Territorial disputes: South China Sea (Part 20) [Post 135]

Natural resources and the South China Sea. Yesterday, we introduced the way in which natural resources may be distributed, and the fact that there are other elements for consideration (for example, exploration and exploitation). How can this work here?

In the case of the South China Sea, the many parties (China, the Philippines, Taiwan, Vietnam, Brunei, Malaysia, Thailand, Indonesia, Cambodia) could be co-owners of the natural resources located in the territorial sea and the exclusive economic zone. Undoubtedly, there are several differences amongst China, the Philippines, Taiwan, Vietnam, Brunei, Malaysia, Thailand, Indonesia, Cambodia. Therein, some of these differences show how the EGALITARIAN SHARED SOVEREIGNTY could work.

 

The first difference is given by the fact the islanders possess the total of natural resources at stake (100%). By applying the egalitarian shared sovereignty, each party receives the rights to the same ideal portion (an equal percentage of the ownership of natural resources, minus original ownership of the inhabitants of the islands in question). It would be either over simplistic or naïve to imagine China, the Philippines, Taiwan, Vietnam, Brunei, Malaysia, Thailand, Indonesia, Cambodia be able to explore and exploit to the same level their shares of natural resources (second difference). However, each of them individually have some elements that put them in a better position in relation to the rest, for example local work force, geographical proximity (third difference).

 

With all these differences in mind, the could explore and exploit natural resources (as they are the party most developed technically and economically to do it), and both the islanders and territories adjacent to areas rich in natural resources could offer the work force for the joint venture and grant privileges in terms of location to Chinese and Taiwanese companies. Thus, less advantaged parties in terms of means for exploration and exploitation could also offer China certain exclusive rights in the sea-zone that overlaps with their jurisdictions.

 

Continuous assistance from China to other parties might become a permanent feature (it may lead to domination or an unbalanced relationship).  To avoid this, China would have to help the others in developing their means of exploration and exploitation to relatively the same level they have.

 

At the beginning of the agreement China indeed would be contributing more towards the exploration and exploitation and hence have a larger return. However, these uneven distributions of burdens and benefits amongst the parties would only be in the short term. Natural resources and all that they imply in terms of rights and obligations are part of a wider agreement that has a target: the South China Sea.

 

Finally, the way in which each party redistributes the benefits of this shared model within each population is entirely a matter of national or local distribution and hence may have various forms. That is to say, the egalitarian shared sovereignty gives the basic structure of the solution; the details are subject to actual rather than hypothetical negotiation. As an example only, the resultant revenues of some or all the joint activities could be destined to a distribution fund.

 

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701

28th September 2018

Territorial disputes: South China Sea (Part 19) [Post 134]

Today’s post is about natural resources and the South China Sea. It is one of the most controversial elements in any TERRITORIAL DISPUTES. It is usually the case the real reasons behind these TERRITORIAL DISPUTES is different (domestically, for example, level of popularity of ruling party, corruption, unemployment, security, etc.; regionally and internationally, geostrategic location, bargaining power, debt, etc.). However, natural resources are used to justify ongoing disputes (or to create new ones).

 

What are natural resources and who owns them? What do we do with the natural resources in the South China Sea? What happens in the zone in which jurisdictions and interests overlap? In the case of the islands, any decision over this point has particular importance since it could affect the inhabitants of those islands that are populated. Let us remember there are several claiming parties and different realities in terms of law, politics, economy, religion, etc.: China, the Philippines, Taiwan, Vietnam, Brunei, Malaysia, Thailand, Indonesia, Cambodia

 

Natural resources are any material in raw condition present in the territory, organic or mineral, that is not initially a product of any kind of human activity. Some States are rich in natural resources, others are not: no particular amount of natural resources defines a State. But, the distribution of natural resources is usually one of the main problems when dealing with sovereignty disputes even though the involved sovereign States may already be wealthy ones; it is a feature that always presents controversy.

 

There are two key connected issues with natural resources. First and more evident, who owns them. But, even if we had an answer to that China, the Philippines, Taiwan, Vietnam, Brunei, Malaysia, Thailand, Indonesia, Cambodia agreed to distribute natural resources, other highly controversial issues remain. This is not only a matter of distribution because the resources have to be explored, exploited, or piped, and someone has to do the work, and someone, whether a private individual or the State, has to own the means for their exploration and exploitation.

