Keyuan China-Asean Relations and International Law

1. Auflage 2009
ISBN: 978-1-78063-233-9
Verlag: Elsevier Science & Techn.
Format: EPUB
Kopierschutz: 6 - ePub Watermark

E-Book, Englisch, 250 Seiten

Reihe: Chandos Asian Studies Series

Our contemporary era has witnessed the remarkable development of China-ASEAN relations. Both sides have pledged to establish and develop a comprehensive cooperation. However, any development of international relations is governed by international legal principles, norms and rules, such as the Charter of the United Nations and general international law. There is no exception for China-ASEAN relations. The book discusses and explains China-ASEAN relations from an international law perspective and covers a wide range of legal topics and legal issues. - The first book which attempts to discuss and explain China-ASEAN relations in an international law perspective - Covers a wide range of legal topics and issues significantly existing in the development of China-ASEAN relations - Unique in the sense that it specifically deals with the relationship between one country and one international/regional organization

Autoren/Hrsg.

Keyuan, Zou

Inhaltsverzeichnis

1;Cover;1
2;China–ASEAN Relations
and International Law;4
3;Copyright;5
4;Dedication;6
5;Contents;8
6;About the author;12
7;Part I Introduction;14
7.1;1 History and development of contemporary China–ASEAN relations;16
7.1.1;History of interchange;16
7.1.2;Establishment and evolution of ASEAN;17
7.1.3;Modern relations between China and ASEAN;20
7.1.4;Future prospects;27
7.1.5;Notes;31
7.2;2 Asian approaches and contributions to international law;34
7.2.1;Introduction;34
7.2.2;Existing contributions of Asian countries to international law;35
7.2.3;Asian perspectives of international law;39
7.2.4;Resort to international judiciary;43
7.2.5;Future prospects;47
7.2.6;Notes;51
8;Part II Compliance with and implementation of international law;56
8.1;3 Legal framework for the development of China–ASEAN relations;58
8.1.1;Legal principles guiding the development of China–ASEAN relations;58
8.1.2;Legal status of ASEAN;63
8.1.3;Legal nature of the China–ASEAN relationship;70
8.1.4;Conclusion;74
8.1.5;Notes;75
8.2;4 Law and economic integration;80
8.2.1;Legal framework;82
8.2.2;Trade;88
8.2.3;Investment;93
8.2.4;Agriculture;95
8.2.5;Pan-Beibu Gulf economic cooperation;95
8.2.6;Conclusion;97
8.2.7;Notes;98
8.3;5 Law and cooperation for the Greater Mekong River sub-region;102
8.3.1;Legal status of international rivers;102
8.3.2;Rights and obligations of riparian states;103
8.3.3;Sustainable economic cooperation;106
8.3.4;Ecological concerns;117
8.3.5;Conclusion;121
8.3.6;Notes;122
8.4;6 Law for the protection of the environment;130
8.4.1;Introduction;130
8.4.2;ASEAN treaties;131
8.4.3;Global environmental responsibility;134
8.4.4;Regional environmental issues;141
8.4.5;Environmental dispute settlement;147
8.4.6;Conclusion;151
8.4.7;Notes;151
8.5;7 Law tackling non-traditional security issues;158
8.5.1;Introduction;158
8.5.2;Legal arrangements in China–ASEAN relations;159
8.5.3;Issues tackled;162
8.5.4;Conclusion;179
8.5.5;Notes;179
8.6;8 Law governing the South China Sea issue;186
8.6.1;Geography of the South China Sea;186
8.6.2;Territorial disputes over islands and maritime claims;187
8.6.3;Governing laws;193
8.6.4;Joint development;198
8.6.5;Conclusion;200
8.6.6;Notes;202
9;Part III Bilateral relations between China and individual ASEAN countries;208
9.1;9 China’s possible role in Myanmar’s national reconciliation¹;210
9.1.1;Historical link;210
9.1.2;China’s basic foreign policy;211
9.1.3;Developments in Sino-Myanmar relations;213
9.1.4;The ASEAN mechanism;217
9.1.5;China’s possible role;218
9.1.6;Prospects;222
9.1.7;Notes;224
9.2;Appendixes
;228
9.2.1;1. Treaty of Amity and Cooperation in Southeast Asia;228
9.2.2;2. Framework Agreement on Comprehensive Economic Co-Operation between ASEAN and China;233
9.2.3;3. Joint Declaration of ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues;246
9.2.4;4. Memorandum of Understanding
between the Governments of the Member
Countries of ASEAN and the Government
of China on Cooperation in the Field of
Non-Traditional Security Issues;249
9.2.5;5. Declaration on the Conduct of the Parties in the South China Sea;254
10;Selected bibliography;258
11;Index;266

