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Legal Dilemmas and Regime-Building in the East Asia Maritime ConflictsXu, Qi

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LEGAL DILEMMAS AND REGIME-BUILDING IN THE EAST ASIA

MARITIME CONFLICTS:

From the Third State Perspective

Qi Xu

1

Paranymphs

Yaroslava Marusyk

Eric Miro Cezne

Cover designed by Dancai Design

Printed by Zalsman Groningen B.V.

Copyright © 2019 by Qi Xu

Legal Dilemmas and Regime-Building in the East Asia

Maritime Conflicts From the Third State Perspective

PhD thesis

to obtain the degree of Doctor at the University of Groningen

on the authority of the Rector Magnificus, Prof. E. Sterken

and in accordance with a decision by the Doctorate Board.

This thesis will be defended in public on

Tuesday 18 June 2019 at 9.00 hours

By

Qi Xu

born on 28 June 1990 in Shandong, China

Supervisor Prof. T.H.F. Halbertsma

Co-supervisor Dr. C. Lamont

Assessment committee Prof. S.E. Weishaar Prof. J. van der Harst Prof. S. Yee

To my parents and my girlfriend

vi

Acknowledgements

Four years ago, when I first arrived in Groningen, I was amazed by the city’s beautiful scenery.

Time flies so quickly, and my four-year PhD study has come to an end. To me, the most

impressive thing in Groningen has been the many kind and generous people I have met here

during my past four years. I really want to take this opportunity to express my sincere gratitude

to those who encourage and support me.

First of all, I am ever grateful for my supervisors’ help and guidance. Without their insightful

views and comments on the structure and content of the thesis, it would have been very

difficult for me to achieve this research project. I am much obliged to Prof. Tjalling

Halbertsma for his generous support during my study; we worked together to host some

lectures by Chinese scholars and an international conference on the South China Sea. Thanks

to his great help, I have been able to promptly finish my thesis and smoothly prepare for its

defense. It is my great honor to have worked with Prof. Joost Herman on this project, and I

really appreciate his openness and patience during my writing process. He has encouraged me

to positively consider how to build a link between international law and international relations

and present my thesis as an interdisciplinary work, and on this point his advice and opinion are

quite important. I am much indebted to Dr. Christopher Lamont for accepting me to do my

PhD at the University of Groningen. In this four-year period he has provided me a lot of

assistance on how to adopt an interdisciplinary method to analyze East Asian maritime affairs.

He has particularly motivated me to take regime theory into account and opened a door for me

to make a methodological shift from international law to international relations. Many thanks

for his valuable and constructive suggestions.

I am also grateful to other great scholars from the Department of International Relations and

International Organization and the Faculty of Law at Groningen University. They are Prof. Jan

van der Harst, Prof. Oliver Moore, Prof. Janny de Jong, Prof. Marcel Brus, Prof. Stefan

Weishaar, Prof. Panos Merkouris, Dr. Yongjun Zhao, Dr. André de Hoogh, Dr. Pieter Boele

van Hensbroek, Dr. Frank Gaenssmantel, Dr. David Shim, and Dr. Francesco Giumelli. Their

kind help with my study and life in Groningen is much appreciated. In addition, I cannot

sufficiently express my thanks to my two Paranymphs Yaroslava Marusyk and Eric Miro

Cezne. Yara helped me a lot when I arrived as a foreigner in this new land. I was surprised to

learn that she had lived in China; it made me feel like I was meeting an old friend from my

home country. I thank Yara and her husband, Anton, very much for letting me cook at their

home and allowing me to show off my Chinese cuisine skills. I would like to thank Eric and his

girlfriend, Katya, for inviting me to their home several times, where I greatly enjoyed myself.