 

The EGALITARIAN SHARED SOVEREIGNTY may rule out extreme situations, that ownership, public or private, should be totally in the hands of the territory where the mines, etc., are situated, without regard to the needs of the two sovereign States, or that it should be totally in the hands of the sovereign States. It would also rule out the idea that existing ownership should automatically continue, or that everything should be left to the market. In brief, in order to to acknowledge the controversial features that natural resources present and still apply the egalitarian shared sovereignty solution and hence distribute them, the following points have to be addressed: a) just distribution as the aimed outcome; b) the ownership system of natural resources; c) the exploitation system; d) the gains and losses of the involved agents; e) the needs and capabilities of all parties.

 

The differences in relation to natural resources imply several different aspects (for example, means for the exploration and exploitation, geographical location, relevant knowledge, etc.). It is for that reason that the shares will be represented as bundles of rights and obligations, benefits and burdens. However, in terms of property rights, all the parties will have the co-ownership of the natural resources (minus the ones originally owned by the inhabitants of the islands), and this will involve both rights and obligations.

A combination of elements may fit in the aim of the egalitarian shared sovereignty if and only if the combined elements or resources that an agent may exploit could not be exploited to the same efficient extent in any other way (for example, joint ventures).

Two points must be made clear: because the model aims to safeguard the interests of all the parties, the different combinations of natural resources in the bundle is in terms of their exploration and exploitation—not their ownership or the distribution of consequent benefits; and as this requirement is defined by bundles, each bundle may be constituted of diverse elements that taken together offer the same outcome: an efficient exploitation. Therefore, this implies a solution by means of an efficient model with safeguards for all the participants.

 

The egalitarian shared sovereignty has a twofold application in terms of natural resources. First, the most efficient combination of exploration and exploitation of natural resources bearing in mind the differences amongst the parties. Second, any party better off in relation to a given difference will make sure the other parties are able to exploit their respective share of natural resources to the same extent—when possible—or compensate the inequality. 

Consequently, even if variations appeared in the future in terms of either natural resources—e.g. drought, scarcity, lack of trading value—or the level of development or wealth of any of the agents, their ownership rights would still be the same for all of them as well as their rights and obligations in terms of exploitation and the way benefits were allocated.

 

Next time how all this could work with the South China Sea and all the claiming parties.

 

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701
27th September 2018

Territorial disputes: South China Sea (Part 18) [Post 133]

The latest posts on this series about TERRITORIAL DISPUTES centered the attention on the South China Sea. The last two posts introduced the EGALITARIAN SHARED SOVEREIGNTY and some key elements related to this particular issue.

 

Today’s post will cover defense:

What would happen if another party with no part in the original conflict decided to invade or exploit natural resources in the South China Sea? In the hypothetical scenario that an alien party to the area decided to invade or exploit natural resources, who would defend them? The ways in which the situation may develop are as follows: a) China and the neighbor countries may remain neutral; consequently the new agent would take over the islands, exploit the sea and continental shelf; b) one of the sovereign States may respond to the invasion and defend the islands and the area at large; c) both China and its neighbors may respond to the invasion and defend jointly or independently area.

At the same time, States have the right and are obliged to defend their own interests and their population. Consequently, any act of defense is fair and just as long as it is a result of an illegitimate threat or attack. However, in a TERRITORIAL DISPUTE, it seems difficult to determine the one who could/should be defending the third territory in the event of an attack on what appears to be a common interest for all the involved parties: the area under dispute.

 

In addition to the way in which the parties would defend the area,  there are two other crucial elements that need to be agreed, even if joint defense was the case: a) the extent to which the burden can be made proportionate, with those with more of the appropriate resources taking the larger share (if they can be trusted not to turn their forces against the other two parties); b) and the extent to which one considers what combination of contributions will be the most efficient, using, e.g., both the local knowledge of the people in the territory, and the equipment best adapted to defending it. Indeed, if they take on sovereignty, they must take on the obligation to defend. However, how would China, the Philippines, Taiwan, Vietnam, Brunei, Malaysia, Thailand, Indonesia, Cambodia share the defense?

