The 21st Century Maritime Silk Road

Challenges and Opportunities for Asia and Europe

Keyuan Zou, Shicun Wu, Qiang Ye, Keyuan Zou, Shicun Wu, Qiang Ye

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9780429602986
• Edition: 1
• Topic: History
• Subtopic: Asian History
• Index: History

This book explores the opportunities and challenges that both Europe and Asia face under the framework of the 21st Century Maritime Silk Road Initiative.

The 21st Century Maritime Silk Road Initiative (MSR Initiative), put forward by the Chinese government together with the Silk Road Economic Belt, reflects China's ambition and vision to shape the global economic and political order. The first step and priority under the MSR Initiative, according to documents issued by China, is to build three 'Blue Economic Passages' linking China with the rest of the world at sea, two of which will connect China with Europe. This initiative, however, still faces enormous challenges of geopolitical suspicion and security risks. This book seeks to assess these risks and their causes for the cooperation between the Eurasian countries under the framework of MSR and puts forward suggestions to deal with these risks in the interdisciplinary perspectives of international relations and international law.

Featuring a global team of contributors, this book will be of much interest to students of Asian politics, maritime security, international law and international relations.

1 Introduction

Keyuan Zou, Shicun Wu and Qiang Ye

Introduction

The ‘One Belt, One Road’ Initiative launched by Chinese President Xi Jinping in the year 2013, is providing new impetus and practical paths for intra- and inter-regional connectivity. The Initiative focuses on cooperation between China and countries along the land-based ‘Silk Road Economic Belt’ and the ocean’s ‘21st-Century Maritime Silk Road’, which is essentially shipping lanes from China to Europe. The promotion of policy coordination and strategic integration within the framework of the Initiative is China’s key policy towards Europe. The fact that the demographic coverage between the European Union (EU) and China accounts for 64 per cent of the world’s population and 30 per cent of global Gross Domestic Product (GDP), will make the cooperation among the Asian and European partners more beneficial. In addition to the mutual benefit for Asian and European countries, the Initiative may be more beneficial for the UK, particularly after its formal Brexit.

Undoubtedly, however, the Initiative faces enormous challenges of geopolitical suspicion and security risks. Despite reshaping the geoeconomic landscape of the Initiative, doubts remain that China is trying to realise its geopolitical objectives through the Maritime Silk Road Initiative. On the other hand, the regions along the Road are full of geopolitical conflict zones with traditional and non-traditional security challenges. Therefore, it is necessary to develop a risk assessment for the Initiative, which given its long-term and large scale cooperation with so many countries and regions involved, it has elicited a strong response from not only China’s neighbouring countries and regions, but the entire international community.

In order to cope with these issues from the academic perspective, the Institute for International and Comparative Law of the University of Central Lancashire, UK and the China National Institute for South China Sea Studies have jointly undertaken a research project on the Maritime Silk Road. Part of those research outputs was successfully presented at the International Symposium on ‘Maritime Silk Road: Challenges and Opportunities for Asia and Europe’, on 4–5 May 2017 (Preston, UK). By bringing global experts together in discussion, the Symposium explored various issues concerning the opportunities and challenges that both Europe and Asia face, including sea lanes and maritime connectivity, safety of navigation, non-traditional security threats, sustainable development and marine environment protection.

