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Introduction In response to this, Indonesia submitted a Note On 7 May 2009 the Permanent Mission of the Verbale 104 to the UN Secretary-General on 8 People's of Republic of China to the United July 2010 in which emphasised Indonesia is non-Nations submitted notes verbale to claim the claimant state to the sovereignty dispute in the islands in the South China Sea (SCS) and their SCS and whether Chinese claim was consistent adjacent waters. It stated the following: with United Nations Convention on the Law of

2China has indisputable sovereignty over the the Sea (UNCLOS) . Furthermore Indonesia's islands in the South China Sea and the adjacent position on the SCS dispute is unchanged . waters, and enjoys sovereign rights and The South China Sea dispute is just like a jurisdiction over the relevant waters as well as thorn in the side of ASEAN – China relations . the seabed and subsoil thereof. The above position Therefore, the task of managing and crafting a is consistently held by the Chinese Government, peaceful settlement has to be exercised carefully and is widely known by the international and wisely to ensuring that the dispute does not

1community. escalate into armed conflict in order to maintain

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1. United Nations, 'China's Note Verbale, CML/18/2009 (translation)', available at <http://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf>, accessed 15 February 2015.

2. United Nation, 'Indonesia's Note No. 480/POL-703/VII/10 (unofficial translation)', 8 July 2010', UN Website, available at < http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf>, accessed 24 September 2015.

3. Prashant Parameswara' No Indonesia's South China Sea Approach Has No Changed', 26 March 2015, The Diplomat Website, available at < http://thediplomat.com/2015/03/no-indonesias-south-china-sea-approach-has-not-changed/>, accessed 24 September 2015.

4. Mark J. Valencia, 'What the 'Zero Draft' Code of Conduct for the South China Sea Says (and Doesn't Say): Navigating Differences', Global Asia, Vol. 8, No. 3, Spring 2013, p. 73.

By Captain Navy Agus Rustandi, IDN*

SOUTH CHINA SEA : DISPUTE EVOLUTION ANDPOSSIBLE PATHWAYS FOR ASEAN STATESSOUTH CHINA SEA : DISPUTE EVOLUTION ANDPOSSIBLE PATHWAYS FOR ASEAN STATES

JURNAL MARITIM INDONESIA November 2015 Edisi-4

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peace and security in the region. The paper will the Malacca Strait en route to East Asia through foresee how the situation in the SCS could the SCS is about 35 percent of world develop in the coming decade in the areas of legal consumption . Tanker traffic through the jurisdiction, political negotiations and the Malacca Strait leading into the SCS is more than prospects for joint resource exploitation. Initially three times greater than Suez Canal traffic and the paper will highlight the strategic importance fifteen times the amount than transits the of the SCS' geographic position. Then, it will Panama Canal . describe evolution of the dispute and finally, it Second, the SCS has played important role will conclude with assessment of three possible for some littoral states . Historically during pathways to dispute settlement. colonial era, World War II and the Cold War,

some ASEAN states such as Vietnam, Malaysia, Geo-Strategic Importance Of The South China Indonesia and Brunei faced direct military Sea threats which came from the seas. Hence,

There are three significant evidences that the capability to master and command the SCS area SCS poses geo-strategic important which are is still security necessity for these states. Third, cantilever of global economics, security necessity the SCS is realm of rivalry between China and the and arena of major powers' geo-politics. First, it U.S. Growing tension between U.S's allies in the has not proven through exploration, yet some region such as Japan and South Korea with China believed that the SCS is estimated to possess a is creating U.S's concern to increase military large quantity of oil and gas reserves . Besides, present in the region in particular in the SCS . the water around the SCS has a very high Furthermore, the SCS dispute has also dragged shipping density compared to other areas and it U.S into indirect rivalry with China that resulted is host to a series of Sea Line of Communications from the disruption of its interest in the SCS in (SLOCs) of regional and global significance . particular in holding FON (Freedom of Meanwhile, the tonnage of oil shipped through Navigation) policy .

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5. Nguyen Thi Lan Anh, 'Origin Of The South China Sea Dispute', in Jing Huang and Andrew Billo (Eds.), Territorial Dispute In The South China Sea, London, Palgrave Macmillan, 2015, p. 23. (pp.15-38)

6. Clive Schofield, 'Increasingly Contested Waters? Conflicting Maritime Claims In The South China Sea', in Leszek Buszynski and Christopher Roberts (eds.), The South China Sea And Australia's Regional Security Environment, National Security College Occasional Paper No. 5 September 2013, p. 10.

