legitimate interests of external powers in the area, like freedom of navigation and peace.
131. Lastly, Dr. Hong considered the way forward on these disputes. She
encouraged the parties to revisit the confidence lost throughout the and what should not be done to ease competition. As such, she urged years and reflect on what should be done to promote cooperation countries to stop international campaigns against each other’s public image as these only send the wrong messages to the international community. In addition, she also urged non-claimant states to take a neutral position on the disputes even though they have legitimate interests in the SCS as the claimant-states have their own ways of resolving the disputes themselves.
60 Dr. Nong Hong heads the Institute for China-America Studies in Washington, D.C. She also holds a joint position of Research
National Institute for South China Sea Studies; and the China Fellow with the China Institute, University of Alberta; the Center for Collaborated Studies on the South China Sea,
Nanjing University.
She received her PhD from the University of Alberta, Canada, an ITLOS-Nippon Fellow for International Dispute Settlement (2008–2009), and held a Post-doctoral Fellowship in the University’s China Institute. She was
Virginia (2009), and at the Max Planck Institute for Comparative Public Law and and Visiting Fellow at the Center of Oceans Law and Policy, University of International Law (2007).
Dr. Hong’s research takes an interdisciplinary approach to examining international relations and international law, with focus on international relations and comparative politics in general; ocean governance in East Asia; law of the sea; international security, particularly non-traditional security; and international dispute settlement and conflict resolution. ***
61 Professor Robert Beckman Head, Ocean Law and Policy Programme Center for International Law
National University of Singapore 132. Prof. Beckman believed that the SCS is now at a crossroads where
effective implementation of the DOC and the early adoption of a COC, real progress can finally be made, including serious discussion on the because of some key changes since the adoption of the DOC in 2002. For one, the SCS issue has become a matter of international concern.
For another, the status quo on the security aspect has been changed has been changed with the arbitral tribunal ruling. with China’s artificial islands, while the status quo on the legal aspect
under international law when it came to damages to the marine 133. The ruling identified that China has only breached its obligations environment during its island-building, but not when it came to the reclamation itself and the militarization of the features. In addition,
shelves between China and the Philippines. Therefore, provisional the ruling set out that are no overlapping EEZs and continental arrangements, including joint development agreements, could now only apply to the 12-NM territorial seas of some of the disputed features. Given these implications, Prof. Beckman believed that time is now ripe for the claimant-states to negotiate a COC to address them.
134. Prof. Beckman reviewed the key provisions of the DOC. In para. 5, the parties agreed to exercise self-restraint, including refraining from inhabiting then uninhabited features in the SCS, which all claimant- states have violated, and holding dialogues between their defense
agreed to undertake cooperative activities on marine environmental and military officials, which has not built trust. In para. 6, the parties
communication at sea, search and rescue operations, and combating protection, marine scientific research, safety of navigation and transnational crime; but not much cooperation have actually taken place.
62 135. In view of this, the parties in 2011 set the guidelines on the implementation of the DOC. The guidelines stated that dialogue and consultations shall continue and that joint cooperative activities shall
among the parties concerned, shall eventually be concrete measures initially be confidence-building measures and, if there is consensus carried out in a step-by-step approach. For Prof. Beckman, however, the guidelines do not really clarify the DOC and promotes only voluntary participation in joint cooperative activities.
136. Against this backdrop, Prof. Beckman laid out some possible
bordering the semi-enclosed SCS to cooperate on the management ways forward on the DOC and a COC. UNCLOS Art. 123 urges states of living sea resources, protection of the marine environment, and
international organizations in the activities. In particular, the claimant- scientific research in the area, and include other interested states or states should give high priority on cooperation on the management of
fisheries resources. Cooperative activities can include the Food and Agriculture Organization and can focus on coordinating fishing bans, protecting endangered species, and addressing destructive fishing nationals. practices with the flag state exercising jurisdiction over its ships and
done without prejudice to the underlying claims. This means that no 137. Any confidence-building measure or cooperative activity must be claimant-state gives up its territorial and maritime boundaries and sovereign rights, recognizes the legitimacy of the positions of any other claimant-state, and takes the cooperative arrangement into account in the settlement of disputes. Similarly, any statement made, position taken, or compromise done during negotiations on a cooperative arrangement are not to be considered as evidence of surrendering one’s own claims or recognizing another’s claims.
