The Spratly Islands dispute: Multilateral negotiations within ASEAN
and with China
University of Bern
Seminar Paper
International Negotiations (8229)
Prepared for Professor Dr. Felix Addor
Author: Lam Yi Wen Rachel
Table of Contents
S/No.
Title
Page
No.
Abbreviations
ii
1.
Introduction
1
2.
The claims made and their bases
2
A.
The applicable law
2
B.
The claims
2
3.
Key actors and their interests
3
4.
Why multilateral negotiations have failed thus far
4
A.
4
B.
C.
Institutional and organizational factors
i.
ASEAN’s unique diversity
ii.
Varying interests of Chairs
iii.
Unenforceable and non-binding agreements
iv.
A lack of trust
Claimant parties’ strategies and tactics
i.
China
ii.
The Philippines
iii.
Vietnam
External factors
i.
The USA
ii.
Bilateral territorial disputes
iii.
Japan
6
10
5.
What is the future for multilateral negotiations?
12
6.
Conclusion
13
Appendix 1: Map of the Disputed Territory
14
Appendix 2: Relevant provisions from 1982 UNCLOS
15
Bibliography
17
i
Abbreviations
All abbreviations used in this seminar paper are listed here in alphabetical order.
AMM
ASEAN Ministerial Meeting
ASEAN
Association of South East Asian Nations
BATNA
Best Alternative to a Negotiated Agreement
COC
Code of Conduct
DOC
Declaration on the Conduct of Parties in the South China Sea
EEZ
Exclusive Economic Zone
SCS
South China Sea
UN
United Nations
UNCLOS
United Nations Convention on the Law of the Sea
ii
1.
Introduction
The long-standing dispute over two island chains in the SCS is one of the most
intractable multilateral disputes in the world at the moment. The Spratly Islands and
Paracel Islands are two groups of islands in the SCS (refer to Appendix 1). This
dispute began in 1988. The Paracel Islands has been controlled by China since 1974,
when Vietnam lost control to the Chinese (Ba, 2011).
The reason for such keen interest in this region is from speculation that the area may
hold vast reserves of natural resources, particularly oil and natural gas reserves. It is
also an important shipping lane for the region and for fishing activities, which sustains
the lives of thousands of people (BBC, 2013).
The state actors that have made overlapping claims to these territories are China,
Malaysia, the Philippines, Vietnam and Brunei, with Taiwan as a non-state claimant.
Malaysia, the Philippines, Vietnam and Brunei are all members of the 10-member
group ASEAN.
The first agreement on this dispute was signed in 1992 by the 5 members of ASEAN
(ASEAN Secretariat, 1992).1 In 2002, China signed the DOC with all 10 ASEAN
members. The DOC contained a promise to, amongst other terms, cease from taking
any provocative actions, until all territorial and jurisdictional disputes were resolved
peacefully (ASEAN Secretariat, 2002). Following that, another agreement was signed
in 2011 (the 2011 Agreement) by China and ASEAN members, laying out guidelines
for the advancement of the DOC, but which does not address the most critical issues
of energy exploration and military tensions (Abdul & Desy, 2011) (ASEAN, 2012)
(Simon, 2012).
Various events in recent years have led to heightened tensions between and renewed
attention to this dispute. A UN deadline in May 2009 for submission of continental
shelf claims allowed Malaysia and Vietnam to make submissions for extension of
their continental shelves to 350 nautical miles from 200 (Ba, 2011). There have also
been skirmishes in the disputed territories, most prominently between the Philippines
and China over the Scarborough Shoal, involving Chinese fishing vessels and Filipino
naval vessels (Browne, 2013).
This paper will focus on the dispute over the Spratly Islands, the five main actors and
their relationships with each other – China and the 4 claimant members of ASEAN, as
well as other interested parties. The paper will analyze their relationships and their
interests, why multilateral negotiations have so far not given rise to a negotiated
1
These 5 members continue to be ASEAN members. They are Brunei, Indonesia, Malaysia, Singapore
and Thailand.
1
agreement, and finally, whether multilateral negotiations are likely to be successful in
resolving this dispute.
2.
The claims made and their bases
A.
The applicable law
The law that governs this dispute is the 1982 UNCLOS, of all 5 state claimants have
signed and ratified. Part II, Section 2, Art 3 of the UNCLOS states that the territorial
waters of a coastal State extends up to 12 nautical miles from its coastline (see
Appendix 2). Part V, Art 56 of the UNCLOS provides for states’ rights to claim EEZs
in the territorial sea and outlines what activities can be carried out in the EEZs. In
addition, Part VIII, Article 121 states that “[r]ocks which cannot sustain human
habitation or economic life of their own shall have no exclusive economic zone or
continental shelf” (see Appendix 2).