7. Robert D. Kaplan (a), 'Asia's Cauldron: Why the South China Sea is so Crucial', 20 February 2015, Business Insider Website, available at <http://www.businessinsider.com.au/why-the-south-china-sea-is-so-crucial-2015-2 >, accessed 6 July 2015.

8. Global Security, 'South China Sea Oil Shipping Lanes', 2005, Global Security Website, available at <http://www.globalsecurity.org/military/world/war/spratly-ship.htm>, accessed 23 April 2015.

9. Nguyen Thi Lan Anh, 'Origin Of The South China Sea Dispute', p. 26.10. Namrata Goswami, 'Power Shift in East Asia: Balance of Power vs. Liberal Institutionalism', Perceptions, Vol. XVIII,

Number I, Spring, 2013, p. 4.11. ABC News, 'South China Sea Dispute John Kerry Says US Will Not Accept Restriction s On Movement In The Sea' 7

August 2015, ABC News Website, available at < http://www.abc.net.au/news/2015-08-06/kerry-says-us-will-not-accept-restrictions-in-south-china-sea/6679060>, accessed 6 October 2015.


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Matter of Jurisdiction in the South China Sea Dispute Evolution Arbitration initiated by the Philippines, stating

Though the first China made claim to the SCS as follow: was in 1951 in response to the signing San Chinese activities in the South China Sea date Francisco Treaty , in 1947 the Nationalist back to over 2,000 years ago. China was the first government of the Republic of China country to discover, name, explore and exploit the

resources of the South China Sea Islands and the (Kuomintang) published an Eleven-Dash Line first to continuously exercise sovereign powers Map which subsequently became the basis of the over them.nine-dash-line claim after China removed two

dashes as concession to (North) Vietnam in That China's claim based on historical 1953 . Nine-dash-line, China's claim to more

discovery could be true that China discovered than 60 percent of the SCS area , occupation of and named some features within the SCS, but several islands and reclamation activities on simple discovery without effective governance several reefs and rocks, including building extending over long period of time was airstrips and adding military fortifications in the immaterial as a matter of law as shown on the SCS, will generate a significantly changed precedent of Palmas Island dispute between U.S environment within the SCS, the legality of and the Netherlands, in which U.S as the which is still controversial as the changes will discoverer of Palmas Island was lost in the generate new territorial waters and EEZs. It is arbitration to the Netherlands as the expected that man-made islands will not be administrator of the island. Similarly, China fails recognised by the majority of the international to assert lawful claim in the SCS. community because of their legal ambiguity.

Furthermore, other important events in the Meanwhile, China solidified its claim (Nine-SCS from 1955 to March 2015 as follow; after the dash-line) as an historical claim when it released establishment of People's Republic of China the Chinese Government's Position Paper on a

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12.Christopher Roberts (Eds.), The South China Sea And Australia's Regional Security Environment, National Security College Occasional Paper No. 5 September 2013, p. 19. (pp. 18-24)

13. Leszek Buszynski, 'The Development of the South China Sea Maritime Dispute', in Leszek Buszynski and Christopher Roberts (Eds.), The South China Sea And Australia's Regional Security Environment, National Security College Occasional Paper No. 5 September 2013, p.6. See also Zhiguo Gao and Bing Bing Jia, 'The Nine Dash Line In The South China Sea: History, Status and Implications', The American Journal of International Law, Vol. 107, 2013, p. 103 (pp. 98-124)

14. United States Department of State, Bureau of Oceans and International Environment and Scientific Affairs, 'China: Maritime Claims in the South China Sea', Limits in the Seas, No. 143, 5 December 2014. p.4.

15. Menjie (editor.), 'Chinese Government's Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines', 7 December 2014, Xinhuanet Website, available at < http://news.xinhuanet.com/english/china/2014-12/07/c_133837498_2.htm>, accessed 16 June 2015.

16. James Kraska, 'The Nine Ironies Of The South China Sea Mess,' 17 September 2015, The Diplomat Website, available at < http://thediplomat.com/2015/09/the-nine-ironies-of-the-south-china-sea-mess/>, accessed 21 September 2015.

17. Center for a New American Security, 'Timeline: 1955 – Present', 2015, Center for a New American Security Website, available at <http://www.cnas.org/flashpoints/timeline>, accessed 11 June 2015.

