South China Sea
Cambodian Foreign Minister Hor Namhong told reporters 22 August 2013 that China is interested in protecting Cambodia from "outside" interests. Hor Namhong said ASEAN ministers should consider a closer relationship with China as they head into talks aimed at easing tensions over the South China Sea. Cambodia's close relationship with China came under scrutiny in 2012, during a major ASEAN summit in Phnom Penh. Cambodia appeared to be working in China's interests over the South China Sea issue, where several ASEAN nations have disputed claims with their larger neighbor [which Cambodia does not]. At the end of that meeting, ASEAN ministers were, for the first time in history, unable to agree on the language of a joint declaration, a signal of ongoing controversy among ministers.
A United Nations arbitration tribunal convened in The Hague in mid-July 2013 to look into a complaint lodged by the Philippine government questioning the legality of China's claims. The arbitral tribunal appointed to hear the case was formally constituted and held its first meeting on July 11 at the Permanent Court of Arbitration in The Hague. The five-member tribunal under the UN Convention on the Law of the Sea approved a set of rules to look into the legal challenge the Philippines launched against Beijing in January 2013. Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is the default means of dispute settlement, at teh Permanent Court of Arbitration. The Philippine Foreign Ministry released an eight-point statement on 15 July 2013, saying that China's hard-line position makes it impossible to continue bilateral discussions and had forced the Philippines to finally resort to international arbitration. The international arbitration procedure requires agreements of both parties. Without China's agreement, it won't work.
In 2002, ASEAN did work as a unified group and in negotiations with China got a declaration on a Code of Conduct in the South China Sea that had as its final clause that the ASEAN members and China should work towards a binding Code of Conduct," he said. "And that's what the ASEAN ministers have been pushing for. But China, particularly with a new leadership, has shown little interest in actually negotiating such a binding code. China has said it is in no rush to negotiate a Code of Conduct. It is also opposed to a multilateral solution to its territorial disputes, preferring to hold only bilateral talks with its ASEAN neighbors.
The Association of Southeast Asian Nations [ ASEAN] appeared to make progress on addressing territorial disputes in the South China Sea in July 2013. Following meetings in Brunei, the group announced that China had agreed to discuss a set of rules known as the “code of conduct” to avoid conflict in the disputed waters. The joint communiqué emphasized adhering to an 11-year-old non-binding agreement among China and the 10-member states to peacefully handle competing claims in the South China Sea. It also called for “formal consultations” on a code of conduct in September in Beijing. The talks were expected to take place among lower level officials and focus on steps to avoid conflict. They were not expected to discuss the territorial disputes.
Southeast Asian ministers failed to reach a common position on the maritime dispute involving the South China Sea. The group concluded its meetings without a joint statement for the first time in its history. Senior officials emerged July 12, 2012 from a forum of the Association of Southeast Asian Nations, unable to reach their goal of hammering out a joint statement representing the members’ views on the issue. ASEAN foreign ministers had been attempting all week to craft a statement summarizing its members' position on territorial disputes in the South China Sea.
The Government of the Republic of the Philippines states that it ‘‘has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China’’ and in his statement of January 23, 2013, Republic of Philippines Secretary of Foreign Affairs Del Rosario stated that therefore ‘‘the Philippines has taken the step of bringing China before the Arbitral Tribunal under Article 287 and Annex VII of the 1982 Convention on the Law of the Sea in order to achieve a peaceful and durable solution to the dispute’’.
Deng Xiaoping said "since we can't solve the South China Sea issue, we can leave it to the next generation which will be smarter." It is impossible to resolve the disputes over the South China Sea to the mutual benefit of all. Hypothetically, the claims of other littoral states could be reconciled by sectoral extensions of the Exclusive Economic Zones [as was done in the Gulf of Guinea]. China's claims cannot be so reconciled, since China claims vritually the entire South China Sea, which it views as internal waters.
China claims most of the South China Sea as either territorial water or Exclusive Economic Zone. China's claims cannot be reconciled with the claims of other states in the South China Sea area. The other states have conflicting claims that can be harmonized, the way there were compromises among the conflicting claims for the Gulf of Guinea in Africa. In the South China Sea, each of the littoral states claims areas that are immediately contiguous to their territorial seas, and it would be possible to "split the difference" on competing claims. But China claims the entirety of the South China Sea, so there is no possibility of compromise with China's position, since it is all or nothing.
In July 1977, when Deng Xiaoping emerged as China's leader following the death of Mao Tse-tung, the Chinese foreign minister, Huang Hua, confirmed that China's claim to the South China Sea was "non-negotiable" in the strongest terms. At the same time he commented: "The territory of China reaches as far south as the James Shoals, near Malaysia's Borneo territory... I remember that while I was still a schoolboy, I read about those islands in the geography books. At that time, I never heard anyone say those islands were not China's... The Vietnamese claim that the islands belong to them. Let them talk that way. They have repeatedly asked us to negotiate with them on the issue; we have always declined to do so... As to the ownership of the islands, there are historical documents that can be verified. There is no need for negotiations since they originally belonged to China.... In this respect Taiwan's attitude is all right. At least they have some patriotism and would not sell out the islands..."
Under the United Nations Convention on the Law of the Sea (UNCLOS) coastal states have the right to establish sovereignty over adjacent waters out to a maximum of 12 nautical miles from the nation's coastline, including the coastline of offshore islands. These enclosed waters are known as the coastal state's territorial sea.
During the negotiations of the text of the 1982 UNCLOS military activities in the EEZ were a controversial issue. Some coastal States such as Bangladesh, Brazil, Cape Verde, Malaysia, Pakistan and Uruguay contended that other States cannot carry out military exercises or maneuvers in or over their EEZ without their consent. In June 1998, the PRC passed the "Exclusive Economic Zone and Continental Shelf Act." This Act created an exclusive economic zone (EEZ) with 200 nautical mile limits from its coastal baseline, and claimed the right, inter alia, to broadly undefined powers to enforce laws in the EEZ, "including security laws and regulations." Based on the Act, the PRC does not recognize the airspace above its EEZ as "international airspace" and has interfered with and protested US reconnaissance flights over its EEZ. China takes the position that all maritime data collection activities, including military intelligence and hydrographic collection activities, fall within the United Nations Convention on the Law of the Sea [UNCLOS] provisions for marine scientific research and therefore require coastal-state consent before they could be carried out in the two-hundred-nautical-mile EEZ.
The US has protested this sovereignty claim as a violation of international law numerous times since this law was passed. The US Government has long conducted a vigorous freedom of navigation program through which it has asserted its navigational rights in the face of what it has regarded as excessive claims by coastal states of jurisdiction over ocean space or international passages. When remonstrations and protestations are unavailing, elements of US military forces may sail into or fly over disputed regions for the purpose of demonstrating their right and determination to continue to do so.
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