Maritime Order and the Law in East Asia

Description

Cover Half Title Title Page Copyright Page Table of contents Editor and contributor biographies Introduction Part I Regional maritime order overview 1 China–ASEAN relations in the South China Sea: Persistent features and obstacles to cooperation China–ASEAN relations in the wake of the arbitration award Competing sovereignty claims in the South China Sea The poisoned chalice of San Francisco The Law of the Sea Convention: sowing more confusion than clarity so far The low procedural bar of Article 281(1) Instability of jurisprudence on LOS textual provisions China–ASEAN relations in the South China Sea and persistent features Cycles of strain and progress in relations A couple of key takeaways Concluding remarks and looking ahead Notes 2 The East China Sea: Sea of regional and global confrontation Introduction Border delimitation Practical arrangements in the absence of agreed EEZ borders Fisheries agreements under the UNCLOS regime The 2008 Japan–China understanding on hydrocarbon exploitation Preventing and dealing with incidents Conclusions Notes Part II National perspective 3 Historic concepts vs. contemporary maritime regimes in UNCLOS: China’s claims in the South China Sea Definition Historic water Historic right Historic title Historic concepts and maritime delimitation Historic concepts related dispute settlement under UNCLOS China’s historic claim in the SCS Historic concepts vs. new maritime regimes in the SCS Implication from the South China Sea arbitration case Historic doctrine: still relevant in contemporary international law Conclusion Notes 4 Navigational rights, freedoms, and interests in the South China Sea: The Philippines’ perspective Introduction Navigation and overflight in UNCLOS Incidents in the SCS since 2009 US policy on freedom of navigation and overflight operations China’s emergent policies on freedom of navigation and overflight Caught in between: The Philippines and other littoral states Impact of the Philippines v. China arbitration Air defense identification zone concerns Synthesis Conclusion Notes 5 Indonesia: An archipelagic state’s perspectives on the law of the sea Foreign military activities in Indonesia’s exclusive economic zone Indonesia’s experience of harmonizing its domestic interest with international law, including UNCLOS UNCLOS’ role in addressing the maritime dispute in the South China Sea Notes 6 Balancing the rights of coastal states and user states in the post-UNCLOS age: Vietnam and navigational rights Vietnam and UNCLOS: an overview Pre-UNCLOS period Post-UNCLOS period Vietnam and navigational rights before and after the ratification of UNCLOS: A paradigm shift Navigation under UNCLOS Navigational rights under Vietnam’s law Pre-UNCLOS period Post-UNCLOS period Conclusion: UNCLOS in Vietnam’s perception of the international maritime order Notes 7 The United States and accession to UNCLOS: A case of how domestic political polarization results in free ridership United States adherence to UNCLOS commitments as a non-party United States as a treaty free-rider UNCLOS as a rhetorical sword for polarization in contemporary US domestic politics Conclusion Notes Part III Navigation related issues and UNCLOS 8 Freedom of navigation and the UNCLOS order Introduction Defining freedom of navigation Freedom of navigation under UNCLOS Innocent passage and the territorial sea Military activities in the Exclusive Economic Zone China: Domestic law and the nine-dash line The United States: Freedom of the seas and freedom of navigation Navigating the South China Sea Is freedom of navigation lost in translation? Notes 9 The prior notification issue of military activities in EEZ Introduction Legal status of EEZ National security claims regarding the EEZ Issue of prior notification of military activities in EEZ Military exercises Military survey activities Military intelligence-gathering activities The issue of prior notification Dialectic analysis of the issue of prior notification The settlement of issue of prior notification Notes 10 Maritime confidence-building measures: Assessing China–US MOU on notification of major military... China–US sea and air close encounters: From 2000 to present Cooperative security and confidence-building measures (CBMs) INCSEA And DMAA agreement between US and USSR The law of collision and the 1972 COLREGs and Codes For Unplanned Encounter at Sea (CUES) Assessing the MOUs and China–US confidence building measures (CBMs) Conclusion Notes Part IV Maritime entitlement, delimitation and dispute settlement and UNCLOS 11 The Sino-Philippine arbitration on the South China Sea disputes: A preliminary assessment of the merits award Introduction Development of SCS arbitration Philippine initiation of the arbitration Philippine Memorial and further written arguments The Jurisdictional Award Second hearing and the amended submissions The Merits Award The erasure of the U-Shaped Line: Submissions 1–2 USL symbolizes China’s territorial claims USL represents China’s provisional maritime claims China’s maritime claims based on historic rights: Submissions 1–2 China’s “claim” on historic rights in Southern WPS is a moot issue Whether China claimed historic rights in Northern WPS is unanswerable Legal status of nine maritime features: Submissions 3–4 and 6–7 Compliance with Merits Award is pointless China’s evacuation from LTEs means abandonment of territorial claims Evacuation from LTEs means withdrawal of China’s boundary delimitation positions Not treating the “rocks” as islands means withdrawal of boundary delimitation positions No evidence to prove that China considers Scarborough Shoal as an island Formulation of Submissions 3–4 and 6–7 fails to address the real issues China’s trespass into Philippine EEZ and continental shelf: Submissions 8–9 Whether Mischief Reef and Second Thomas Shoal are part of Philippine EEZ and continental shelf: Submission 5 Submission 5 suffers from mootness The tribunal entertained a dispute not reflected by Submission 5 Maritime confrontations around Scarborough Shoal: Submissions 10 and 13 Philippine traditional fishing rights in Scarborough Shoal are unreal Territorial disputes underlying Submission 13 renders the award unenforceable Concluding remarks Notes 12 Archipelagos and archipelagic regimes in the law of the sea Introduction The archipelagic regime of the LOSC and archipelagic state practice Definition of archipelagos, archipelagic states and archipelagic baselines Archipelagic waters: Balancing exclusive and inclusive interests Dependent archipelagos: The archipelagic concept and straight baselines Conclusion Notes 13 Low-tide elevations: A contemporary analysis Introduction The criteria for determining the natural status of low-tide elevations The territoriality of low-tide elevations The origin: The Qatar/Bahrain case The development: From Nicaragua/Honduras to the South China Sea arbitration The arguments in the Qatar/Bahrain Case revisited The territoriality of low-tide elevations situated in other maritime zones Low-tide elevations and the rise of sea levels Conclusions Notes 14 Resolving disputes under UNCLOS when the coastal and user states are disputed Introduction Challenging existing constructions on disputed islands and in their immediately adjacent waters Construction on disputed islands Construction in waters immediately surrounding a disputed island Legality of activities in the EEZ of a disputed island Coastal state’s exclusive rights in the EEZ Obligations of due regard Obligations relating to provisional arrangements in maritime boundary disputes Obligation to endeavor to reach agreement Obligation not to jeopardize or hamper the final agreement Conclusion on legal risks for EEZ activities Environmental obligations associated with construction activities Consequences for the occupying State Reparations for any international law violations Preventing aggravation of the dispute Conclusion Notes Index