Jian Zhang, 'China's Growing Assertiveness In The South China Sea: A Strategic Shift?', in Leszek Buszynski and


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(PRC) on 1 October 1949, in 1956 Taiwan trailed and raised tensions in the SCS the highest level the effort of the government of Republic of China since the end of the Cold War.by claiming Taiping (Itu Aba) Island in the While over lapping claim territories are Spratly and garrisoning permanent troops on the continuing, reclamation projects are also taking island. In 1970, the Philippines claimed the place within the SCS. Some countries including, western portion of the Spratly islands group by Taiwan, Vietnam and Malaysia have also occupying five features of the Spratly. This was expanded their territory by land reclamation, but quickly followed by South Vietnam occupying not on the reef – China is the only country that has six features in the Spratly and officially claiming changed reef to become an artificial island in the the Spratly Islands as a Vietnamese province in SCS. Such man-made constructions do not fall 1974. Meanwhile, in that year, China took under the legal framework in regard to Article 60 control of the crescent group of the Paracel of UNCLOS. Therefore, China's projects to create Islands from Vietnam. Then, in 1983 Malaysia artificial islands will generate complicated legal occupied three features in the Spratly Islands and issues under international law or UNCLOS that in 1986 claimed two additional features. are unlikely to be settled for years to come. Furthermore, in 1988, China took control Fiery Consequently, the SCS waters is being classified Cross Reef. as high-risk waters resulting in increased

In addition, China became involved in a insurance premiums for shipping and the current territorial claim with the Philippines when China world order being challenged as a result of the occupied the Philippines-claimed Mischief Reef disregard of international law. and built several structures on it in 1994. China ASEAN took its first effort to create positive and the Philippines also competed for the atmosphere for eventual pacific settlement by Scarborough Shoal by placing flags and erecting adopting 1992 ASEAN Declaration on the SCS, markers in 1997. In 2012 China virtually annexed which urged all parties to exercise self restraint. Scarborough Shoal by deploying maritime law Whilst, to facilitate formulating dispute enforcement vessels there on a permanent basis. resolution in the SCS in particular between Then, in May 2014 the deployment of Chinese oil ASEAN disputant states with China, Indonesia rig Haiyang Shiyou 981 (HYSY-981) into as neutral party on the dispute initiated an Vietnam's claimed EEZ resulted in incidents and informal diplomacy by organising workshops. triggered major crisis in Sino-Vietnam relations From 1990 to 2009 Indonesia has organised

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18.Center for a New American Security, Ibid.

19. Charlie V. Manalo and Joshua L. Labonera, 'China Annexed Disputed Shoal, Confirm AFP', 21 April 2015, The Tribune Website, available at < http://www.tribune.net.ph/headlines/china-annexed-disputed-shoal-confirms-afp>, accessed at 18 September 2015.

20. Ian Storey, 'The Sino-Vietnam Oil Rig Crisis: Implications For The South China Sea Dispute', ISEAS, #52, 15 October 2014, p. 3.

21. Emma Graham-Harrison, 'South China Sea Islands Are Chinese Plan to Militarise Zone, Claims U.S,' 31 May 2015, The Guardian Website, available at < http://www.theguardian.com/world/2015/may/30/us-claims-south-china-sea-islands-are-beijing-plot>, accessed 17 June 2015.

John W. Garver, China Push Through the South China Sea, The China Quarterly, No. 132, December 1992, cited in


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nineteen workshops involving the Chinese on delimitation of their continental shelf under the auspices of the Policy Planning and boundaries in an area to the north of the Natuna Development Agency within the Indonesian Islands; and the 2014 Agreement on the EEZ Department of Foreign Affairs on managing Boundary in the Mindanao Sea and Celebes Sea potential conflict in the SCS. But, the only between Indonesia and the Philippines are existing conflict management mechanism for the several examples of bilateral negotiation to solve SCS dispute is the Declaration on the conduct of dispute among ASEAN's states within the SCS Parties in the South China Sea (DOC). area.

