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ENGLISH SCS WORKSHOP

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On behalf of the Diplomatic Academy of Vietnam and the Vietnamese Lawyers’ Association, co - organizers of this workshop, I would like to express our welcome and sincere thank to all of you who are here for the international workshop on “The South China Sea: Cooperation for Regional Security and Development”, the first of its kind, held in Ha Noi, Vietnam.

Distinguished Guests,

From time immemorial, the South China Sea has taken on special economic and strategic importance as the area is the site of many very important sea lanes and endowed with diversified and rich maritime resources. Nowadays with integration and globalization, its importance has gone beyond the region and has drawn the attention of many nations amidst the tendency toward peace, cooperation and development existing as the mainstream of international relations. Realizing the tendency and being aware of the complexity of the situation in the South China Sea, the parties concerned have, in the main, striven for peace, stability and cooperation in the region. As a result, the last decade and more witnessed certain progress in their cooperative efforts to reduce tension and look for a peaceful solution to the disputes in the South China Sea. In this connection, mention can be made of the 1992 ASEAN Declaration on the South China Sea, the 2002 ASEAN-China Declaration of Conduct of Parties in the South China Sea, the first step toward a code of conduct in the South China Sea, and the 2005 Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea between China, Vietnam and the Philippines..."

Dr. Yann-huei Song, THE APPLICATION OF ARTICLE 121(3) OF THE LAW OF THE SEA CONVENTION TO THE FIVE SELECTED DISPUTED ISLANDS IN THE SOUTH CHINA SEA

"...It is hoped that this paper has successfully demonstrated the need to develop an agreeable objective test so as to remove all doubt as to which rocks would be affected by Article 121(3). In addition, before Article 121 is amended, the states in the South China Sea area might want to consider the possibility of establishing a special regional organ, such as an institutional ocean space institutions that were proposed by Malta in 1971, or conclude a regional agreement, such as a Regional Code of Conduct in the SCS that is being discussed between China and the members of ASEAN, in which the application and interpretation of Article 121(3) is clarified. The coastal states in the region are also encouraged to deal with their maritime disputes by adopting the concept of “common heritage of mankind” or by taking policy measures to preserve the marine environment through devices like the establishment of marine protected areas or marine peace park. Last but not least, as suggested by Judge Choon-ho Park 18 years ago, the coastal states neighboring the South China Sea can also learn from the Canadian and American wisdom in dealing with their disputes over the ownership of Machias Seal Island that is situated about 10 miles off the northeast coast of Maine, U.S.A..."

"...In the short and medium term, a major armed conflict leading to the confrontation between China and the ASEAN seems unlikely although risks exist of military clashes. In the longer run, however, the sea disputes could become a major military threat to China, the ASEAN countries and the other parties concerned if these countries continue the armed race. As oil prices have risen substantially over recent years, the strategic environment in the South China Sea would see complicated and unpredictable developments. Whether the strategic environment would change for the better or worse depends on the regional and global geo-politics and the status of China-ASEAN relations. There are many reasons for us to be more optimistic when examining the conflicts and measure to resolve them.

It is possible that in a near future, the claimants to the South China Sea would not be able to resolve sovereignty, a complicated and sensitive problem considered sacred and very important. However, we can expect a moderate solution from the parties involved on joint exploration and development in these disputed territories."
"...Navigation security in South China Sea is an important component of Asia security. Without addressing navigation security issues, regional security cannot be guaranteed. As there exists the potential to eliminate all high seas if some islands such as Thitu Island, Itu Aba Island, Spratly Island, and Scarborough Reef are given full effect of having 200 nm EEZs. A navigation code of conduct in EEZs is thus much needed.

The “Impeccable Incident” in March 2009 between China and the US in the South China Sea constitutes the most serious friction between China and the United States since the collision of their military aircraft near Hainan Island in April 2001. Like the previous one, this incident shows the two countries’ different understandings and implementation of the LOS convention – particularly the Convention’s provisions on coastal states’ rights in their EEZs. In attempting to justify the US conduct in the South China Sea, Chairman of the Joint Chiefs of Staff Admiral Michael Mullen said that though the USNS Impeccable was in China’s EEZ, the United States has the right to enter this area. But in fact, the Impeccable’s activities did contravene the LOS convention, as the Convention affords China jurisdiction over relevant activities in the EEZ and prohibits actions that are not for peaceful purposes.

A substantial conflict between the right of coastal states to control adjacent maritime areas and the right of maritime states to enjoy the freedom of navigation has endured for much of the history of the law of the sea, and East Asia is an area where the reconciliation of these two rights has caused controversy. East Asian countries need to establish an agreed definition of navigational rights to be applied in practice so as to guarantee freedom of navigation and regional SLOC security..."
If the situation is indeed deteriorating as this survey suggests, in Lenin’s words, what is to be done? There are of course a plethora of additional suggestions about how the dispute can be contained and managed – and gradually made less intractable.

One of the most persuasive must surely be greater candour on the part of all claimants, about exactly what it is they are claiming. China’s infamous ‘u-shaped line’ is particularly corrosive from this point of view, since no-one can be sure whether China is claiming the whole of the water space within the line or merely the rocks, islands and associated water areas within the line. Clarity here might relieve the minds of some of the other claimants. It is not clear why China does not do this, especially as its attitude to, and conduct of, the dispute is often taken as evidence of the ‘China threat theory’ which it so often deplores.

Rather in the same spirit, the 2002 agreement urges parties to the dispute, in addition to abjuring the use of force, to refrain from acts that might worsen it. All too often, this seems an injunction more honoured in the breach than in the observance.  China’s announcement that Sansha city in Hainan would govern the Paracel and Spratly islands, high profile political visits to disputed islands, the tabling of assertive jurisdictional claims, the Philippine Republic Act 9522 to incorporate the Kalayaan Island Group and so on, seem hardly likely to act to promote harmonious relations and so not in the spirit of the 2002 agreement..."

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