B.
The claims
China claims sovereignty of what appears to be the entire SCS, which includes both
island chains and encroaches very closely to a few other . It first released a map in
1947 under Mao Zedong’s reign, which drew a “nine-dash line” – a U-shaped line
that demarcated China’s claimed territory, and which comes precariously close to the
coastlines of smaller Southeast Asian states, including the 4 ASEAN claimants (see
Appendix 1). It has stated that its right to the territory is based on more than 2,000
years of history during which it considered it to be part of Chinese territory (BBC,
2013). It is said to be the most extensive but also weakest claim amongst all the
claims, due to its lack of geographical proximity of the Spratly Islands, as compared
to some of the other claimant states. Furthermore, it has not occupied any of the
islands, while Malaysia, Vietnam and the Philippines have (Ba, 2011).
The Philippines has claimed, on the basis of its geographical proximity, the whole of.
In the alternative, if a tribunal were to find that China has sovereignty over the Spratly
land features, the Philippines argues that they are merely rocks or reefs, which means
no EEZ rights are conferred on them, and thus China has only limited rights to the
surrounding resources (Browne, 2013).
Vietnam is the second most vocal opponent to China’s claim, arguing that China’s
argument of historical use, and itself claims to have ruled over the Paracels and
Spratlys since the 17th century, with written proof to back these claims (BBC, 2013).
Malaysia claims a part of the Spratly Islands, on top of some part of the SCS, as part
of its EEZ as governed by the terms in the UNCLOS. Brunei claims only one
submerged reef in the SCS as part of its continental shelf (The Economist, 2013).
2
However, as it does not claim any part of the Spratly Islands (BBC, 2013), this paper
will not classify it as a claimant state.
3.
Key actors and their interests
I will now introduce the key participants and actors so far, which include both
claimants and interested non-claimant parties, and explain what their interests are.
ASEAN is an association formed by 10 nations in the Southeastern region of Asia, 4
of which are claimants to the Spratly Islands. The “ASEAN Way” refers to a set of
principles that governs how ASEAN members behave and relate to one another,
including the principle of non-interference in each other’s domestic affairs, and the
requirement of a unanimous vote on any major decisions made as a group. As such,
many have heavily criticized the association for being slow to make decisions and
implement agreements, like in the present matter (McDonald, 2012). In addition, with
the small stature and influence of its individual members, and its status as a
battleground for influence during the Cold War, members aligned themselves with
major world powers, subjecting the group to conflicts between the interests of
external powers. Notwithstanding their geographical proximity, there is also great
diversity among its members, politically, economically and culturally, and this has
been cited as a key challenge to the unity of the association (Ririhena, 2011). As a
regional association, some commentators still see ASEAN as transitioning from the
early stages of serving to build up each member state’s confidence in other members,
and in the idea of regional diplomacy, towards a more mature stage of “preventive
diplomacy”, and ultimately to “dispute resolution” (Simon, 2012).
China is the most dominant power in the region – both militarily and economically. It
has, in the past, often been the “loser” in territorial disputes. So, one interest of the
Chinese is to gain or maintain its prestige and status as a regional power. The public
position taken by China is that it aims to protect the country “against foreign and
domestic threats to both territory and sovereignty; and the eventual achievement of
great power status in Asia and beyond” (Ba, 2011).
The Philippines has emerged as one of the most vocal claimants in this dispute. It
claims sovereignty over the Spratly Islands on the basis of geographical proximity –
the Scarborough Shoal, one of the hotly contested islands, lies a little more than 100
miles from the Philippines’ coastline (BBC, 2013).
Vietnam has had visible clashes with China and thus has a less-than-friendly
diplomatic relationship with the Chinese. Aside from the 1974 clash in the Paracel
Islands with China, which killed more than 70 Vietnamese soldiers, there were
clashes in the Spratly Islands in 1988, killing 60 Vietnamese soldiers as well (BBC,
3
2013), while 2009 and 2010 also saw a rise in fishing activity around the Paracel
Islands, accompanied by Chinese expulsions and detentions of Vietnamese fishermen
(Ba, 2011).
Malaysia has expressed support for interests of the two major powers, China and the
USA. It has expressed a certain level of trust that China does not intend to engage in
hostilities (Chen, 2013), but also expressed concern with US activities in the SCS as
part of its claim to “freedom of navigation” (Ba, 2011). It is generally known to
downplay tensions in this area (Chen, 2013).
Brunei, due to its small and wealthy status, as well as its status as a non-claimant of
the Spratly Islands, is seen as a neutral party, not influenced by China’s economic
dominance in the region (The Economist, 2013). It is an important player given its
position as the ASEAN Chair in 2013.