In addition, the 1992 Declaration on the The DOC was stillborn that because it has not South China Sea was not a legal binding rather an been implemented at all although guidelines to example of ASEAN's internal diplomacy. implement the DOC that has been agreed and ASEAN states and several disputes were solved adopted since July 2011. Development on the by bilateral agreement or through a third party. ground such as land reclamation by disputant For example, the conflict settlement between states within the area of dispute reflected such Indonesia and Malaysia in 2002 regarding failure in particular point five of DOC. Besides, Sipadan Island and Ligitan Reef, and the conflict the point ten of DOC states that the parties agreed settlement between Malaysia and Singapore in to adopt COC (Code of Conduct in the SCS) to 2008 over Pedra Brance/Pulau Batu Puteh, promote peace and security in the region, Middle Rocks and South Ledge were settled by unfortunately thirteen years on the disputant utilising a third party such as the International countries have not been successful to actualise it. Court of Justice (ICJ). Meanwhile, the China is not interested in creating the COC in Agreement of 1997 between Thailand and which China stated it would discuss the COC Vietnam on delimitation of their continental shelf with ASEAN at an “appropriate timing” or when and EEZ boundaries in the Gulf of Thailand; the “appropriate conditions” were met.2003 Agreement between Indonesia and Vietnam

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22.International Law, Vol. 41, No. 3, 12 August 2010, pp. 253-259.

23. Ian Storey, 'Slipping Away? A South China Sea Code of Conduct Eludes Diplomatic Efforts', East And South China Seas Bulletin, #11, Center for a New American Security, 20 March 2013, p. 4.

24. Garry Collinson and Christopher B. Roberts, 'The Role of ASEAN', in Leszek Buszynski and Christopher Roberts (eds.), The South China Sea and Australia's Regional Security Environment, National Security College Occasional Paper No. 5, p. 35, available at <http://nsc.anu.edu.au/documents/occasional-5.pdf>, accessed 15 February 2015.

25. Ramses Amer, 'Dispute Management in the South China Sea', NISCSS Report No. 1, March 2015, pp. 15-20.26. Ibid27. Carlyle A. Thayer, 'ASEAN's Code of Conduct In The South China Sea: A Litmus Test For Community Building?, The Asia

– Pacific Journal, Website, available at < http://www.japanfocus.org/-carlyle_A_-Thayer/3813/article.html>, accessed 12 September 2015.

28. Association of Southeast Asian Nations, 'Declaration On The Conduct of Parties In The South China Sea', 2014, ASEAN Website, available at < http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-the-south-china-sea>, accessed 12 September 2015.

29. Thayer, 'ASEAN's Code of Conduct In The South China Sea: A Litmus Test For Community Building?'30. Ibid.

Yann-Huei Song, 'The South China Sea Workshop Process and Taiwan's Participation', Ocean Development &


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What Does The Future Hold? adjudicate on the rules governing a coastal state's Pessimistically, it seems that several entitlement to maritime zones.

claimants involved in the SCS dispute are coming China's nine-dash-line claim is a vague to the conclusion no negotiated settlement is claim, not only because it contains no notations possible to achieve dispute resolutions. As the and coordinates, but also because no legal Philippines government indicated in its arrangement for this kind of claim (claiming an Notification and Statement of Claim submitted to area of water, including all the islands inside it), the Arbitration against the Chinese government: is recognised. However, China has rejected 'over the past seventeen years of such exchanges UNCLOS as a legal basis in resolving the dispute of views, all possibilities of a negotiated and does not believe in arbitration as stated on its settlement have been explored and exhausted. position paper, since China bases its claim on Notwithstanding the gloomy prospects for a historical right. It will be a set-back for possible settlement, ASEAN should encourage to international law if UNCLOS is not used to rule continue making any effort to settle the dispute on the SCS dispute because UNCLOS had a long which mitigates escalation and prevents armed journey in its formulation and is now the conflict in the region. The failure of such efforts internationally recognised authority for will adversely affect peace and security in the resolving disputes over territorial claims. For region significantly. In analysing how this that reason, it is believed that, regardless of situation may evolve over the coming decade, it China's objections, it is likely that within the next is possible to identify the following three decade, UNCLOS will make a definitive ruling different options that might be pursued by the on a SCS case. involved parties as they seek a peaceful Since all ASEAN states are parties to settlement of the issue. These are based on; legal UNCLOS, it is also likely that ASEAN will avenues, diplomatic or political negotiations and continue to promote UNCLOS as the legal joint development. framework for assessing maritime claims or

Predicting how this issue will play out in the disputes as stated on ASEAN Charter Chapter I legal field is difficult, particularly as China has Article 2 Principle 2. (j). In addition, the majority

ruled out using legal arbitration as the basis for of parties to UNCLOS in the region such as Japan, dispute settlement. Obviously, the territorial South Korea and Australia also support disputes between China and other disputants in UNCLOS as legal framework in resolving the SCS might still possibly be resolved by dispute in the SCS. Hence, within the next adopting UNCLOS as a legal framework since decade, it is likely that UNCLOS will be accepted the dispute has its origins in the ownership of as a legal framework to solve dispute in the SCS. islands or reefs or other insular features, and it is The Philippines has shown this prediction.UNCLOS that has the international authority to

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31.p. 11.

