The South China Sea disputes: some practical thinking from Australia

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The South China Sea disputes: some practical thinking from Australia

Posted 25/09/2012 by Cameron Hill


 Growing hostility between China and the Philippines, the failure of ASEAN Foreign Ministers to agree on a joint statement at their July meeting in Phnom Penh, and anti-China protests on the streets of Hanoi have re-focused international attention on long-standing maritime and territorial disputes in the South China Sea over the last several months. While issues like North Korea’s nuclear program and the China–Taiwan dispute have tended to dominate discussions of regional security over the last decade, one prominent Australian foreign policy analyst has argued recently that ‘it is in the South China Sea that the components of Asia’s changing power dynamics are most concentrated and on display’.

The International Crisis Group (ICG) has labelled the disputes ‘a major flashpoint for potential conflict between China and some South East Asian countries as well as the US’. The South China Sea disputes are separate from the maritime disputes involving China and Japan and Japan and South Korea, which have also intensified recently. The ICG report contains a more detailed map and a list of the conflicting claims (see Appendices).

The waters and seabeds of sections of the South China Sea are subject to opposing claims by six governments—China, Taiwan, Vietnam, Malaysia, Brunei, and the Philippines. While the scope of its claims remain ambiguous, China claims around 80 per cent of the disputed areas on the basis of historical rights and Beijing has used force against Vietnam twice in the past, once in 1974 (against South Vietnam) and again in 1988. The disputed areas—including the Spratly and Paracel island chains—contain many small islands and islets, are a significant source of regional fish stocks, and, most importantly, are thought to be rich in untapped oil and gas reserves. They also happen to straddle some of the world’s busiest international shipping and trade routes.

In 2002, the ASEAN states and China agreed to develop a ‘code of conduct’ (CoC) for managing tensions over the disputed areas. While a set of ‘implementation guidelines’ were agreed in 2011, the CoC itself has yet to eventuate. Differences both between some ASEAN states and China and within ASEAN itself were brought into stark relief at the 2012 ASEAN Foreign Ministers Meeting in Phnom Penh in July where, for the first time in its 45–year history, its members were unable to agree on a joint communiqué. Subsequently, Indonesia, ASEAN’s largest member, worked behind the scenes with other members to produce the ‘six point principles’. These reiterate ASEAN’s adherence to the 2002 declaration and call for the application of the UN Convention on the Law of the Sea (UNCLOS) in peacefully resolving the disputes. Indonesia also continues to play an important role in fostering ‘track two’ dialogues on the dispute. Nevertheless, China, the Philippines and Vietnam have all moved to harden their positions through a series of assertive measures and counter-measures.

In line with its so-called strategic ‘pivot’ to the Asia-Pacific, the US has taken a much stronger interest in the disputes over the last couple of years. While maintaining that the US does not take sides in the dispute, at the ASEAN Regional Forum meetings in Hanoi in 2010, Secretary of State Hillary Clinton declared for the first time that the resolution of the competing claims was a US ‘national interest’. In response to the recent increase in hostilities, the US has stated that it ‘believes nations of the region should work collaboratively and diplomatically to resolve disputes without coercion, without intimidation, without threats and certainly without the use of force’. During a recent visit to Indonesia, Secretary Clinton urged ASEAN and China to make ‘meaningful progress’ towards drafting the CoC. Some commentators, including Australia’s former Foreign Minister Gareth Evans, have argued, however, that America’s emphasis on the need to apply international law is undermined by the fact that it has not ratified UNCLOS.

Australia’s position on the disputes has continued to emphasise the need for a peaceful resolution, through the ASEAN process and based on the application of international law. In 2002, the then Foreign Minister, Alexander Downer, welcomed ASEAN’s declaration on the South China Sea, noting that it included several ideas which had been suggested by Australia. More recently, Dr Michael Wesley has asserted that Australia should play a more activist role, based on the proposition that, as a regional middle power with significant interests in but not party to the dispute, Australia is well-placed to directly broker a solution. Former Foreign Minister Kevin Rudd has argued that ASEAN, through the 18 member East Asia Summit (EAS) process, should play a much more active and formal role in helping diffuse ongoing territorial disputes in East Asia, including the South China Sea. This would include the development of hotlines between national security agencies, joint maritime exercises, detailed protocols for managing incidents at sea and, over time, increased transparency of military budgets.

While rejecting the idea of a direct brokering role for Australia, the current Foreign Minister, Senator Bob Carr, has recently proposed two practical models that could potentially help resolve the disputes peacefully:

the South China Sea isn't the only place where there have been complex and overlapping territorial and maritime claims. To advance, it can often be better for parties to 'agree to disagree' about who owns what and to focus on how all parties can benefit. I want to mention two relevant models that can be adopted for countries to successfully manage competing interests.
The first is the Antarctic Treaty system. The Treaty came into force in June 1961 after ratification by 12 countries then active in Antarctic science. Its objectives are:
  • to demilitarise Antarctica, establish it as a zone free of nuclear tests and the disposal of radioactive waste, and to ensure that it is used for peaceful purposes only
  • to promote international scientific cooperation in Antarctica and, 
  • to set aside disputes over territorial sovereignty.
Under the Treaty, countries have for more than 50 years put aside their differences over sovereignty and cooperated to promote peace and science. Members of the Antarctic treaty system have worked together to conserve and manage Antarctica's living marine resources, including through sustainable fisheries and by combating illegal fishing. The Treaty works. Australia, an initial signatory, played a key role in the negotiation and development of the treaty system. And we hosted the 35th Antarctic Treaty Consultative Meeting in Hobart in June.
The second relevant model is that of joint development zones. Joint development zones are designed to facilitate equitable and mutually beneficial development – a concept that is expressly provided for in the UN Convention on the Law of the Sea. The zones are operating successfully around the world, including in South East Asia, Africa, northern Europe and the Caribbean.

In our region, Cambodia, Malaysia, Thailand and Vietnam were early participants in joint development zones. Thailand and Malaysia entered into a Memorandum of Understanding (MoU) on joint development of seabed resources in the Gulf of Thailand in February 1979. Cambodia and Vietnam concluded an agreement in July 1982 over disputed waters – which placed a maritime area under a "joint utilisation regime." Before Thailand and Vietnam concluded an agreement on maritime boundaries in August 1997, they discussed the potential joint development of an overlapping area. In June 1992, Vietnam and Malaysia applied the same principles in their Memorandum of Understanding – set in place to jointly exploit a "Defined Area" in the Gulf of Thailand. In 1999, Vietnam, Thailand and Malaysia also agreed on joint development of an 800 square kilometre zone. With our neighbours, East Timor, we are jointly developing Timor Sea petroleum resources for the mutual benefit of both countries – based on groundwork laid with Indonesia.

I'm not saying that joint development zones or an Antarctic Treaty-style system will provide all the answers in the South China Sea. But thinking creatively and constructively and examining models like these provide a path that deserves to be explored.
As the Foreign Minister points out, the ASEAN states have had direct experience in the application of these models, although not with China. In the likely absence of any other breakthroughs and in the face of escalating tensions and rhetoric, the November 2012 EAS meetings—which will bring together all the ASEAN countries plus China and the US (and others, including Australia)—present a potential opportunity to advance this kind of practical thinking.

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