138. Prof. Beckman enumerated some possible confidence-building measures: (1) expansion of a CUES-type of arrangement to all government vessels to reduce the risk of potential conflicts; (2) common definition of “militarization”; (3) agreement to maintain 63 in the airspace above the occupied features; (5) agreement to stay at a status quo on the occupied features; (4) agreement not to assert rights certain distance away from the occupied features; and (6) commitment to work toward greater transparency about what facilities are on the occupied features. He also endorsed cooperation on matters of common interest, including marine environment protection and
marine scientific research promotion. 139. Prof. Beckman suggested to involve marine scientists in the cooperative arrangements themselves and not to rely on diplomats and lawyers. He also recommended that Track 1.5 and Track 2 dialogues be continued to openly generate ideas and perspectives not only from the region but also from other countries, even Taiwan, and international organizations.
140. Going back to the COC, Prof. Beckman argued that the parties should not place too much an emphasis on creating a legally binding document. States may be less reluctant to agree to highly-detailed
would be legally binding. Yet if there would be not be a provision for confidence-building measures or cooperative arrangements if these some third-party dispute-settlement mechanism, it may not then be different from the non-binding DOC. Therefore, the parties should
comply to the agreements they would have entered into focus on the specific mechanisms that would actually make them
141. In conclusion, Prof. Beckman advocated that serious negotiations on a COC be pursued while ensuring that the DOC is being fully implemented.
The COC can be a broad framework wherein particular confidence- later be added as separate annexes. Prof. Beckman that time is now building measures and area-specific cooperative arrangements can ripe for serious discussions on the DOC and a COC because given the
new legal and security status quos, doing so would take attention away
from the arbitral ruling toward confidence building and cooperation.
64 Prof. Robert Beckman was the founding Director of the Centre for
currently the Head of its Ocean Law and Policy Programme. Prof. International Law, National University of Singapore (NUS), and is
where he has taught since 1977. Beckman is also an Associate Professor at the NUS Faculty of Law,
For the past seven years he has lectured in the summer programme at the Rhodes Academy of Oceans Law and Policy in Rhodes, Greece, and he is a member of the Governing Board of the Rhodes Academy. He is also an Adjunct Senior Fellow at the S. Rajaratnam School of International Studies, Nanyang
Technological University, and a member of the National Executive Committee of the Council for Security Cooperation in the Asia Pacific, Singapore.
Harvard Law School. His main research interest is ocean law and policy issues in Asia. Prof. Beckman received his JD from the University of Wisconsin and his LLM from
***
65 Open Forum
On an Asian way of dispute resolution
142. The Asian way of dispute resolution was again raised, this time emphasizing the restrained use of public diplomacy. This is one distinct way through which Asian states reach their own decisions and solve their own problems, a way which their Western counterparts do not always appreciate.
143. The emphasis on this “Asian way,” however, was soon contested. At issue in the present disputes is not so much the preservation of an Asian tradition in international relations but the broader preservation of the principle, and indeed responsibility, of abiding by international law as a member of the international community. Thus, in the current situation, one’s Asian roots matters less than one’s sense of global citizenry.
144. In addition, if the restrained use of public diplomacy was indeed the “Asian way,” then one unnamed Asian country should have avoided bellicose comments on the arbitration, like calling the ruling a piece of trash and undermining the credibility of the judges; but this had not been the case.
On China
145. China may seem to have been focusing its objections on the tribunal’s reasoning on jurisdiction rather than not on the merits, but it is in fact emphasizing that preexisting sovereign rights and customary international law should have also been considered in third-party adjudication. The issue is therefore not about differing interpretations
of international law, particularly UNCLOS, but about balancing treaty
law, including UNCLOS, against customary international law.
