ISSN 2330-717X

South China Sea Disputes: Flawed Negotiations – Analysis

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By Panchali Saikia

The 2 March 2011 incident when two Chinese patrol boats threatened to ram a Philippine vessel conducting a survey in the Reed Bank of the Spratlys islands in the South China Sea (SCS) is another instance of the growing Chinese military influence in the region. China’s increasing defense budget and military capabilities along with its growing assertiveness over maritime disputes has raised concern among Southeast Asian nations. China’s swelling efforts to build its maritime influence has been evidenced by several alarming naval exercises over the past few years in the disputed region, the latest being the November 2010 Jiaolong amphibious assault exercises.

Why has regional cooperation failed to identify the fault-lines and been unable to reach a consensus? Is it only the China factor or other internal Southeast Asian factors which are driving tensions? Will international law and the global community be able to play a concrete role in reaching a resolution?

China's Claims in South China Sea
China's Claims in South China Sea

Although 2011 marks the 20th anniversary of the commencement of a regular high-level dialogue between ASEAN and China, there has been no constructive development for a resolution of the SCS sovereignty disputes. ASEAN and China have failed to reach to an agreement on the guidelines to implement the 2002 ASEAN-China Declaration of the Conduct of Parties in the SCS (DoC). First, the DoC is neither a legally binding agreement nor enforceable; it has failed to provide any mechanism or procedure to ensure that the parties comply with their obligation to respect the provisions of this declaration. Second, even the ASEAN working group level talks since 2002 for implementation of the DoC have failed to create significant results. In December 2004, a joint working group consisting of ASEAN and China was set up to manage the SCS territorial dispute better and to review the implementations of the DoC. However, this working group has failed to make any concrete progress so far, mostly due to the highly complex political context. It has so far only been able to work within the DoC guidelines, which itself has its limitations. Third, most of the talks appear to focus on the Spratlys dispute, whereas there are other disputed islands such as the Paracels.

The territorial dispute between ASEAN and China in the SCS was triggered in 1992, with China’s enactment of the Law on the Territorial Sea and the Contiguous Zone and the declaration of various islands in the sea as part of its territory. Since 2007, tensions have heightened between China and ASEAN countries over the former’s maritime assertiveness which increased dramatically during 2009-10. In 2010, China apparently declared almost the entire South China Sea to be a ‘core interest’ parallel to the issues of Taiwan and Tibet, and as an area over which it would exercise ‘indisputable sovereignty’. While this was later denied by Beijing, its increase of military expenditure by 12.7% in 2011 has raised questions about the implications of its rising military power, complicating the SCS dispute further.

However, it is important to note that the SCS dispute is not just about dealing with China, but also about reconciling the overlapping claims and interests of all countries involved. A political consensus is needed not only between China and ASEAN but also among the ASEAN member states. Disunity among the ASEAN members has weakened the organization and its talks with Beijing. On the other hand, China feels that ASEAN is not a relevant forum for making a collective decision to arrive at reasonable solutions, as all the ASEAN members are not claimant states. Moreover, formal talks and dialogues on the SCS disputes have not included claimant states such as Taiwan.

Unwarranted intervention by a non-claimant state in this strategic competition will further complicate the situation. China has opposed the internationalization of the dispute and interference of any third non-claimant party. However, countries such as the US can silently encourage diplomatic efforts and insist on mediation of the disputed territories in the SCS in accordance with international law. The US should also emphasize withdrawal of military assets stationed on disputed islands, which has made the peaceful resolution more difficult.

Active participation, interactions and political negotiations between the claimants is necessary to avoid any future military conflicts. With the nature of various legal claims and China’s long championed bilateral approach of negotiations, it will not be possible to reach to a joint understanding. Therefore, it is important for China to review its U-shaped claim line and clarify its claims in a manner that is consistent with the United Nations Convention on the Law of the Sea (UNCLOS). However, most of the disputants have refused to discuss the problem of sovereign jurisdiction. They are ready neither for concessions in their territorial claims nor to present their overlapping claims in the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea. A legal precedent can only provide a basis for the negotiation of key issues. The larger focus must remain on the settlement of disputes through political consensus with the most immediate concern being prevention of an armed conflict in the region.

Panchali Saikia
Research Officer, SEARP, IPCS
email: [email protected]

IPCS

IPCS

IPCS (Institute for Peace and Conflict Studies) conducts independent research on conventional and non-conventional security issues in the region and shares its findings with policy makers and the public. It provides a forum for discussion with the strategic community on strategic issues and strives to explore alternatives. Moreover, it works towards building capacity among young scholars for greater refinement of their analyses of South Asian security.

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