Asian Yearbook of International Law Asian Yearbook of International Law Volume 21 (2015) LEIDEN | BOSTON This is an open access title distributed under the terms of the cc-by-nc License, which permits any non-commercial use, distribution, and reproduction in any medium, pro- vided the original author(s) and source are credited. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-34454-9 (hardback) isbn 978-90-04-34455-6 (e-book) Copyright 2018 by Seokwoo Lee and Hee Eun Lee. This work is published by Koninklijke Brill nv. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. 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The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov lc record available at http://lccn.loc.gov/93643886 Asian Yearbook of International Law Co-Editors-in-Chief Seokwoo Lee Hee Eun Lee Executive Editor Lowell Bautista Editorial Board Members Jay Batongbacal Tran Viet Dung Mario Gomez V.G. Hegde Juwana Hikmahanto Kanami Ishibashi State Practice Contributors Sumaiya Khair ( Bangladesh ) Kanami Ishibashi ( Japan ) Buhm-Suk Baek ( Korea ) Shaun Kang ( Malaysia ) Jay L. Batongbacal ( Philippines ) Jaclyn Neo and Rachel Tan Xi’En ( Singapore ) Danushka S. Medawatte ( Sri Lanka ) Kitti Jayangakula ( Thailand ) Tran Viet Dung ( Vietnam ) Advisory Board Members Karin Arts Jamal Seifi Kevin Y.L. Tan Kitti Jayangakula Sumaiya Khair Jaclyn Neo Li-Ann Thio Dustin Kuan-Hsiung Wang Guifang Julia Xue Founding General Editors Ko Swan Sik Christopher W. Pinto J.J.G. Syatauw Key Editors For Previous Volumes B.S. Chimni Miyoshi Masahiro Javaid Rehman Surya Subedi Kevin YL Tan Li-Ann Thio Volume 21 (2015) The titles published in this series are listed at brill.com/ayil Foundation for the Development of International Law in Asia (dila) dila was established in 1989, at a time when its prime movers believed that economic and political developments in Asia had reached the stage at which they would welcome and benefit substantially from a mechanism to promote and facilitate exchanges among their international law scholars that had failed to develop during the colonial era. The Foundation was established (a) to promote the study of and analysis of topics and issues in the field of international law, in particular from an Asian perspective; and (b) dissemination of knowledge of, international law in Asia; promotion of contacts and co-operation between persons and institutions ac- tively dealing with questions of international law relating to Asia. The Foundation is concerned with reporting and analyzing developments in the field of international law relating to the region, and not primarily with efforts to distinguish particular attitudes, policies or practices as predominate- ly or essentially “Asian”. If they are shown to exist, it would be an interesting by-product of the Foundation’s essential function, which is to bring about an exchange of views in the expectation that the process would reveal areas of common interest and concern among the States of Asia, and even more impor- tantly, demonstrate that those areas of interest and concern are, in fact, shared by the international community as a whole. The Asian Yearbook of International Law Launched in 1991, the Asian Yearbook of International Law is a major interna- tionally-refereed yearbook dedicated to international legal issues as seen pri- marily from an Asian perspective. It is published by Brill under the auspices of the Foundation for the Development of International Law (dila). When it was launched, the Yearbook was the first publication of its kind, edited by a team of leading international law scholars from across Asia. It pro- vides a forum for the publication of articles in the field of international law, and other Asian international legal topics. The objects of the Yearbook are two- fold. First, to promote research, study and writing in the field of international law in Asia; and second, to provide an intellectual platform for the discussion and dissemination of Asian views and practices on contemporary internation- al legal issues. Each volume of the Yearbook contains articles and shorter notes, a section on State Practice, an overview of the Asian States’ participation in multilateral treaties and succinct analysis of recent international legal developments in Asia, as well as book reviews. We believe this publication to be of importance and use to anyone working on international law and in Asian studies. In keeping with dila’s commitment to encouraging scholarship in inter- national law as well as in disseminating such scholarship, its Governing Board decided to make the Yearbook open access and is available through Brill Open. Contents Editorial Note xii Seokwoo Lee and Hee Eun Lee Articles The South China Sea Arbitration : Selected Legal Notes 3 Ted L. McDorman The Political Implications of the South China Sea Ruling on Sino-Philippine Relations and Regional Stability 16 Hsiao-Chi Hsu