Many thanks are also sent to my other great colleagues Philipp Olbrich, Agha Bayramov,

Frank Birkenholz, Sandra Becker, Sjoukje Kamphorst, Petrus k. Farneubun, Jarno Hoving,

Gorus Oordt, Jennieke Oordt, and Marijke Wubbolts.

vii

During my stay in Groningen, I constantly received support from many distinguished Chinese

scholars. I would like to express my sincere appreciation to Prof. Sienho Yee from Wuhan

University, who has taught me how to improve my legal analysis ability in international law. I

am grateful that he has participated in the assessment committee, and his thought-provoking

comments and suggestions are very useful to me. Prof. Deming Huang and Dr. Zhaohui Deng

from Wuhan University also give me a lot of care and concern and I am deeply thankful for

that. In addition, I really appreciate warmhearted support from Prof. Michael Sheng-ti Gau

from Hainan University, Prof. Minyou Yu and Prof. Lingjie Kong from Wuhan University,

Prof. Kuenchen Fu from Xiamen University, Prof. He Jiang from Zhongnan University of

Economics and Law, Dr. Nengye Liu from Adelaide University, Dr. Cheng Zhang from

Wuhan University, Dr. Kai Liu and Dr. Souchan Sun from Jiang Su Normal University, Dr.

Ruohan Li from National University of Defence Technology, Dr. Wenliang Zhang from

Renmin University of China, Dr. Kai Yang from Chinese Academy of Social Sciences, Dr.

Yinan Bao from East China University of Political Science and Law.

I have some great Chinese colleagues who are studying or have studied in Groningen, and I

maintain my special thanks for their help. They are Chengtao Ji, Xingchen Yan, Yingying

Cong, Mingming Shi, Yuzhen Qin, Haigen Fu, Yehan Tao, Huala Wu, Bin Jiang, Cong Duan,

Zhuoran Yin, Yingying Zeng, Yi Zhang, Yu Sun, Weidi Long, Beibei Zhang, Ting Huang,

Minghui Li, Yang Heng, Xingyu Yan, Yingqing Gong, Liang Xu and Yi Yu. Outside

Groningen, I have also leant a lot from my outstanding Chinese colleagues Wen Duan,

Chuxiao Yu, Ke Song, Xuechan Ma, Anran Zhang, Huahua Chen, Liping Dai, and Yuan Yang.

In the meantime, I owe my gratitude to some great friends in China whom I met while studying

for my bachelor’s and master’s degrees: Ying An, Feng Qi, Xinyan Wei, Xu Li, Tao Zhou, Sen

Cui, Hanfeng Shi, Zheng Zhang, Zhedong Huang, Jiankun Li, Yawen Shi, Teng Su, Menglei

Xu, Kan Wang, Zhen Liu, Bin Zhao, Jingwen Pei, Gang Liu, Qintong Shan, and Yang Wang.

I feel much obliged to my parents, who supported me as I studied abroad. It was not an easy

decision for them to make, since I had never been overseas before. Although I can occasionally

return home, the amount of time I can spend with them is never sufficient. Without their long-

standing support I could not have written my dissertation punctually.

Finally, I would like to express my utmost thanks to my girlfriend, Jingyao Wang. Her

unconditional and unselfish support has constantly encouraged me to overcome one difficulty

after another during the long march of writing. Without her, I could not have finished the

whole thesis as planned. Studying overseas means I cannot always be with her and have missed

spending a lot of time together. Fortunately, I have come to the final stage of my four-year

research. Knowing the demands the writing process has made on my time, she suggested I

study cooking as a way to reduce the pressure I’ve experienced from my heavy workload. The

viii

result has proven that cultivating one’s cooking ability is at once courageous and very effective,

and the food has been very delicious. I am sincerely grateful for her unconditional love and

care, and her ability to always find a way to cheer me up. My dear love, Jingyao, thank you for

what you have done for me, and I will love you forever with all my heart. I do believe this

dissertation is a wonderful gift, and I dedicate it to us and hope it becomes a beautiful memory

in our life.