Indonesia, as the most populous member of ASEAN, and as a rising economic power
in the region, has begun to embrace its regional influence, and is a vocal supporter of
regionalism. Thus its interests lie in encouraging ASEAN members to use the group
as a forum for diplomatic dispute resolution. It has previously shown its initiative in
elevating ASEAN’s role and status as an effective regional organization during the
otherwise disappointing AMM in 2012 chaired by Cambodia (Simon, 2012).
The USA, in the earlier days of this dispute, was not an interested party, only until
recently, most noticeably during a maritime incident in 2009 with Chinese patrol
boats in the SCS (Ba, 2011). Since its involvement, it has played a valuable role. Its
interests in this dispute are clearly to maintain its maritime influence in Southeast
Asian waters, and to counterbalance China’s dominant political position in the region.
It has publicly stated that its interests in the matter are the “freedom of navigation,
open access to Asia’s maritime commons, and respect for international law in the
SCS” (Simon, 2012).
4.
Why multilateral negotiations have failed thus far
There are several factors that can explain why multilateral negotiations have so far
made paltry progress in resolving this matter. To facilitate analysis, I will break them
down into three different categories: the first would be institutional and organizational
factors, the second would be the claimant parties’ strategies and tactics, the third
would be factors due to external actors and reasons beyond the parties’ control.
A.
Institutional and organizational factors
i.
ASEAN’s unique diversity
4
As stated earlier, ASEAN is indeed a diverse association. Although located in the
same geographical location, ASEAN is not a “unitary actor on matters of political
sensitivity” (Simon, 2012). Every member has a different set of security interests, and
therefore approach the bigger powers, namely China and the US, very differently.
This tends to divide the member states into different groups. For instance, Cambodia
is known to be a “diplomatic surrogate for Beijing”, while the Philippines is generally
confrontational towards China and calls the US a close military ally, while Malaysia
keeps “a low profile” and has adopted a “hedging strategy” (Simon, 2012).
This thus leads to the second factor of the varying interests of Chairs.
ii.
Varying interests of Chairs
ASEAN adopts a policy of rotating the Chair every year amongst its 10 members. The
position of the Chair is vitally important in any multilateral negotiation, as the Chair
has the power to decide the agenda and to influence how formal and informal
discussions proceed. It may not always be beneficial to resolution of the dispute for a
Chair to have an interest in one side of a dispute than the other, while a party with
little to no interest in the matter at hand can often make for a Chair, able to manage
conflict without having to pursue their own interests in the matter at hand.
The track record of the ASEAN Chairs is uneven during the years when this issue has
been a hotly discussed topic at ASEAN and other multilateral meetings. The Chair
certainly plays an influential role in steering discussions, but has no less voting power
than any of the other nine member States.
For example, Cambodia, as the chair in 2012, saw fingers being pointed at them for
blocking all efforts to bring the dispute closer to a resolution, by blocking an
agreement on the issuing of a formal communiqué at the end of the 2012 AMM about
a COC on the SCS, insisting that “bilateral disputes with an outside power were not
an appropriate subject for an ASEAN communiqué”, a similar stance to that of
China’s (Simon, 2012). As the Chair, Cambodia accomplished their goal of
preventing all ASEAN members from coming to a common position, which favours
the interests of China (Barta & Tejada, Sea Dispute Upends Asian Summit, 2012). If
one regards Cambodia as being a “proxy” of China’s interests, this adds to the
question of whether such a situation is suitable for integrative bargaining, given that
China’s interests and the interests of the other claimants all appear to be in direct
conflict. This will be further discussed later in this paper.
The rotation of the Chair position can possibly lead to inconsistent results each year,
depending on the influence and tactics of the nation occupying the Chair. While this is
beneficial in providing a fresh perspective on negotiations, it can also halt or stall
progress that is made every year.
5
iii.
Unenforceable and non-binding agreements
All the formal agreements that have been reached so far by China and ASEAN are all
non-binding, and therefore unenforceable. Neither do any of these agreements state
any deadline by which parties must begin to negotiate further. This has given parties
the leeway to violate terms of these agreements, and has not given the parties any
pressure to move forward on the dispute.
It also has the undesirable effect of prompting claimant parties to jump on any hint of
a violation of such agreements, in order to discredit the other party and put their
intentions in a bad light. This would have a negative effect on their relationships. For
example, the Philippines accused China of bringing concrete blocks to Scarborough
Shoal, seen as a prelude to construction on the territory, which would violate the 2002
DOC (Sevastopulo & Landingin, 2013).
iv.
A lack of trust
A cumulative result of all these factors has led to a lack of trust among the parties,
particularly between China and the other two dominant claimants, the Philippines and
Vietnam. This subtracts legitimacy from any promises that claimant states make to
one another and the credibility of the ASEAN institution.