Award of the Republic of Philippines v. the People’s Republic of China: Legal Implications on the South China Sea Disputes 34 Thi Lan Anh Nguyen Political-Legal Implications of the July 2016 Arbitration Decision in the Philippines-prc Case Concerning the South China Sea: The United States, China, and International Law 49 Jacques deLisle The South China Sea Arbitration and Its Implications for asean Centrality 83 Alan H. Yang Caught in the Middle: South Korea and the South China Sea Arbitration Decision 96 Terence Roehrig Law and Realpolitik : The Arbitral Tribunal’s Ruling and the South China Sea 121 Leszek Buszynski China’s Three Distinctive Assertions under the ‘Nine-dash-line’ Claims and the Annex vii Arbitral Tribunal’s Interpretation of Article 121 Regarding an Island and Rocks under the 1982 un Convention on the Law of the Sea 141 Eiichi Usuki x Contents South China Sea Arbitration and the Protection of the Marine Environment: Evolution of unclos Part xii Through Interpretation and the Duty to Cooperate 166 Chie Kojima Notes and Commentaries China’s Deep Seabed Law: Towards “Reasonably Appropriate” Environmental Legislation for Exploration and Exploitation of Deep Sea Minerals in the Area 183 Xiangxin Xu, Guobin Zhang and Guifang ( Julia) Xue Further Developments in Fukushima and Other New Movements for Implementing International Human Rights Law in Japan 202 Kanami Ishibashi Status and International Cooperation Aspects of Air Quality Control Laws and Policies in Korea 211 Taegil Kim and Eonkyung Park The Waste You Left Behind: Polluter Liability as Tort Korean Supreme Court Decision (2009 Da 66549) 223 Kyu Rang Kim and Seong Won Lee Legal Materials Participation in Multilateral Treaties 235 Karin Arts State Practice of Asian Countries in International Law Sumaiya Khair (Bangladesh) 260 Kanami Ishibashi ( Japan) 276 Buhm-Suk Baek (Korea) 282 Shaun Kang (Malaysia) 292 Jay L. Batongbacal (Philippines) 299 Jaclyn Neo and Rachel Tan Xi’En (Singapore) 306 Danushka S. Medawatte (Sri Lanka) 315 Kitti Jayangakula (Thailand) 321 Tran Viet Dung (Vietnam) 329 xi Contents Literature Book Review 341 Lowell Bautista International Law in Asia: A Bibliographic Survey – 2015 346 Lowell Bautista DILA Events 2015 dila International Conference and 2015 dila Academy & Workshop 367 Seokwoo Lee and Hee Eun Lee Articles from Volume 1 to Volume 20 of the Asian Yearbook of International Law 370 Editorial Note The 2015 edition (volume 21) of the Asian Yearbook of International Law marks a major milestone in the history of the Yearbook and the Foundation for the Development of International Law in Asia (dila) which authorized the pub- lication of the Yearbook. Because this is the 21st volume, it gives us, the Edi- torial Board, the chance to recognize the tremendous efforts that went into the production of the first 20 volumes which spanned the years of 1991 to 2014 and provides an opportunity to remind us of the purpose of the Yearbook to first, to promote research, study and writing in the field of international law in Asia; and second, to provide an intellectual platform for the discussion and dis- semination of Asian views and practices on contemporary international legal issues. Volume 21 also represents a homecoming of sorts as the Yearbook has re- turned to Brill|Nijhoff as the publisher of the Yearbook. When the Yearbook was launched in 1991 with the publication of volume 1, Martinus Nijhoff Pub- lishers, now an imprint of Brill, published the Yearbook. Founding General Editors Ko Swan Sik, J.J.G. Syatauw, and M.C.W. Pinto were all at The Hague at the time of the establishment of the Yearbook and naturally, Martinus Nijhoff became the publisher not only because of the convenience of Nijhoff’s offices in The Hague, but also because of its prestigious history and commitment to international law publications. Martinus Nijhoff published volumes 1 through 11 while Routledge then published volumes 12 through 15. Given the desire of dila to make the Yearbook widely available, especially to students and schol- ars of international law in Asia, Volumes 16 through 20 were made open access with the Yearbook being published by DILA in collaboration with Handong International Law School located in South Korea. The decision to move the publication of the Yearbook back to Brill was un- dertaken by dila’s Governing Board on December 7, 2016 at its meeting in Tokyo subsequent to the 2016 dila International Conference. The basis of this decision was to give the Yearbook the opportunity to utilize Brill’s global reach with its wide access to libraries and institutions around the world and its mar- keting prowess with regard to international legal publications. The Governing Board also recognized that the scholarship and information found in the Yearbook would likely be difficult to access in hardcopy form for Asian stu- dents and scholars. Therefore, the commitment was made by DILA-Korea, the