66 146. The emphasis on customary international law, however, was
questioned. States have already given up their historic rights when they ratified UNCLOS. As such, unauthorized operations in another used to this. Only matters not covered by treaty law are governed by country’s EEZ are bound to be apprehended, and states need to get
those matters relating to living and non-living maritime resources. customary international law, and UNCLOS has already covered in detail There is no good reason for Chinese scholars to continue repeating
itself again confronting another international tribunal. arguments that have already been rejected because China might find
147. There are a lot of debates going on among Chinese scholars at the moment. While this presents an opening for the rational voices to
external pressure in their policy discussions. It will also take time for influence the hardliners, the Chinese remains uneasy toward any them to digest the ruling. But the arbitration has not been a total loss for China as this presents an opportunity for considering third-party settlement in the future.
The importance of a COC
148. Questions remain on whether a COC could solve the problems in the SCS. For one, negotiations on a COC seems to be being used as a tactic of buying time. For another, it is still unclear how the arbitral ruling
would figure in a COC. But if the COC is a set of guidelines on the SCS, the important elements of a COC, such as the geographic scope of its then the ruling of the tribunal can provide clarifications on some of application. The Philippines did not take great pains to go into arbitration for the outcome to be totally disregarded; hence, it is rational that the ruling should be incorporated in the discussions.
67 Some practical ways forward
149. China should be given time to absorb the ruling. Meanwhile, the
self-restraint, but there should also be some degree of transparency status quo should prevail and the claimant-states should exercise on their activities in the SCS, especially military activities. All parties should agree to stay away from each other in the disputed areas to
statements should also be avoided. minimize the risk of conflict. Public bickering and giving bellicose
150. These proposals were not given to suggest the ruling should be ignored. The tribunal ruled that the contested features in the SCS only generate at best 12-NM territorial seas; therefore, the underlying sovereignty disputes are just a small part of the problem. Instead, the
and pursue cooperation on the management of the living and non- claimant-states should set aside their sovereignty issues indefinitely living resources in the disputed waters. They could, for instance, declare those areas as peace parks.
68 Panel Chair’s Profile
Ambassador Laura Q. Del Rosario Eminent Fellow Development Academy of the Philippines
Ambassador Laura Quiambao-Del Rosario was a career diplomat of the Philippine Foreign Service for 37 years. She served as the Philippines’ Ambassador to Vietnam (2007–2009) and India (2003–2007), to Nepal as non- resident Ambassador, and was earlier assigned to Vienna, Singapore, and Washington, DC. She also served as a Director-General of the Foreign Service Institute.
Economic Relations at the Department of Foreign Affairs and was also the Chair Ambassador Del Rosario was a former Undersecretary for International
(APEC) during the Philippines’ host year, 2015, where she steered the substantive for the Senior Officials’ Meetings of the Asia Pacific Economic Cooperation agenda for the Leaders’ Meeting.
Ambassador Del Rosario is currently a member of the Council of Eminent Fellow at the Development Academy of the Philippines.
69 Closing Session: Summary, Conclusion, and the Way Forward
Synthesis
Professor Charmaine Misalucha-Willoughby Associate Professor, International Studies Department
De La Salle University 151. Dr. Misalucha, in synthesizing the different presentations and speeches from the two-day Conference, drew from the approach of
“known knowns,” “known unknowns,” and the “unknown unknowns,” former US Defense Secretary Donald Rumsfeld in identifying the and applied them to the SCS issue.
152. She explained that the “known known” is the existence of complexities and uncertainties in the SCS. The release of the Arbitral ruling, amid Chinese assertiveness and the growing security dilemma among regional powers, only contributes further to this unpredictability.
153. The “known unknown” is how regional players will exactly respond to the award of the Arbitral Tribunal. While the law is clear on paper, and that the ruling was unprecedented in clarifying certain issues, there are still doubts as to whether or not it could really constitute progress in settling the SCS disputes. But while customary international law remains important, it has already been established
issues, including unlocking some of the gridlocks in the SCS disputes. that UNCLOS constitutes the core of rule of law in addressing maritime Countries must therefore respect the law toward the maintenance of a rules-based system.
