Publisher(s): China Academic Journals (CD Edition) Electronic Publishing House Co., Ltd.
First Published: 2021.01.19
Discipline(s): Politics/ Military Affairs/ Law
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Research on the South China Sea Issue: Perspectives on Strategy Selection series provide a rich collection of 63 papers in total published in journals such as Foreign Affairs Review, Southeast Asian Studies, and Northeast Asia Forum. The authors include Wu Shicun, President of the National Institute for South China Sea Studies, Zhu Feng, Executive Director of the Collaborative Innovation Center of South China Sea Studies of Nanjing University, and other established professionals. The number of Chinese characters totals around 860,000 and that of English words totals roughly 600,000. This Chinese-English bilingual e-book series are composed of two volumes. This volume shares academic achievements on the South China Sea issue from three angles, embracing Legal Interpretation and Response, Conception and Intervention of Other Countries and Regions, as well as Historical Research and Chinese Strategy.
1. State practice of the law of the sea: reflections on the legal culture community in the South China Sea region
Foreign Affairs Review,Part 1: Legal Interpretation and Response,Vol 34,No. 01
The trend of historical development shows that the competition in the future world is mainly cultural competition, which will focus largely on the competition of legal culture, namely, the competition and conflict of legal cultures with different origin and different nature, including the choice of dispute settlement mechanism, government standard and legal value scale. Since the Philippines initiated the South China Sea arbitration proceedings against China in January 2013, the situation in the South China Sea region has experienced ups and downs until the arbitration results were released on July 12, 2016. Recently, the dispute over the South China Sea has calmed down, which is inseparable from the joint efforts of China and ASEAN. However, this has also triggered a deeper reflection on the legal culture of East Asia, especially the culture regarding the law of the sea. From the perspectives of attitude towards international law, degree of participation in the negotiation of the law of the sea, domestic maritime legislation and dispute settlement practice, the South China Sea countries have displayed a certain degree of commonalities. However, the instability of regional security caused by the South China Sea arbitration case brings people to realize the lack of an identifiable legal culture community in the South China Sea region. In order to prevent damage to the integrity and authority of the international law of the sea, offset and mitigate the negative impact of the South China Sea arbitration case on the international rule of law, it is necessary to build an identifiable legal culture community in the South China Sea region, which shall take the Code of Conduct in the South China Sea as its solid cornerstone.
2. The dispute settlement of the South China Sea: the legal interpretation and political significance of the South China Sea Arbitration
Foreign Affairs Review,Part 1: Legal Interpretation and Response,Vol 33,No. 02
The territorial sovereignty and maritime jurisdiction disputes over the South China Sea have not been settled. Finding the best path to a peaceful solution has always been the focus of attention of academia, and the existing ideas include diplomatic negotiations, common development, and trust building measures. In 2013, the Philippines unilaterally initiated an arbitration proceeding, which set off an upsurge of debates in the international community on the applicability of the compulsory dispute settlement mechanism of the United Nations Convention on the Law of the Sea ( UNCLOS) in the South China Sea. The procedural and substantive issues, legal connotation, and political significance of the South China Sea arbitration case, and the development trend of the South China Sea issue and its impact on regional security situation in the post arbitration era, are all worthy of further studies. This paper interprets the UNCLOS’ connotation and characteristics of its dispute settlement mechanism, and analyzes different attitudes of the parties in the South China Sea dispute towards the third-party compulsory settlement mechanism and the country practice in the field of maritime dispute resolution. It also compares the Philippines’ and China's political positions and legal perspectives on the dispute settlement, as well as the strategic and policy considerations on the South China Sea issue of China and the US, and from the legal and political perspectives, it evaluates the validity and influence of the arbitration case of the South China Sea dispute settlement. The compulsory settlement mechanism of the UNCLOS has certain values in the international law and dispute settlement, but for the South China Sea dispute, the complicated political background and the difficulty of the multi-level legal problems are intertwined, so the Philippines's unilaterally instituted compulsory arbitration procedure cannot contribute to the settlement of disputes between the two countries. On the contrary, there have been a growing number of and more serious uncertainties in the South China Sea situation since the beginning of the arbitration. How to choose a dispute management or settlement mechanism which can not only conform to the interests of the countries in disputes over the South China Sea and their legal culture, but also meet the legitimate concerns of the stakeholders, is the topic should return to the priorities of the policy makers of the involved countries.