secretariat of dila, to financially support making the Yearbook open access so that the full contents of the Yearbook would be made available for down- loading without cost through Brill’s website for the Yearbook. Volume 21 is the xiii Editorial Note * The main articles that are included in the Yearbook were presented as part of a conference entitled “The Aftermath of the South China Sea Arbitration: International Law, Politics, and Security Perspectives” held on 18 – 19 July 2016 in Taipei, Taiwan and the 2016 dila-Korea and kiost International Conference entitled “South China Sea Arbitration and Beyond Territorial and Maritime Disputes in East Asia” held on 5 – 6 October 2016 in Seoul, Korea. Special thanks go to Dustin Kuan-Hsiung Wang, Professor of the Graduate Institute of Politi- cal Science of National Taiwan Normal University, who organized the conference in Taipei. first volume of the Yearbook that will be available as open access through Brill with the hope that eventually all of the Yearbook’s volumes will be accessible without cost. i Main Articles The main articles of volume 21 concern the South China Sea Arbitration be- tween the Philippines and China that commenced in 2013 and decided in 2016 focusing on the implications of the decision of the arbitral tribunal on territo- rial and maritime disputes in Asia.* The first article by Ted L. McDorman of the University of Victoria in Canada is entitled “The South China Sea Arbitration: Selected Legal Notes.” Professor McDorman examines the South China Sea Arbitration between the Philippines and China specifically focusing on the legal status of the 2016 Award; the deci- sion of the Tribunal that possessed jurisdiction to deal with the subject-matter of the dispute regarding the legal status of specific maritime features as rocks and islands since it did not concern territorial sovereignty or maritime bound- ary delimitation; and finally, the Tribunal’s decision on the merits where it ruled that it had jurisdiction to decide upon China’s historic rights claims and the nine-dash line. The second article is from Hsiao-Chi Hsu of National Taiwan Normal Uni- versity who discusses “The Political Implications of the South China Sea Ruling on Sino-Philippine Relations and Regional Stability.” Professor Hsu looks at the South China Sea Arbitration by examining the political implications of the ar- bitral panel’s decision in favor of the Philippines on the foreign policy of the Philippines and on the prospects for regional stability. Thi Lan Anh Nguyen of the Diplomatic Academy of Vietnam follows with the “Award of the Republic of Philippines v. the People’s Repub- lic of China Case: Legal Implications on the South China Sea Disputes.” Dr. Nguyen observes that the Tribunal’s conclusions as to the legal status of the low tide elevations and the impossibility of drawing the archipelagic Editorial Note xiv baselines for the Spratlys indicate that the scope of sovereignty disputes has been significantly reduced between the Philippines and China. She also notes that the decision addressed important issues regarding marine environmental protection and the safety of navigation. She hopes that the award has created a new legal status quo in the South China Sea. Jacques deLisle of the University of Pennsylvania in the United States dis- cusses the “International Political Implications of the July 2016 Arbitration Decision in the Philippines-prc Case Concerning the South China Sea: the us, China and International Law.” He notes that the decision in the Philippines- China arbitration was fully consistent with the legal-political position of the United States in that (1) there was no position taken on the questions of sover- eignty over disputed maritime features; (2) the rights to freedom of navigation and overflight and access to maritime commons in the South China Sea were asserted and protected; (3) the parties were insisted to follow international law and in particular, unclos; and finally, (4) there was a call on the claimants to use peaceful means to address their disputes. In regards to China, while China’s response to the arbitral decision was predictably negative and consistent with their long-standing position, China faces the situation where it is being ac- cused of being an international scofflaw and a revisionist in its approach to major components of the international legal and political order. Professor deLisle then looks at the implications of the decision for international law and expresses concern that if China ignores the decision, this will prevent China from integration into the mainstream international legal system which will re- sult in the Tribunal’s decision being a hollow victory for law. Alan H. Yang of National Chengchi University in Taiwan continues with his article, “South China Sea Arbitration and Its Implication for asean Central- ity”. In his article, he argues that the final award of the