154. Prof. Misalucha also cautioned about the “unknown unknowns” or the “black swans” and the unexpected events that can be game-changers. Thus, it is necessary to anticipate and prepare for various scenarios in the SCS.
70 155. Despite the uncertainties, Prof. Misalucha pointed to the possible
steps identified by the Conference speakers in managing the SCS disputes, pending the final settlement of the disputes. These include building mechanisms, and continuing discussion on how to effectively provisional arrangements, cooperation in functional areas, confidence implement the DOC and conclude a COC. It is imperative that all stakeholders move forward with caution and prudence, temper the bravado in the message that they send each other across, and exercise self-restraint in their respective actions.
Dr. Charmaine G. Misalucha-Willoughby is Associate Professor in the International Studies Department of De La Salle
University in Manila, Philippines. She was also a US-ASEAN Fulbright Fellow at American University in 2013. Her book, States and Southeast Asian Nations: A Study of Political “The Problem of Describing Relations Between the United Language Games”, was published by Edwin Mellen Press in 2012. She holds a PhD in International Relations from the S. Rajaratnam School of International Studies of Nanyang Technological University in Singapore and a MA in International Studies from De La Salle University in the Philippines.
71 Reflections on the Way Forward
Hon. Claro S. Cristobal Director-General Foreign Service Institute
156. Director-General Cristobal emphasized the need for cooperation, creativity, and patience, for which he used the acronym CCP, in order to manage tensions in the SCS.
157. First, Director-General Cristobal urged practitioners in Tracks 1, 1.5, and 2 to cooperate. This can begin through exchanges of views and ideas under the spirit of trying to hear out others and trying to arrive at a consensus.
158. Second, he underlined the need for creativity in order to arrive at solutions that all the parties could agree on. He gave the following examples: have scientists lead the negotiations for a framework on,
to coast guards; and set common procedures for humanitarian say, marine environment protection; extend CUES from naval forces
recommended governments to be open for ideas from the civil society assistance and disaster relief in the SCS. Returning to his first point, he and the private sector.
159. Third, Director-General Cristobal underscored that all parties should be patient for they are dealing with long-term solutions. The goal should not just be to start cooperation projects but also to continue them through the future.
***
72 Professor Ian Hall Acting Director
Griffith Asia Institute
actions, and understanding China. 160. Prof. Hall focused on three main points in his reflection: principles,
161. On principles:
a.) States in this region need to issue unambiguous statements.
b.) Principles must be upheld. There is a need to maintain freedom of navigation in the South China Sea; failure to uphold this central maritime principle would be disastrous for the region.
c.) Regional actors need to uphold international treaties. States should ratifythese treaties and their actions should be aligned to the principles these treaties promote to avoid an image of hypocrisy.
162. On actions:
a.) Boosting military capabilities is paramount to national defense, but it must be done consistently.
b.) Timing is important to diplomacy. Strategic patience is needed
matters that China does not want to discuss about. when it comes to dealing with China; it is difficult to negotiate on
c.) Despite its economic and military clout, China can be matched. China’s international position is weaker today. Its worrying behavior in the South China Sea has tarnished its reputation in the international community.
73 163. On understanding China:
circumstances that affect China. Though China has a robust a.) Understanding China’s behavior requires recognition of present
need to improve living standards of its citizens and address economy, it also faces difficult domestic challenges such as the environmental crises.
b.) An increase in nationalism could also be seen as a central factor that shapes China’s policies and actions.
c.) China’s elite understands China’s problems and finds solutions China’s actions. to these problems. The elite continues to significantly impact
d.) Worst case scenario in the South China Sea: China could become more assertive and more nationalistic.
e.) Capability to uphold principles can define this region.
74 Closing Remarks
Hon. Alfredo E. Pascual President
University of the Philippines 164. Hon. Pascual congratulated the Foreign Service Institute for organizing the Second Manila Conference on the South China Sea.