 

The egalitarian shared sovereignty addresses the three elements that seem to be crucial in order to have shared defense: a) Resources; b) Training and opportunities; c) Safety of the other two parties (how to avoid misuse of power). What does it mean if the agents have different level of development? The differences in the case of defense are numerous—e.g. geostrategic location; economic resources; level of military development; training and facilities; number of troops; etc. A combination of contributions can make these differences work together in an efficient form.

 

The South China Sea presents a case with very different levels of defense power and development in terms of their respective defense systems (input-to-output ratio principle). Then, the egalitarian shared sovereignty can be fulfilled in two ways: a) following the most efficient combination in terms of contribution (principle of efficiency)—e.g. using both the local knowledge of the people in the area, the geostrategic location, and the equipment, resources and any means best adapted to defending it; b) the agent with the better comparative situation—in whatever aspect—may contribute in developing the other parties or granting them exclusive privileges (equilibrium proviso)—e.g. China could train Vietnamese and Philippine troops in exchange for the use of locations in any of them.

 

It is clear that the egalitarian shared sovereignty aims only to achieve the same level of opportunity and development for all the involved parties so they are able to defend the area (not the territory that is already part of the sovereign States). Thus, even if there were variations in the future in terms of wealth status and defense development among the involved participants, the reciprocal obligation would always be the same for all the agents, i.e. to combine to produce the most efficient result.

 

Next time: natural resources and the South China Sea.

 

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701

26th September 2018

Territorial disputes: South China Sea (Part 17) [Post 132]

We introduced the EGALITARIAN SHARED SOVEREIGNTY last time. Today we will present some key elements related to the South China Sea.

From our previous posts, we have learnt so far that some of the main concerns related to the South China Sea are:

 

Borders

This could be a matter of controversy. In the particular case of the South China Sea, although it may seem that borders are not an issue—as the difference has to do with several islands—the exclusive economic zone often creates tension between many of the claiming parties. For instance, who has the right to explore that exclusive sea-zone? What happens in the zone in which to or more claiming parties overlap? As this point is intrinsically linked to natural resources, it will be examined after introducing the latter.

 

Defense

National defense will be seen here as the protection of any interest a State has—e.g. possessions, territory, and population—through different means—e.g. military, economic, and diplomatic. There are several States in which the army and navy are not big, well equipped or trained enough in order to defend their territory or population but they are still respected as States. There are others that in fact do not have military defense at all, their defense being the responsibility of another country or an international organization—e.g. OTAN.

There seems to be no problem with defense. The territory being defended is obviously desirable although the task is one which can be shared. However, what would happen if another party—i.e. a sovereign State with no part in the conflict—decided to invade the third territory? In the hypothetical scenario a fourth party decided to invade the South China Sea, who would defend the area? The ways in which the situation may develop are as follows:

a) China and the neighbor countries may remain neutral; consequently the new agent would take over the area if the inhabitants were unable to defend themselves (or in the case of uninhabited islands or the sea);

b) one of the sovereign States may respond to the invasion and defend the third territory;

c) all sovereign States may respond to the invasion and defend jointly or independently the area.

 

Natural resources

Natural resources are any material in raw condition present in the territory, organic or mineral, that is not initially a product of any kind of human activity. Some States are rich in natural resources, others are not: no particular amount of natural resources defines a State. But, the distribution of natural resources is usually one of the main problems when dealing with sovereignty disputes even though the involved sovereign States may already be wealthy ones; it is a feature that always presents controversy.

In the case of the South China Sea any decision over this point has particular importance since it could affect the future the legal and political balance in the region.

 

Next time both are combined (the EGALITARIAN SHARED SOVEREIGNTY and the elements below) to offer a potential ideal solution.

 

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701

25th September 2018

Territorial disputes: South China Sea (Part 16) [Post 131]

The South China Sea represents a classical TERRITORIAL DISPUTE in which several international agents claim sovereign rights for different reasons over the same area. Regionally, with a direct or indirect implication, we have China, the Philippines, Taiwan, Vietnam, Brunei, Malaysia, Indonesia, Thailand, Cambodia. In addition to the regional claimants, there are many other international actors. The previous posts introduced Australia, Japan and the United States. The solution seems to require a mutually exclusive relation amongst them because it is assumed that the sovereignty over the arwa can be granted to only one of them. Indeed, sovereignty is often regarded as an absolute concept (that is to say, exclusive, and not shareable).

