Solving Disputes for Regional Cooperation and Development in the South China Sea
Alberto Encomienda, Former Ambassador, the Philippines
The book “Solving Disputes for Regional Cooperation and Development in the South China Sea : a Chinese Perspective” is a compelling reading for South China Sea watchers for at least two reasons. The first reason is the authoritative stature of the author. The book provides a Chinese perspective on the disputes and a Chinese proposition for a peaceful solution from an authoritative Chinese writer. While a number of Chinese authors have written about South China Sea issues, the Chinese perspective presented in this book is made invaluable by the experience and credentials its particular author, Dr. Wu Shicun. Dr. Wu Shicun has been directly involved with the subject for two decades as a scholar and later as President of the National Institute for South China Sea Studies (China). The Institute, which he was instrumental in establishing, is a Track 1 ½ entity on South China Sea issues under the policy guidance of the Ministry of Foreign Affairs of China (http://www.nanhai.org.cn). At the time this book was written, Dr. Wu was also the Director General of the Foreign Affairs Office of Hainan Province, which has jurisdiction over the South China Sea islands.
The second reason is the semi-official character of the book. The author’s credentials, make the book a credible guide to China’s reasoning on and approach to a peaceful resolution of the South China Sea controversy. Although current controversies revolve around sovereignty and sovereign rights, China has not publicly made known its position on the jurisdictional aspects of its claim, in particular the juridical character of the so-called nine-dash line, making this book a valuable and scarce resource; the book is, at the time of his review, the next best thing to an official pronouncement from the Government of China.
A Chinese perspective is, of course, as any other country’s perspective, subjective. A peaceful solution to the South China Sea controversies, however, can be better appreciated in light of the following objective facts expressed in this book :
· On the sea situation. In these modern times, because the world’s economies have become interdependent and the social and cultural borders of humankind have melted away, political boundaries have become a critical issue in the South China Sea, in that they affect the peace and good order as well as the security and stability of the region. Current maritime border issues plus added sovereignty and sovereign rights implications began as regional concerns but have spawned international strategic and geopolitical ramifications. Recent, ominous developments of a politico-military character could lead to a worst-case scenario for the South China Sea, a nuclear cockfight where the two main contenders are a regional nuclear power and the world’s nuclear superpower. The collateral damage would fall on the other regional countries, which would be only pawns in this game of major powers.
Until very recently, the situation just described could never have been foreseen in the South China Sea. Except for occasional incidents of marauding petty piracy, the South China Sea was always a sea of tranquility. The dominant regional trading civilization and influential overseer was China - the Middle Kingdom as it was then known. But since the time of the Middle Kingdom, the world has changed and so has the situation in the South China Sea. In a drawn-out regional transition, the mercantile and social order of countries around the South China Sea has been intruded upon by outside major powers; resources have been wantonly exploited and markets forcibly opened, and domestic socio-political order unduly influenced. Now the South China Sea is heavily traversed by commercial shipping, including the transport of oil and gas, and is troubled by a sharpening competition for marine and seabed resources. The area’s strategic military importance was highlighted during World War II when some of the islands were used as staging areas for invasions. Oil became a strategic commodity in the early seventies, and the South China Sea was and is still viewed as a potentially rich cache of petroleum resources.
· The issues involved. In these troubled times in the South China Sea, the immediate source of regional political friction, ironically, can be attributed to the 1982 United Nations Convention on Law of the Sea (UNCLOS) the international agreement to govern the peaceful uses of the Ocean which also provides for peaceful settlement of disputes arising from its implementation. Development of the UNCLOS process began in the mid-1960’s and it was completed and signed in 1982, finally entering into force in 1994 with universal acceptance. Looking back to before the UNCLOS, one finds no maritime jurisdictional issues in the South China Sea. The UNCLOS woke otherwise dormant notions of sovereignty or sovereign right jurisdiction in the South China Sea, and set off the current, fierce competition amongst certain, so-called, claimant countries.