Leseproben

2 Asian approaches and contributions to international law
Introduction
With the rise of China and India, the question arises whether these new powers would change the existing international order, including legal order. Over the last decade, China’s economic growth has continued to rise with the increase in its annual GDP at the rate of more than 9 per cent. In 2006 its GDP growth was 10.7 per cent.1 ‘China is now the third largest producer of manufactured goods, its share having risen from four to 12 percent in the past decade’.2 Although India lags behind China in terms of its economy, it has recently attained a high level of economic growth as well. Its economic growth rate in 2006 was 9.2 per cent.3 Demographically, China and India are among the largest countries in the world with the total population of over 2.3 billion. Politically, China is one of the five permanent members of the UN Security Council, while India has recently gained its status as a global nuclear power. It is believed that this trend of Asian ascendancy will continue in the next century as well. The world political landscape will thus inevitably change in response to the rise of Asia, and so will the global legal order. As is predicted, ‘Asia will alter the rules of the globalizing process’ and ‘Asian giants may use the power of their markets to set industry standards, rather than adopting those promoted by Western nations or international standards bodies’.4 Although these comments focus more on the economic sector of globalisation, the Asian influence over the global legal order will possibly far exceed the realm of the World Trade Organization (WTO). On the other hand, it is a well-known fact that despite their recent remarkable economic growth, both China and India are categorised as developing or Third World countries at least at present. In comparison with developed or First World countries, they are still poor. This is one of the reasons why China and India, despite being signatories to the Kyoto Protocol, do not have emission reduction targets. Therefore, these two countries will influence the development of international law as rising global powers as well as fast developing countries. Both China and India have realised their importance and indispensability in the development of the future international order including the international legal order, which is evident in the statement that ‘they are two major powers in the formulation of the multi-polar international order and their simultaneous developments will exert an active influence over the future international system’.5 The picture of the rise of Asia would not be complete without the mention of the contributions from other Asian countries such as Japan, South Korea and Association of Southeast Asian Nations (ASEAN) member countries. They will also influence the development of international law in various ways. Thus, the thread running through the Asian influence on and/or contributions to the development of international law is twofold: from the practice of an individual Asian state and from the collective endeavours of all Asian states, mainly through multinational mechanisms or organisations such as ASEAN. Existing contributions of Asian countries to international law
There are four main driving forces behind the development of modern international law: (1) independent movements in Asia, Africa and Latin America, which became a great influencing force; (2) the development of international economic relations; (3) the establishment of international organisations and (4) the development of science and technology.6 With decolonisation, more and more nations have gained independence and have become members of the United Nations. As of August 2008, the United Nations has 192 members, the majority of which are developing countries. It is unfortunate that the attempt of developing countries during the 1970s to establish a new international economic order has come to no fruition because the current world economic order is directed towards and maintained by the developed countries, centred on the regulations of the WTO, World Bank and other West-created international organisations. But the contributions of developing countries, including Asian nations, to the development and codification of modern international law cannot be ignored despite the fact that international law is a creation of the Western civilisation. The Third World countries ‘aligned themselves to take concerted action and play an important role in the international legal structure in pursuance of their interests’.7 However, it is impossible to list each and every contribution from these countries, including the Asian nations, to every aspect of international law. For the purpose of illustration, it