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Opinion: radical proposal for South China Sea issues highlight of international conference

The Diplomatic Academy of Vietnam, the Foundation for East Sea Studies and the Vietnam Lawyers’ Association host an annual conference on the South China Sea. The setting this year was the delightful seaside city of Vung Tau. Held 23-24 November the theme was cooperation for regional security and development.

Ships in a shipping lane

Much has happened in the region since the previous conference:

  • China has proceeded apace with dredging programmes and a range of infrastructure projects, some with military potential.
  • The United States Navy has conducted its first freedom of naval operations patrol through part of Chinese-claimed territory, although the reference to innocent passage by US officials appears to have confused rather than clarified Washington’s intentions.
  • The United Nations Arbitral Tribunal has agreed that it has jurisdiction to hear the case filed by the Philippines over the interpretation and application of UNCLOS to maritime disputes in the South China Sea.

Over the course of two days, 27 presenters addressed a range of issues including an analysis of recent developments; major power interactions in the region; the application of international law; prospects for the case before the Arbitral Tribunal, and options for the future.

Not surprisingly, several of the presentations addressed the issue of China’s claims to a large section of the South China Sea.

For me, the highlight of the conference was a radical proposal advanced by Robert Beckman, director of the Centre of International Law, at the National University of Singapore.

He argued that the decisions that would be made next year by the UN Arbitral Tribunal on the case brought by the Philippines, would strengthen its legal and moral position if the case went in its favour, but do nothing to change the facts on the ground. While the Tribunal’s findings would be legally binding, the Tribunal did not have the means of enforcing its decision should China choose to ignore it. Nor would United States freedom of naval operations have any effect on China’s claims.   

Beckman said China must understand that it will pay a very high (reputational) price if it continues to further its interests through power in defiance of international law. But ASEAN claimants must accept that the underlying disputes cannot be resolved by international tribunals.

China also needs to understand that it is not possible for the ASEAN claimants to appear to back down on their claims to resources in their exclusive economic zones (EEZ’s), while ASEAN claimants similarly must come to realise that it may not be politically possible for China to reverse course and bring its claims into conformity with the the United Nations Convention on the Law of the Sea (UNCLOS).

Beckman proposed a way out of this dilemma. This would require both sides to agree to set aside the disputes on sovereignty and on maritime claims. They would then enter into provisional arrangements of a practical nature, pending the eventual settlement of the sovereignty disputes and settlement of maritime boundaries. Pending agreement on provisional arrangements, all claimants would agree to refrain from actions that would jeopardise or hamper the negotiation of an agreement on such arrangements or on agreements finally to resolve the sovereignty and boundary issues. Under this proposal, no claimant would give up or surrender its historic position on sovereignty, maritime boundaries, and historic rights.    

Beckman suggested that this proposal would allow China to enter the process without clarifying its nine-dashed line (the demarcation line used by Taiwan and the People's Republic of China for their South China Sea claims) or its sovereignty and maritime claims.

For their part, ASEAN claimants would not have to modify their position on their own claims or their positions on China’s claims. Taiwan could declare that it would abide by the provisional arrangements. ‘Without prejudice’ clauses would ensure that a position a claimant takes in negotiations on interim arrangements cannot be used against them later.

The types of interim arrangements Beckman envisaged included measures to reduce the risk of potential conflicts between government vessels; measures to establish cooperative regimes on matters of common interest; and joint development arrangements on fishing, and oil and gas resources.

He suggested that the claimants jointly request the UN Secretary-General to appoint a panel of experts to recommend specific provisional arrangements including a timetable for implementation and procedures for monitoring compliance with the arrangements.

I make no apology for devoting so much of this report to Robert Beckman’s comprehensive set of proposals. The issues are so complex and the political mind-sets so fixed that new approaches are needed. As Beckman said in his concluding remarks, his proposal gives all claimants a face-saving way out of an otherwise intractable dispute. It is to be hoped that his ideas don’t sink without trace. The region would be much the poorer in that eventuality.

An important and encouraging innovation at this year’s conference was the establishment of the South China Sea Young Leaders Network. The aim is to create a forum for young researchers on South China Sea issues, and to encourage them to work together across countries and across disciplines. Five countries are currently represented: Australia, Brunei, China, Singapore and Vietnam. I registered with the conference organisers Asia New Zealand Foundation’s interest in joining this group.

Paul Sinclair, acting director Centre for Strategic Studies, Victoria University of Wellington

Sinclair's attendance at the conference was funded by the Asia New Zealand Foundation.

December 2015