1) Southeast Asian nations that border the South China Sea, like Vietnam and the Philippines, have disputes with China over fishing rights, resource exploration, and military installations in the region.
2) These nations have adopted a dual approach to relations with China - recognizing China as an important economic partner while also seeing it as a military threat.
3) While Southeast Asian countries take active steps to counter Chinese influence militarily, China remains their top trading partner due to the large economic benefits of trade between the regions.
Original Description:
An argumentative paper regarding the legality and practices of China in the West Philippine Sea
Original Title
Intlaw2_term Paper_argumentative Analysis on South China Sea
1) Southeast Asian nations that border the South China Sea, like Vietnam and the Philippines, have disputes with China over fishing rights, resource exploration, and military installations in the region.
2) These nations have adopted a dual approach to relations with China - recognizing China as an important economic partner while also seeing it as a military threat.
3) While Southeast Asian countries take active steps to counter Chinese influence militarily, China remains their top trading partner due to the large economic benefits of trade between the regions.
1) Southeast Asian nations that border the South China Sea, like Vietnam and the Philippines, have disputes with China over fishing rights, resource exploration, and military installations in the region.
2) These nations have adopted a dual approach to relations with China - recognizing China as an important economic partner while also seeing it as a military threat.
3) While Southeast Asian countries take active steps to counter Chinese influence militarily, China remains their top trading partner due to the large economic benefits of trade between the regions.
(This House as a SEA nation to actively seek closer ties with
The People’s Republic of China: Affirmative)
INTLAW2 BLDI1 AB-DIA
Academic Year 2022-2023
By: Dinglasan Sean Christian B.
Dela-Salle College of Saint-Benilde Political and Economic Conditions The South China Sea being an active maritime area, with many claimants including various South East Asian Nations adjacent to the People’s Republic of China, has seen disputes between claimants, even before the filing of the famous Philippine Republic’s petition for the South China Sea Arbitration against the People’s Republic of China. Disputes occur due to fishing rights, maritime zone jurisdiction, oil and gas exploration, and the implementation of military installations and personnel in the region. The issues at hand between various claimants are in regards to; 1) China’s nine dash line claims in the maritime zones of the South China Sea, 2) creation of artificial islands for military installations that include dumping, which also harms the marine environment in the region, 3) large scale fishing methods used by some parties causing irreparable damage to the marine environment, 4) and actions of China concerning the interference of PLA (People’s Liberation Army) vessels violating the sovereign rights and freedom under UNCLOS (United Nations Convention on the Law of the Sea) of adjacent nations facing China [A.C. Robles Jr, 2020]. Due to all these issues China has failed with its UNCLOS obligations, of the prohibition of Chinese fishing vessels practicing illegal fishing within the South China Sea violating the CBD (Convention on Biological Diversity), due to the use of heavy equipment and harmful chemicals in extracting resources. In tackling the issues at hand, we first must be given an understanding of the vital importance of the sea to nation states and governments, in progressing and furthering their domestic and foreign policies. The sea is of a cultural, political, and economic importance, coastal states utilize the sea for purposes such as, tourism, exercise of power, exploitation of resources (e.g. oil, natural gas, commodities, food, and raw materials), and trade. Its role can be categorized into two, an active and a passive role; 1) active in terms of commerce, military, and migration, 2) passive in terms of being a barrier or buffer between island states, providing protection against political or military actions [T. Yoshihara, 2007]. The geographical conditions in the South China Sea naturally permits littoral states in the region to look seaward, and focus their policy now or in the near future towards the sea. Concerns that are present, in regards to security, resource demands, and jurisdiction of states in certain maritime zones, are important to consider whether states adjacent to Mainland China should establish closer and active relations with the People’s Republic of China. The economic and political conditions of South East Asian states require them, in my own perspective to adopt a dualist approach in regards to their China Policy, due to their weak economic and military power. Dualist approach to China Policy means that, although South East Asian Countries (e.g. Indonesia, Philippines, Singapore, Malaysia, Vietnam etc.) see the People’s Republic of China as a great military threat, it also realizes and acknowledges that the People’s Republic of China is a major economic partner for development, investments and joint ventures [T. Yoshihara, 2007]. To understand the context of this argument, we can see examples to policies of South East Asian Countries that have claims in the South China Sea, for example, Indonesia’s major export market is the People’s Republic of China but contests its