is wise to choose one of the branches of international law as an example – the law of the sea. We know that the law of the sea is the oldest and the most well-developed branch of international law. Its main contents have now been incorporated into the 1982 United Nations Convention on the Law of the Sea (the LOS Convention), which came into force in 1994. The LOS Convention guarantees global marine legal order and is of utmost significance for maintaining world peace, justice and progress. According to the convention, the ocean space is divided into several maritime zones: internal waters within the baselines of a coastal state, the 12-nautical-miles territorial sea measured from the baselines, the exclusive economic zone (EEZ) and continental shelf, and the high seas and international seabed area. Different maritime zones have different legal regimes. Internal waters and territorial sea are under the sovereignty of the coastal state; the EEZ and continental shelf are subject to the coastal state’s jurisdiction and sovereign rights; and the high seas and international seabed area can be defined as one of the global commons which are open to all nations in the world in accordance with international law. The most significant contribution of the developing countries, including Asian nations, to the development of the law of the sea is the legal concept of common heritage of mankind (CHM). During the 1958 Geneva Conference on the Law of the Sea, Prince Wan Waithayakon of Thailand mentioned that ‘the sea is the common heritage of mankind’.8 Arvid Pardo, then-Maltese ambassador, later elaborated this concept in a memorandum dated 17 August 1967 from the Permanent Mission of Malta sent to the UN Secretary General, stating that ‘the time has come to declare the sea-bed and the ocean floor a common heritage of mankind’. According to him, the following principles should be drafted in a treaty: (a) the seabed and ocean floor are not subject to national appropriation, (b) they should be explored complying with the purposes and principles of the UN Charter and with the aim of safeguarding the interests of mankind and (c) they should be reserved exclusively for peaceful purposes in perpetuity.9 The concept of the CHM was finally incorporated into the negotiation text of the Third United Nations Conference on the Law of the Sea in May 1975, and was later formally written in the LOS Convention. Article 136 of the convention provides that: ‘The Area and its resources are the common heritage of mankind’.10 Article 137 establishes the legal status of the Area and its resources, and Article 140 sets out the economic objectives of the CHM. The adoption of the CHM concept in the LOS Convention marked the establishment of the concept as a formal legal principle. There are five accepted principal elements which characterise the CHM: ‘First, the common heritage cannot be appropriated – it could be used but not owned; second, the use of the common heritage required a system of management in which all users must share; third, it implied an active sharing of benefits, including not only financial benefits but also benefits derived from shared management and exchange and transfer of technologies; fourth, the principle of common heritage implied eventual reservation for peaceful purposes; and finally, it implies transmission of the heritage substantially unimpaired to future generations’.11 Although the 1994 Agreement Relating to the Implementation of Part XI of the LOS Convention made significant changes to the legal regime for the international seabed area, the CHM provision remains unchanged.12 Other contributions of developing countries to the LOS Convention include, inter alia, the legal regimes for the EEZ, archipelagic waters and transit passage through straits used for international navigation. The contributions of Indonesia and the Philippines as archipelagic countries and of Malaysia and Singapore as littoral countries of the Straits of Malacca and Singapore in establishing the legal regimes for archipelagic waters and transit passage are remarkable, as manifested in the official records of the Third United Nations Conference on the Law of the Sea. Most Asian countries have ratified the LOS Convention. For example, China ratified it in 1996 and India in 1995. In addition, both China and India are pioneer investors in the international seabed. China possesses a major portion of mining area of 75,000 km2, which is located in the C-C fault zone in the east Pacific Ocean basin.13 By participating in the activities of the International Seabed Authority, these two countries can influence its law/regulation making pertaining to deep seabed mining. The latest contribution from Asian countries to the development of the law of...