What is to be done?

Resolving maritime disputes in Southeast Asia

Ian Storey Institute of Southeast Asian Studies, Singapore

Angara Centre, Manila, 5th December 2013

Five Policy Recommendations

1.

As a resolution to the dispute is not in prospect, the claimants should focus on creating effective crisis prevention and conflict management mechanisms. All parties should genuinely commit themselves to resolving their disputes under international law and bringing their claims into line with UNCLOS. Like-minded countries should coordinate their positions and at regional and international forums emphasize the critical importance of upholding international law and norms of behaviour. As a matter of priority the claimants should negotiate fishery agreements in areas of overlapping jurisdictions and jointly manage fish stocks. Joint development of energy resources in the South China Sea is unrealistic. Before development can take place, maritime boundaries must be delimited.

2.

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5.

1. Conflict Resolution or Conflict Management?

The SCS dispute could be resolved in two ways:

Submission to International Court of Justice Negotiated settlement among the claimants

Prospects of a legal or political settlement slim to none at present. Absent a resolution, claimants should focus on creating effective crisis prevention and conflict management mechanisms.

Increasing frequency of incidents at sea raises the risk of a major military/diplomatic crisis.
ASEAN-China DoC/CoC process highly disappointing. Can it really lower tensions? Parties should insist that the CoC contains effective measures such as:
Incidents at Sea (INCSEA) agreements between Russia/NATO/Japan/South Korea Code for Unalerted Encounters at Sea (CUES)

2. Abiding by International Law

2008 Ilulisatt Declaration: Arctic states pledged to resolve all their disputes using existing international legal regimes especially UNCLOS. DoC parties have made the same pledge, but Chinas commitment to international law is shaky at best. Nine-dash line is the crux of the SCS problem and stands in the way of a resolution and joint development. China is claiming historical rights within the nine -dash line and that the dispute should be settled in accordance with historical facts and international law. China must bring its claims into line with UNCLOS.

3. Build a Coalition of Like-Minded Countries

Asia-Pacific states have a collective interest in peace and stability in the SCS, the free flow of maritime trade, freedom of navigation and protecting rights and responsibilities of coastal states under UNCLOS.

States that share these values should coordinate their positions and continually emphasize their importance and raise their concerns at regional and international forums such as ARF, EAS etc.

4. Fisheries Agreements

SCS hosts a significant fishing ground that is vital to the food security of hundreds of millions of people. Biodiversity and regional food security threatened by overfishing and Illegal, Unregulated and Underreported (IUU) fishing. Overfishing and IUU fishing are exacerbated by contested maritime jurisdictions, resulting in numerous tense and sometimes fatal incidents. As a matter of priority, claimants should hold talks to regulate fishing activities in areas of overlapping jurisdiction and joint management of fish stocks.

5. Development of Energy Resources

Perception that SCS is rich in oil & gas is one of the central drivers of the dispute. Joint development? China has never explained how to operationalize it and has rejected the Philippines ZoPFFC. Joint development in SCS unrealistic because of the size of the disputed areas and because there are six parties. Claimants should look to Europe/Arctic where States delimited their maritime boundaries so that oil & gas development resource development could proceed. In 2009 Malaysia and Brunei achieved the same outcome.

Conclusions

The next ten years will likely be a crucial phase in the long-running saga of the South China Sea dispute. If the claimants design and implement an effective set of conflict prevention and crisis management mechanisms, provide legal clarity to their claims, and finally muster the political will to pursue a negotiated settlement that resolves their territorial and maritime boundary claims, a bright future beckons. But if the status quo continues, and tensions are allowed to fester, the dispute will almost certainly be sucked into the vortex of US-China rivalry, rendering it utterly intractable for at least a few more generations.