B.
Claimants’ strategies, tactics and actions
A dispute of a distributive nature is one where parties are trying to “divide up the
negotiating pie”, and there will be a winner and a loser. A dispute of an integrative
nature, however, aims to expand the negotiating pie as much as possible. An
integrative solution is negotiated as a package of issues and options, such that all
parties will emerge from negotiations with “mutual gains through an exchange of
concessions” and there are no losers. (Saner, 2008)
A commentator has written the reason why the dispute remains unresolved is that the
claimant parties still approach it as issues of sovereignty, sole ownership of resources,
and seeking “fences in the sea”, but to resolve it, parties must shift to cooperative
management of the waters and their resources, which can only be achieved
multilaterally (Simon, 2012). This is characteristic of a shift from distributive
bargaining to integrative bargaining. However, a relevant question is whether such
matters of territoriality and ownership can be properly negotiated and resolved in an
integrative context.
If one approaches this dispute as being multiple bilateral disputes, it is akin to the
prisoner’s dilemma, where all parties benefit when there is mutual trust, which leads
to cooperation and maximum gains. Military confrontation or taking tit-for-tat
6
political or economic measures against the other party would, given the many
opportunities for joint economic development that would bring greater gains to all
sides (The Economist, 2013). As explained earlier, trust is lacking among the claimant
parties, so, using this model, it can help to explain why claimant states have so far
conducted themselves the way they do, and why multilateral negotiations have not
achieved success yet.
i.
China
China has long argued that this dispute is a bilateral one, between China and the
various ASEAN claimants, and that multilateral diplomacy, particularly ASEAN, is
an inappropriate platform to resolve this dispute.
China has given mixed signals throughout the many years of the dispute. In the early
years, it was relatively muted in asserting its territorial claims. As a new economic
powerhouse, it has gained confidence in its foreign policy and is not afraid to flex its
political and military muscles in the region. However, it has taken actions that cancel
out its legitimacy and soft power.
China has attempted to play the ‘good cop’, by going on a charm offensive to win
over several ASEAN members using its economic position. The Chinese government
has been wooing ASEAN collectively as well as its members individually through
free trade agreements, the offer of aid money and economic development. Its
participation in various ASEAN multilateral negotiations has also served to build
confidence among ASEAN members about the trustworthiness of the Chinese regime.
However, its aggressive actions and assertiveness can easily erode the goodwill it has
carefully built up over the past 10 years or so. In July 2012, China formally created
Sansha, an administrative city based on the Paracel Islands, for the purpose of
overseeing affairs in the Paracel and Spratly Islands. This faced fierce objection from
Vietnam and the Philippines (BBC, 2013) and was seen as . Most recently, China has
also been accused of being stingy with aid to the Philippines in the wake of the
devastating Typhoon Haiyan, due to this ongoing dispute (Ebbinghaussen, 2013).
Its main strategy can be crudely described as ‘divide and conquer’. Long an opponent
of the “internationalization, multilateralization, or expansion of the issue” (Scott,
2012), it has stated that the dispute should be resolved through “consultations and
negotiations between countries directly concerned”, and non-parties “should not get
involved” (The Japan Times, 2013).
This is a strategy that is extremely advantageous to China’s interests. By separating
the claimants, China can increase the power distance between themselves and the
opposing state in the negotiation, and offer concessions that is specially catered to
7
each country’s needs, thus making a bilateral deal sweeter and more appealing to an
opposing claimant state.
China’s BATNA would be one of two options – the first being dispute resolution
through the international legal regime, the second being the use of military force to
intimidate or push other claimant states out of the disputed territory altogether.
Academics have commented that the first option appears to be weak, based on the
plain reading of the existing statutes that govern this dispute. The second option is
dangerous and costly. It would add to the perception of China’s aggressive and
assertive behavior in the eyes of ASEAN states of. It could also potentially draw
concerned external actors into direct confrontation with China, such as Japan and the
USA.
It remains to be seen if China can indeed continue the path it is on of working on
bilateral relationships and bilateral agreements with claimant and non-claimant states,
while dodging what is ideally the end goal of reaching a multilateral COC. It is
unlikely to be alienated if it continues, given that there are shared interests and mutual
gains to be had between China and all claimant and non-claimant states if they all
maintain good diplomatic and economic ties. But it cannot afford to be obstinate in its
ways, with the global attention being paid to this dispute. China should continue to
express interest in seeking multilateral frameworks with which to cooperate with all
ASEAN states and other interested parties on matters concerning the SCS dispute.
ii.
