University of Alberta Law and Politics in the South China Sea Assessing the Role of UNCLOS in Ocean Dispute Settlement by Nong Hong A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Political Science ©Nong Hong Spring 2010 Edmonton, Alberta Permission is hereby granted to the University of Alberta Libraries to reproduce single copies of this thesis and to lend or sell such copies for private, scholarly or scientific research purposes only. Where the thesis is converted to, or otherwise made available in digital form, the University of Alberta will advise potential users of the thesis of these terms. The author reserves all other publication and other rights in association with the copyright in the thesis and, except as herein before provided, neither the thesis nor any substantial portion thereof may be printed or otherwise reproduced in any material form whatsoever without the author's prior written permission. Library and Archives Bibliothèque et Canada Archives Canada Published Heritage Direction du Branch Patrimoine de l’édition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre référence ISBN: 978-0-494-60561-5 Our file Notre référence ISBN: 978-0-494-60561-5 NOTICE: AVIS: The author has granted a non- L’auteur a accordé une licence non exclusive exclusive license allowing Library and permettant à la Bibliothèque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par télécommunication ou par l’Internet, prêter, telecommunication or on the Internet, distribuer et vendre des thèses partout dans le loan, distribute and sell theses monde, à des fins commerciales ou autres, sur worldwide, for commercial or non- support microforme, papier, électronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L’auteur conserve la propriété du droit d’auteur ownership and moral rights in this et des droits moraux qui protège cette thèse. Ni thesis. Neither the thesis nor la thèse ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent être imprimés ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author’s permission. In compliance with the Canadian Conformément à la loi canadienne sur la Privacy Act some supporting forms protection de la vie privée, quelques may have been removed from this formulaires secondaires ont été enlevés de thesis. cette thèse. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n’y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. Examining Committee Wenran Jiang, Political Science Lois Harder, Political Science Tom Keating, Political Science Andy Knight, Political Science Greg Anderson, Political Science Yingfeng Xu, Economics Ian Townsend-Gault, Faculty of Law, University of British Columbia Law and Politics in the South China Sea Assessing the role of UNCLOS in Ocean Dispute Settlement NONG HONG Abstract This dissertation evaluates the applicability and effectiveness of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as a settlement mechanism for addressing the South China Sea (SCS) dispute, the most complex and challenging ocean-related regional conflict in East Asia. This dissertation answers these broad questions: Does UNCLOS create a constitution for the ocean? Is UNCLOS successful in preventing or managing conflicts pertaining to marine resources? Hoes does the SCS dispute settlement bridge the gap of International Relations (IR) and International Law (IL)? Since 1980s, the regime concept came to be used as one vehicle to cross the disciplinary divide between IL and IR. This dissertation seeks to foster dialogue between political scientists and international lawyers by viewing UNCLOS as an international regime and exploring its internal coherence and its external relationship with other international regimes and institutions in this region. I argue that there can be little doubt about the centrality of UNCLOS in the legal framework for ocean management, albeit it may be perceived to have certain shortcomings. The most pervasive threats to the SCS stability and obstacles to solve the dispute are caused by the lack of political will to implement the dispute settlement mechanism of UNCLOS. This paper proposes a pragmatic settlement regime of five dimensions to solve the SCS dispute and accelerate ocean governance in this region. Acknowledgement Any degree is a journey, which will not lead us to the destination without the support and advice of a broad range of persons and institutions. While sincerely apologizing to those whom I have inadvertently overlooked, I take this opportunity to express my sincere gratitude for the following persons and organizations. I am very appreciative of my supervisor, Professor Wenran Jiang for his great support and guidance over the years. I am also grateful to the doctoral committee, Professor Tom Keating, who provided critical support and guidance throughout the development and execution of the study, Professor Andy Knight who always supports and leads me in the vast field of ocean governance, Dr. Greg Anderson who provided important spiritual input in the early stages of this research, Dr. Xu Yingfeng who challenges me from an economist aspect, and Professor Ian Townsend-Gault who is kind enough to serve as the external examiner. I would like to acknowledge the generous assistance provided by the Department of Political Science, and the China Institute of University of Alberta in providing funding in the school years. I am also indebted to many academics and government officials working in the field of the SCS, who have inspired and encouraged me on this path. Without mentioning each person who have helped me, my special respect goes to Dr. Wu Shicun, a well know Chinese historian on the SCS and my first professional mentor to open the door for me to access the vast academic world of the SCS, and Dr. Zou Keyuan, Harris Chair in International Law at the University of Central Lancashire, who has given me a lot of advices throughout the writing of this dissertation. I am grateful for several sources of institutional support which allowed me to complete this dissertation. These include the National Institute for the South China Sea Studies where I started my career as a young scholar in the field of the SCS; International Tribunal for the Law of the Sea where I served as an legal intern and a Nippon Fellow on the International Dispute Settlement Training Program; Center of Oceans Law and Policy, University of Virginia, Nippon Foundation, Max Planck Institute for Comparative Public Law and International Law, where I expanded my literature review and archive research as a visiting scholar; United Nations Division of Ocean and the Law of the Sea, International Foundation for the Law of the Sea, Rhodes Academy, International Ocean Institute and Dalhousie University where I enriched my knowledge on ocean laws and policies from a serials of intensive training courses. I also wish to acknowledge the people who showed me kindness and trust and who were willing to participate in my interviews and share their knowledge and expertise on the SCS and the law of the sea with me. They are Dr. Wu Shicun, president of the National Institute for the South China Sea Studies, Dr. Ralf Emmers, head of Graduate Studies at the S. Rajaratnam School of International Studies, Dr. Jon M. Van Dyke, Professor of Law, University of Hawaii, Professor John Norton Moore and Professor Myron H. Nordquist, Director and Associate Director of Center for Oceans Law and Policy, Dr. Ramses Amer, Senior Research Fellow at the Center for Pacific Asia Studies, Stockholm University, former and current judges of ITLOS, such as David Anderson, Gudmundur Eiriksson and Gao Zhiguo. I owe my deepest gratitude to my family. My parents came all the way from a tropical island of China to Edmonton to support me during my second year of the programme and saved me from the desperately preparation for the comprehensive exams. My husband Wenbing and my sweet daughter Zhixiao stand with me all the time to support me to find the courage to follow my dream. Table of Contents Abstract ............................................................................................................................................................ Acknowledgement .......................................................................................................................................... List of Tables, Figures and Maps .................................................................................................................. List of Abbreviations ....................................................................................................................................... Introduction: Regime Theory and UNCLOS ............................................................................................. 1 1. Regime Theory ........................................................................................................................................ 4 2. Regime Effectiveness ..............................................................................................................................