Law Not War in the South China Sea


Law Not War in the South China Sea

The Diplomat, Nov 23, 2011

Years of school-taught nationalism has complicated efforts to find a peaceful resolution to the South China Sea dispute. Time to try the legal route.

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The recent APEC and ASEAN summits in Honolulu and Bali, respectively, saw renewed efforts to solve the South China Sea issue using a regional diplomacy-based approach. Tensions around the conflicting claims over various islands and maritime space have grown since 2009, when China, Vietnam and Malaysia formally submitted their claims under the UN Convention on the Law of the Sea (UNCLOS).

China’s apparent willingness last year to use new naval and air assets to demonstrate support for its claims – and the reaction this sparked from claimants Vietnam and the Philippines – has pushed regional tensions to new heights. Yet the limited diplomatic gains of the Asia-Pacific Economic Co-operation and Association of Southeast Asian Nations summits in tackling this issue underscore the shortcomings of the strategies employed by regional states.

Broadly speaking, there have been four main strategies:

The first has been to attempt to negotiate at the bilateral level. China has repeatedly indicated its preference for this method, but disparities in size and economic influence mean that this approach is widely seen as heavily weighted in Beijing’s favor by the other claimants. Furthermore, there are suspicions that China’s intention is merely to negotiate a freeze on resource development in contested oil fields, rather than to compromise on sovereignty issues. On the other hand, the bilateral channel has been used to good effect to reduce bilateral tensions, as seen by Vietnam’s recent six-point agreement with China, which established a few new mechanisms for consulting on border issues.

The second strategy has been to try take the issue to a variety of regional fora and solve it at a multilateral level, where states feel China’s advantages of scale are more muted. ASEAN has been the main organization chosen, and for many in the region, this is one of its most formidable tests of whether it can handle regional security issues. But the diversity of interests, the strength of the ASEAN way, and the fact that only four ASEAN states out of ten are involved in the South China Sea issue has meant that an ASEAN solution remains – as yet – out of reach. China’s ability to detach Burma, Laos, and at times, Indonesia from Vietnamese and Philippine positions reveals the weakness of such an approach.

A third strategy has been to develop closer diplomatic and military relations with the United States. With 36 attack submarines and six carrier groups in the Pacific, the United States remains the predominant military force in the region, and states like Vietnam and the Philippines have sought strategic reassurance through new or renewed military agreements with Washington. Vietnam’s nuclear and military medical agreements are largely seen in this light, as is Clinton’s visit to Manila following the APEC summit, where she reaffirmed the U.S. defense commitment to the Philippines in the Manila Declaration and announced the delivery of another coast guard cutter to the Philippine navy.

Moving away from its previous position of non-involvement over the issue, the United States has increased engagement with both states, for a number of reasons. First, the U.S. is concerned with the larger implications on international maritime law of China’s claims, particularly the “U-shaped line.” Second, the prospect of potential Chinese control over these vital sea lanes of communication (SLOC) for North East Asian allies like Taiwan, Japan and South Korea makes U.S. policy makers uneasy. China’s willingness toblock resources as part of political pressure has already been demonstrated during the Senkaku fishing boat incident in September 2010. For Manila and Hanoi, these new ties with the United States are simultaneously a hedge against Chinese military assertiveness as well as a form of pressure on Beijing to compromise at the diplomatic fora.

But as Chinese Premier Wen Jiabao’s speech to ASEAN leaders at Bali indicates, China has recently adopted a softer tone, indicating that it’s willing to seek a peaceful resolution to the disputes, promising massive investment to the region. Still, Wen also warned against involving foreign powers in the disputes. While this is widely read to mean the United States, it’s also meant to include other powers.

For ASEAN powers have also used a fourth strategy – internationalizing the issue by involving non-regional states like India and European powers in the exploitation of carbon energy resources in disputed waters. India’s recent agreement with Vietnam to carry out joint development of a gas field in Chinese-Vietnamese disputed waters falls into this category, and India’s state owned ONGC joins a number of other foreign companies already involved in Vietnam including Chevron, Exxon Mobil, BP and Zarubezhneft.

All this means that the only strategy that hasn’t really been seriously tried by any of the claimants is to utilize the various international legal mechanisms that have been developed for precisely these types of disputes – the arbitral tribunals under the jurisdiction of the UN Convention on the Law of the Sea, the International Court of Justice or the International Tribunal for the Law of the Sea (ITLOS). China has, of course, repeatedly rejected efforts to legalize the disputes, recently dismissing a Philippine request to take their disputes to ITLOS. This fact is often cited by regional experts as the reason why there’s a preference for attempting an ASEAN-based diplomatic solution.

The problem with attempting a diplomatic solution is the reaction any concessions would prompt with the populations of various states. Take, for example, Chinese public opinion on the U-shaped line. According to public opinion polls, there’s near-universal support among China’s public for its claim over this large area, with little understanding of the principles of contemporary international law, continental shelves, or exclusive economic zones. Instead, Chinese public support for these claims has developed through the education system, where Chinese students are taught that Chinese authority over this area extends back to the Chin Dynasty. Despite the weakness of historical claims, they have a strong hold over the imagination of the public and this support makes it impossible for any Chinese government to make concessions on what are considered issues of sovereignty. Compromise in this situation would be perceived as a betrayal of national sovereignty, and this isn’t just a Chinese problem. The utilization of legal bodies, however, neatly sidesteps this problem, by placing the responsibility of the decision with a third party. Furthermore, legal decisions are made according to principle in an open and transparent way, unlike diplomatic maneuvering.

Throughout history, state-on-state disputes have traditionally had two potential solutions: military or diplomatic. The Melian Dialogue in Thucydides’ The Peloponnesian War states the infamous dictum that “the strong do what they can, and the weak suffer what they must.” While it remains true that global international relations are still fed by disparities in state size and power, the current global order seeks to assuage those disparities with different types of economic, political, and dispute settlement mechanisms.

While it’s true that China has refused to utilize these dispute settlement bodies, the simple fact of the matter is that they aren’t a popular option with the other claimants in the region. There is, for cases taken to the ITLOS, no right of appeal although in some cases, ITLOS will reconsider or revise findings). This means that once a case is decided, there is no recourse, and governments must accept the decision of the court. This is a singularly unappealing prospect to many of the governments in the region. However, it must be tried.

The current trend towards a Code of Conduct seems to be attempting to utilize the political, rather than the legal, but this is precisely why these mechanisms were created. It seems dangerous and pointless to continue pursuing diplomacy over an issue with such national sensitivities, in which movement is unlikely on either side. Diplomacy in this instance will only serve to freeze the conflict for a generation or more, making any possible chance at a legal solution a more and more distant possibility.

Given the high stakes, it’s imperative that the region collectively push for the legal route. While it’s true that China is initially unlikely to shift its opposition to using dispute settlement bodies, it may well do so if ASEAN pursues this policy with unity. Furthermore, ASEAN and Chinese leaders could provide funds for workshops and seminars on international law for both their diplomats and their universities, and attempt to soften public perceptions over the decade or so that the legal process would take.

A ruling by a neutral body, while unpopular, is less likely to cause problems between a state and its populace, which is certainly a major factor in state approaches to this issue. This approach would also make a significant impression on international society, and renew the legalization of international relations that seems to have been put on hold since 2001. It should be remembered why this process began in the first place. History teaches us that human political units unconstrained by law, traditionally resort to various applications of power, soft and hard. While the application of power is and will remain a central process in global politics, it’s not our only process.

The application of principle and the subordination of self-interest to legal principles are other newer options. In this case, they may be the only solution that has a chance of public acceptance. Leaders in the region would do well to note this.

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