The Philippines
The Philippines has been very assertive and vocal about protecting its interests in this
dispute. While its navy has been embroiled in a number of incidents on the high seas
with the Chinese navy, it is said to have the weakest enforcement capability among
the four ASEAN claimant states, with an underfunded and ill-equipped armed force,
and outdated ships, all of which pale in comparison to China’s newfound military
might (Simon, 2012). For this reason, not only has the Philippines striven to resolve
this dispute on the ASEAN platform, it has made full use of its close ties with the US,
receiving support to acquire more updated ships, and reminding the US of its
obligations under the 1951 Mutual Defense Treaty.
The drawing of the USA into the dispute has certainly complicated matters and in
some ways, made this otherwise regional dispute an arena for the US and China to
engage in additional diplomatic rows. This will be addressed further on in the paper.
Given the slow progress made so far in multilateral negotiations, it is no wonder that
the Philippines has decided to take matters into its own hands, filing a request for a
UN arbitral tribunal in January 2013 to hear the dispute as governed by the UNCLOS.
The Philippines has stated that legal action was its last option after all diplomatic
efforts have failed (Browne, 2013). This is clearly a signal to ASEAN that multilateral
8
negotiations on their platform have not met the interests of important parties to the
dispute.
The Philippines had two BATNA – the first was taking legal action, which it has now
taken, and the second was military confrontation. From the information above, the
second BATNA was an unattractive option. Legal action, on the other hand, appears
to be a good option, as the Philippines now has more negotiation power in the ChinaPhilippines relationship.
The legal action in itself also adds to the Philippines’ negotiating power with China
bilaterally, assuming that China’s claim, according to UNCLOS, is weaker than the
Philippines’ claim. However, it does create a fracture in ASEAN, particularly with
Vietnam, while it leaves other ASEAN states in the lurch as well.
A relevant question is whether the Philippines’ confrontational stance is sustainable in
the long run. Besides the legal action, the Philippines’ base of negotiating power
appears to be weak, given that its enforcement capabilities are vastly weaker than that
of China.
iii.
Vietnam
Vietnam, while also a vocal claimant to the Spratly Islands, has been less hostile and
confrontational in recent years towards China. Vietnam is geographically much closer
to China and shares a border, therefore it is more likely to be involved in a conflict
with China than the Philippines. It has previously exchanged hostilities with China,
but in waters near the Paracel Islands, which is a separate dispute but has
repercussions for Vietnam’s actions in this dispute. Its relationship with China is said
to be the most frayed among all ASEAN member states, even though it shares strong
trading ties. Vietnam has also not ruled out joining the Philippines’ arbitration
proceedings against China (The Economist, 2013).
A commentator has argued that Vietnam’s relationship with China is characterized by
“mature asymmetry” – that is, where both parties have “a mutual recognition and
mutual appreciation for the other’s needs” (Ba, 2011). Vietnam, the lesser power, is
obliged to exhibit deference to China, the larger power, and China is obliged to
respect Vietnam’s interests and autonomy. Such a relationship is based on mutual
recognition of one’s own limitations vis-à-vis the other. This is an interesting take on
how parties in a negotiation can recognize an imbalance in negotiating power and
work through them. “Mature asymmetry” requires trust from the larger power that the
lesser power will show a degree of deference, and from the lesser power that the
larger power will reciprocate respectfully. This theory is not so easily proven, given
that stable relations can often be disrupted by events (Ba, 2011).
9
Even so, the 2011 Agreement did see significant concessions being made by Vietnam
and China. As for relations between Vietnam and China, both states have recently
signed a new “strategic partnership” and agreed to a “maritime cooperation” work
group (The Economist, 2013).
Vietnam has similarly drawn in the support of the US, with an established history of
conducting joint naval exercises, as well as close economic ties (Barta, U.S., Vietnam
in Exercises Amid Tensions With China, 2011).
C.
External factors
External factors include both the actions of external actors, as well as events
happening outside this dispute that may have effects and repercussions for the result
of these negotiations.
Various external actors, i.e. actors that are not part of ASEAN and have made no
claims to the disputed islands, have seen the need to speak up about this dispute
throughout the years. These external actors include organizations within the ASEAN
states whose actions cannot be attributed to the state, and influential countries in the
region like China and India, as well the perennial presence of the US.
i.
The USA
The USA has previously not shown great interest in this regional dispute, despite
direct calls from the Philippines to get involved (Ba, 2011). However, since 2008, the
US has had a renewed attention to foreign policy in East Asia (Ba, 2011). In pursuit of
these interests, it has expressed strong support of multilateral negotiations in the
ASEAN arena, as it encourages transparency of conduct and proceedings, in line with
its goal of open sea-lines of communications (Simon, 2012).
A commentator terms the Obama administration’s policy “steady-as-she-goes” – a
relatively relaxed assessment of the dispute that reflects its belief that SEA remains a
pro-America region.
