About the Author
Chapter 1The Provenance and Ramifications of the SCS Conflicts: Law, Resources, and Geopolitics
Chapter 2“China’s Caribbean”: Competing Claims by the Parties — A Comparison in History and Law
Chapter 3“Historic Waters” in General International Law, and as Tested in Judicial Cases
Chapter 5Before the Storm: U.S.–China Relations in Retrospect — Patterns and Antecedents
Chapter 6The U.S.–China Contest (I): A Clash of Visions and the Chain of Escalatory Reactions
Chapter 7The U.S.–China Contest (II): Risk of a Thucydides Trap (?)
Table of Cases Cited
Case Concerning the Continental Shelf (Tunisia v. Libya, 1982), 1982 PCJ Reports.
Fisheries case (U.K. v. Norway) (1951), 1951 ICJ Reports, 116ff.
Fisheries Jurisdiction cases (Spain v. Canada), 1998 ICJ Reports 432; (U.K. v. Iceland ) 1974 ICJ Reports 3.
Frontier Dispute case (Burkin Faso v. Republic of Mali), 1986 ICJ Reports 554.
Gulf of Maine case (U.S. v. Canada), 1984 ICJ Reports 300.
Island of Palmas case (U.S. v. The Netherlands, 1928), PCA, 1928, in 2 U.N Reports on Arbitral Awards, 829ff.
Land and Maritime Boundary (Cameroon v. Nigeria), 2002 ICJ Reports 94.
Legal Status of Eastern Greenland (Denmark v. Norway, 1933), 1933 P.C.I.J. (Series A/B), No. 53, at 71ff.
Ligitan and Sipadan Islands (Malaysia v. Indonesia), 2002 ICJ Reports 36.
North Atlantic Fisheries Arbitration (Great Britain v. U.S.), PCA Case No. 1909–01.
Pedra Branca, Middle Rocks, and South Ledge (Singapore v. Malaysia), ICJ Report 2008, at 12ff.
Philippines and China Arbitration. PCA Case No. 2013–19.
Introduction
The South China Sea (SCS) region has become a dragnet of international conflicts, on a scale often compared to the disaster-prone Middle East. In a way, its tensions may be more treacherous, as they also embroil two giant powers in an intricate contest: the United States, the extant superpower, and China, the emergent superpower.
To begin with, the tensions were endemic to the region with long-standing disputes due to the overlapping claims to parts of the SCS advanced by its surrounding neighboring states. The competing claimants include China (both the mainland and Taiwan), Vietnam, the Philippines, Malaysia, and Brunei. Regional competition intensified after 1968 following reports that flaunted vital natural resources (oil and natural gas) under the SCS seabed, as noted in Chapter 1.
Of late, the conflict-ridden milieu became more acute and sinister, as the U.S.–China contest deteriorated. Though it laid no claim to any part of the SCS, the United States was alarmed by the rise of China, and hence the attendant “China threat” scare trumpeted by many neorealist International Relations (IR) analysts and media gurus alike.
The SCS imbroglio, in fact, entailed two separate tangles: (a) a legal tangle bedeviling China’s relations with its Asian competing claimant neighbors, whose respective positions are compared and analyzed in Chapter 2, and (b) a geopolitical tangle at the heart of the U.S.–China contest. For the Chinese, the two tangles are interrelated in that, for instance, the legal assault by the Philippines by filing a complaint against China in 2013 to a Permanent Court of Arbitration (PCA) Tribunal was egged on by Washington, which provided expert legal assistance. And, its own refusal to participate in the arbitration followed by its rejection of the Tribunal’s final award brought upon itself a scofflaw stigma that only resulted in China’s further isolation. This in turn made the U.S. naval surveillance in the SCS, right under China’s nose, sound more “justified” under the pretext of protecting the freedom of navigation.
China’s nonparticipation, as we try to show in Chapter 4, turned out to be a blessing for the Philippines, which had an opportune chance to both pick the arbitrators and to name the law to be applied by the Tribunal. Thus, the 1982 U.N. Convention on the Law of the Sea (UNCLOS III), preferred by the Philippines, became the exclusive source of law against which China’s claim, based as it is on the concept of “historic waters,” was to be evaluated. Thus, China’s loss was a foregone conclusion, because the UNCLOS III is totally silent on the issue of “historic waters,” which, nevertheless, finds firm support in general international law (as opposed to treaty law), as Chapter 3 tries to show.
An injunction in the preambular part of UNCLOS III declares: “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The arbitral tribunal, however, totally disregarded the injunction. Parenthetically, this opens up a potential avenue by which China may be able to vindicate its own rights and exonerate itself from the undeserved scofflaw stigma, as we ascertain how this can be done in the concluding chapter.
As it was suggested in some quarters1, the U.S. attention to the SCS region was drawn out of a perceived injustice in which an Asian ally (the Philippines) and an emerging partner (Vietnam, after 1975), among others, were being “bullied” by the more powerful and “assertive” Chinese claimant. However, I would like to see whether it might also be true that the United States was drawn by its geopolitical