Southeast Asian Studies,Part 1: Legal Interpretation and Response,No. 03
The Arbitral Court led by Judge Thomas A. Mensah made efforts to promote justice in hearing and ruling of the arbitrational case. Yet it has obvious legal flaws in the following aspects. It has accepted the Philippines’ arbitrational claims while Beijing and Manila still have to solve the disputes through diplomatic negotiation; the award has completely favored Philippines’ claims with limited consideration of principle of prudence and fairness; and it appeared to punish China. Furthermore, the award on legal status of maritime features in the Nansha Islands is not in line with the general willingness of most of the global littoral states and island countries, especially its ruling of Taiping Dao is not convincing. Last but not the least, the ruling of China’s historical rights in South China Sea has applied the United Nations Convention on the Law of the Sea (UNCLOS) as maritime law, which is against the basic logic of international laws and restrains the development of international maritime law. In short, all these evidences suggest that the award deviate mainstream legal and SCS discourse and can hardly accept by many states.
Southeast Asian Studies,Part 1: Legal Interpretation and Response,No. 04
The South China Sea arbitration is about to announce a final ruling. Since China has taken the position of neither participating in the case nor accepting the award, most experts believe that the outcome of the arbitration should be biased towards the Philippines. Recently, however, as for Taiwan has put forward its viewpoint that the Taiping Dao (Itu Aba island) is an “island” but not a “rock,” the final decision of the South China Sea arbitration might be influenced to a certain degree. Some scholars have thus made various predictions of the verdict. It is hereby suggested taking seriously all kinds of possible countermeasures as a response regardless of the credibility of the prediction, so as to defend China's territorial sovereignty and integrity.
5. South China Sea Arbitration: a critical review of the rulings by the Tribunal concerning historic rights claim*
Southeast Asian Studies,Part 1: Legal Interpretation and Response,No. 05
This article gives a review of the rulings given by the Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) concerning the Philippines’ submissions No.1 and 2 or so-called historic rights claim in the South China Sea Arbitration case between China and the Philippines. As to jurisdictional issues, the Tribunal has not clearly established the existence of a dispute between the Parties concerning so-called historic rights claim. Furthermore, the Tribunal attempted to apply Article 311 of the UNCLOS to this case but this article is not an applicable rule. Therefore, there exists no dispute concerning the interpretation or application of the UNCLOS between the Parties, and, the threshold requirement for the exercise of jurisdiction is not satisfied. Moreover, China has always claimed historic titles in the South China Sea and this claim has been excluded from the compulsory dispute settlement procedure by Article 298 (1) (a) (i) of the UNCLOS and China’s 2006 Declaration. All in all, the Tribunal should refuse to answer the Philippines’ submissions No. 1 and 2 in this case. In its dealing with the substantive issues, ultra vires, the Tribunal gives a wrong interpretation of the UNCLOS, omitting the relevant provisions such as archipelagic waters and semi-enclosed sea in the UNCLOS. China is entitled to disregard these wrongful rulings.
