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 What is to be done?Resolving maritime disputes inSoutheast Asia

Ian Storey

Institute of Southeast Asian Studies, Singapore

 Angara Centre, Manila, 5th December 2013

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Five Policy Recommendations1.  As a resolution to the dispute is not in prospect, the claimants should focus on

creating effective crisis prevention and conflict management mechanisms.

2.  All parties should genuinely commit themselves to resolving their disputesunder international law and bringing their claims into line with UNCLOS.

3. Like-minded countries should coordinate their positions and at regional andinternational forums emphasize the critical importance of upholdinginternational law and norms of behaviour.

4.  As a matter of priority the claimants should negotiate fishery agreements inareas of overlapping jurisdictions and jointly manage fish stocks.

5. Joint development of energy resources in the South China Sea is unrealistic.Before development can take place, maritime boundaries must be delimited.

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1. Conflict Resolution or Conflict Managem• 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 preventionand conflict management mechanisms.

• Increasing frequency of incidents at sea raises the risk of a major military/diplomaticcrisis.

•  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)

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2. Abiding by International Law

•2008 Ilulisatt Declaration: Arctic states pledged to resolve all theirdisputes using existing international legal regimes especially UNCLOS.

• DoC parties have made the same pledge, but China’s commitment tointernational law is shaky at best.

• Nine-dash line is the crux of the SCS problem and stands in the way ofa resolution and joint development.

• China is claiming “historical rights” within the nine-dash line and that thedispute should be settled in accordance with “historical facts andinternational law”. 

• China must bring its claims into line with UNCLOS.

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3. Build a Coalition of Like-Minded Countries

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

• States that share these values should coordinate their positions andcontinually emphasize their importance and raise their concerns atregional and international forums such as ARF, EAS etc.

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4. Fisheries Agreements

• SCS hosts a significant fishing ground that is vital to the food security ofhundreds of millions of people.

• Biodiversity and regional food security threatened by overfishing andIllegal, 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 fishingactivities in areas of overlapping jurisdiction and joint management offish stocks.

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5. Development of Energy Resources

• Perception that SCS is rich in oil & gas is one of the central drivers ofthe dispute.

• Joint development? China has never explained how to operationalize itand has rejected the Philippines’ ZoPFFC. 

• Joint development in SCS unrealistic because of the size of the disputedareas and because there are six parties.

• Claimants should look to Europe/Arctic where States delimited theirmaritime boundaries so that oil & gas development resourcedevelopment could proceed.

• In 2009 Malaysia and Brunei achieved the same outcome.

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Conclusions

• The next ten years will likely be a crucial phase in the long-running sagaof the South China Sea dispute.

•  If the claimants design and implement an effective set of conflictprevention and crisis management mechanisms, provide legal clarity totheir claims, and finally muster the political will to pursue a negotiatedsettlement that resolves their territorial and maritime boundary claims, abright future beckons.

• But if the status quo continues, and tensions are allowed to fester, thedispute will almost certainly be sucked into the vortex of US-Chinarivalry, rendering it utterly intractable for at least a few more generations.