Antarctic Treaty model for South China Sea

[dr demented]

Interesting idea.

There is one other place on this planet besides the South China Sea where there are multiple overlapping claims by several nations.

And for almost 60 years there has been a treaty in place which gets all the claimants to set aside their sovereignty issues so that everyone can use that place peacefully.

That place is Antarctica.

Don't know if it would work. But it is interesting.

https://www.odt.co.nz/news/dunedin/antarctic-treaty-model-south-china-sea

Antarctic Treaty model for South China Sea

By John Gibb

Rising international tensions over disputed areas in the South China Sea could be reduced by nations taking a leaf out of the Antarctic Treaty approach.

That comment was made recently in Dunedin by Sir Kenneth Keith (78), a judge who was the first New Zealander elected to the International Court of Justice (ICJ) in its 70-year history.

Sir Kenneth commented in an interview, after giving a University of Otago open lecture, which was part of a series of talks organised by the university’s National Centre for Peace and Conflict Studies.

The talk was devoted to "World Peace through World Law: the role of the ICJ and other international courts and tribunals".

An arbitral tribunal of the Permanent Court of Arbitration in The Hague concluded in July  China had no legal basis to claim "historic rights" to some disputed areas in the South China Sea.

Sir Kenneth emphasised that this tribunal outcome was not the end, but should be only the beginning of continuing dialogue among nations involved with the South China Sea.

"They have to go on living with one another."

The United Nations Charter required nations to settle their international disputes by peaceful means, and the Association of Southeast Asian Nations (Asean) Charter also emphasised international co-operation and peaceful resolution of disputes.

New Zealand itself had complex interests in the area, given that China was a major destination for our exports, and also that many of our overall exports were also shipped through the South China Sea.

The territorial disputes involve claims by several countries, including Vietnam, the Philippines and China.

Access to oil, natural gas, minerals and fishing resources are also key factors.

Sir Kenneth said that the Antarctic Treaty model had long proved successful, and many countries, including New Zealand, undertook research in the Antarctic, but the area was demilitarised, and ownership issues had been put to one side.

Sir Kenneth, of Wellington, was one of the 15 judges on the ICJ between 2006 and 2015.

He was earlier a judge of the New Zealand Court of Appeal and Supreme Court.

[adroth]

Comparisons

Competing claims in the Antarctic		Competing claims in the SCS / WPS

[warshak]

The first question; will our constitution allow our government officials to come into an arrangement with the other claimants, similar to the Antarctica model?

[dr demented]

The first question; will our constitution allow our government officials to come into an arrangement with the other claimants, similar to the Antarctica model?

The thing about the Antarctic Treaty is that it never actually forces anyone to give up their claims.  But rather it has kept those claims in a sort of state of "suspended animation".

None of the signatories to the treaty has ever formally renounced its claims to portions of Antarctica.

And I think that's what the former ICJ judge from New Zealand who made the suggestion is getting at........a way for the situation to be resolved without touching the sovereignty issue.

[dr demented]

BTW, the actual text of the Antarctic Treaty may be found here:

https://www.nsf.gov/geo/plr/antarct/anttrty.jsp

[adroth]

Mr D,

You've just found the legal framework for the old "Multi-National Corporation for the SCS" idea from five years ago, where we discussed the possibility of turning over responsibility for development and responsible use of the WPS / SCS to a private corporation consisting of GOCC from all claimant countries -- with all sovereignty claims suspended.

That being said, we'd need a third-party to make sure that all claimants stay honest.

[dr demented]

Follow on to the discussion of the Antarctic Treaty as a model for resolving the disputes in the South China Sea.

Meanwhile, there is another potentially dangerous multilateral territorial dispute in the North Pole region, where oil and mineral wealth is also at stake. While that dispute, like the disputes in the South China Sea, is still active and has not been solved, the Arctic disputes may offer fresh perspectives in how to deal with the issues in the South China Sea.

http://foreignpolicy.com/2017/01/05/lessons-for-the-south-china-sea-from-international-experience-in-the-arctic/

Lessons for the South China Sea From International Experience in the Arctic

By Cdr. Daniel Thomassen, Royal Norwegian Navy
Best Defense guest columnist

The recent row between the Chinese and the U.S. navies over an unmanned underwater vehicle is a glimpse of an evolving problem, which the new administration in the White House must address: The East and South China Sea currently constitute the primary global hotspot where major and regional powers’ vital interests and commitments clash directly.

The growing rivalries over resources and security trigger disputes about sovereignty and historical rights, which threaten regional stability as well as the freedom of the seas. When adding the complexity of an adolescent state system, entangled alliances and security commitments, as well as the questionable commitment from the balancing power of the United States, a classical Thucydides trap comes to mind. The deteriorating security environment in the area has a potential for conflict far beyond the current levels of ongoing militarization and skirmishes between fishing fleets, coastguards, and navies. A framework to manage this region must be implemented by the superpowers and supported by Japan, the Philippines, Vietnam, Malaysia, and Indonesia in order to be effective.