32. Menjie (ed.), 'Chinese Government's Position Paper on Matter of Jurisdiction in South China Sea Arbitration Initiated by Philippines', Loc. Cit.

33. Association of Southeast Asian Nations, ASEAN Charter, Jakarta, ASEAN Secretariat, 2008, p. 7.

Government of Republic of the Philippines, 'Notification and Statement of Claims No. 13-021', 22 January 2013 Manila,


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Having exhausted negotiations with China, conclusion. Meanwhile the Philippines expects on 22 January 2013, the Philippines served China a ruling by early 2016, China has made it very with a Notification and Statement of Claim with clear that it will not change its position on the SCS respect to the dispute with China over the due to the Philippines's case, regardless of what maritime jurisdiction of the Philippines in the the tribunal decides. In the case of China's West Philippine Sea. Since neither the absence from the tribunal, under UNCLOS Philippines nor China expressed any preferred Annex VII Article 9 – Default of Appearance, the third-party dispute settlement mechanism in proceedings will not be deferred. Hence, their ratification, both are deemed to have whenever a decision is made by the tribunal it selected arbitration under UNCLOS Annex VII can be interpreted that the award is lawful. as the means to settle the dispute. On 27 August Since China has announced that it will not 2013 the Order designating the Permanent Court actively participate in the arbitration, the tribunal of Arbitration (PCA) to act as registry of is not easy to make any judgment. proceedings and adopted the Tribunal's Rules of As ASEAN has a divided view on the SCS Procedure. Thus, the Tribunal process has been issue, other disputants from ASEAN may decide initiated. to take the same actions as the Philippines in

However, according to PCA Press Release coming years, particularly if the Tribunal is No. 1 on 19 February 2013, China presented the successful. This would be beneficial to all parties Philippines with a diplomatic note in which it as a Tribunal ruling (or any other legally described the Position of China on the South recognised form of dispute resolution decision), China Sea issues, rejected and returned the would provide clarity to the case and, ideally, a Philippines' Notification. Following the PCA's satisfactory resolution for all parties. While ever Procedural Order, the Philippines filed a the dispute negotiation process is prolonged supplemental submission on 15 March 2015. though, the situation benefits China and gives it According to PCS Press Release No. 4, China still time to finish its 'Great Sand Wall', forever takes the position that the arbitral tribunal lacks changing the facts on the ground. jurisdiction to consider the Philippines Fur thermore , c la imants may face submissions. Three years on after six hearings (at complications pursuing a legal means of the time of writing), the case is still far from the resolution in coming years. One is that China is

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34.People's Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable', 27 August 2013, The Hague.

35. PCA, 'Sixth Press Release', 13 July 2015, Permanent Court of Arbitration Website, available at < http://www.pca-cpa.org/PH-CN%20-%2020150713%20-%20Press%20Release%20No.%2068046.pdf?fil_id=3005>, accessed 21 September 2015.

36. Simone Orendain, 'Philippines Bolsters Arbitration Case Against China', 17 March 2015, Voice of America Website, available at < http://www.voanews.com/content/philippines-bolsters-arbitration-case-against-china/2683258.html>, accessed 28 June 2015.

37. Shannon Tiezzi, 'Why China Won't Accept International Arbitration in the South China Sea', 9 December 2014, The Diplomat Website, available at < http://thediplomat.com/2014/12/why-china-wont-accept-international-arbitration-in-the-south-china-sea/>, accessed 16 June 2015.