presence in the maritime zones that it claims, Singapore hosts US Navy logistics and vessels, Thailand is a major Non-NATO ally, but supports the One China Policy, the Philippines is still willing to be obligated with its Mutual Defense Treaty with the US and relies on Chinese investment for infrastructure and industrial related projects, and Vietnam supports US presence in the South China Sea and allows port visits from the US Navy. In determining the exercise of political power and policies of South East Asian states, we will only focus on ASEAN states that have strong claims in regards to the South China Sea issue, because this paper will only tackle the South China Sea issue specifically. Each South East Asian states that have claims in the South China Sea have an active approach in handling their policies regarding the People’s Republic of China’s actions within the proximity of their claimed maritime zones, although each in a different manner, they are executing their political power to the fullest extent. Indonesia, Vietnam, Singapore, and the Philippines are example of states with claims in the region that adopts an active approach against the People’s Republic of China, through actively participating in military naval exercises with the U.S. Navy and procurement weapon and information systems, to have the capabilities to respond and monitor the actions of Chinese vessels militarily. While Vietnam does not actively participate in joint military exercises with the U.S., they allow port visits and even supports U.S. presence in the Indo-Pacific region as a way to balance against their larger neighbor which is Mainland China. Unlike other states that are democratically structured Vietnam’s policy is an interesting topic to tackle, they employ and fund a maritime militia like the People’s Republic of China to operate in certain maritime zones of contested regions [G. Poling, 2021]. Contesting states against the People’s Republic of China are exercising their political power to counter China’s influence as stated in the latter paragraph, but it must be noted that they still consider Mainland China as their top 1 major trading partner. Trade between South East Asia and Mainland China has increased from $235 billion in 2010 to $507 billion in 2019 [ASEAN-China Economic Relations], this will keep on continuing as a trend due to the large market that South East Asia and Mainland China poses, with 1.4 billion population from the mainland and 600-700million population of South East Asia. All South East Asian states that have claims in the South China Sea, trades with the People’s Republic of China on a large scale, exporting their raw materials to the mainland and importing manufactured goods from Mainland China. This fact will be considered in the proceeding parts to argue as to why it is economically beneficial to actively seek closer relations with the People’s Republic of China. South East Asia and Mainland China are not the only states that considers the South China Sea of vital importance, that will affect their domestic and foreign policies. Japan, Republic of Korea, and Republic of China (Taiwan), are North East Asian Nations that relies on free passage in the South China Sea zone for their political and economic influence, in terms of trade, and movement of information, technology, commodities, and people. Losing access to the South China Sea will greatly affect the domestic conditions of their country, that means losing access to the world market. These are capable states that are militarily and politically competent compared to the rest of South East Asia, greatly affecting the balance of power in the region on whether China can control South China Sea exclusively for itself or for all states concerned in the region. Japan and South Korea that has a strong weapons and arms industry, can provide belligerents with needed heavy weaponry with their strong industrial power in case confrontations escalate further. We already see the potential of South Korea as a major weapons and arms exporter, as they have made their presence in Europe already in the ongoing Ukraine War supplying small arms, ammunition, and tanks, siphoning deals through other countries that are supporting Ukraine actively in the war [D. Yoon, 2023]. Limitations and Parameters In support of the proposition to seeking active-closer relations with the People’s Republic of China, means to constantly find ways to utilize and share resources in South China Sea, without being prejudicial to the rights and obligations of the fellow concerned states in the region to their constituents. Adding to that, active-closer relations would also mean not endangering the national security of South East Asian states and security of South East Asia as a whole, whilst actively engaging with the People’s Republic of China on economic and trade initiatives. If South East Asian states does not actively seek cooperation with the People’s Republic of China politically and economically, the dispute in the South China Sea will continue to deteriorate. The citizens of the states concerned in the region must feel and see the economic benefits of fully utilizing the resources of South China Sea. If food and energy prices can be lowered, then the view that citizens have that the issue in the South China Sea is of territoriality not of exclusive economic rights, can be eliminated, which will offer better conditions for cooperation and partnerships, improving the relationship of states with each other. A point to be made, it does not mean that South East Asian states should openly conform with