It's time to start clarifying disputes in the South China Sea
The Philippines is to be commended for its timely initiative of inviting China, Brunei, Malaysia and Vietnam for a meeting in Manila on the South China Sea disputes. China has reportedly turned down the invitation, but Brunei, Malaysia and the Philippines will send their senior officials to attend. Ideally, the following should be considered:
Involve all the other six Asean member States
The South China Sea has more than just sovereign disputes among the claimant states. There are issues that also involve all Asean member states, such as how to persuade China to start official discussion on the drafting of the code of conduct (COC) in the South China Sea. What we see now is a Catch-22 situation. Asean wants an early conclusion of the COC in order to restore confidence between Asean and China. But China says it will engage Asean on drafting the COC "only when conditions are ripe". For the time being China just wants to rebuild mutual trust by implementing cooperation projects under the existing framework of the Declaration on the Conduct of Parties in the South China Sea (DOC).
Involving all the other six Asean member states in the Manila meeting of the four Asean claimant states in Manila on December 12 will show Asean unity. Asean is widely seen as having suffered serious setbacks both in the 21st Asean Summit and the 45th AMM because of disagreements over the South China Sea.
All the parties under the DOC (10 Asean member states and China) can certainly agree that the DOC has failed to improve the situation in the South China Sea, especially since the adoption in July 2011 of the guidelines for the implementation of the DOC. What else can be done to avoid confrontation and unilateral action in disputed areas in the South China Sea that could lead to armed clashes and escalation?
Clarify who is claiming where
This will be the first time that the four Asean claimant states can clarify to one another where their claims are. Brunei's claims of Louisa Reefs and Rifleman Bank are minimal, and yet it is often mentioned as one of the disputing claimant states in the South China Sea disputes. Vietnam is reportedly claiming the entire Spratlys group but it is not clear whether it is also claiming Scarborough Shoal/Reef, which was the scene of a serious confrontation between China and the Philippines last April. Malaysia, on the other hand, is claiming only the southern half of the Spratlys.
On what basis?
It is also useful to explain on what basis each claimant state is claiming a particular disputed maritime feature in the South China Sea. Vietnam seems to be using "historic rights" very much like China in asserting its claims. But these "historic rights" are not directly recognised in the UN Convention on the Law of the Sea.
Agree on what is being claimed
Another important but rather technical issue is to try to agree on the technical and legal nature of each particular maritime feature under dispute - whether it is an island, or a rock, or a low tide elevation, a reef, or an artificial structure. According to the UN Convention on the Law of the
Sea, only an island - a naturally formed area of land, surrounded by water, which is above water at high tide, and can sustain human habitation or economic life of its own - can have an exclusive economic zone (up to 200 nautical miles) or continental shelf. The ICJ decision of November 19 on the case between Nicaragua and Colombia indicates that the world court
is not in favour of giving small islands (belong to Colombia) too much in economic or maritime rights that will encroach on the coastal state's (Nicaragua's) exclusive economic zone.
Decipher China's nine-dash line claims
Another important issue to discuss is the famous nine-dash line of China's massive claims in the South China, which cuts into the 200-mile exclusive economic zones of all the coastal states in the South China Sea - including Indonesia's off Natuna Besar Island. China has yet to clarify what its "cow tongue" U-shaped line signifies. If it represents the Chinese maritime boundary, China is actually claiming sovereignty and/or jurisdiction behind the nine-dash line. One serious implication is that China can then claim to have legal right to regulate shipping and other activities in most of the South China Sea.
This issue clearly concerns not just the four claimant states in Asean, but all the Asean member states, as well as other countries that use the international sea lanes in the South China Sea for shipping and commerce.
Military activities in the South China Sea
This is another issue that concerns all the Asean member states. What to do with the secret military activities of foreign warships outside the 12-mile territorial seas of coastal states but within their 200-mile exclusive economic zones? Many countries, including China, Vietnam and Indonesia, do not allow such secret military activities of foreign warships inside their exclusive economic zones. However, the US, which has not yet ratified the UN Convention on the Law of
the Sea, insists that its warships have "freedom of navigation" outside the territorial seas of all coastal states in the South China Sea. This is one important issue that the Asean member states should come to a common position on.
The role of Taiwan?
Another issue that Asean member states can tackle collectively is how to deal with Taiwan. Taiwan is occupying Itu Aba or Taiping Island, which is the largest island in the Spratlys. Taiwan officials and scholars have participated in the Track 1.5 Workshop on Managing Potential Conflict in the South China Sea, which has been organised by Indonesia for 22 years. Taiwan now wants international recognition as a claimant in the South China Sea disputes, and some say in the drafting of the COC.
Going for joint development
China has since the time of premier Deng Xiaoping in the 1980s offered to shelve the sovereignty disputes and go into some joint development of the disputed areas in the South China Sea. But the offer has not been taken seriously by other claimant states because they believe China made the offer on the assumption that all the maritime features behind the nine-dash line belong to China.
To make the offer more attractive, China can make a new declaration to the effect that accepting the Chinese offer of joint development shall not jeopardise any party's sovereignty claims in the South China Sea. This is the solution developed by Asean and China to enable China to support the Southeast Asia Nuclear Weapon-Free Zone.
Such joint development can start in areas that only two countries are claiming, such as the Scarborough Shoals between China and the Philippines, or even areas off the Paracels, between China and Vietnam.
new approach needed
complicated the disputes with overlapping claims of economic and maritime zones, as well as conflicting assertions about the nature of each particular maritime feature under dispute. Each claimant state has thus tried to take unilateral action to enhance the validity of its claims to maximise its potential advantage. As such, a win-win solution is impossible.
What is needed now is a new approach, a new thinking, starting with this question: What can each claimant state give up in order to facilitate the development of a new and perhaps unconventional solution to settle each dispute in the South China Sea in a win-win manner?
Termsak Chalermpalanupap is a visiting research fellow at the Asean Studies Centre
of the ISEAS, Singapore.