Permanent Court of Arbitration (PCA), 'Press Release on Arbitration Between the Republic of the Philippines and the


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strongly opposed to this route and may ignore communist system, Vietnam is not a true ally of any decisions that do not go in its favour. This China in regard to the SCS issue as evidenced will result in even more serious incidents than during the deadly anti-Chinese riot in May 2014, have occurred in the past. Another problem is all which was triggered by China's deployment of ASEAN states have a heavy economic an offshore drilling rig in Vietnam's EEZ. In fact, dependency on China. Any legal action may it was that the trigger for Vietnam to request the affect their diplomatic relations with China US to give assistance in dealing with China, bilaterally, while if ASEAN takes up the case, while some argued that it is unlikely for them to ASEAN member-states do not have a unity view join forces against China. So, reaching a on China. If disputants do take the same route as political settlement with China using diplomatic the Philippines, then the Tribunal will eventually efforts is unlikely to be successful for ASEAN make a ruling based upon the merits or otherwise claimant-states in the coming decade, yet of the complainant's case. This will be a long ASEAN will pursue this pathway as mandated legal process however, and in the interim, it is on ASEAN Charter, Chapter VII Decision expected that China will continue all efforts to Making, Art ic le 20 Consultat ion and cement its claim in the SCS so that it achieves a Consensus.

ASEAN has long been aware that China is dominant position to be able to militarily reluctant to discuss the SCS issue multilaterally, respond to any perceived threats to its and even when is does, there is a lack of sovereignty or territorial integrity by the end of consistency and commitment in any political the next decade.

Second possibility way of pursuing a negotiations. The creation and signing of the settlement is through political negotiation, but DOC and internal meetings between ASEAN this route too is likely to have many problems in and China to discuss implementation of DOC the coming decade. No ASEAN states possess and discussing the COC have not resulted in any the 'soft power' strengths such as political or concrete advancement on the issue. It seems that diplomatic power to negotiate forcefully with China has adopted a 'hedging strategy’ , and it is China, and none can match its 'hard power' anticipated that this lack of a full commitment especially in economic and military strength. will continue over coming years until such time Historically, the only Southeast Asian state that as China is confident is has secured its national had a similar political system to China was interests in the SCS. Therefore, the prospective Vietnam. Notwithstanding its adoption of the outcome of any future political negotiation

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38.at< http://foreignpolicyblogs.com/2014/08/14/is-vietnam-spinning-out-of-chinas-orbit/>, accessed at 30 June 2015.

39. Helen Clark, 'Get Ready, China: 'Is a U.S – Vietnam Alliance Possible?, 6 June 2015, The National Interest Website, available at <http://nationalinterest.org/blog/the-buzz/get-ready-china-us-vietnam-alliance-possible-13062>, accessed 8 July 2015.

40. Association of Southeast Asian Nations, ASEAN Charter, Jakarta, ASEAN Secretariat, 2008, p. 22.41. Bruce Fraser, 'Hedging in the Political Discourse', in Urszula Okulska and Piotr Cap (Eds.), Perspectives in Politics and

Discourse, The Netherlands, John Benjamins Publishing Company, 2010, p. 201

Gary Sand, 'Is Vietnam Spinning Out of China's Orbit?', 14 August 2014, Foreign Policy Association Website, available


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remains the same as in the past – more marking argued that ASEAN claimants, Vietnam, time. However, the stalling of political Malaysia and the Philippines have done the negotiations will have serious disadvantages for same thing in the SCS and China assumed that it ASEAN, while political negotiations continue to is exercising its right within its sovereignty. But end up in obscuration, China will continue its China has chosen to not understand the context reclamation project in the SCS and finalise the of ASEAN's concern which is Chinese intentions setting up of military garrisons in the region. to build military garrisons in the disputed area.

In regard to the prospects for creating With no prospect of any claimant being in a guidelines for implementation of the DOC and position to forcefully prevent China from pushing China to agree to participate in COC undertaking its reclamation works, it is negotiations, it is highly unlikely that any expected that China will continue to construct progress will be made quickly in coming years. artificial islands and build dual-purpose (civil China will remain suspicious that the COC is and military) structures on the islands until such designed to prevent China conducting its time as its interests in the SCS are secure. activities in the SCS and that it is not an ASEAN Final pathway to analyse is the prospects for formulation – China is aware of the US interest joint development of SCS resources. This could in the SCS, and of other disputants such as be undertaken even while international Vietnam and the Philippines seeking the US's arbitration action is proceeding because it is support. As a result, China does not want an consistent with Article 74 (3) of UNCLOS that ASEAN draft to be the basis of negotiations, so allows such activity during transition periods it will continue to shy away from participating before agreement is reached. The arrangement fully in future meetings on these issues. for joint development normally defines the

Regarding land reclamation in the SCS, limits of disputed area and includes a means to ASEAN strongly opposes Chinese reclamation share the resources in a way that is independent works currently being undertaken and rebuked of the relative strengths of the claims. There China that its activities have eroded trust and are some prospects that in the next decade, in the confidence and undermined peace, security and absence of a sovereignty dispute (as distinct stability in the region as outlined on the from a territorial claim) over islands, joint chairman's statement of the 26 ASEAN development ventures could be considered by Summit. Predictably, China was offended by claimants, but it will not be possible in areas ASEAN's strongest wording on the issue since which are subject to sovereignty and 2012. A Chinese Foreign Ministry spokesman nationalism issues by the countries concerned.