the policies of the People’s Republic of China, I am arguing that South East Asian states must cooperate in open arms, but prepared in military and political confrontations if national and regional security is at stake. It is important to note that the People’s Republic of China and states adjacent to it adjust their South China Sea policies, according to the demands of the people and the political will of the government to pursue national interest. There are many factors to consider why contested regions in the South China Sea still see clashes between government vessels and aggressiveness against foreign fishing vessels on either side. If South East Asian States in the region actively seeks closer relations with the People’s Republic of China, the government would have to conform to the demands of the people and the people to encourage the political will of the government to pursue a state’s national interest. But, the demands of the people can be prejudicial to the relationship of a government to another foreign government, as the conflict in the South China Sea region overlaps within the EEZ of contesting states. A state’s population being ignorant of international law, can easily be swayed to believe that the South China Sea issue is of a territoriality issue, not of economic issue, and push against joint-ventures and economic partnerships. For this reason, despite the provisions of UNCLOS in regards to the sharing of resources, even within the EEZ of states, the People’s Republic of China and adjacent states to it comes into conflict with each other (this will be discussed further on the proceeding parts). Politics play a role in furthering or hampering progress and development, governments will adjust their stances according to the demands of the people, especially in a century where the demands of the people whether economic or cultural is the determining factor whether a ruling government will survive or endure for years to come. Joint venture with the People’s Republic of China entails cooperation and partnership in exploring and extracting marine resources in the South China Sea, whether living or non-living resources. Eliminating restrictions in order to further the need to extract resources in the region, especially in a time when the Asia-Pacific region is increasing its demands for energy and food resources as populations and economies rise. When it comes to joint ventures and extraction of resources, especially of natural gas and oil, areas in the South China Sea also faces geological and technological concerns [U.S. Energy Information Administration, 2019]. The region is prone to typhoons and earthquakes, strong currents and submarine valleys pose a challenge in effective gas infrastructure. National oil companies see it fit to partner with international oil companies, due to the fact that they have a limited capacity to extract resources in areas, whether contested or not. It wouldn’t matter how much a country can claim a certain area or zone, if it does not have the capacity to make use of its maritime areas that are rich in marine resources. In the future, national oil companies operating in the South China Sea, whether from ASEAN states or the People’s Republic of China, would need to partner up collectively, due to the fact that national oil companies cannot tackle the challenges alone to extract resources in the South China Sea. Boldly speaking, all contesting states in the region only wants to provide for their constituents and ensure the livelihood and economic security of their populations. Ensuring this, may require muscle and power, to which civilized men who have enjoyed peace throughout their lives cannot simply fathom. States are actors that does not think like an individual does, it provides for a whole population in a world where there are walls and lines that nation states determine which cannot be crossed. Sometimes these walls and lines must be crossed, through political will of a government against another state for the benefit of the population’s economic well-being. This is the present situation on the South China Sea, all contesting states are capable of military and violent means to provide for their people, that no law, no matter how binding it is, can stop the inherent duty of a state, which is the need to provide for the people. Territorial Jurisdiction of the Sea A Coastal State’s level of jurisdiction over its maritime zones are embedded in the Articles 55 and 56 of the UNCLOS. In the exclusive economic zone, a Coastal State has only “sovereign rights” not “sovereignty”, meaning the EEZ is only an extension of a territory. In determining the “sovereign rights” of a Coastal State’s EEZ, it is stated in Article 56 of UNCLOS that the Coastal State has rights for the exploitation, exploration, conservation and managing of non-living and living resources, including the production of energy from water within its EEZ, and that exercising rights and duties in the EEZ, the Coastal State shall have due regard to the rights and duties of other states and act in a manner compatible with the provisions of the UNCLOS. Understanding that the EEZ does not fully embody a territory of a state, but only an extension of it, affirms that issues within the EEZ cannot be made into an issue of territoriality. In this regard issues relating to certain maritime zones in South East Asia, and violations concerning encroachment within the EEZ of Coastal States, can only be on the bounds of the rights to the exploitation and management of resources within the EEZ as stated in the Article 56 of UNCLOS. Given the