Tribunal will not put an end to the dispute, but will rather legally socialize China’s actions in the South China Sea. Professor Yang believes that the decision will lead to a more divided asean and a more fragmented regional community. He looks at strategic conditions of the South China Sea from the perspective of asean noting that asean has failed to secure unity among its member States. He also goes on to examine the policy implications for asean of the Tribunal’s decision. Terence Roehrig of the u.s. Naval War College follows with “Caught in the Middle: South Korea and the South China Sea Arbitration Decision.” He notes that while the disputes over the South China Sea and the Tribunal’s decision do not have a direct impact on South Korean interests, it does increase the chance that South Korea will have to take a side on the matter. Professor Roehrig points out that the decision could affect South Korea’s maritime disputes with China, Japan, and North Korea. He observes that South Korea has been relatively xv Editorial Note successful in balancing its competing interests, but notes that depending on how the dispute between the Philippines and China evolves, and more impor- tantly, the future of Sino-u.s. relations, South Korea may have some increas- ingly difficult choices to make concerning international law, maritime security and its relations with China and the United States. The next article is by Leszek Buszynski of the Australian National Uni- versity entitled “Law and Realpolitik: The Arbitral Tribunal’s Ruling and the South China Sea”. Professor Buszynski contextualizes China’s response to the Tribunal’s decision against it in light of the tension between international law and realist notions of international relations. He notes that while the perception may be that powerful States are able to ignore international law and not comply with its standards, there are consequences for non-compliance. He examines China’s response to the Tribunal’s award and its domestic impact and the effect it has on asean and its member States. He concludes by noting that by rejecting the Tribunal’s ruling, China is creating greater uncertainty in maritime affairs when the resort to force to settle disputes will become more likely. From his per- spective, the consequences for China, a major trading country with a strong in- terest in the security of maritime trade, would be that it faces the consequences of a deterioration in maritime security first. He believes that Beijing should as- sume the responsibilities commensurate with its economic weight and support a maritime order based on law and the legal principles that sustain it. Eiichi Usuki of Daito Bunka University in Japan looks at “China’s Three Distinctive Assertions under the ‘Nine-dash-line’ Claims and the Annex VII Arbitral Tribunal’s Interpretation of Article 121 Regarding an Island and Rocks under the 1982 un Convention on the Law of the Sea.” Professor Usuki exam- ines the historical background of the South China Sea to provide a context to understand China’s nine-dash line claim. He then goes on to analyze the Arbitral Tribunal’s characterization and evaluation of the nine-dash line claim. Given the Tribunal’s decision against China, Professor Usuki looks at the im- plications of the ruling for China and asean. He comments on the Tribunal’s standards for determining maritime features such as rocks and islands under unclos and what this means for Japanese claims. The last of the main articles is by Chie Kojima of Musashino University in Japan entitled “South China Sea Arbitration and the Protection of the Ma- rine Environment: Evolution of unclos Part xii through Interpretation and the Duty to Cooperate.” Professor Kojima discusses the contributions of the South China Sea Arbitral Award to the development of international marine environmental law. First, she analyzes the evolutionary interpretation of Part xii of the unclos in the light of other treaty regimes, namely the Conven- tion on Biological Diversity (cbd) and Convention on International Trade in Editorial Note xvi Endangered Species of Wild Fauna and Flora (cites). Second, she looks at the Arbitral Tribunal’s interpretation of Article 206 of unclos on environmental impact assessment (eia) and the duty to communicate the results of an eia in the context of the duty to cooperate enshrined as a fundamental principle under Part xii of unclos. ii Notes and Commentaries The main articles are followed by notes and commentaries that examine the State practice of Asian countries in more depth. Xiangxin Xu, Guobin Zhang, and Guifang (Julia) Xue look at “China’s Deep Seabed Law: Towards ‘Reason- ably Appropriate’ Environmental Legislation for Exploration and Exploitation of Deep Sea Minerals in the Area.” Next, Kanami Ishibashi of Tokyo University of Foreign Studies in Japan examines “Further Developments in Fukushima and Other New Movements for Implementing