165. He highlighted the role of the academe in pursuing research to aid policy formulation, promote policy discussion and strengthen policy implementation. He urged for universities, research centers and other institutions of higher learning to partner with government agencies, the private sector and civil society to collaborate, bring out new perspectives and innovate ideas that may surface creative solutions to societal problems.
the Center for Integrative and Development Studies (CIDS), Maritime 166. In the University of the Philippines, Hon. Pascual mentioned that Affairs and Laws of the Sea (IMLOS), Asian Center, Center for International Studies, and the Marine Science Institute (MSI) are just a few of the academic units that can collaborate with the government
the establishment of a Track Two dialogue mechanism involving and other institutions. Another initiative being developed by UP is researchers and analysts from China. According to Hon. Pascual, this will be undertaken in cooperation with the Department of Foreign Affairs and the National Security Council.
167. He expressed his appreciation to the institutions, academicians and experts who are open to working with concerned sectors to address the problems facing the country and the rest of the international community.
75 Alfredo E. Pascual is the 20th President of the University of the Philippinesthe position (UP), in February the country’s 2011 for national a term university.of six years. He He assumed teaches
finance and management.
Prior to UP, President Pascual contributed to progress in the Asia- and as an educator. He workedPacific at region Asian for Development over three Bank decades (ADB) as for a finance 19 years professional in various positions including Director of Private Sector Operations, Director of Infrastructure Finance, and Advisor for Public-Private Partnership. He spent most of his ADB career at the
bank’s headquarters in Manila, but also had postings in New Delhi and Jakarta. Currently, President Pascual is also a Professorial Lecturer at the College of Economics
andthe International Management Riceof UP Research Los Banos, Institute the Chairman (IRRI), and of the a Trustee UP Foundation, of the Philippine Inc., a Trustee Institute of for Development Studies (PIDS).
****** E N D ******
76 The Organizers
Foreign Service Institute
The Foreign Service Institute (FSI) was formally established under Presidential Decree 1060 on 9 December 1976. With the promulgation of Republic Act (RA) 7157, or the Philippine Foreign Service Act of 1991, the mandate of the Institute was revitalized and expanded.
The Institute, through its academic, training, research, information, publication, systems development and other programs, serves as the center for the development and professionalization of the career corps of the foreign service of the Department of Foreign Affairs (DFA) and other government agencies research on issues relevant to international relations and foreign policy as which have offices and employees assigned abroad. It undertakes independent well as policy studies in aid of foreign policy formulation, management, and evaluation.
The Institute maintains a Center of International Relations and Strategic Studies (CIRSS) and otherwise functions as a research institution on issues and problems with foreign policy implications, global and regional strategies and management of foreign affairs while serving as institutional consultant of the Department on matters related to foreign policies and programs as well as development management, planning, review and evaluation processes in the Department.
77 Foreign Service Institute Center for International Relations And Strategic Studies
Head Maria Anna Rowena Luz G. Layador
SupervisingConference Coordinators Research Speciallist RhodoraMary Fides M. A.Joaquin Quintos Loiue Dane C. Merced Edcel John A. Ibarra Conference Rapporteurs Edwin S. Estrada Fe T. Apon Joycee A. Teodoro Darlene V. Estrada
Research Specialist EileenValerie M. Anne Arquiza Jill I. Valero Virgemarie A. Salazar Jemimah Joanne C. Villaruel Jeremie P. Credo Karla Mae G. Pabeliña Rj Marco Lorenzo C. ParconJovito Jovito Jose P. Katigbak Rowell G. Casaclang Jeremy Dexter B. Mirasol Ma. Maureen P. Licayan Connie Rose C. Guillemer
78 Griffith Asia Institute
Griffith was the first University in the country to offer Asian Studies to undergraduate students and remains a pioneer in this field. This strong history means that today, the Institute can draw on the expertise of some 50 Asia-Pacific Institute produces innovative, interdisciplinary research on key developments focused academics from many disciplines across the university. The Griffith Asia in the politics, economics, societies and cultures of Asia and the South Pacific. By promoting knowledge of Australia’s changing region and its importance scholarship, public awareness and considered and responsive policy making. to our future, the Griffith Asia Institute seeks to inform and foster academic
The Institute work builds on over 40 years of Griffith University tradition of region. providing cutting-edge research on issues of contemporary significance in the
Their strategic vision is to promote greater interest in and awareness of Australia’s changing region and its importance to Australia among the public, universities, policy makers and the media.