Foreign Affairs Review,Part 1: Legal Interpretation and Response,Vol 33,No. 06
The Award issued on October 29, 2015 by the Arbitral Tribunal which heard the South China Sea arbitration put forward by the Philippines states that the first and second appeals listed in the Plaint filed by the Philippines reflect that there is a dispute over the origin of the sea rights of China South Sea and the function of the UNCLOS between China and the Philippines, and such a dispute is about the interpretation and adaptability of the UNCLOS. As to whether the dispute described in the first and second appeals of the Philippines has the right of jurisdiction or not, it is a decision which has been kept to be made together with substantial issues in the substantial trial stage. The Arbitral Tribunal did not explain why it had the right to handle the substantial issue regarding the nature and legality of China’s historic rights claim and why it made the decision that the dispute concerned in the appeals of the Philippines was within the interpretation and adaptability of the UNCLOS before determining the nature of China’s historic rights claim yet. Obviously, the decisions made by the Arbitral Tribunal were clearly and grossly flawed. It should grasp the standpoints of the two parties involved accurately and judge objectively whether there is a dispute or not; even if it identifies that there is indeed a dispute, it still needs to investigate whether there are adaptable laws and regulations to settle the dispute. Although there is uncertainty over the connotations of concepts like “historic rights” and the “historic title,” the rights formed in history should be respected by the international law undoubtedly. Therefore, the adaptability of certain regulations in the 298th Article of the UNCLOS prevents the Arbitral Tribunal from hearing substantial issues related to historic rights. According to the general international law, the dispute concerning “historic rights claim” belongs to a political dispute which is to be solved by political approaches rather than by laws, and prudent international judicial institutions should avoid exercising rights of jurisdiction on the dispute of this kind.
7. Mandatory arbitration mechanism for settlement of maritime dispute: discussion on strategy selection by China in case of arbitration on the South China Sea
Southeast Asian Studies,Part 1: Legal Interpretation and Response,No. 07
A special mandatory arbitration which declares that the arbitral tribunal can exercise jurisdiction without the common consent of the parties is stipulated in the United Nations Convention on the Law of the Sea in order to settle maritime disputes rapidly and reasonably. This arbitration is obviously not consistent with the nature of the arbitration, which is contractuality and autonomy，or the optional basis of international judicial jurisdiction. Regardless of strong objection from China，the Philippines files the dispute about the South China Sea to the International Tribunal for the Law of the Sea Convention in order to initial mandatory arbitration procedure, which is in the process of without control for China or the Philippines at present. The reasonable strategy selection of five aspects, therefore, must be chosen by China, which include investigation on validity of claims from the Philippines, rational use of the international laws and rules, collection and publication of relative evidences, clarification in the whole world about sovereignty situation of the South China Sea, and scientific and rigorous demonstration on feasibility of special appearance in court, in order to protect properly the national interest of China.
Southeast Asian Studies,Part 1: Legal Interpretation and Response,No. 08
South China Sea (SCS) issue between China and the Philippines, which has made troubles for Sino-Philippines relations before 1975 when two states got the formal diplomatic relations, has not deterred the Sino-Philippines relations before January of 2013 when the Philippines formally and unilaterally initiated the South China Sea arbitration (SCSA) with the objection from China. However, due to the SCSA by the Philippines, Sino-Philippines relations have been in the worst situations after 2013. It is necessary to decrease the negative implications of SCSA for Sino-Philippines relations. As the result of Arbitration, SCS has been the biggest challenge for Sino-Philippines relations, and it will be part of Sino-Philippines relations after July of 2016. Decreasing the negative implications of SCSA means that the Philippines government should not talk more about SCSA if Manila wants the better relations with China. Furthermore, China, which should realize that it is impossible for the Philippines to give up the SCSA, would care and protect some of the Philippines’ interests in disputed areas of SCS. Finally, it will be helpful for Sino-Philippines relations if two states could do more for their cooperation in SCS and for SCS issue.
9. Case studies of International Court of Justice on disputed islands and the internal legal structure: enlightenment to the right of the South China Sea
Southeast Asian Studies,Part 1: Legal Interpretation and Response,No. 09
The International Court of Justice, the principal judicial authority of the U.N., plays a significant role in the settlement of international disputes. The development of the territorial sovereignty theory is also reflected by some court decisions made by the ICJ. The previous similar cases, meanwhile, are often quoted as reference by the subsequent judicial cases to maintain the consistency of justice. Based on the judicial system of ICJ, this paper makes case studies of the current island disputes. With the analysis of its key basis of the court decisions, the paper summarizes the internal legal structure and provides the reference for China in the future practice of safeguarding the rithts of the South China Sea.