It appears that the USA has tried to keep a balanced “hands-on and hands-off”
approach to the dispute. It has publicly not taken sides, but has long pushed for the
unity of ASEAN and the resolution of the dispute in an ASEAN forum, which is a
non-confrontational way of expressing its sentiment against China’s ‘divide and
conquer’ strategy and its stalling tactics. This is backed up by the fact that it had
pushed for include the return to the 2002 DOC and the 2011 agreement, which mark
important steps towards a resolution of this dispute (Ba, 2011). There are also efforts
to win over ASEAN member States that are leaning towards China, but are otherwise
sitting on the fence in this dispute, like Myanmar, by offering economic support and
10
investment in key infrastructure (Barta & Tejada, Sea Dispute Upends Asian Summit,
2012).
The US also continues to make its presence known in the region and the SCS, and has
insisted that it will maintain “a continuous presence” in Asia, sustaining exercises
with and assistance to ASEAN states’ defense forces (Simon, 2012). This has been
called a “low-cost way” for the US to have a role to play in SEA politics.
However, commentators also point out that American diplomatic intervention comes
at a cost – namely that ASEAN’s neutrality as an organization has been damaged (Ba,
2011), which is important for China and pro-China states in order that ASEAN
remains, in their eyes, a trustworthy forum for dispute resolution. China has also
accused the USA of emboldening Vietnam and the Philippines to contest China’s
claims (The Economist, 2013).
ii.
Bilateral territorial disputes
China, in its growing dominance and assertiveness, has been involved in various
bilateral territorial and maritime disputes. As already mentioned earlier, China and
Vietnam are embroiled in a dispute over the Paracel Islands.
In addition, Japan and China are embroiled in a dispute over the Senkaku/Diaoyu
Islands in the East China Sea (Sevastopulo & Landingin, 2013). This has led to
interest from Japan in these ongoing negotiations, with Japan expressing its hopes that
the dispute will be resolved peacefully, and in accordance with international law,
including UNCLOS (The Japan Times, 2013).
These disputes are important indicators to the other claimants as to how China would
approach this dispute, which makes China’s choice of conduct very important.
iii.
Japan
Japan’s bilateral dispute with China has in turn drawn Japan indirectly into the
dispute. Japan has publicly stated that it wishes to see basic norms on the ocean
respected, like freedom of navigation and observance of international law, including
UNCLOS (The Japan Times, 2013). Japan in turn watches the proceedings of this
dispute with interest, to observe how China conducts itself in a more complex
territorial dispute, which may have repercussions on the Senkaku/Diaoyu dispute.
Japan has also seemed to throw its support behind China’s opponents, supplying
patrol boats to patrol contested reefs and islands in the SCS and pledging economic
aid, as well as pledging a loan to the Philippines for the purchase of coast guard patrol
ships (The Japan Times, 2013). This apparent show of solidarity not only emboldens
China’s most vocal opponents in this dispute, but does lend some credence to what
11
has been called China’s self image of victimhood at the hands of imperialist powers
(Browne, 2013), and gives some truth to China’s accusations that these multilateral
mechanisms are being used to ‘gang up’ against China (Ba, 2011).
5.
What is the future for multilateral negotiations?
Based on what has already passed in this dispute and the above analysis, I will now
attempt to evaluate whether negotiations on a multilateral platform will continue to be
the most viable avenue to resolve this dispute.
A plain reading of the dispute suggests that bilateral negotiations and agreements
would be the most efficient way to resolve this dispute, but bringing negotiations into
an ASEAN forum recognizes a wider diversity of relevant interests that would
concern the sole non-ASEAN claimant, China.
Progress is being made towards turning this dispute into a situation from one of
distributive bargaining to one of integrative bargaining, but it has also been significant
on the bilateral level, with. This, however, does look promising, with China
recognizing the potential for maritime cooperation, and showing interest in
cooperating with ASEAN member states to build a maritime Silk Road in the SCS
(People's Daily Online, 2013).
Distributive bargaining would not help claimant States make any progress towards a
resolution towards the dispute, but instead, encourage childish tit-for-tat skirmishes on
the high seas. It can be transformed into a situation of integrative bargaining through
the packaging of more interests, which itself raises other questions from different
states, both non-claimant and claimant, who may have different stakes in these other
areas of potential cooperation. This appears to be what China has been attempting to
do. On the other hand, claimant States need to demonstrate a certain degree of trust in
order for such gestures to move the dispute forward.