Contents and structure

This book includes papers selected from the above Symposium and constitutes four parts. Part I focuses on the Asia-Europe maritime cooperation and handles challenges arising from the cooperation under the framework of the Initiative. In Chapter 2, Jörn Axel Kämmerer discusses an EU perspective on the Maritime Silk Road. He concludes that, by erecting a structure that connects a multitude of States, markets and jurisdictions, the architects of the Maritime Silk Road will need to price in tensions, incompatibilities and clashes – as well as mutual misperceptions – between legal and political systems. While laying the foundations is a matter of public international law, the interior fittings must also be adjusted to EU law – that is, to an intermediate order that is neither national nor international. Although third-state actors cannot formally invoke the free movement of goods and the freedom to provide services in the Union, secondary Union law, especially the rules providing for a non-discriminating public tendering procedure, are actually conceived in a way that they also benefit non-Union players. These provisions are derived from the market freedoms and the underlying concept of unobstructed competition, constituent pillars of that order that China cannot expect to be waived for the sake of building the Maritime Silk Road. Moreover, the EU is unlikely to hail the Maritime Silk Road if they feel that it turns on China’s interests only; that Chinese unilateralism drives a wedge between the Member States and between the latter and the Union; that the access of European companies to Chinese markets, especially service markets, remains limited; and that no reciprocity can be expected as regards access to land use rights, concessions or shares of port management companies.

In Chapter 3, Erik Franckx discusses the Northern Sea Route in the context of China’s Maritime Silk Road Initiative, and tries to answer the question of whether the Initiative also encompasses a maritime leg running north of the Silk Road Economic Belt, i.e. a maritime waterway making use of the sea route running north of the Eurasian continent, the so-called Northeast Passage, including the Russian Northern Sea Route.

In Chapter 4, Renping Zhang and Shihui Yu examine the challenge of Maritime Silk Road to port connectivity. They conclude that the connectivity of the Initiative will: tap market potential; promote investment and consumption; create demands and job opportunities; enhance people-to-people and cultural exchanges in the countries along the Maritime Silk Road; and mutual learning among the peoples of the relevant countries, enabling them to understand, trust and respect each other and live in harmony, peace and prosperity. On the other hand, challenges exist where the Maritime Silk Road extends and ports connect across Asia and Europe. The challenges to Maritime Silk Road and port connectivity may include, but not be limited to, those of political factors, economic factors, legal and policy factors, cultural factors, technological factors, maritime security factors and environmental factors.

Part II addresses the traditional and non-traditional security issues of sea lanes of communication (SLOCs). In Chapter 5, Fu-Kuo Liu analyses how the Maritime Silk Road Initiative will change the geopolitical configuration in the Indo-Pacific region. He concludes that with dramatic efforts in place, China through the Maritime Silk Road Initiative, making more cooperative partners along maritime routes, will push through transformation of the geostrategic landscape in the Indo-Pacific. While the Initiative has been gradually implemented, assurance of SLOCs becomes pivotal. Undoubtedly, uncertainties and suspicions of China’s grand efforts remain to be challenging. A new doubt about China’s assertive effort of reshaping international norms may obscure its rightful goal of the Initiative. The upcoming negotiation on the Code of Conduct (CoC) however, would definitely be considered the progress the region has been long awaiting. It is critically important for China to make the Maritime Silk Road Initiative useful and credible to regional peace in the South China Sea.

Vivian Louis Forbes discusses the SLOCs security from the perspective of geography and its implications on the Belt and Road Initiative (BRI), in Chapter 6. He suggests that a major component and concern of the BRI is the utilisation of the concept of SLOCs, namely, the maritime trade routes employed by ships. In addition to the traditional shipping lanes, there exist potential new routes, for example, weather permitting, via the Arctic Ocean. From the European perspective, cargo shipped from the ports of East Asia via the Polar Silk Road would take a relatively shorter duration than using the routes through the South East Asian seas. However, the SLOCs via the geographical choke points, for example, the Straits of Malacca and Singapore, the Bab-el Mandeb, Strait of Hormuz and Strait of Gibraltar have experienced, and still report, a fair share of problems in the context of maritime security, especially regarding acts of piracy and terrorism. Ensuring safety of the ships and the cargoes they carry, the personnel and the commercial value of the ships is of prime concern to operators and governments of the littoral states. Whereas, freedom of navigation and innocent passage are rights that apply to all commercial shipping, a ‘legal grey area’ exists for ships engaged in scientific research and other activities. This chapter highlights the problem areas, examines the issues and offers an analysis of maritime security.