Post 7:Territorial disputes: sovereignty

Post 8:Territorial disputes: sovereignty (cont.)

 

The South China Sea is a clear example of a zero sum game, with many negative outcomes of different sorts (e.g. inefficient exploitation of natural resources, tension in international relations, and threat to local, regional and international peace). Thus, while these conflicts are in principle confined to specific areas and start with negative consequences primarily for the local population, they tend quickly to expand to the regional and—even—the international level (e.g. effects on international price of oil, war). There are many issues at stake domestically and internationally.

 

Post 9: Territorial disputes: issues at stake

 

Time to solve the dispute over the South China Sea. Territory, in principle, can be defined as an area owned and possessed by the population (in land, water, space and, perhaps, cyberspace). Like population, it may have features that could cause controversy in TERRITORIAL DISPUTES. The next posts will review some of the features that constitute territory using the South China Sea conflict as an example. Next time we center the attention on borders, natural resources and defense.

 

Let us remember the way in why this series propose to deal with TERRITORIAL DISPUTES. The allocation of sovereignty will be given by: a) equal right to participate (egalitarian consensus principle); b) the nature and degree of participation depends on efficiency of accomplishing the particular objective/area/activity at issue (principle of efficiency); c) each party receives a benefit (in terms of rights and opportunities) that depends on what that party cooperates with (input-to-output ratio principle); and d) provided the party with greater ability and therefore greater initial participation rights has the obligation to bring the other two parties towards equilibrium (equilibrium proviso). I call this way of dealing with sovereignty conflicts or disputes the EGALITARIAN SHARED SOVEREIGNTY.

 

Many questions are to be expected. Amongst them: How is that translated into geographical borders amongst the many claimants? What about the exploration and exploitation of natural resources? This question has two parts: a) the sea-zone surrounding islands only; and b) the portion of sea-zone that overlaps in cases like China and Vietnam. Finally, in the hypothetical scenario that a party alien to the original dispute decided conduct activities (for example, exploitation of natural resources, invasion), who should defend the disputed area?

 

The next posts on this blog series about TERRITORIAL DISPUTES will cover these questions.

 

 

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701

24th September 2018

Territorial disputes: South China Sea (Part 15) [Post 130]

South China Sea and the United States

Washington argues that the United Nations Law of the Sea (UNCLOS) permits nations to exercise “high seas freedoms,” which include, inter alia, peaceful military operations, in the Exclusive Economic Zones (EEZs) of coastal states. China disagrees. It claims that these are not peaceful activities. This disagreement has resulted in two serious incidents: the 2001 mid-air collision between a U.S. Navy surveillance aircraft (EP-3) and an intercepting Chinese

navy fighter, and the 2009 episode in which Chinese fishermen and paramilitary ships harassed USNS Impeccable. More recently, a dangerously close intercept of a U.S. Navy P-8 maritime patrol aircraft created another diplomatic dustup.

 

For the United States, the South China Sea is an important area of the Asia-Pacific region for three reasons: 1) it is part of a major transit route for maritime commercial traffic to and from East Asia and for the United States Navy; 2) disputes over the ownership of its many small islands, reefs, atolls, and rocks among China and several nearby Southeast Asian states (including one United States ally, the Philippines) are generating tensions that could result in conflict and instability; and 3) Beijing could eventually use its growing influence in the area to create a sphere of influence detrimental to United States interests.

In contrast, many in China see the United States as using the disputes over sovereignty in the South China Sea and elsewhere as a means of justifying more concerted efforts to contain and undermine all Chinese influence in the Asia-Pacific, and to encourage other states to provoke China and militarize the issue.

 

The Obama administration’s policy placed significant emphasis on diplomatic and collaborative efforts—from increasing criticisms of Chinese actions in the region, to mobilizing legal dispute mechanisms over these disputes, to calling for the Southeast Asian “claimants” to work with one another and the United States to increase diplomatic leverage.

On balance, though, the policy focused more on the diplomatic side with considerable caution on increasing military involvement or actions, especially toward China.

In this sense, the Obama approach did not appear to be responsive to domestic calls, both from Congress—across party lines—and many in the policy community, for a more vigorous stand on these disputes. Instead, the administration seemed to be following an approach consistent with its more measured and accommodative course to foreign policy.