79 New Era University- ASEAN Studies Center
As the integration of the ASEAN Community progresses, it is imperative to increase the level of awareness of every Filipino, from all walks of life, to maximize the opportunities that the integration brings to its people.
education to the total development of man through curricula responsive to the New Era University, an academic institution that aims to impart values-laden needs of the time, positions itself in leading Philippine academic institutions to create and enhance the interest of students and the academe on the ASEAN integration and how they would keep up with the progressive endeavors of other Southeast Asian countries. With this in mind, the university established the first ASEAN Studies Center in the Philippines on 29 February 2016. It is Central Avenue, New Era, Quezon City, Philippines. housed at Room 311, Professional Schools Building, New Era University, #9
The Center has the primary mission to serve as the hub of knowledge, well- equipped with research facilities and pool of experts, handling ASEAN-related and a vast library collection, including its own publications, and acts as an matters. In particular, the NEU-Asean Studies Center provides lectures/forums ASEAN research and learning resource center.
80 THE ASIA FOUNDATION
committed to improving lives across a dynamic and developing Asia. It operates The Asia Foundation is a non-profit international development organization in 18 countries informed by deep local expertise and six decades of experience to address the critical issues affecting Asia in the 21st century by: strengthening governance, expanding economic opportunity, increasing environmental resilience, empowering women, and promoting international cooperation.
Internationally recognized for their commitment to the region’s development, The Asia Foundation brings together local individuals, communities, and governments who are shaping Asia’s future. Their particular strength is their ability to navigate Asia’s political context for reform and development. Engaging their longstanding and ever-expanding networks, nurturing new talent and rising young leaders, and drawing on their deep regional knowledge, The Asia Foundation plays a catalytic role in advancing Asia’s development and social progress.
81 APPENDICES
Appendix 1: Programme
The Second Manila Conference on the South China Sea
“Managing Tensions, Revisiting Regional Efforts, and Fostering Cooperation”
03 - 04 August 2016 The Manila Hotel Manila, Philippines
Programme
82 03 August 2016, Wednesday
8:00 A.M. Registration Venue: Centennial Hall A
9:00 AM - 9:45 A.M. Opening Session
Welcome Remarks:
Hon. Claro S. Cristobal Director-General, Foreign Service Institute
Keynote Speaker:
Hon. Perfecto R. Yasay, Jr. Secretary of Foreign Affairs
9:45 AM - 10:00 A.M. Photo Opportunity and Coffee Break
10:00 AM - 11:30 A.M. Plenary Session One: Changes in the Strategic Environment in East Asia: Implications for Regional Security and Extra-regional Dynamics
This panel will examine the regional strategic environment in the South China Sea including power dynamics in the region, incidents that heighten tension, and the issue of militarization, among others. Speakers will give their views on the impact of these developments on the security outlook of ASEAN member-states and extra-regional powers, trends in regional and international security, and threat perceptions that can affect the dynamics in managing the disputes in the South China Sea. Chair: Hon. Claro S. Cristobal Director-General, Foreign Service Institute
Speakers:
Professor Herman Joseph S. Kraft Associate Professor, Department of Political Science
ProfessorUniversity ofMichael the Philippines Heazle Associate Professor, School of Government and International Relations
Ms.Griffith Sumathy University, Permal Australia Senior Researcher Centre for Maritime Security and Diplomacy Maritime Institute of Malaysia
11:30 A.M. - 1:00 P.M. Lunch Break Venue: Centennial Hall B
1:00 P.M. - 3:00 P.M. Plenary Session Two: The Application of International Law to the South China Sea Disputes
A. The United Nations Convention on the Law of the Sea and the South China Sea Disputes
This session intends to discuss the application of international law to the South China Sea particularly with
