Features | Security | Southeast Asia

Solving South China Sea Spat

Australia and the ICJ could help resolve the tensions over the South China Sea. China shouldn’t fear internationalization.

Australian Prime Minister Julia Gillard used the phrase 'Yes, we will' to launch her re-election campaign. The country could also use some of the 'Yes, we will' spirit to help improve China-US and China-Vietnam relations.

The United States and Australia both have strong maritime interests in the region, in terms of sea-based resources and also trying to ensure free sea lanes. But China is also a major maritime stakeholder, with ever-increasing sea-based interests commensurate with its rapid economic growth.

As with many powers before it, China's growing maritime interests could overlap and even conflict with others. Yet it would be more precise to say that it’s often others’ claims that have overlapped with earlier Chinese claims. For example, in 1947, the Chinese government raised a claim over the South China Sea, a claim not made by some Association of Southeast Asian Nations states until as late as the 1970s or even  1980s.

Such conflicting claims by the parties involved in disputes over the South China Sea (or elsewhere) aren’t necessarily ill-intended. But, regardless, some way needs to be found to peacefully reconcile these competing claims. For instance, China has opposed the USS George Washington's participation in drills in the Yellow Sea, a position that clashes with US interests. Such a disagreement must be settled through discussions to ensure a mutually acceptable outcome.

Of course tensions between the two are about more than the naval drills. China has also argued against US access to its Exclusive Economic Zone in the South China Sea, while the United States for its part has refused to accept China’s understanding of the UN Convention on the Law of the Sea (UNCLOS).

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But this issue could easily be settled by seeking an authoritative interpretation of UNCLOS through the International Court of Justice. Besides, China seems to have claimed most, if not the entire, South China Sea. All parties to the dispute, including China, should therefore abide by the Declaration on the Code of Conduct in the South China Sea signed in 2002 by China and all ASEAN members, which excludes the use—or threat of the use—of force.

The US cares about freedom of navigation in the region and apparently believes that sooner or later China will too. But there’s some heavy historical baggage to bear on this issue. China feels uncomfortable with a dominant US Navy in its backyard, especially in the context of Taiwan—it is, after all, the US that has threatened mainland China's free access to the waters around Taiwan. China, in contrast, has never taken action to deny others access to the entire South China Sea, in particular in areas beyond its EEZ.

And China's dispute over territorial waters with Vietnam and others? These could be resolved peacefully through established international institutions, particularly the UNCLOS. In the meantime, respective claims that are based on some sort of historical evidence of effective possession and development could be respected, as such arrangements aren’t automatically embodied in the international legal system.

To help everything along, Australia and other interested parties can encourage Beijing and Hanoi to settle their dispute through talks. By differentiating itself from the United States, which has been meddling directly in the South China Sea issue of late, Canberra will receive greater respect in the region. Indeed, Australian policymakers seem to understand the importance of bilateral talk to settle a bilateral dispute. Other stakeholders, meanwhile, could nurture more sensible interactions between China and its neighbours by encouraging, rather than lecturing, over these issues.

Beijing for its part should welcome help and shouldn’t think of itself as naïve for drawing on the assistance of others to assist it in resolving difficulties. Ultimately, though, it’s going to be up to Beijing and all interested parties—through sincerity, commitment to a friendly neighborhood and willingness to abide by international institutions—to settle the problem peacefully.

Of course as a sovereign state, China has the freedom to use force to defend its claims, as all other claimants do. But in signing the code of conduct with ASEAN it has indicated its intention, in principle, to refrain from doing so.

That said, and with this declaration in mind, China and relevant parties have to be prepared to yield some of their physical claims, something that won't be easy for any nation. Yet by honoring the code of conduct, Beijing and others will be acting in their own interests as well as those of regional stability. To this end, it could engage in both constructive bilateralism and multilateralism.

And China ought to be confident in seeing its territorial disputes become familiarized with the international community. Across East Asia, China has more leverage and influence than any other power, something which often makes competitors feel uncomfortable. This discomfort has prompted some to act in a way completely different to the Chinese approach—while China would prefer to pursue settlement of its various bilateral disputes through bilateral settings, other parties seek to internationalize these disputes, complicating the cases in an effort to secure benefits.

While Beijing is opposed to attempts to internationalize the issue, such efforts won’t necessarily hurt China, as they won’t necessarily help China’s competitors either.

When the use (and threat of) force is excluded—either through a declaration or an enforceable code—the only base for territorial claims is international judicial institutions and historical evidence. If these tenets are followed, it really won’t matter whether the platform is bilateral or multilateral.

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(This article is an expanded and adapted version of an opinion piece that appeared in the Lowy Interpreter that can be found here.)

Professor Shen Dingli is Executive Dean of the Institute of International Studies, and Director of Center for American Studies, Fudan University, Shanghai.