The result of the Philippines’ effort to bring this dispute to international arbitration
would be interesting and definitely impactful on the outcome of negotiations. China
has so far shown no interest in pursuing this matter using international law, but has
reportedly requested the Philippines to stop arbitration proceedings (Sevastopulo &
Landingin, 2013). If China does not take part in the proceedings, the case may be
decided as soon as by the end of 2014 (Browne, 2013). Otherwise, such a case could
take up to five years to be decided. It is not yet clear whether the Philippines’ show of
a lack of confidence in dispute resolution in ASEAN will spread to Vietnam as well.
Despite the Philippines’ gesture, I believe that where a viable option opens up to the
claimants, the Philippines would be willing to halt arbitration proceedings and take a
diplomatic route instead.
12
ASEAN’s status as a regional organization would also have an impact on the course
of the multilateral negotiations. Besides this dispute, ASEAN has many areas of
cooperation and collaboration that bring the member States closer together, such as
the formation of the ASEAN (Economic) Community by 2015 (Simon, 2012) (The
Economist, 2013). ASEAN member States are also fairly diverse in terms of wealth
and economic interests, so it is a hope that a mutually beneficial agreement on
economic cooperation may encourage member States to work towards a common and
mutually beneficial position on a security matter like the SCS dispute.
Already, ASEAN appears to have been able to present a united position towards
China over the dispute. However, optimism has been dampened down, with the
Indonesian representative cautioning that the COC itself is “not meant to be a magic
wand”, but “a very concrete actionable set of rules and norms, rules and conduct” for
the SCS (Sabapathy, 2013).
China’s economic dominance in the region will certainly not diminish, especially in
the more impoverished ASEAN member States, Cambodia and Laos, where they
provide vast economic aid (The Japan Times, 2013). This would likely strengthen
Cambodia and Laos’ statuses as China’s allies and proxies of their interests in
ASEAN, which would serve as an impediment to a common ASEAN position on the
dispute that may be inimical to Chinese interests.
All in all, the costs of dragging the dispute for an even longer time than it already has
lasted is proving to be more costly by the week. The position that I arrive at is a
moderately optimistic one, that all claimant states will inch towards to a negotiated
agreement on a multilateral level, with ASEAN’s name being elevated in the process,
and progress made by ASEAN towards being a preferable platform for dispute
resolution.
6.
Conclusion
All involved parties are acutely aware that armed conflict is a non-starter – given the
tightknit security alliances between the different parties, the intervention of other
militarily powerful states in the region, and the geographical proximity of the SCS to
all ASEAN members, it would not be in any party’s interests to enter into battle. It has
been agreed by an ASEAN chair and China that “the ASEAN-China relationship is
bigger and more important than the South China Sea issue” (The Economist, 2013).
Given the number of states involved in this dispute, and the complex relationships
shared between and among them, it is no wonder that the dispute, decades after it
began, continues to run till this day. A lot is still at stake in this dispute and every
State will stand to lose more if compromise cannot be found.
13
Appendix 1: Map of the Disputed Territory
The “ninedash” line
(annotation
added)
(BBC, 2013)
14
Appendix 2: Relevant provisions from 1982 UNCLOS
PART II
TERRITORIAL SEA AND CONTIGUOUS ZONE
…
SECTION 2. LIMITS OF THE TERRITORIAL SEA
Article 3
Breadth of the territorial sea
Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines determined in accordance with this Convention.
…
PART V
EXCLUSIVE ECONOMIC ZONE
…
Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i)
the establishment and use of artificial islands, installations and structures;
(ii)
marine scientific research;
(iii)
the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic
zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a
manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance
with Part VI.
Article 57
Breadth of the exclusive economic zone
15
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which
the breadth of the territorial sea is measured. (emphasis added)
…
PART VIII
REGIME OF ISLANDS
Article 121
Regime of islands
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf of an island are determined in accordance with the provisions of this
Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf. (emphasis added)
16
Bibliography
Abdul, K., & Desy, N. (2011, July 21). South China Sea guidelines agreed. Retrieved
November 18, 2013, from The Jakarta Post:
http://www.thejakartapost.com/news/2011/07/21/south-china-sea-guidelines-agreed.html
ASEAN. (2012, December 19). ASEAN-China Dialogue Relations. Retrieved November 18,
2013, from ASEAN: http://www.asean.org/news/item/asean-china-dialogue-relations
ASEAN Secretariat. (1992, July 22). 1992 ASEAN Declaration on the South China Sea.
Retrieved November 20, 2013, from NUS Centre for International Law:
http://cil.nus.edu.sg/rp/pdf/1992%20ASEAN%20Declaration%20on%20the%20South%20Ch
ina%20Sea-pdf.pdf
ASEAN Secretariat. (2002, November 4). DECLARATION ON THE CONDUCT OF
PARTIES IN THE SOUTH CHINA SEA. Retrieved November 18, 2013, from ASEAN:
http://www.asean.org/news/item/declaration-on-the-conduct-of-parties-in-the-south-chinasea-2
Ba, A. D. (2011). Staking Claims and Making Waves in the South China Sea: How Troubled
Are the Waters? Contemporary Southeast Asia , 33 (3), 269-91.