The question now is how the issues can be resolved peacefully, particularly amongst the principal claimant states, China, the Philippines and Vietnam. The main issue is whether or not UNCLOS is applicable. A collateral issue belabored by others, especially by outside powers, is freedom of navigation. Freedom of navigation, in the current situation, is merely an anticipatory concern and a reaction to the nine-dash line, which China has still not defined. States, both directly involved and extra-regional, all feel that a peaceful solution must be rules-based, through the application of UNCLOS prescriptions. But there seem to be differing interpretations of “rules-based.” The UNCLOS rules have two aspects substantive and procedural. Certain claimants interpret “rules-based” as an upfront application of the jurisdictional entitlements as provided for under UNCLOS. This is the substantive part of UNCLOS and amounts to a pre-condition for consultation and negotiations.
China, however, without expressly saying so, seems to invoke a recourse to the procedural aspects from the first. Under UNCLOS (thus “rules-based”) parties to a dispute arising from its application must first resort to consultations which could possibly lead to negotiations. Whether this method is prescribed by UNCLOS or not, beginning with the procedural aspect is a typical first step in any dispute resolution between states; China is, therefore, well justified in taking this line. Moreover, not invoking UNCLOS would be consistent with its position that the UNCLOS cannot be the basis for determining maritime jurisdictional entitlements since the inception of its claim, although it was not directly stated, predates the UNCLOS. It is difficult to see how these two different approaches, substantive and procedural, can blend together and join the issues for resolution. This is especially in the current situation where there are no official direct discussions between the parties concerned (the book states however, that there has been continuing bilateral interaction, at the highest levels, with Philippines and Vietnam in regard to the claims).
Perhaps the greatest importance of the book is found in its provision of a Chinese idea for a possible path towards resolving the current situation. Dr. Mark Valencia, three years ago, described the South China Sea situation as “fear racing hope.” Currently, fear has largely overtaken hope. An arms race, (including submarines, according to a recent New York Times editorial entitled “The Submarine Race in Asia”, January 7, 2014) is thought to be building up in the region. The smaller claimants, doing what they can within their existing military means, continue to assert themselves. China reciprocates by ratcheting up military and police action, actions which can be interpreted as consolidating its position. The continuing situation combined with the disparate perspectives of claimant countries, without any movement towards consultations and negotiations for a peaceful settlement of the issue, will assure that the existing stalemate, which has already run on for too long, will continue for some time and harden even further.
Still, the book title itself indicates that people are searching for a way out of the stalemate through some resolution, perhaps a “modus vivendi” or provisional measures, allowing for regional cooperation and development. If such a resolution happens and is sustained, any temporary arrangements in the interest of regional economic development could become beneficial, permanent settlements. For China, such a proposition is not new; Premier Deng Xiaoping publicly proposed the same idea in the late 1970’s. The book, however, once again brings the idea of cooperation to the public’s attention and can be taken as an official reiteration.
The book would be a useful starting point for serious informational and educational discourse within Track 1 ½ and Track 2 entities. Certainly, differences will emerge as in previous Track 1 ½ and Track 2 conferences on the subject. But with open minds and the equivalent of political will in a Track 1 ½ setting, some progress might be made toward expanding regional economic cooperation and development, despite the existence of maritime disputes. The sterile Track 1 ½ and Track 2 conferences of the past must take a more fertile turn.
After all, there seems to be no more promising model. Indeed, this model might even be the simplest way, after jettisoning such counter-productive baggage as using a historical basis for claims and the UNCLOS issue of interpreting the nature of marine geological features in the South China Sea and the jurisdictional rights attached to them. Diplomacy, due to a legal and political stalemate, has not prompted any recourse to peaceful settlement. This book, however, may provide some guidance on a Chinese proposition, a proposition that would be worthwhile, considering that China is the regional political and economic Middle Kingdom.
Finally, the book is surprisingly concise, considering the complexity and wide-ranging coverage of the issues involved in respect of history, law, international politics, economics, diplomacy and geostrategy. It is clearly written and presented, an easy read. The sections purporting to present the perspectives of other claimant countries, though gratuitous in nature, are nevertheless well-researched and credible enough to outline the premises that guide the Chinese perspective. In the end, the differing perspectives among claimant countries will lead to a conclusion that no one perspective can be acceptable to all; and the only chance for claimant states to benefit from the exploitation of resources in the South China Sea is through cooperation.