Maritime Order and the Law in East Asia

Cover
Half Title
Title Page
Copyright Page
Table of contents
Editor and contributor biographies
Introduction
Part I Regional maritime order overview
	1 China–ASEAN relations in the South China Sea: Persistent features and obstacles to cooperation
		China–ASEAN relations in the wake of the arbitration award
		Competing sovereignty claims in the South China Sea
			The poisoned chalice of San Francisco
		The Law of the Sea Convention: sowing more confusion than clarity so far
			The low procedural bar of Article 281(1)
			Instability of jurisprudence on LOS textual provisions
		China–ASEAN relations in the South China Sea and persistent features
			Cycles of strain and progress in relations
				A couple of key takeaways
		Concluding remarks and looking ahead
		Notes
	2 The East China Sea: Sea of regional and global confrontation
		Introduction
		Border delimitation
		Practical arrangements in the absence of agreed EEZ borders
		Fisheries agreements under the UNCLOS regime
		The 2008 Japan–China understanding on hydrocarbon exploitation
		Preventing and dealing with incidents
		Conclusions
		Notes
Part II National perspective
	3 Historic concepts vs. contemporary maritime regimes in UNCLOS: China’s claims in the South China Sea
		Definition
			Historic water
			Historic right
			Historic title
		Historic concepts and maritime delimitation
		Historic concepts related dispute settlement under UNCLOS
		China’s historic claim in the SCS
		Historic concepts vs. new maritime regimes in the SCS
		Implication from the South China Sea arbitration case
		Historic doctrine: still relevant in contemporary international law
		Conclusion
		Notes
	4 Navigational rights, freedoms, and interests in the South China Sea: The Philippines’ perspective
		Introduction
		Navigation and overflight in UNCLOS
		Incidents in the SCS since 2009
		US policy on freedom of navigation and overflight operations
		China’s emergent policies on freedom of navigation  and overflight
		Caught in between: The Philippines and other littoral states
		Impact of the Philippines v. China arbitration
		Air defense identification zone concerns
		Synthesis
		Conclusion
		Notes
	5 Indonesia: An archipelagic state’s perspectives on the law of the sea
		Foreign military activities in Indonesia’s exclusive economic zone
		Indonesia’s experience of harmonizing its domestic interest with international law, including UNCLOS
		UNCLOS’ role in addressing the maritime dispute in the South China Sea
		Notes
	6 Balancing the rights of coastal states and user states in the post-UNCLOS age: Vietnam and navigational rights
		Vietnam and UNCLOS: an overview
			Pre-UNCLOS period
			Post-UNCLOS period
		Vietnam and navigational rights before and after the ratification of UNCLOS: A paradigm shift
			Navigation under UNCLOS
			Navigational rights under Vietnam’s law
				Pre-UNCLOS period
				Post-UNCLOS period
		Conclusion: UNCLOS in Vietnam’s perception of the international maritime order
		Notes
	7 The United States and accession to UNCLOS: A case of how domestic political polarization results in free ridership
		United States adherence to UNCLOS commitments as a non-party
		United States as a treaty free-rider
		UNCLOS as a rhetorical sword for polarization in contemporary US domestic politics
		Conclusion
		Notes
Part III Navigation related issues and UNCLOS
	8 Freedom of navigation and the UNCLOS order
		Introduction
		Defining freedom of navigation
			Freedom of navigation under UNCLOS
			Innocent passage and the territorial sea
			Military activities in the Exclusive Economic Zone
			China: Domestic law and the nine-dash line
		The United States: Freedom of the seas and freedom of navigation
		Navigating the South China Sea
		Is freedom of navigation lost in translation?