The Trump administration’s approach so far has pursued a more mixed response on the South China Sea issue. Initially, the administration seemed to signal a more robust response to China in the South China Sea. Nonetheless, the present political environment provides the necessary conditions for domestic politics to affect the future direction of policy toward the South China Sea.

 

To counter the possibility of China’s successful use of geoeconomic stratagem, the US is using the Trans-Pacific Partnership (TPP) as outlined by the Obama administration and withdrawn by the Trump administration in a first phase, although there is current consideration of whether the agreement should be amended.

The TPP can be characterized as a preferable excluding agreement, a regional arrangement, in which a large world power such as the United States, should contribute more to the development of investments and global trade, than blocking the initiatives in progress of other regional powers, such as the ASEAN.

 

 

The South China Sea: Assessing U.S. Policy and Options for the Future

Link to document

 

America’s Security Role in the South China Sea

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American Domestic Politics, Public Opinion, and the South China Sea Disputes

Link to document

 

United States’ Policy Strategy in South China Sea

Link to document

 

Jorge Emilio Núñez

Twitter: @London1701

21st September 2018

Territorial disputes: South China Sea (Part 14) [Post 129]

South China Sea and Australia

The South China Sea disputes have entered a dangerous new phase in the last several years. Alongside China’s unprecedented construction and fortification of artificial features, incidents at sea involving clashes between various combinations of fishermen, coast guards and, occasionally, naval assets, are occurring on a routine basis. With the nationalist credentials of authoritarian and democratically-elected claimant governments at stake, the potential for miscalculation and escalation (whether inadvertent or intended) is growing. 

Australia’s aspirations for a viable ‘rules-based’ strategic order in the Indo-Pacific are under significant pressure as regional powers contest the very nature and scope of these rules via the disputes. Key Australian interests and relationships are being tested.  

 

Approximately two thirds of Australia’s exports pass through the South China Sea and the island corridors north of Australia. Any internal or external conflicts between countries can directly impact upon the prosperity of Australia.

 

Australia’s position on the South China Sea remains pragmatic, unchanged over the last few years.

Australia’s position adheres to the same oft-repeated formulation: Australia urges claimants to act in accordance with international law, to avoid coercive behaviour and unilateral actions, to engage in dialogue and to reach a resolution through peaceful means. Australia has also been consistent in asserting support for states’ rights under international law to freedom of navigation and freedom of overflight. Australia itself remains committed to regularly conducting maritime surveillance patrols of the South China Sea, as it has done for over 30 years as part of Operation Gateway, despite being routinely challenged by the Chinese Navy.

 

The argument as to whether Australia needs to make a choice between its major economic partner, China, and its primary security partner, the US, has been central to discussions about Australia’s security and economic interests in recent years.

Australia’s national interests in the South China Sea are defined as primarily economic and security related, that is, economic in terms of Australian trade passing through the South China Sea, and security related in terms of supporting a continued US presence in the Asia Pacific as a stabilizing influence representing the existing, rules-based global order.

 

The prospects for the future development of economic relations between Australia and ASEAN are very substantial but their realization will depend crucially on the maintenance of stability and security in Southeast Asia and in Asia more widely. Two issues in political and security relations have recently been of particular concern for ASEAN and Australia—the contest for influence in the South China Sea and the ongoing dangers from terrorism, highlighted in 2017 by the five-month-long conflict in the Philippine city of Marawi.

In relation to the South China Sea, the Australian Government has consistently noted that Australia is not a claimant state and does not take sides in relation to claims. Australia has emphasized the desirability of dialogue and negotiation; opposes artificial modifications or militarization of islands or features in the Sea; supports freedom of navigation and over-flight; and supports a legally-binding code of conduct. Australia has reiterated its approach at recent meetings of ASEAN and the East Asia Summit. The Australian Government’s position was reaffirmed in its 2017 Foreign Policy White Paper (released in November 2017).

 

Australia and the South China Sea: debates and dilemmas

Link to document

Australian Foreign Policy White Paper

Link to document

 

Australia and the South China Sea

Link to document

Australia’s National Interest

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ASEAN-Australia (Special Summit, March 2018)

Link to document

 

Jorge Emilio Núñez

Twitter: @London1701

20th September 2018