and titles, the exercise of sovereign rights in the exclusive economicregard to Art.zone, 121 and of UNCLOS,the peaceful the concept settlement of historic of disputes. rights The speakers will also identify the political, diplomatic, economic, and legal dimensions that have helped states in other maritime and territorial disputes come to a peaceful resolution. Chair: Dr. Carlos C. Tabunda Jr. Executive Fellow, Development Academy of the
ASEAN Studies Center Philippines and Director, New Era University- Speakers:
Mr. Tullio Treves Senior International Law Consultant Curtis, Mallet-Prevost Colt & Mosle LLP, Milan
Hon. Henry S. Bensurto, Jr. Consul General Philippine Consulate General
Dr.San Nguyen Francisco, Thi California, Lan Anh USA Vice Dean, International Law Faculty Diplomatic Academy of Vietnam
Dr. Clive Symmons Visiting Research Fellow, School of Law Trinity College, Dublin
3:00 P.M. - 3:15 P.M. Coffee Break
3:15 P.M. - 5:00 P.M. B. International Law on Principles of Self-Restraint and Non-Use of Force in Disputes
This session explores the meaning of the obligation of self-restraint, non-use of force, and non-threat of force
Nations Convention on the Law of the Sea. It also exam- inespursuant how tostates general in the international region interpret law and and to apply the United these obligations in ensuring public order at sea despite the existence of disputes. Chair: Mr. Julio S. Amador III Deputy Director-General, Foreign Service Institute
Speakers:
Ambassador Shingo Yamagami Director General The Japan Institute of International Affairs
Dr. Jay L. Batongbacal Director Institute for Maritime Affairs and Law of the Sea
University of the Philippines Professor Leszek Buszynski National Security College
Australian National University 04 August 2016, Thursday
9:00 AM - 11:00 AM Plenary Session Three: International Norms and Rules: Lessons Learned From Other Disputes
This session examines international law from the perspective of compliance. It analyzes why international
fromlaw is countries perceived that as have the “greatsuccessfully equalizer” settled between their disputes strong and weakhow they states. were There able are to significantproceed following lessons tothe be ruling learned of the court.
Chair: Professor Ian Hall
Acting Director, Griffith Asia Institute Speakers:
Dr. Lowell Bautista Lecturer, School of Law
Mr.University Damos of Agusman Wollongong, Australia Secretary of Legal Affairs and International Treaties Ministry of Foreign Affairs Republic of Indonesia
11:00 AM - 11:15 AM Coffee Break
11:15 AM - 12:45 PM Plenary Session Four: International Norms and Rules: The Code of Conduct and Other Remedies in the South China Sea
This session covers the impact of current developments in the South China Sea on discussions for a Code of Conduct (COC), adherence to the provisions of ASEAN- China Declaration on the Conduct of Parties in the South China Sea (DOC) including the principles of self-restraint and non-use of force, and other security management mechanisms in the region. It will also explore other practical remedies that complement the legal measures in fostering cooperation among claimant states pending
respective claims. the final resolution of disputes without prejudice to Chair: Ambassador Laura Q. del Rosario Eminent Fellow Development Academy of the Philippines
Speakers:
Ms. Mary Fides A. Quintos Senior Foreign Affairs Research Specialist Center for International Relations and Strategic Studies Foreign Service Institute
Dr. Nong Hong Executive Director and Senior Fellow
Institute for China-America Studies, USA Professor Robert Beckman Head Ocean Law and Policy Programme Center for International Law
National University of Singapore 12:45 PM - 2:30 PM Lunch Break Venue: Centennial Hall B
2:30 PM - 4:00 PM Closing Session: Summary and Conclusion, and the Way Forward
Chair: Professor Maria Anna Rowena Luz G. Layador Chief Foreign Affairs Research Specialist Center for International Relations and Strategic Studies Foreign Service Institute
Synthesis: Professor Charmaine Misalucha-Willoughby Associate Professor, International Studies Department
De La Salle University Reflections on Way Forward: Hon. Claro S. Cristobal Director-General, Foreign Service Institute
Professor Ian Hall
Acting Director, Griffith Asia Institute Closing Remarks:
Hon. Alfredo E. Pascual
Member, Foreign Service Institute Board President, University of the Philippines Appendix 2: Photos
Photo credits: PISU-DFA; Mr. Rowell Casaclang, FSI
FSI Director-General Claro S. Cristobal welcomes the participants to the Second Manila Conference on the South China Sea.