Keyuan Zou and Qiang Ye, in Chapter 7, examine the SLOCs security in the South China Sea and its implications on the Maritime Silk Road. The security of SLOCs in the South China Sea still remains an issue in the sense that territorial and maritime disputes between/among multiple claimants in the region, and the geopolitical competition between China and countries outside the region, may constitute threats to the safety of navigation in the South China Sea. While the United States has believed that its Freedom of Navigation Operation Programs (FONOPs) are there to enforce rules of law at the sea, legal analysis better supports China’s position that the US FONOPs in the South China Sea are offensive to its sovereignty. Moreover, the adverse effect on the process of peaceful settlement of territorial issues and maritime disputes, as well as to the security of SLOCs in the South China Sea region, cannot be ignored.

In Chapter 8, Christian Frier and Kim Østergaard examine the Polar Code’s suitability as legal protection against negative externalities in the Arctic in the context of the ‘Polar Silk Road’. The Polar Code is the latest example of a source of law, which relates to the commercial activities in the Arctic, aimed at raising the standard of maritime activities in the Arctic by introducing mandatory minimum requirements for the industry. The suitability of the Polar Code as legal protection, however, depends largely on the states’ ability to ensure compliance and enforcement, whether it be the flag State itself or foreign states. This will be a task that is imposed on the coastal states to the extent allowed by the Law of the Sea.

Part III addresses the environmental security and fishery cooperation. In Chapter 9, Lorenzo Schiano di Pepe focuses on the Climate Law and its implications of the Maritime Silk Road Initiative. He addresses some implications of the Initiative from the perspective of its possible contribution to climate change patterns, given the fact that the bunker oil usually burnt by merchant ships produces a number of polluting substances, including carbon dioxide. From a legal standpoint, the issue of vessel-generated greenhouse gas emissions sits at the crossroads of two different regimes, namely the United Nations Framework Convention on Climate Change (UNFCCC) and its subsequent developments, including the so-called Paris Agreement of 2015, on the one hand, and the body of rules adopted under the auspices of the International Maritime Organization (IMO), on the other. The interaction between two such normative systems and the approach adopted by the European Union (EU) with regard to carbon dioxide emitted by ships is critically examined.

In Chapter 10, Lei Zhang addresses the environmental security in the South China Sea region. She concludes that environmental issues are the common threat to South China Sea states, which creates a driving force for the South China Sea states’ cooperation in order to not only protect the common interests but also maintain regional peace and stability. Although efforts are made at bilateral, regional and inter-regional levels, environmental cooperation still needs to be more effective to achieve a balance between environment and economic development, without being tilted towards fast economic growth. Only if the political leaders address environmental problems as security matters, will environmental conservation be at the top of a country’s agenda and they might be more willing to enhance environmental cooperation. The Maritime Silk Road is a chance for China and ASEAN states to deepen trust and strengthen the foundation for cooperation, which will be a new driving force for environmental cooperation in the South China Sea region. In addition, not only joint development but joint protection in the disputed areas might be a better choice for the disputed states.

In Chapter 11, Sophia Kopela addresses the protection of marine environment in the South China Sea in the aftermath of the Philippines/China arbitration. She concludes that protection of the marine environment in the South China Sea requires urgency, ambition and innovative perspectives. As noted by the Tribunal in the South China Sea Arbitration, the states are already bound by international obligations to protect the environment and to cooperate as enshrined in international instruments such as the Law of the Sea Convention, and customary international law. These obligations apply both within and beyond national jurisdiction but also regardless of which state has sovereign rights and jurisdiction in these maritime areas. Joint management/protection solutions reflect the ecosystem approach, which does not recognise maritime boundaries and different types of maritime jurisdiction, but also the history of the South China Sea as an area of long coexistence and interaction of nations. This communal regime beyond sovereignty claims can be re-established with an emphasis on sustainable management and protection of the South China Sea. An innovative joint-management regime would demonstrate leadership and ambition to create a pioneering prototype of sustainable management of the seas with people and the marine environment at its centre. Any such solution would require strong political will, reconsideration of foreign and national policy and progressive and innovative thinking, but it might be the only solution for the creation of a peaceful sea of harmonious coexistence, collaboration and effective management, which would implement and facilitate the Maritime Silk Road Initiative.