conditions and importance of the South China Sea to all parties concerned who wish to access its vital resources and strategic location, I argue that South East Asia must actively seek closer ties with China in exploring joint-venture activities for economic and resource exploitation projects, especially in extracting resources in the South China Sea that requires huge investments in technology and heavy equipment, like oil drilling. South East Asian states, have no capacity to fully exploit living and non-living resources in the South China Sea, if it is able to, it is still bound by international law to share and establish equitable cooperation of exploiting resources within their EEZ [UNCLOS Article 69 No.3, 1982]. Even though the People’s Republic of China has disregarded the ruling of the RP-PRC South China Sea Arbitration, activities conducted by the People’s Republic of China relating to exploitation of living and non-living resources are within the bounds of international law, on the grounds of UNCLOS Articles 55 to 75 relating to the coastal state’s obligations and rights of access within the EEZ [J. G. Bernas, 2009]. The People’s Republic of China is permitted by international law to access vital resources within the South China Sea. With the invocation of Article 70 on The Law of the Sea, states that “geographically disadvantaged states” shall have the right to participate on the exploitation of resources within the EEZ of coastal states of the same region or subregion, while Article 62 states that when a coastal state does not have the capacity to harvest allowable catch, it must grant other states access, especially states that are categorized as “geographically disadvantaged”. Geographically disadvantaged states constitute “states bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof” [UNCLOS Article 70, 1982]. The People’s Republic of China can be categorized as a “geographically disadvantaged” state in this regard (see table 1 as reference). The People’s Republic of China is dependent upon the exploitation of marine resources of the EEZ of other states overlapping many adjacent states EEZ facing Mainland China proving that within the bounds of International Law, they must be allowed to exploit the resources in the South China Sea, including those within the EEZ of South East Asian states, in order to protect the livelihood and food security of the Chinese public.
Table 1. Map Showing the Exclusive Economic Zones of States in
South East Asia
Invoking Articles 55 to 75 of the UNCLOS, would give the
People’s Republic of China a right to exploit the resources in certain maritime zones of the South China Sea inside the EEZ of other states. States may contest the lawfulness of China’s claims and actions in the region on the grounds of violating the CBD (Convention on Biological Diversity), due to the harmful effects of large-scale fishing activities, and creation of artificial islands on the marine environment. If states naturally adhere to the constitutional supremacy principle, then the People’s Republic of China can disregard International Laws and Conventions, because they are acting accordingly for the domestic needs of the state, economically and politically, on the grounds of their constitution. Chapter II Fundamental Rights and Obligations of Citizens Articles 42 and 50 of the Constitution of the People’s Republic of China states that, “the state shall create employment opportunities and strengthen worker protections” and “the People’s Republic of China shall protect legitimate rights and interests of Chinese nationals overseas” [Constitution of the People’s Republic of China, 1982]. It is an inherent duty of the state to provide and protect the needs of their people, acknowledging this, the Constitution of the People’s Republic of China obligates them to protect their claims in the South China Sea, as the sea is crucial to employment, food security, and overall economic opportunities for Chinese nationals. Adhering to the constitutional supremacy principle, the duties and obligations of a government to its citizens deserve preferential consideration when they collide with treaty and international law obligations. If concerned states acknowledge and adhere to the constitutional supremacy principle and widely uses it in their domestic legal practice, then the People’s Republic of China can adhere to the constitutional supremacy principle. In adopting the principle of reciprocity, the People’s Republic of China also enjoys the privileges that adjacent states have, in regards to using international law mechanisms and principles. States that may argue regarding the violations of the People’s Republic of China have with its CBD obligations, would have to ensure that they also are fully in compliance of the CBD. the People’s Republic of China may invoke that on the grounds of the principle of reciprocity, a contesting state must prove first that they fully comply with their CBD obligations, to make a contesting state’s claim viable. Therefore, adjacent countries to China must ensure that they are meeting their obligations under the UNCLOS or the CBD, before they can make claims against China on the grounds of International Law. It is also a fact that the EEZ is only an extension of a Coastal State’s territoriality, not necessarily making it a territory of a Coastal State, that is why in a legal perspective, the activities of the People’s Republic of China in the EEZ of other Coastal States cannot be viewed as a territorial issue. Coastal States may contest their claims regarding their sovereign rights as to the