International Human Rights Law in Japan.” Eonkyung Park and Taegil Kim of Kyung Hee University follow with an examination of the “Status and International Cooperation Aspects of Air Quality Control Laws and Policies in Korea.” Finally, Kyu Rang Kim and Seong Won Lee of Inha University Law School in Korea present “The Waste You Left Behind: Polluter Liability as Tort.” iii Legal Materials The Yearbook from its inception was committed to providing scholars, practi- tioners, and students with a report on Asian State practice as its contribution to provide an understanding of how Asian States act within the international system and how international law is applied in their domestic legal systems. The Yearbook does this in two ways. First, it records the participation of Asian States in multilateral treaties; and second, it reports on the State practice of Asian States. 1 Participation in Multilateral Treaties From the very first volume of the Yearbook, the Multilateral Treaties section has recorded the participation of Asian States in open multilateral lawmak- ing treaties which mostly aim at world-wide adherence during the calendar year that corresponds to the particular year of the Yearbook. Karin Arts of the International Institute of Social Studies, Erasmus University Rotterdam in The xvii Editorial Note Hague, Netherlands has compiled and edited this section since the 1994 edi- tion of the Yearbook up to the present volume. 2 State Practice of Asian States in the Field of International Law The State Practice section of the Asian Yearbook of International Law is intend- ed to offer readers of the Yearbook an outline and summary of the activities undertaken by Asian States that have a direct bearing on international law. The national correspondents, listed in the table of contents, who have under- taken the responsibility to report on State practice in their respective countries commit themselves to give the readership of the Yearbook a comprehensive snapshot of what States are doing in relation to international law during the calendar year that corresponds to the particular year of the Yearbook. The in- tention is not to provide a commentary on Asian State practice of internation- al law, but to describe how these States are applying international law in their domestic legal systems and in their foreign relations. This task is all the more challenging given the increasing relevance of international law throughout the region and the abundance of State practice that is seen year after year. iv Literature 1 Book Review The Yearbook seeks to review manuscripts that focus on the international legal issues that impact the Asian region. For this edition of the Yearbook, Dr. Lowell Bautista of the University of Wollongong School of Law and of the Board of Editors gives his review of Asia-Pacific and the Implementation of the Law of the Sea: Regional Legislative and Policy Approaches to the Law of the Sea Convention edited by Seokwoo Lee and Warwick Gullett and published by Brill. 2 Bibliographic Survey From the first volume (1991) to the fourteenth volume (2008), the Yearbook has provided information on books, articles, notes, and other materials deal- ing with international law in Asia, broadly defined to give the readership of the Yearbook a simple way to find scholarship about international legal issues in Asia. Originally, it was referred to as the “Bibliography of International Law Concerning Asian Affairs” the first of which was drafted by J.J.G. Syatauw. From volume 9 (2000), this section was referred to as “Survey of International Law Literature Published in [calendar year] Relevant to Asian States” and continued in that format until volume 14 (2008). From volume 15 (2009) through volume Editorial Note xviii 16 (2010), the section was omitted. From volume 17 (2011), it was revitalized and renamed “International Law in Asia: A Bibliographic Survey” and has been included ever since. Dr. Bautista has prepared the bibliography for the 2015 edition. v dila Activities The 2015 edition of the Yearbook reports on the activities undertaken by dila in 2015, namely the annual dila International Conference and dila Acade- my and Workshop that were held on 16 and 17 October 2015 on the campus of Hasanuddin University at the Faculty of Law in Makassar, Indonesia. Finally, in recognition of the past 20 volumes of the Yearbook, a list of the main articles that have been published from volume 1 to volume 20 has been provided to recognize the depth and breadth of scholarship that the Yearbook has been privileged to publish. We hope to continue and build on the excellence that has been established by the previous editorial boards of the Asian Yearbook of International Law with this 2015 edition and beyond. Here’s to another 20 volumes of the Yearbook! Seokwoo Lee , Inha University Law School Co-Editor-in-Chief Hee Eun Lee , Handong International Law School Co-Editor-in-Chief Articles ∵