The Arctic region has similar potential of great power rivalry, but instead offers a good example of peaceful settlements and compromise. The diminishing ice cap causes a growing emphasis on resources, international waterways, and commercial potential in the Arctic, where there are also competing claims, disputed sovereignty, and great power security interests represented. However, the framework to reach mutually beneficial compromises is in place, which helps to maintain stability and predictability. This framework is made up of the Arctic Council, adherence to international law and arbitration tribunals, bilateral and multilateral treaties, demilitarized zones, as well as the power balance between Russia and the NATO alliance. These mechanisms, institutions, and agreed principles are far more robust than comparable efforts in the Southeast Asia — such as the Association of Southeast Asian Nations, the “Declaration on the Conduct of Parties in the South China Sea,” or the blunt Chinese dismissal of the ruling from the International Arbitration Court against the legitimacy of the Nine-Dash Line claim.

Other examples can be found in the Antarctic Treaty of 1959 and the 1936 Montreux Convention. But looking towards desired end states is more important than historical claims when dealing with the issues in the East and South China Seas. And finding compromise means that there must be “give aways” between China and the United States, involving issues such as ratification of the UNCLOS, respecting the “One China Policy,” American forward basing, treaties regulating sovereignty, demilitarization and commercial rights, mutual inspection regimes like the “Open Skies,” the creation of a regional body similar to the Arctic Council, cooperation on upholding good order at sea and fishery regulations, common policy on North Korea, as well as using the Commission on the Limits of the Continental Shelf and other international tribunals as basis for bilateral negotiations. Finally, diplomacy must go hand in hand with firm, power-balancing military presence by the United States.

Maybe this point of departure even benefits from the indicated transactional policy approach of incoming President Donald Trump?

Cdr. Daniel Thomassen, Royal Norwegian Navy, alumnus U.S. Naval War College, MA international relations Salve Regina University

[LionFlyer]

The difference between Antarctica and SCS is that the claimants do not recognize the concept of a "claim".

What I mean is China never said theirs is a claim; because to them, the islands has always been theirs since forever. I believe that's the same of the other parties.

In the case of Antarctica, it was an unknown land that was subsequently "discovered" and claims made thereafter. The concept of "setting aside sovereignty" is a viable concept for Antarctica because it does not detract from the claimants sovereignty as the land was never part of the claimants anyway.

[adroth]

Given that China actually accepted Philippine sovereignty over the Calamian Service Contract by signing on to it, there is precedent for China actually accepting less than complete sovereignty when dealing with us.

Perhaps we could actually start the process by dealing with other claimant nations.

Taiwan . . . will be an interesting matter to deal with. 

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See here: http://defenseph.net/drp/index.php?topic=2171.0

JV Partners and Percent Equity :  China National Offshore Oil Company International Limited (CNOOC) – Operator  51%, PNOC EC 28%, Mitra Energy Limited (MITRA) 21%.

Project Description: SC 57 was awarded to PNOC EC on 15 September 2005. It covers a total area of 7,120 sq. km. in offshore Northwest Palawan and is situated around fifty (50) kms. northwest (NW) from the north-westernmost tip of Busuanga Island.

CNOOC farmed-in into SC 57 on 3 April 2006 acquiring 51% participating interest and operatorship while Mitra Energy farmed-in on 3 March 2006 getting 21%.  The Deed of Assignment to formalize their entry has yet to be signed by the President of the Philippines.

< Edited >

However, the request for approval of the Deed of Assignment to CNOOC and Mitra Energy has been pending since 2006 with the Office of the President (OP). SC 57 is currently under force majeure but exploration activities will resume once approval is granted.

By being party to the Service Contract, doesn't it mean that China is bound by the terms of that contract, which includes recognition of Philippine laws?

Doesn't this mean that this sets a precedent for China's policies within the WPS . . . at least from a legal standpoint?

https://www.doe.gov.ph/model-petroleum-service-contract-0

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< Edited >

W I T N E S S E T H; That:

WHEREAS, all Petroleum, Crude Oil, Crude, Natural Gas and/or Casinghead Petroleum Spirit of the Philippines belong to the State and their disposition, exploration, development, exploitation and utilization  is under the full control and supervision of the DEPARTMENT under  Presidential Decree No. 87, as amended, otherwise known as the Oil Exploration and Development Act of 1972 (the “Act"), Republic Act 7638 otherwise known as the Department of Energy Act of 1992, and Section 2, Article XII of the 1987 Constitution;

WHEREAS, the Act declares it to be the policy of the State to hasten the discovery and production of indigenous Petroleum through the utilization of Government and/or private resources;

WHEREAS, the CONTRACTOR desires and agrees to provide funds, and apply its appropriate and advanced technology and expertise to cooperate with the DEPARTMENT for the exploration, development and exploitation of Petroleum resources within the Contract Area and agrees to be subject to the laws and decrees of the Government and other rules and regulations of the DEPARTMENT in the implementation of the Contract;

NOW, THEREFORE, in view of the foregoing premises, the DEPARTMENT and CONTRACTOR hereby stipulate and agree, as follows:

< Edited >