exploitation and management of resources within their EEZ, but they cannot contest their claims of territorial jurisdiction within the EEZ as it is not considered as territory of a state only the rights of a state to enjoy its economic use exclusively, on the grounds of UNCLOS Articles 55 to 75. Only when issues arise within the territorial sea and internal waters, can a Coastal State consider an action perpetrated by the People’s Republic of China, as a violation of its sovereignty or territory, and can make use of military or political means, to eliminate a threat. These reasons limit the claims of Coastal States in certain maritime zones of the South China Sea, to only exercise non- militaristic policies against the People’s Republic of China. The Necessity to Seek Closer Ties I argue that South East Asia must actively seek closer ties with the People’s Republic of China, because, it is in the best interest of states to fully exploit and make use of the resources in the South China Sea. In doing so, requires huge effort and investments, an access to equipment and facilities, whether harvesting and post-harvesting facilities. The People’s Republic of China, being an economic powerhouse, has the capabilities to fully exploit the resources in the region, in a way economically weak countries cannot, because most South East Asian countries do not have the technology, equipment, and facilities to exploit marine resources on a large-scale. That is why the economic policies of South East Asian states must actively seek cooperation with the People’s Republic of China on joint-ventures to drill oil and fish the maritime zones to the full extent. This can provide South East Asian nations and the People’s Republic of China food security and energy security. With South China Sea holding one third of the world’s marine diversity and an estimated reserve of 200 billion oil barrels and 200 trillion cubic feet of natural gases [Xander Vagg, 2012], if extracted and shared, would ensure the food and energy security of South East Asian states and the People’s Republic of China. The People’s Republic of China and states adjacent to it, must create provisions in their domestic laws regarding fishing rights and drilling rights, that will allow them to actively and jointly exploit maritime resources in their EEZ with their neighbors. Granting South East Asian states and the People’s Republic of China, a free market access to energy, food resources and raw materials that in the future will be exploited on a large scale in South China Sea. This can, in the near future, decrease food and energy prices, if done accordingly for the benefit of all, to provide for the economic needs of the people in the South China Sea region. I support the proposition to actively seek closer relations with the People’s Republic of China, due to the fact that the capacity of South East Asian states to fully exploit resources in South China Sea is limited especially when it comes to natural gas and oil resources. It is the duty of the state to provide for the people, that is why South East Asian states must utilize the economic benefits that China can provide, but with limitations to preserve and protect national and regional security. To summarize my arguments on why it is necessary for South East Asia to actively seek closer ties with the People’s Republic of China, is because; 1.) This will present dialogue for future prospects regarding peace and security. 2.) It can enhance the economic security of South East Asia. 3.) Mainland China is a major trading partner of ASEAN. 4.) It is a government’s inherent duty to provide for the people’s economic and national/regional security, upholding peace and order to renounce war as a foreign policy instrument adhering to international law mechanisms. 5.) Under the provisions of UNCLOS a state’s EEZ does not constitute sovereignty, only sovereign rights, therefore the People’s Republic of China does not violate the sovereignty of adjacent states if they explore and exploit resources within the EEZ of adjacent states. 6.) South East Asia being a region of states adjacent to mainland China with their own political and cultural way of life, must abide by their international obligations no matter what challenges they face, this will determine the future geopolitical conditions whether international law will unite or divide states to the point of conflict, economic or military. 7.) South East Asia is at the forefront of a war, to determine whether international law is actually binding or not. Policy Recommendations In the hopes to seek and active and closer relations with the People’s Republic of China, South East Asian states must adopt policies that would enable all states in the region to share and access resources in the region, but not prejudicial to national and regional security of South East Asian states. My economic policy recommendations to ensure that the marine resources in South China Sea are exploited fully and shared among states, all concerned states in the region must; 1) create and adopt legal provisions that can actively invite and allow foreign investments and projects for oil drilling and marine resource harvesting within a state’s EEZ, 2) grant a free market access to resources that are exploited in the region and eliminate protectionist policies that can harm a state’s access to food and energy resources, 3) exempt tariff laws and regulations on the import and export of resources specifically exploited in South China Sea. These policies can be implemented through a multilateral body such as the ASEAN (Association