May, 2019, Groningen

ix

Table of Contents

Acknowledgements vi

Abbreviations xv

Chapter 1 Introduction 1

1.1 Background 1

1.2 Research questions in the thesis 3

1.3 Literature review and theoretical underpinnings 6

1.3.1 International law and international relations analyses of territorial and maritime

disputes 6

1.3.2 Literature on the NEA and the SCS disputes’ settlement and regional

cooperation 11

1.4 Research methodology and research design 15

1.5 Structure and outline of the thesis 17

Chapter 2 Reflections on the Evolution of “the Monetary Gold Principle” and Its

Application in International Adjudication 20

2.1 Introduction 20

2.2 Reflections on the Monetary Gold case and a preliminary outline of the Monetary Gold

principle 21

2.2.1 A brief overview of the ICJ’s case law potentially involving absent third States

before the Monetary Gold case 22

2.2.2 The Monetary Gold case: An issue of jurisdiction and admissibility relating to

absent third States 23

2.2.2.1 A summary of the Monetary Gold case 23

2.2.2.2 Reflections on the ICJ’s reasoning in the Monetary Gold case 25

2.2.2.3 The concurrent involvement of jurisdiction and admissibility in the Monetary

Gold case 27

2.3 The evolution of the Monetary Gold principle in the international adjudication 27

2.3.1 The “logic” requirement in the evolution of the Monetary Gold principle 28

2.3.2 The identification of the subject matter of a real dispute directly involving a

third State in accordance with the Monetary Gold principle 29

2.3.2.1 The Monetary Gold principle and cases concerning international responsibility

due to international wrongful acts 30

2.3.2.2 The Monetary Gold principle and cases involving territorial sovereignty and

maritime delimitation 33

2.3.2.3 The Monetary Gold principle and cases involving international investor-State

arbitration and international criminal law 34

2.3.2.4 A narrow reading of the Monetary Gold principle based on international case

law when absent third States are directly implicated 35

2.3.3 The identification of the subject matter of a dispute when the real dispute is an

incidental one in accordance with the Monetary Gold Principle 36

2.3.3.1 The Aegean Sea Continental Shelf case and the Malaysia/Singapore case 36

The Third State Perspective

x

2.3.3.2 The Chagos Marine Protected Area (MPA) Arbitration and the Chagos

Archipelago Advisory Opinion 37

2.3.3.3 The Ukraine v. Russia Arbitration and the Crimea investment arbitrations 40

2.3.4 The Monetary Gold principle and judicial function of an international court or

tribunal 42

2.4 Reflections on the applicability of the Monetary Gold principle in the SCS Arbitration43

2.4.1 The applicability of Monetary Gold principle in the SCS Arbitration in the

context of direct participation of third States 44

2.4.1.1 Arguments from Vietnam, Malaysia, and the Philippines, and the Tribunal’s

ruling regarding the applicability of the Monetary Gold principle 45

2.4.1.2 Reflections on the ruling as regards the inapplicability of the Monetary Gold

principle 47

2.4.2 The application of the Monetary Gold principle to a dispute of a purely bilateral

nature in the SCS Arbitration 52

2.4.2.1 A mixed dispute concerning historic rights within the nine-dash line 53

2.4.2.2 A mixed dispute concerning the status and maritime entitlement of certain

maritime features 55

2.4.2.3 A mixed dispute concerning the legality of alleged Chinese activities in the

WPS 59

2.5 The impacts of the SCS Arbitration Award on third States and the applicability of the

Monetary Gold principle 63

2.5.1 The Tribunal’s decision on China’s historic rights in the WPS and impacts on

third States in the SCS 64

2.5.2 The Tribunal’s decision on the legal status of certain maritime features and its

impacts on third States in the SCS 66

2.5.3 The Tribunal’s decision on the legality of Chinese activities and its impacts on

third States in the SCS 70

2.6 Conclusion 71

Chapter 3 The Presence of Third States in International Adjudication: From the

Perspective of Intervention 74

3.1 Introduction 74

3.2 A historical overview of the development of the procedure of intervention in

international law 76

3.2.1 A historical overview of international conventions with regard to a third State’s

intervention 76

3.2.2 Some observations on the historical development of the procedure of

intervention in international law 78

3.3 An examination of international adjudication concerning the procedure of intervention:

Article 62 of the ICJ Statute 80

3.3.1 The presence of absent third States in international adjudication before the

intervention procedure was invoked 80

3.3.2 The scope of the legal rights and interests of third States when the procedure of

intervention is sought in international adjudication: Article 62 of the Statute and

Article 81 (2)(a) of the Rules of the Court 82

East Asia Maritime Conflicts

xi

3.3.3 To what extent legal rights and interests of third States may be affected in

international adjudication 84

3.3.4 Article 81 of the Rules of the Court and an application for permission to

intervene 85

3.3.4.1 An application shall be filed as soon as possible and no later than the closure

of the written proceedings 85

3.3.4.2 The precise object of the intervention 85

3.3.4.3 The existence or non-existence of any basis of jurisdiction 86

3.3.4.4 It is for a State seeking to intervene to bear the burden of proof 87

3.3.5 Reflections on the application by a third State for permission to intervene under

Article 62 88

3.3.5.1 An assessment of how the legal rights and interests of third States may be

affected based on international case law 88

3.3.5.2 The sufficiency or insufficiency of Article 59 of the ICJ Statute in the disposal

of rights and interests of third States in international adjudication 89

3.3.5.3 An evaluation of the role of third States seeking to intervene in the

proceedings in international adjudication 94

3.4 An examination of international adjudication concerning the procedure of intervention:

Article 63 of the ICJ Statute 98

3.4.1 Seeking to intervene in the construction of a convention in the context of Article

63 of the Statute 99

3.4.1.1 Intervention as of a right 99

3.4.1.2 The construction of a convention as an inherent condition for permission for

the intervention procedure 100

3.4.1.3 The intervening State as a non-party to the dispute and no jurisdictional link to

be established 101

3.4.2 Reflections on the application by a third State for permission to intervene under

Article 63 102

3.4.2.1 The issue of a hearing to determine the admissibility of a third State’s

declaration of intervention 102

3.4.2.2 The intervention procedure under Article 63 and its impact on the fair

administration of justice for an international court’s judicial duty 103

3.4.2.3 The extent to which a third State’s interpretation during intervention may

affect a court’s or a tribunal’s construction of the convention 104

3.5 Some further observations on the presence of third States in the settlement of

international disputes 105

3.5.1 The presence of third States in international maritime boundary delimitation:

Beyond Intervention 106

3.5.1.1 An overview of State practices in addressing rights and interests of third States107

3.5.1.2 Observations on State practices in addressing rights and interests in maritime

delimitation 113

3.5.2 Observations on third States seeking to intervene in the SCS Arbitration 115

3.5.2.1 The intervention procedure may not be operative in the compulsory arbitration

of Part XV of UNCLOS 115

3.5.2.2 Observations on the procedure of intervention in the SCS Arbitration 116

The Third State Perspective

xii

3.6 Conclusion 118

Chapter 4 Regime Theory and Its Application in Maritime Dispute Settlement and

Maritime Cooperation 121

4.1 Introduction 121

4.2 An overview of regime theory and its applicable scope in maritime dispute resolution

and maritime cooperation regarding the presence of third States 122

4.2.1 The definition and composition of regime in the context of international

relations 122

4.2.1.1 The definition of regime 122

4.2.1.2 The composition of regime 123

4.2.2 The role of regime in the international relations theories 124

4.2.2.1 Three versions of regime theory in the international relations 125

4.2.2.2 Realist regime theory 126

4.2.2.3 Liberalist regime theory 126

4.2.2.4 Constructivist regime theory 127

4.2.2.5 Observations on regime theory in realism, liberalism, and constructivism 127

4.2.3 The application of regime theory for the purpose of addressing the presence of

third States in maritime dispute settlement 130

4.3 A practical analysis on the application of a multivariate model of regime formation in

maritime dispute settlement 132

4.3.1 A multivariate maritime regime in the Mediterranean Sea 133

4.3.2 A multivariate maritime regime in the North Sea and the Baltic Sea 136

4.3.3 A multivariate maritime regime in the East African Ocean: AUBP as a sample140

4.3.4 A multivariate maritime regime in the Caribbean Sea 141

4.3.5 A multivariate maritime regime in the Arctic and Antarctic 144

4.4 Conclusion 148

Chapter 5 The Presence of Third States in the Maritime Dispute Settlement of Northeast

Asian Seas and the Application of the Multivariate Regime Theory 151

5.1 Introduction 151

5.2 The presence of third States in the delimitation of NEA’s contested maritime zones 152

5.2.1 The presence of third States in the delimitation of the Yellow Sea/West Sea 153

5.2.2 The presence of third States in the delimitation of the ECS 155

5.2.2.1 The presence of third States in the delimitation of overlapping EEZs in the

ECS 155

5.2.2.2 The presence of third States in the delimitation of overlapping CSs in the ECS155

5.2.3 The presence of third States in the delimitation of the Sea of Japan/East Sea 158

5.2.3.1 Dokdo/Takeshima is given partial effect when South Korea has sovereignty159

5.2.3.2 Dokdo/Takeshima is given partial effect when Japan has sovereignty 159

5.2.3.3 Dokdo/Takeshima is given a partial effect when it does not constitute a base

point 160

5.3 The application of the multivariate regime theory in NEA’s contested maritime zones162

5.3.1 Regime settings in NEA’s seas: From the perspective of international relations162

East Asia Maritime Conflicts

xiii

5.3.1.1 Prevalent international relations theories in the analysis of NEA maritime

conflicts 163

5.3.1.2 Regional arrangements in NEA’s maritime zones 166

5.3.2 The application of the multivariate regime theory in NEA maritime areas 174

5.3.2.1 The application of the multivariate regime theory regarding the management

of transboundary fisheries in NEA maritime areas 174

5.3.2.2 The Application of the multivariate regime theory regarding the preservation

and protection of transboundary marine environment in NEA maritime areas 181

5.4 Conclusion 188

Chapter 6 The Presence of Third States in the Maritime Dispute Settlement of the SCS

and the Application of a Multivariate Regime Theory 191

6.1 Introduction 191

6.2 Maritime delimitation and the presence of third States in the SCS: Prospects and

dismay after the SCS Arbitration 194

6.2.1 An overview of the new delimitation framework following the SCS Arbitration194

6.2.2 Maritime delimitation between China and the Philippines, between Vietnam and

the Philippines, and between China and Vietnam 195

6.2.3 Maritime delimitation between China and Malaysia, between China and Brunei,

between Vietnam and Malaysia, and between Vietnam and Brunei 197

6.2.4 The delimitation between Philippines and Malaysia, Vietnam and Indonesia, and

China and Indonesia 198

6.2.5 Summary 201

6.3 International regime-building in the SCS: Accommodating the maritime rights and

interests of surrounding States in the SCS 202

6.3.1 Regime settings in the SCS 203

6.3.1.1 Prevalent international relations theories in the analysis of the SCS maritime

conflicts 203

6.3.1.2 Regional arrangements in the SCS contested zones: An analysis of

international relations regime models 207

6.3.2 The application of the multivariate regime theory in the SCS 220

6.3.2.1 The application of the multivariate regime theory regarding the management

of transboundary fisheries and marine environmental protection in the SCS 221

6.3.2.2 Strengthening maritime regime-building for the SCS: The multivariate regime

theory and the BRI Initiative 224

6.3.3 Summary 232

6.4 Conclusion 233

Chapter 7 Conclusions 236

7.1 Introduction 236

7.2 Research questions of the study 237

7.3 Research methodology and research design of the study 238

7.4 Summary of conclusions 239

The Third State Perspective

xiv

7.4.1 The “Monetary Gold principle” in international adjudication and its applicability

in the SCS Arbitration case 239

7.4.2 The procedure of intervention in international adjudication and the rights and

interests of third States cannot be sufficiently protected, particularly in international

maritime delimitation cases 240

7.4.3 Regime theory and its application in the maritime disputes for the purpose of

supplementing the role of international law 241

7.4.4 The presence of third States in NEA maritime conflicts and the application of

the multivariate regime theory 242

7.4.5 The presence of third states in the maritime dispute of the SCS and the

application of a multivariate regime theory 244

7.4.6 Final remarks 245

7.5 Policy recommendations on how the East Asia region deals with the legal dilemma in

maritime delimitation and establishes a multivariate maritime regime 247

7.5.1 Policy recommendations on how NEA deals with the legal dilemma in maritime

delimitation and establishes a multivariate maritime regime 247

7.5.2 Policy recommendations on how the SCS deals with the legal dilemma in

maritime delimitation and establishes a multivariate maritime regime 250

Bibliography 253

Summary 305

Samenvatting 307

Curriculum Vitae 309

East Asia Maritime Conflicts

xv

Abbreviations

ACECF ASEAN-China Environmental Cooperation Forum

ACSP ASEAN-China Strategic Partnership

ACMM ASEAN-China Ministerial Meeting

ACSOCM ASEAN-China Senior Officials’ Consultation Meeting

APEC Asia Pacific Economic Cooperation

APT ASEAN Plus Three (China, South Korea, Japan)

APTMM ASEAN Plus Three Ministerial Meeting

ARF ASEAN Regional Forum

ASEM Asia-Europe Meeting

APFC Asia-Pacific Fishery Commission

APTSOM ASEAN Plus Three Ministerial Meeting

ASCOBANS Agreement on the Conservation of Small Cetaceans of the Baltic

and North Seas

ASEAN Association of Southeast Asian Nations

AT Antarctic Treaty

ATS Antarctic Treaty System

AU African Union

AUBP African Union Border Programme

BRI Belt and Road Initiative

CBD Convention on Biological Diversity

CCAMLR Commission for the Conservation of Antarctic Marine Living

Resources

CFP Common Fishery Policy

CAECC China-ASEAN Environmental Cooperation Centre

COBSEA Coordinating Body on the Seas of East Asia

COC Code of Conduct in the South China Sea

CRFM Caribbean Regional Fisheries and Mechanism

CS Continental Shelf

CSC Caribbean Sea Commission

DOC Declaration on the Conduct of Parties in the South China Sea

DPRK Democratic People's Republic of Korea

EAS East Asia Summit

ECS East China Sea

EEZ Exclusive Economic Zone

EU European Union

EUSBSR EU Strategy for the Baltic Region

The Third State Perspective

xvi

FAO Food and Agriculture Organization of United Nations

FRG Federal Republic of Germany

GFCM General Fisheries Commission for the Mediterranean

HELCOM Baltic Marine Environment Protection Commission

ICC International Criminal Court

ICCAT International Convention for the Conservation of Atlantic Tunas

ICJ International Court of Justice

ICES International Council for the Exploration of the Sea

ICRW International Convention for the Regulation of Whaling

IMO International Maritime Organization

ITLOS International Tribunal for the Law of the Sea

IUCN International Union for Conservation of Nature

IUU Illegal, Unreported, and Unregulated

LME Large Marine Ecosystem

LTE Low-Tide Elevation

MA Merits Award

MARPOL International Convention for the Prevention of Pollution from Ships

MEA Mediterranean Action Plan

MOU Memorandum of Understanding

MPA Marine Protected Area

MPCSCSW Managing Potential Conflicts in the South China Sea Workshops

MSRI Maritime Silk Road Initiative

NATO North Atlantic Treaty Organization

NEA Northeast Asia

NEAC Northeast Asian Conference on Environmental Cooperation

NEASPEC North-East Asian Subregional Programme for Environment

Cooperation

NISCSS Institute for South China Sea Studies

NLL Northern Limit Line

NOWPAP Northwest Pacific Action Plan

OSPAR Oslo/Paris Convention for the Protection of the Marine

Environment of the North-East Atlantic

PCA Permanent Court of Arbitration

PCIJ Permanent Court of International Justice

PEMSEA Partnerships in Environmental Management for the Seas of East

Asia

PRC People’s Republic of China

POA Plan of Action

East Asia Maritime Conflicts

xvii

POAACSP Plan of Action to Implement the Joint Declaration on the ASEAN-

China Strategic Partnership for Peace and Prosperity (2016-2020)

RCEP Regional Comprehensive Economic Partnership

REMO Regional Environmental Management Organization

RFMO Regional Fishery Management Organization

ROK Republic of Korea

SCS South China Sea

SCSFDCP South China Sea Fisheries Development and Coordinating

Programme

SDS-SEAP Sustainable Development Strategy for the Seas of East Asia

Implementation Plan (2018-2022)

SEAFDEC Southeast Asia Fisheries Development Center

TEIA Transboundary Environmental Impact Assessment

TEMM Tripartite Environment Ministers Meeting

TS Territorial Sea

UK United Kingdom

UN United Nations

UNCLOS United Nations Convention on the Law of the Sea in 1982

UNEP United Nations Environment Program

USA United States of America

VCDR Vienna Convention on Diplomatic Relations

VCLT Vienna Convention on the Law of the Treaties

VCLTSIO Vienna Convention on the Law of Treaties between States and

International Organizations or between International Organizations

VMCBRI Vision for Maritime Cooperation under the Belt and Road Initiative

WPS West Philippine Sea

YSLMEP Yellow Sea Large Marine Ecosystem Project