		Notes
	9 The prior notification issue of military activities in EEZ
		Introduction
			Legal status of EEZ
		National security claims regarding the EEZ
		Issue of prior notification of military activities in EEZ
			Military exercises
			Military survey activities
			Military intelligence-gathering activities
		The issue of prior notification
			Dialectic analysis of the issue of prior notification
			The settlement of issue of prior notification
			Notes
	10 Maritime confidence-building measures: Assessing China–US MOU on notification of major military...
		China–US sea and air close encounters: From 2000 to present
		Cooperative security and confidence-building measures (CBMs)
		INCSEA And DMAA agreement between US and USSR
		The law of collision and the 1972 COLREGs and Codes For Unplanned Encounter at Sea (CUES)
		Assessing the MOUs and China–US confidence building measures (CBMs)
		Conclusion
		Notes
Part IV Maritime entitlement, delimitation and dispute settlement and UNCLOS
	11 The Sino-Philippine arbitration on the South China Sea disputes: A preliminary assessment of the merits award
		Introduction
		Development of SCS arbitration
			Philippine initiation of the arbitration
			Philippine Memorial and further written arguments
				The Jurisdictional Award
				Second hearing and the amended submissions
				The Merits Award
		The erasure of the U-Shaped Line: Submissions 1–2
			USL symbolizes China’s territorial claims
			USL represents China’s provisional maritime claims
		China’s maritime claims based on historic rights: Submissions 1–2
			China’s “claim” on historic rights in Southern WPS is a moot issue
			Whether China claimed historic rights in Northern WPS is unanswerable
		Legal status of nine maritime features: Submissions 3–4 and 6–7
			Compliance with Merits Award is pointless
			China’s evacuation from LTEs means abandonment of territorial claims
			Evacuation from LTEs means withdrawal of China’s boundary delimitation positions
			Not treating the “rocks” as islands means withdrawal of boundary delimitation positions
			No evidence to prove that China considers Scarborough Shoal as an island
			Formulation of Submissions 3–4 and 6–7 fails to address the real issues
		China’s trespass into Philippine EEZ and continental shelf: Submissions 8–9
		Whether Mischief Reef and Second Thomas Shoal are part of Philippine EEZ and continental shelf: Submission 5
			Submission 5 suffers from mootness
			The tribunal entertained a dispute not reflected by Submission 5
		Maritime confrontations around Scarborough Shoal: Submissions 10 and 13
			Philippine traditional fishing rights in Scarborough Shoal are unreal
			Territorial disputes underlying Submission 13 renders  the award unenforceable
		Concluding remarks
		Notes
	12 Archipelagos and archipelagic regimes in the law of the sea
		Introduction
		The archipelagic regime of the LOSC and archipelagic state practice
			Definition of archipelagos, archipelagic states and archipelagic baselines
			Archipelagic waters: Balancing exclusive and inclusive interests
		Dependent archipelagos: The archipelagic concept and straight baselines
		Conclusion
		Notes
	13 Low-tide elevations: A contemporary analysis
		Introduction
		The criteria for determining the natural status of low-tide elevations
		The territoriality of low-tide elevations
			The origin: The Qatar/Bahrain case
			The development: From Nicaragua/Honduras to the South China Sea arbitration
			The arguments in the Qatar/Bahrain Case revisited
			The territoriality of low-tide elevations situated in other maritime zones
		Low-tide elevations and the rise of sea levels
		Conclusions
		Notes
	14 Resolving disputes under UNCLOS when the coastal and user states are disputed
		Introduction
		Challenging existing constructions on disputed islands  and in their immediately adjacent waters
			Construction on disputed islands
			Construction in waters immediately surrounding a disputed island
		Legality of activities in the EEZ of a disputed island
			Coastal state’s exclusive rights in the EEZ
			Obligations of due regard
			Obligations relating to provisional arrangements in maritime boundary disputes
				Obligation to endeavor to reach agreement
				Obligation not to jeopardize or hamper the final agreement
			Conclusion on legal risks for EEZ activities
		Environmental obligations associated with construction activities
		Consequences for the occupying State
			Reparations for any international law violations
			Preventing aggravation of the dispute
		Conclusion
		Notes
Index