DFA Undersecretary for Policy Enrique Manalo delivers the keynote address titled “Come, Let Us Reason Together”, on behalf of DFA Secretary Perfecto R. Yasay, Jr. The speakers at the Second Manila Conference on the South China Sea posed for a photo with Undersecretary Manalo (tenth from the right). The panel on The Application of UNCLOS to the South China Sea Disputes was composed of: (from left to right) Dr. Clive Symmons, Visiting Research Fellow, School of Law, Trinity College Dublin; Atty. Henry S. Bensurto, Jr., Consul General, Philippine Consulate General, San Francisco, California; Dr. Carlos Tabunda Jr., Managing Director, New Era University-ASEAN Studies Center; Mr. Tullio Treves, Senior International Consultant, International Arbitration Group; and Dr. Nguyen Thi Lan Anh, Vice Dean, International Law Faculty, Diplomatic Academy of Vietnam.
Amb. Shingo Yamagami, Director-General, The Japan Institute of International Affairs noted that China’s bullying and intimidation is also taking place in the East China Sea, vis-à-vis Japan. Dr. Jay L. Batongbacal, Director or the Institute for Maritime Affairs and Law of the Sea, University of the Philippines, on when is use of force permissible under international law.
Dr. Lowell Bautista of the University of Wollongong, Australia discusses the issues concerning the enforcement of and compliance with the Arbitral Tribunal Award on the South China Sea. Mr. Damos Agusman, Secretary of Legal Affairs and International Treaties with the Ministry of Foreign Affairs, Indonesia, discusses the country’s experience with international maritime law, including the resort to judicial settlement by a third party court.
Ms. Mary Fides A. Quintos, Senior Foreign Affairs Research Specialist with the Center for International Relations and Strategic Studies of the Foreign Service Institute, cited some models of marine cooperation in other regions of which could be considered by SCS littoral states in finding a way forward. Prof. Robert Beckman of the Centre for International Law (CIL) of the National University of Singapore (NUS) raises the need for ASEAN and China to resume serious discussions on the effective implementation of the Declaration on the Conduct in the South China Sea (DOC) and the conclusion of a Code of Conduct (COC).
Dr. Charmaine Misalucha-Willoughby of De La Salle University provides a summary of all the presentations during the two-day Conference. The participants of the Second Manila Conference on the South China Sea came from the government, diplomatic corps, the armed forces, and the academe.
Institute gives his reflections on the way forward in the South China Sea issue. Attendees from the New Era University were: Top (L-R): Jet Hilario, Guill Marc Mariano, Prof. Noe L. Pobadora, Atty. David Jonathan Yap, Mark De Guzman, and Atty. Rodel Morta.Bottom (L-R): Trish Lorraine Vicmundo, Jellaine Prizel Buen, Prof. Princess Fame Pascua, Alexander Monsoor S. Aquino, Atty. Julio Amador III, Atty. Serafin Cuevas Jr., Dr. Carlos Tabunda, Dr. Dorislyn Tabunda, Cindy Pebenito-Quinitio, Atty. Ida Marie Escolano-Canton, Atty. Citedina Zarate, Neah Mangawang, Donna Ybañez, and Irma Abendan Members of the secretariat from the Foreign Service Institute. In the front row are FSI Deputy Director-General Julio S. Amador III (fourth from the left), FSI Director- General Claro S. Cristobal (center), and Head of the Center for International Relations and Strategic Studies Ms. Maria Anna Rowena Luz G. Layador (fifth from the right) Notes: Notes: