What is to be done?: Resolving Maritime Disputes in

Southeast Asia

A Forum and Roundtable Discussion on promoting cooperation and resolving crises in Asian territorial maritime disputes

5 December 2013, 8:00am-5:30pmBallroom A, Marriott Hotel,

Resorts World Manila

present

in cooperation with:

PRISME Strategies

About the Forum and Roundtable Discussion

Long-standing tensions over maritime territorial disputes in Southeast Asia are increasingly in the headlines. Overlapping claims and contradictory statements can

sometimes seem to have hardened official positions in ways that are mutually exclusive. Legal, political, and diplomatic disagreements that threaten to erupt into future conflict make finding a solution a pressing issue for today’s policymakers. What can be done to head this off?

The Angara Centre and Asia United Bank present this special one-day forum and roundtable discussion to explore ways on how we should strive to deal with these issues in the coming years.

Joining this event is a select group of leading experts from the Philippines, China, Indonesia, Japan, Singapore, and the United States who will present a variety of approaches and ideas that can serve as starting points for policy makers interested in making headway on these contentious disputes over land and sea rights. Ideas for discussion include joint resource exploration and development, recourse to international law, and progress on a mutually agreed upon code of conduct.

Prof. John Nye of George Mason University, Executive Director of the Angara Centre, serves as moderator.

Formally launched in 2012, the Angara Centre for Law and Economics is the first and only Philippine policy and academic think tank dedicated to the scientific analysis and

international assessment of Philippine and regional legislation, policies and public sector programs.

The Centre seeks to professionalize the science of government legislation and policy-making, by drawing from the best of the growing ranks of internationally-trained Philippine scholars, and enabling them to continue academic and policy research according to the rigors of international standards.

It serves as a forum for continuing analysis, recommendations and information dissemination between and among public and private sector economists, lawyers, academics, and policy-makers from the Philippines and abroad.

ABOUT

Keynote Speaker: Edgardo J. Angara

Senator Edgardo J. Angara recently concluded over two decades of

distinguished service as a Philippine legislator.

Angara led the enactment of landmark legislation on agriculture, education, health, arts and culture, science and technology, good governance, financial reforms, and social welfare. These include the Free High School Act, creation of CHED and TESDA, Government Assistance to Students and Teachers in Private Education (GASTPE), PhilHealth Act, Senior Citizens Act, the National Cultural Heritage Law, creation of the National Museum, the National Commission on Culture and the Arts (NCCA), and many others.

He also pushed for the creation of the Congressional Commission on Science, Techonology and Engineering (COMSTE) to study the root of the country’s waning competitiveness and lay down the grounds for improvement and innovation.

A former President of the University of the Philippines, Angara was the driving force, along with Justice Antonio Carpio, behind the creation of the UP Institute for Maritime Affairs and Law of the Sea (UP-IMLOS), a highly specialized academic research institution devoted to maritime affairs.

He has also been active in the international relations front, having been responsible for successfully rekindling the Philippines’s relations with Spain through the Philippine-Spanish Friendship Day Act.

Apart from being a legislator, Angara also served government in various functions as chairman of the Congressional Commission on Education (CHED), Secretary of the Department of Agriculture, Chairman of the Philippine National Bank, and Executive Secretary.

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Ian Storey is Senior Fellow at the Institute for Southeast Asian Studies in Singapore. He is also Editor-in-Chief of the Contemporary Southeast Asia journal. His research

Interests include Asian security issues, Southeast Asia’s relations with China and the United States, the South China Sea dispute, maritime security in the Asia Pacific, China’s foreign and defense policies.

Dr Storey has published articles in various journals and magazines and is a regular contributor to the Jamestown Foundation’s China Brief and Singapore’s largest circulation English-language newspaper The Straits Times.

He received his PhD from the City University of Hong Kong, his Master’s degree from the International University of Japan, and his BA from the University of Hull, England.

ABSTRACT OF PRESENTATION: Managing Conflict in the South China Sea

Tensions continue to fester in the South China Sea, fuelled by rising nationalist sentiment over ownership of the disputed atolls, the lure of potentially lucrative energy resources under the seabed, spats over access to valuable fisheries in overlapping zones of maritime jurisdiction and moves by most of the claimant states to bolster their territorial and sovereignty claims by issuing new maps, conducting military exercises and launching legal challenges.

A resolution to the dispute seems further away than ever and attempts at conflict management proceed at an excruciatingly slow pace. Although the Declaration on the Conduct of Parties (DoC) was signed in 2002, it was only in September 2013 that ASEAN and China agreed in principle to establish a Search and Rescue hotline – only one of five cooperative projects outlined in the DoC. And while China has finally agreed to consultations (not negotiations) on a Code of Conduct (CoC), Beijing has made it quite clear that it is no rush to conclude such an agreement. Indeed China seems intent on dragging out the process for as long as possible.

Meanwhile, in the Arctic a very different picture is emerging. Although the Arctic states have maritime boundary disputes they have realized that delimitating those boundaries is necessary before hydrocarbons can be commercially developed.

Speaker: Dr. Ian Storey

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Yoichiro Sato is a professor at the Ritsumeikan Asia Pacific University. His research writings on

Japanese politics, international political economy, and security issues have appeared in such journals as Asian Perspective, Asian Affairs, Japan Studies Review, Japanese Studies (Australia), and New Zealand International Review, as well as in numerous edited books.

His book Japanese Foreign Policy in Asia and the Pacific (Palgrave-Macmillan, 2001), has been translated and published in Japanese.

He received his PhD in political science from the University of Hawaii.

ABSTRACT OF PRESENTATION:The Joint Exploration/Development Trap—South China Sea and East China Sea Compared

As seabed resources are often seen as the source of conflicts in disputed waters, joint exploration and development between the disputing countries are often proposed as a win-win solution or at least a confidence-building measure.

However, actual practices in South and East China Seas reveal that joint exploration and development proposals are not only economically motivated, but also made with intentions to set a legal precedence to advance the country’s claim to the disputed water. As such, they too are the manifestations of the conflicts, rather than solutions to the conflicts.

Consequently they have agreed to resolve their disputes through the United Nations Convention on the Law of the Sea (UNCLOS). The Arctic states are also pursuing outcome focused discussions and agreements to improve functional cooperation, including among their armed forces. Although the Arctic is on the other side of the planet, clearly there are lessons to be learned for the South China Sea claimants and other stakeholders.

Speaker: Dr. Yoichiro Sato

Speaker: Professor Harry Roque

Harry Roque is an Associate Professor at the College of Law in the University of

the Philippines. He was the Director of the UP Law Center Institute of International Legal Studies. He is admitted to practice before the International Criminal Court, the first Asian to do so. He is also elected to the Governing Council of the Asian Society of International Law and the International Criminal Bar.

He is the founding editor-in-chief of the Asia-Pacific Yearbook of International Humanitarian Law jointly published by the Institute of International Legal Studies and the International Committee on the Red Cross. He is also in the Editorial Board of the Asian Journal of International Law and the Asian Journal of Comparative Law.

He received his Bachelor of Arts in Economics and Political Science from the University of Michigan), Bachelor of Laws from the University of the Philippines, and a Master of Laws from the London School of Economics.

ABSTRACT OF PRESENTATION:After the Snub: Examining the UNCLOS Dispute Settlement Procedure in the Settlement of the Scarborough Shoal Dispute

Manila and Beijing are in a standoff over Scarborough Shoal, a body of water with 5 very small rocks permanently above water. According to China, the shoal, which it refers to as the “Huangyan” island, was discovered and forms part of Chinese territory since the 1200’s. Manila counters that while it maintains title over the rock itself through effective occupation as evidenced, among others, by the fact that it had built a light house on the island, bulk of the disputed territory consists of water which falls within its exclusive economic zone pursuant to the UN Convention on the Law of the Seas.

The stand-off was triggered when the BRP Gregorio Del Pilar, the Philippines one and only warship, reported that Chinese fishermen were engaged in illegal fishing in the area. Beijing responded by sending its own war ships and a multitude of fishing vessels to the area. Recently, Beijing declared that it was in complete control of the disputed waters.

The Philippines, being no match to China’s new-found military and economic might, initially attempted to engage China in this regard through a multilateral dialogue involving ASEAN

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and the United States. China flatly rejected this insisting instead on a bilateral dialogue. The member countries of ASEAN and the United States were similarly lukewarm to the Philippines proposal.

The Philippines has since initiated arbitration under the UNCLOS dispute settlement procedure to resolve this controversy . China has again flatly rejected this and has made clear it wil not participate in the proceedings. Without saying it, it alludes to its reservations to the dispute settlement procedures of the UNCLOS.

Concededly, the dispute settlement procedure under the UNCOS is one of the most complex and confusing procedures in modern times. Still, the prospect of resort to them should be examined closely as compliance with states obligation to refrain from the use of force in the resolution of disputes resolving conflicting claims to maritime territory such as the Scarborough. The paper will hence examine what is the scope of the mandatory and compulsory dispute settlement procedures of the UNCLOS and whether this procedure may be applied in arriving at a pacific settlement of this latest maritime dispute. Further, it will also examine whether the express reservations made by China to these procedures will preempt a resolution of the dispute under the UNCLOS.

In addressing these two issues, the paper will rely heavily on past practice of states and tribunals in construing the mandatory jurisdiction of international tribunals.

Speaker: Professor Shen Dingli

Shen Dingli is a professor of international relations at Fudan University. He is the Deputy Dean of

Fudan University’s Institute of International Studies. He is also the founder and director of China’s first non-government-based Program on Arms Control and Regional Security at Fudan University.

His research areas cover China-U.S. security relationship, nuclear arms control and disarmament, nuclear weapons policy of the United States and China, regional nonproliferation issues concerning South Asia, Northeast Asia and Middle East, test ban, missile defense, export control, as well as China’s foreign and defense policies.

He received his Ph.D. in physics in 1989 from Fudan University and did his post-doc in arms control at Princeton University from 1989-1991.

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ABSTRACT OF PRESENTATION:Reconciliation in the South China Sea

The South China Sea is an arena of escalating contention, but it is not too late to work out some compromise amongst all stakeholders. China needs to understand

its historical rights in the South China Sea may not include permanent fishing rights in the entire area, and that this is especially the case since UNCLOS came into being. By the same token, Chinese neighbours need to understand that by explicitly or implicitly accepting China’s pervasive sovereignty claim over all features and adjacent area, their occupation of some of the features in the South China Sea also leaves them in a legally vulnerable position. Simply insisting on one’s own rights even when they cut across the rights of others, and simultaneously accusing China of economic encroachment, will not work. A sound pragmatic solution is to find common ground with China, so a mutually acceptable trade of interests can eventually be peacefully figured out.

Speaker: Dr. Donald Emmerson

A Senior Fellow at Stanford University, Donald Emmerson has taught courses on Southeast Asia in

the International Relations and International Policy Studies Programs, in the Department of Political Science, and for the Bing Overseas Studies Program. He is also active as an analyst of current policy issues involving Asia. In 2010 the National Bureau of Asian Research and the Woodow Wilson International Center for Scholars awarded him a two-year Research Associateship given to “top scholars from across the United States” who “have successfully bridged the gap between the academy and policy.”

Emmerson’s policy concerns run from specific issues such as sovereignty disputes in the South China Sea to broad questions involving China-Southeast Asia relations, the American “rebalance” toward Asia, and the future of the Association of Southeast Asian Nations (ASEAN).

ABSTRACT OF PRESENTATION:Addressing Tensions in the South China Sea: Options and Opportunities

A comprehensive solution to the overlapping claims to land features and water spaces in the South China Sea is presently beyond reach. Barring unforeseen events that could

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Dr. John Nye holds the Frederic Bastiat Chair in Political Economy at the Mercatus Center

at George Mason University and is Research Director at the Higher School of Economics, Moscow. His primary research interests include European economic history and new institutional economics.

He is a founding member of the International Society for the New Institutional Economics and has been on the editorial board of the Journal of Economic History. He was co-editor of Frontiers in the New Institutional Economics. His articles have been published in a variety of journals.

Moderator: Dr. John V.C. NyeExecutive Director, Angara Centre

loosen entrenched positions, the chance of achieving such a grand bargain is likely to remain at or near zero. But this judgment should not preclude, indeed it should encourage, consideration of a range of lesser steps—to reduce danger, to enable cooperation, and to share the benefits therefrom. The priority need is for mutual accommodations that are modest enough to be achievable, but significant enough to be worth the effort to pursue. If realism is desirable, resignation is not. The success of unilateral encroachments in creating facts on the water, exemplified by the fate of Scarborough Shoal, cannot be ignored. The mere prolongation of patience is an unhelpful response to the absence of measurable progress. Tensions urgently need to be addressed on multiple fronts in alternative ways. These include bilateral and multiple negotiations—bilateral, minilateral, and multilateral—designed to induce, end, and/or alter specific actions by the parties concerned. Recourse to international law is another option. Constructive in this context would be a clarification of the notoriously ambiguous “U-shaped line” by the Court of Arbitration that has been convened for that purpose under the UN Convention on the Law of the Sea. The prospect of such a clarification, however unenforceable, could serve as an incentive for all of the claimants to frame their positions in terms that are at least compatible with international law.

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About the Sponsor

Asia United Bank (AUB) is a domestic universal bank founded in 1997 as a joint venture between a consortium of reputable and successful Filipino industrialists

and Taiwanese investment banks. Both groups share a common commitment of delivering superior and efficient financial services to the local communities as well as the business sector.

Mr. Abraham T. Co is the President of the Bank since 1997. Considered a pioneer in the banking and finance industry, he is concurrently Chairman/Director of the following AUB subsidiaries: Asia United Leasing and Finance, Rural Bank of Angeles, and Cavite United Rural Bank Corp. Formerly, Mr. Co was the President of 1st Malayan Leasing and Finance; Head of Consumer & Operations Support Group of Rizal Commercial Banking Corporation, and President of BA Finance Corporation. He holds a Bachelor’s Degree in Chemical Engineering from the University of the Philippines.

P R O G R A M M E

Opening RemarksJohn V.C. NyeExecutive Director, Angara Centre for Law and Economics

Registration

Keynote SpeechEdgardo J. AngaraFormer Senate PresidentRepublic of the Philippines

Health Break

Health Break

Closing Remarks

Roundtable/Open Forum

Roundtable/Open Forum

Press Conference for Speakers, Meeting Room No. 1

Lunch

RecognitionMr. Abraham T. CoPresident and COO, Asia United BankEvent Sponsor

Presentations:After the Snub: Examining the UNCLOS Dispute Settlement Procedure in the Settlement of the Scarborough Shoal DisputeProfessor Harry RoqueUniversity of the Philippines, College of Law

Reconciliation in the South China SeaProfessor Shen DingliFudan University, China

Addressing Tensions in the South China Sea: Options and OpportunitiesDr. Donald EmmersonStanford University, USA

Presentations:Managing Conflict in the South China SeaDr. Ian StoreyInstitute of Southeast Asian Studies, Singapore

The Joint Exploration/Development Trap—South China Sea and East China Sea ComparedDr. Yoichiro SatoRitsumeikan Asia Pacific University, Japan

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ANGARA CENTRE FOR LAW AND ECONOMICS“What is to be done?: Resolving Maritime Disputes in Southeast Asia” December 5, 2013, 8:00am-5:30pm, Marriott Hotel, Resorts World Manila

www.angaracentre.com