of South East Asian Nations) through a treaty creation, requiring its provisions on tariffs and granting project access relating to oil drilling and marine harvesting to be transformed into domestic laws of concerned states. Adopting these policies can lower food and energy prices in the region if resources in the South China Sea are utilized to the full extent. A free market access to these resources in the future, can provide states with food and energy security, which in the future can reduce tensions in the South China Sea region and preserve global peace and security. When it comes to national and regional security policies to avoid conflict or ensure that the national interests of South East Asian states are not endangered while pursuing active relations with the People’s Republic of China. South East Asia must continue to bolster its conventional warfare capabilities, and participate in military exercises with the United States Navy, in order to have capabilities to counter the People’s Republic of China in case they endanger regional security in the Asia-Pacific region. South East Asia must; (1) constantly procure weapon systems and which systems would be best to counter a possible Chinese threat in the South China Sea, (2) participate in military naval exercises with neighboring countries and especially the U.S. navy, (3) through political will, reform their military from unconventional methods of warfare to conventional methods of warfare by eliminating politics and bad practices in military academies, (4) encourage technological change in military to develop and procure new information systems in order to monitor and track naval and aerial movements in South China Sea, as an early warning and detection system to counter possible threats that could endanger national and regional security. To simply summarize, my policy recommendations in regards with South East Asia seeking active closer relations with the People’s Republic of China, it comes into two, economic policies and national security policies of South East Asian states. For economic policies South East Asia must; (1) invite and allow Chinese ventures in oil and natural gas in the region, because national oil companies have no capacity to fully extract and explore such resources, and (2) promote and encourage non- protectionist policies that would enable a free market access to exploited resources in the South China Sea, for flow of goods to circulate equally among states. For security policies, South East Asia must; (1) procure more weapons, (2) promote and encourage military cooperation between states, (3) develop more deterrent capabilities against possible threats like China. I thus argue that seeking close economic cooperation would ease tensions in the South China Sea region. This can be beneficial, as states will be able to share resources in the region and preserve peace and security for the coming future. While we must cater to the economic needs of states, we also must ensure that the national and regional security of South East Asia must not be endangered, so it must be protected with policies that promote stronger military capabilities and presence at any moments notice. Conclusion On conditions that the People’s Republic of China, really pursues total control of the South China Sea, and adheres to a protectionist policy to exclusively enjoy and exploit resources, and disregards the economic claims of other states that can harm the domestic conditions of South East Asia’s energy and food security, then South East Asia can also invoke their rights on the bounds of international law, or use any means, whether political or military. To conclude this paper, South East Asia must actively seek closer relations with the People’s Republic of China, while continuing to adopt a dualist approach with their relationship to the People’s Republic of China. Although it must actively seek closer relations economically and politically, it still should continue to see the People’s Republic of China as a military threat and create deterrence capabilities to counter possible actions that will be prejudicial to South East Asia’s military and economic security. All contesting states should also see that they all are carrying out their inherent duty to provide and protect what’s for their people, and in doing so must not disregard that an inevitable military conflict could, at any time happen, if sharing and cooperation is not prioritized. Striving for closer relations does not entail, disregarding a possible military conflict with the People’s Republic of China. States have the inherent right to adopt any possible measures to counter threats that endanger the security and livelihood of their people, it has been so since the dawn of civilization, even before international law has been formed. War and trade or military actions and economic cooperation, has been for centuries, a constant state practice, and states will continue to practice these methods of policies. Understanding this, we must actively seek closer relations with the People’s Republic of China to ensure peace and security in the South China Sea region, and avoid a possible military conflict that could negatively affect everyone around the globe. SOURCES: [1] Embassy of the People's Republic of China in Canada. (2020, September 13). The history and reality of the South China Sea issue. 中华人民共和国驻加拿大大使馆. https://ca.china- embassy.gov.cn/eng/sgxw/202009/t20200913_4615002.htm [2] Ministry of Foreign Affairs of the People's Republic of China. (2023, January 5). 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