Barta, P. (2011, July 16). U.S., Vietnam in Exercises Amid Tensions With China. Retrieved
December 26, 2013, from The Wall Street Journal:
http://online.wsj.com/news/articles/SB10001424052702304223804576447412748465574
Barta, P., & Tejada, C. (2012, July 23). Sea Dispute Upends Asian Summit. Retrieved
December 26, 2013, from Wall Street Journal:
http://online.wsj.com/news/articles/SB10001424052702303919504577524133983292716
BBC. (2013, May 15). Q&A: South China Sea dispute. Retrieved November 18, 2013, from
BBC News: http://www.bbc.co.uk/news/world-asia-pacific-13748349
Browne, A. (2013, October 14). Philippines Challenges Beijing's Claims in the South China
Sea - in Court. Retrieved November 20, 2013, from The Wall Street Journal:
http://online.wsj.com/news/articles/SB10001424052702304330904579135220056016750
Chen, S. (2013, August 29). Malaysia Splits With ASEAN Claimants on China Sea Threat.
Retrieved November 19, 2013, from Bloomberg: www.bloomberg.com/news/print/2013-0828/malaysia-splitswith-other-asean-claimants-over-china-sea-threat.html
Ebbinghaussen, R. (2013, November 11). Power games in the shadow of disaster. Retrieved
November 17, 2013, from Deutsche Welle: http://www.dw.de/power-games-in-the-shadowof-disaster/a-17227494
The Economist. (2013, February 9). All change at ASEAN. Retrieved November 17, 2013,
from The Economist: www.economist.com/news/asia/21571461-hopes-calmer-times-underyears-new-management-all-change-asean
The Economist. (2013, October 19). Being there. Retrieved December 26, 2013, from The
Economist: http://www.economist.com/news/china/21588081-superpower-otherwiseengaged-china-makes-hay-south-east-asia-being-there
17
The Japan Times. (2013, October 11). South China Sea rows not your affair, U.S., Japan told.
Retrieved November 17, 2013, from The Japan Times:
www.japantimes.co,jp/news/2013/10/11/national/south-china-sea-rows-not-your-affair-u-sjapan-told
The Japan Times. (2013, November 3). Code of conduct for South China Sea. Retrieved
November 19, 2013, from The Japan Times:
http://www.japantimes.co.jp/opinion/2013/11/03/editorials/code-of-conduct-for-south-chinasea/
The Japan Times. (2013, December 15). Japan extends patrol ship carrot to Vietnam, plus
¥96 billion loan. Retrieved December 26, 2013, from The Japan Times:
http://www.japantimes.co.jp/news/2013/12/15/national/japan-extends-patrol-ship-carrot-tovietnam-plus-%C2%A596-billion-loan/
McDonald, M. (2012, November 20). Indecision and Infighting: That's the Asean Way.
Retrieved November 19, 2013, from The New York Times:
http://rendezvous.blogs.nytimes.com/2012/11/20/indecision-and-infighting-thats-the-aseanway/?_r=0
People's Daily Online. (2013, October 18). Three ideas to make a breakthrough on South
China Sea issue. Retrieved November 17, 2013, from People's Daily Online:
www.english.peopledaily.com.cn/90883/8429239.html
Ririhena, Y. (2011, August 14). Managing diversity is ASEAN's main challenge. Retrieved
December 1, 2013, from The Jakarta Post:
www.thejakartapost.com/news/2011/08/14/managing-diversity-asean’ s-main-challenge.html
Saner, R. (2008). The Expert Negotiator: Strategy, Tactics, Motivation, Behaviour,
Leadership (3rd ed.). Leiden: Brill.
Scott, D. (2012). Conflict Irresolution in the South China Sea. Asian Survey , 52 (6), 10191042.
Sabapathy, K. (2013, August 16). ASEAN united over South China Sea. Retrieved November
17, 2013, from Australia Network News: http://www.abc.net.au/news/2013-08-15/an-aseansth-china-sea/4890742
Sevastopulo, D., & Landingin, R. (2013, September 3). Philippines accuses China of stoking
South China Sea tensions. Retrieved November 17, 2013, from Financial Times:
www.ft.com/intl/cms/s/0/e9ef2a98-1492-11e3-a2df-00144feabdc0.html
Simon, S. W. (2012). Conflict and Diplomacy in the South China Sea: The View from
Washington. Asian Survey , 52 (6), 995-1018.
18