Ian Townsend-Gault

Beyond Territorial Disputes in the South China Sea

Contents: Preface S. Jayakumar Introduction: Why Joint Development in the South China Sea? Robert C. Beckman, Clive Schofield, Ian Townsend-Gault, Tara Davenport and Leonardo Bernard PART I: UNDERSTANDING THE South CHINA SEA DISPUTES 1. Whats at Stake in the South China Sea? Geographical and Geopolitical Considerations Clive Schofield 2. International Law and the South China Sea Disputes Robert C. Beckman PART II: JOINT DEVELOPMENT: PRINCIPLES, PRE-REQUISITES AND PROVISIONS 3. The Exploration and Exploitation of Hydrocarbon Resources in Areas of Overlapping Claims Tara Davenport 4. Rationale for Zones of Co-operation Ian Townsend-Gault 5. Negotiating Joint Development Agreements Gavin McLaren and Rebecca James 6. Common Provisions in Joint Development Arrangements Richard Nowinski and Peter Cameron PART III: JOINT DEVELOPMENTS AND OTHER PROVISIONAL ARRANGEMENTS IN ASIA 7. Joint Development in Southeast Asia David Ong 8. Joint Development in the Gulf of Tonkin and Northeast Asia Vasco Becker-Weinberg 9. Timor Sea Treaty Stuart Kaye 10. Provisional Arrangements in the Torres Strait Ben Milligan PART IV: JOINT DEVELOPMENT IN THE SOUTH CHINA SEA 11. Factors Conducive to Joint Development in Asia - Lessons Learned for the South China Sea Robert C. Beckman, Clive Schofield, Ian Townsend-Gault, Tara Davenport and Leonardo Bernard 12. Moving Forward on Joint Development in the South China Sea Robert C. Beckman, Clive Schofield, Ian Townsend-Gault, Tara Davenport and Leonardo Bernard Index

Factors conducive to joint development in Asia – lessons learned for the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources

Joint development in the South China Sea has been suggested as a solution to the Spratly Islands disputes since the 1980s. China was one of the earliest proponents of ‘setting aside the dispute and pursuing joint development’. The South China Sea Workshops on Managing Potential Conflicts in the South China Sea discussed joint development but ran into a number of obstacles, notably because of longstanding sensitivities over sovereignty issues and conflicting maritime claims. Consequently, the Workshops sought to focus on less contentious issues such as cooperation on marine biodiversity and the safety of navigation. Through this nonconfrontational, non-binding and incremental approach, the Workshops were instrumental in building trust and confidence among the claimants and in getting them to consider co-operative measures in areas of common interest.

Moving forward on joint development in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources

The examination of the factors that facilitated the conclusion of joint development arrangements in Asia in Chapter 11 has demonstrated that there remain considerable obstacles before joint development in the South China Sea can be discussed in a serious and meaningful manner. The following recommendations set out steps which the claimants and, in certain circumstances, other relevant stakeholders, can take to move towards a situation where joint development is a feasible dispute settlement option.

Introduction: why joint development in the South China Sea?: Legal Frameworks for the Joint Development of Hydrocarbon Resources

The South China Sea is of critical importance to its multiple bordering States and entities for a number of reasons. In particular, the broad, semienclosed waters of the South China Sea host a marine environment of globally significant biological diversity and productivity. Consequently, these waters support and sustain marine living resources, especially fisheries and aquaculture activities, which are fundamental to the livelihoods as well as the primary protein needs, and thus food security, of literally hundreds of millions of people within the region. The seabed underlying the South China Sea is also often portrayed as a major potential source of seabed hydrocarbon resources. Regardless of the true validity of suggestions that the seabed is ‘oil rich’, the perception that this is the case remains a powerful factor in the calculations of the interested coastal States. Moreover, the South China Sea hosts sea lanes of global significance and the geostrategic importance of the region cannot be ignored. All of these considerations are of note in the context of the other critical feature of the South China Sea – its highly disputed and contested character. The South China Sea is host to multiple and, to a large extent, intertwined maritime and territorial disputes involving China, Viet Nam, Philippines, Malaysia, Brunei and Taiwan (the claimants). These disputes include competing claims to territorial sovereignty, especially in respect to several groups of small islands, as well as maritime jurisdictional disputes which have given rise to broad areas of overlapping maritime claims. These contentious disputes are longstanding and represent an enduring source of friction between the interested States with alarming and dangerous potential for escalation. Consequently, the South China Sea has frequently been ranked among the Asia-Pacific’s primary flashpoints for conflict.

Brokering cooperation amidst competing maritime claims: preventative diplomacy in the Gulf of Thailand and South China Sea

This chapter examines some of the issues and challenges that arise in the context of maritime cooperation in the South China Sea and the Gulf of Thailand. An overview of the geographical and geopolitical context is offered, together with a brief assessment of the key maritime interests at stake. The chapter then presents an assessment of the baselines, claims to maritime jurisdiction, and related agreements, including those involving maritime joint development, existing in the South China Sea and Gulf of Thailand. Claims inconsistent with the relevant provisions of the United Nations Convention on the Law of the Sea (LOS Convention) are highlighted, in particular claims based on alleged historic rights. The problematic issue of dealing with islands in the South China Sea context is also explored. The chapter then considers efforts towards enhancing maritime cooperation, management and dispute resolution. Keywords: Gulf of Thailand; LOS Convention; maritime cooperation; South China Sea