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42.Efforts', East And South China Seas Bulletin, #11, Center for a New American Security, 20 March 2013, p. 43. Tang Siew Mun, 'ASEAN's Strongest Rebuke to China on Reclamation', 1 May 2015, The Straits Times Website,

available at <http://www.straitstimes.com/opinion/aseans-strongest-rebuke-to-china-on-reclamation>, accessed 1 July 2015.44. Huy Duong, 'Joint Development in the South China Sea', 12 July 2013, CSIS Website, available at

<http://cogitasia.com/joint-development-in-the-south-china-sea/>, accessed 1 July 2015.

Ian Storey, 'Slipping Away? A South China Sea Code of Conduct Eludes Diplomatic


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Joint development may be possible in areas level of negotiations has shown no significant which are subject to competing claims for the development; indeed there are even signs first time, but which have not been claimed or indicating a decreasing effort by China occupied previously and therefore have no evidenced by the lack of implementation of specific historical attachment to the claimant agreed points of the DOC, the absence of countries. However, for the disputed islands or guidance implementation and stagnancy of the territories that historically have been part of a continuation discussions on the COC single country's sovereign territory (such as in agreement.

In assessing how the SCS issue is likely to evolve the Indonesian EEZ area of the Natuna islands over the coming decade, this paper considered that is overlapped by China's nine-dash-line how the dispute might develop within three claim in the southern part), joint development specific areas. In regards to legal action, it seems remains a controversial issue and is most that other ASEAN disputants will deeply unlikely to proceed in the next 10 years. consider in taking similar action with the However, any joint development initiatives that Philippines. In the area of political negotiation, are agreed will create benefits not only in the disputants are likely continuing to resolve promoting peace, security and stability to the the disputes through political negotiation; region but also by providing economic workshop and bilateral meetings between prosperity to the countries concerned. As ASEAN and China, so political negotiation is Keyuan argues, once a form of joint still the first choice especially for ASEAN as it is development has been reached amongst in line with ASEAN identity – ASEAN Way, disputants, long-term peace and security in the consultation and consensus. Finally, joint SCS can be definitely guaranteed.development has possibility in managing

Conclusion dispute in the SCS since it could be undertaken Long-s tanding disputes enta i l ing in several situations such as during the

overlapping territorial and sovereignty claims proceeding of international arbitration action or in the SCS region have persistently defied status quo as long as the disputant agree to resolution and are now adversely impacting negotiate for joint venture. All measures expect upon the security and stability to the Indo- all parties have similar outlook that Pacific region. Recent concern centres on current understanding the importance of regional developments on the ground especially security and stability is paramount, so that in reclamation issue has also significantly finding the best solution, all parties should escalated tensions in the region. Meanwhile, avoid armed conflict. progress in resolving the dispute at the political

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45.Emmers (eds.), Security and International Politics in the South China Sea: Towards A Cooperative Management Regime, Oxon, Routledge, 2009, p. 89.

Zou Keyuan, 'Cooperative Development of Oil and Gas Resources in the South China Sea', in Sam Bateman and Raft


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*BIOGRAPHYCaptain Agus Rustandi, an officer of the Indonesian Navy that graduated from the Indonesian Naval Academy class of 1988 (AAL 34). He was posted as Indonesia's Defense Attaché for the Republic of Korea for three years. He has a degree from the Indonesian Naval Science and Technology College (STTAL), specialising in Industrial Management Technique; a Masters of Engineering Science, specialising in Project Management, from the University of NSW Australia; a Graduate Certificate in Maritime Studies from the University of Wollongong; and a Masters of Management in Defence Studies from the University of Canberra. Captain Rustandi is also a graduate of the Australian Command Staff College and the Indonesian Naval Command and Staff College. He is currently attending the Defence and Strategic Studies Course at the Centre for Defence and Strategic Studies at the Australian Defence College.


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