Volker Röben and Rafael Emmanuel Macatangay, in Chapter 12, discuss the conciliation for marine transboundary energy resources from a law and economics approach. The 1982 UN Convention on the Law of the Sea assigns the right to exploit resources exclusively to one or other coastal state. However, much of the world’s marine energy resources, such as oil, gas and renewables, straddle jurisdictional lines. There is a huge risk to the efficient, equitable, legally certain and ultimately secure exploitation of marine transboundary energy resources. The peril arising from the national assignment of the exclusive right to exploit such resources is pervasive, yet remains barely discussed methodically in the literature on the Law of the Sea, international economic law or cognate disciplines. The objective in this chapter is to characterise axioms of rationality underpinning international conciliation for the governance of marine transboundary energy resources. It takes the successful conclusion of the first ever conciliation between Timor-Leste and Australia relating to the Greater Sunrise Gas field as a reference. The analytical foundations are the advance of social welfare, the instrumentality of contract and the integration of legal concepts and economic analysis. The findings of this chapter produce interdisciplinary insights for the formulation of general principles guiding, not only the judicious administration of marine transboundary energy resources through unitisation agreements, but also future efforts at international conciliation to reach such agreements in the likely event of misunderstandings among coastal states over actual or potential resources. Such agreements will, long term, be self-enforcing and help de-fuse tensions between riparian states.

In Chapter 13, Lingqun Li examines the possible fishery cooperation in the South China Sea. Fishery cooperation in the South China Sea is in urgent need, as the region is facing serious challenges of marine environmental degradation and overexploitation of fisheries resources. She has identified two useful elements for decision makers to consider when formulating fisheries cooperation in the South China Sea. First, bilateral approach is the dominant approach in existing cooperative efforts in fisheries management between China and its maritime neighbours. Bilateral approach is pragmatic to lower the threshold of negotiation. It also helps to reduce sensitivity and complexity of the issues in question. The second element, drawn from the Mediterranean experience, is the establishment of a regional framework or mechanism, which as a basic regular venue, pulls together all parties in the region to consult with each other and share concerns with regard to fisheries management. With the Declaration on the Conduct of Parties in the South China Sea (DOC) implementation process progressing smoothly and China and ASEAN making a major breakthrough on the issue of a legally binding COC, the ASEAN is granting the opportunity and responsibility to take the lead in promoting concrete cooperation in regional fisheries co-management and regional marine governance in general.

Part IV discusses handling financial and trade issues. In Chapter 14, David Ong focuses on the Asian Infrastructure Investment Bank (AIIB) and examines whether it will finance environmentally sustainable infrastructure along the Maritime Silk Road. This chapter begins by observing that the Chinese Maritime Silk Road Initiative relies on the development of major infrastructure designed to facilitate the growth of related maritime industries along the route of the Silk Road. This infrastructure is in turn dependent on the usual mix of public and private investment finance that characterises much of the world’s major infrastructure projects today. In this regard, the AIIB represents a new and potentially useful source of international finance for direct and indirect support for proposed infrastructure projects along the Maritime Silk Road. The chapter focuses on AIIB decisions to support such infrastructure projects in light of the AIIB international investment finance decision-making procedures and the Environmental and Social Framework. Specifically, it examines whether the environmental sustainability objectives, principles, procedures and standards ...

Table of contents

• Cover Page
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Notes on editors and contributors
• Acknowledgements
• 1 Introduction
• PART I The Maritime Silk Road and the challenges to Asia–Europe cooperation
• PART II Sea lanes of communication and navigational safety
• PART III Environmental security and marine resources cooperation
• PART IV Handling financial and trade issues
• Index