Positive Steps in South China Sea

0 Likes
28 comments

Last month in Bali, China and Association of Southeast Asian Nations countries agreed on a set of guidelines for implementing the Declaration on the Conduct of Parties in the South China Sea, signed in Phnom Penh in 2002.

Although the one-page set of guidelines hasn’t been published, it’s largely believed to be an interim process toward an eventual code of conduct in the South China Sea. There has even been talking about creating such a code later this year at the East Asia Summit.

The 2002 Declaration, Article 4, stated:

‘The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.’

The declaration made it clear that there exist ‘territorial and jurisdictional disputes’ over the South China Sea. This directly refutes any suggestions parties might make that their own claims are indisputable.

The declaration also states that parties to it shall only settle the aforementioned disputes through peaceful means – a major concession amongst China and ASEAN members. Legalistically speaking, this means that although a claimant might differ in its views over the sovereign possession of some islands/islets/reefs in the South China Sea from other claimants, they will refrain from using military means to change the status quo as of the time the declaration was agreed.

In the same vein, it could be argued that any attempt to unilaterally change the status quo of the territorial and jurisdictional rights of any part of the South China Sea would violate the declaration. For instance, if Vietnam were to develop resources in a disputed area of the South China Sea, it could be seen already to have violated the declaration not just by failing to resolve the dispute through peaceful means, but by worsening the dispute by unilateral action.

Neither the declaration nor the guidelines have resolved the dispute, but their existence has two key consequences. First, freezing the present disputes as a way of resolving differences in a peaceful way means that no claimant is able to impose its will on the others, especially through the use of force. In the short run, this will mean Vietnam and the Philippines won’t be able to use force against any Chinese presence close to their territory. More broadly, though, China won’t be able to use force against other claimants occupying part of the area as China readies to police the entire region. Second, in addition to freezing the status quo, the declaration demands that none of the parties will generate new disputes in dealing with fishing and seabed resources.

But there’s a limit to the degree of peace the declaration can provide. As disputes over sovereignty are a zero-sum game, freezing the status quo can only temporarily ensure peace, as some parties will likely feel that the declaration undermines their national interests. China, for example, in claiming the entire above-water natural properties of the South China Sea, could be most adversely affected by the exclusion of the use of force.   Vietnam could also feel aggrieved if it wasn’t entitled to its full Exclusive Economic Zone because another country already had a presence inside the area when the declaration was signed.

Meanwhile, despite the best intentions of the declaration, some parties have failed to observe it properly anyway. Failing to commit to ‘exercising self-restraint,’ they have unilaterally undertaken new efforts to search for and exploit oil in disputed waters in the South China Sea, thereby escalating inter-state tensions.

The guidelines, depending on their substance, could help make the existing declaration more executable. It’s true that the guidelines are about dispute control rather than dispute resolving. Still, the guidance should be a positive development that leads nations to collaborate more in dealing with South China Sea issues.

It should be noted that so far, whatever China’s expectations are for its historical claims over the entire South China Sea, freedom of navigation and overflight in the region hasn’t been hindered. At the end of the day, the disputes in the area are tied to resource competition. 

In negotiating a code of conduct to follow the declaration and the guidelines, it may well be worth considering prohibiting any unilateral exploration of seabed resources in disputed regions, while encouraging concerted development. This would certainly make a peaceful resolution of the conflicting claims more likely.

Shen Dingli is director of the Center for American Studies at Fudan University.

Comments
28
the southeastasian
September 18, 2011 at 05:18

well said!

a_canadian_observer
August 10, 2011 at 02:47

@Sinodefender: You wrote: “Great,another insult,care to counter my claims instead of whining?”

My response: If you can provide proof to your your/china claims, then I will counter them, otherwise I consider them as rubbish. BTW, I dont think my quote of Plato’s words is an insult. Think about it.

a_canadian_observer
August 10, 2011 at 02:40

@Sinodefender: You wrote: “All is equal under heaven,that is my ideology.Those who just spew out insults are inferior men…”

And here are some examples to illustrate your point:

Frank
July 13, 2011 at 8:23 pm
We will have American suckers coming to die for our cause.
Americans are stupid. They will use their life saving fight other people’s war.
Let Americans do the fighting. We just have to cry for help.
(from article “east-asias-gunslingers”)

Frank
July 27, 2011 at 3:14 pm
West Chinese???
You must be an East Indian.
East Indians have sour grape mentalitities.
Does East Indian has anything to do with monkey? It must be related to what westerners think of East Indians.
(from article “stealth-fighter-or-bomber”)

John Chan
July 29, 2011 at 2:58 am
@a_canadian_observer:
Only East Indians talks like you, they only dare to hide behind an undisruptive name and take cheap shot at bloggers. They got nothing good to say at all, all they can do is revealing their cowardice and mouthful of lies.
Another blogger from a nation of pious gesture.
(from stealth-fighter-or-bomber)

Based on the above examples, I guess chinese bloggers have shown that they have conveyed their point well. Now, everyone, please congratulate the chinese bloggers.

Observer
August 9, 2011 at 05:17

@ sinodefender said “Those who just spew out insults are inferior men…”

Then you need to have a chat with your commrade Frank and other Chinese bloggers. He sure talked big and called other nations as dogs and how China would easily take over smaller neighbors (nevermind that how China choked and choked for the last few thousands years against much smaller but competent military forces such as Mongols, Japan, Manchus, Britain..just to name a few).

Sinodefender
August 6, 2011 at 20:06

All is equal under heaven,that is my ideology.Those who just spew out insults are inferior men…

Sinodefender
August 6, 2011 at 20:04

Great,another insult,care to counter my claims instead of whining?

ozivan
August 6, 2011 at 10:58

@nguyen. Philippine, Malaysia and Vietnam do have a natural claim of EEZ within 200 miles from their countries border. Everything else are in dispute.

Have you left out China by accident, or you do not think China has a claim too ?

a_canadian_observer
August 6, 2011 at 01:42

@Sinodefender:

Wise men speak because they have something to say; Fools speak because they have to say something.

—Plato

Share your thoughts

Your Name
required
Your Email
required, but not published
Your Comment
required

Newsletter
Sign up for our weekly newsletter
The Diplomat Brief