ReutersA LARGE PIE: “The underlining problem is the claim of overlapping areas by different countries.” Picture shows the Tien Sa port in Vietnam which the U.S. Navy makes port calls to. The U.S. carries out joint exercises with the Vietnamese Navy in the China Sea after growing tensions.
It is not clear whether the ruling in The Hague this week will bring resolution to the disputes.
The International Court of Arbitration is set to give its ruling on the South China Sea disputes on July 12 amid strong opposition from China. The Chinese Foreign Ministry spokesman, Hong Lei, has said: “I again stress that the arbitration court has no jurisdiction in the case and on the relevant matter, and should not hold hearings or make a ruling.”
The case filed by the Philippines at the International Tribunal for the Law of the Sea at The Hague in 2013 seeks to counter the Chinese claims in the South China Sea. Beijing insists that Manila’s case is an issue of territorial sovereignty over which the tribunal has no jurisdiction.
China claims almost all of the South China Sea along the nine-dash line on the map. The Philippines argues that the claim made by China is against international law.
The current round of tension between the two countries began in 2008-2009 after a tense but bloodless stand-off over the Scarborough Shoal, which led to China gaining de facto control of it in 2012.
China’s expansionist moves
In recent years, attention has shifted to China’s construction and installation of military-capable infrastructure in the Spratly Islands. The pace and scale of China’s island-building works have dwarfed the presence of other countries that engage in similar activities, and is beginning to take on a more overtly strategic character, which includes the construction of runways and port facilities.
There are no easy answers to the South China Sea disputes. At the same time, it is well understood by the parties concerned as well as the international community that the disputes need to be resolved.
Because of the capital spent on island-building works by individual countries on the one hand and the sea’s rich natural resources and annual revenues generated from the sea routes on the other, none of the disputing parties is likely to sacrifice or surrender its claims easily.
The underlining problem is the claim of overlapping areas by different countries, that involve Brunei, China, Vietnam, the Philippines, Taiwan and Malaysia.
One of the fundamental principles of the Association of Southeast Asian Nations (ASEAN) has been to resolve disputes by peaceful means and to reach agreement by a consensus. But over the years, the position of ASEAN on the South China Sea disputes has been weak. At times, the organisation has been unable to formulate a consensus policy. This is partly due to the fact that not all 10 ASEAN members are claimants to the South China Sea. Another reason is that members of ASEAN have overlapping claims among themselves. Moreover, bilateral relations between China and some smaller ASEAN members, such as Laos and Cambodia, are also a factor. Because of its economic and military power, China has been able to win over some ASEAN members.
Dynamics within ASEAN
China is well aware that a united voice of all ASEAN members would have greater force. ASEAN’s inability to build a united front on the South China Sea disputes is a major challenge for the regional bloc. There is no single country in ASEAN party to the South China Sea disputes that is capable of challenging China individually. This is an important reason why ASEAN has welcomed the role of the United States as a power balancer on the issue.
While China insists on talks among the parties concerned, the claimants in ASEAN want to pursue it through multilateralism or the Court of Arbitration. The existence of two diametrically opposing approaches is a major challenge for bringing a mutually acceptable solution to the South China Sea disputes.
Since China has openly refused to acknowledge or accept the ruling of the arbitration court, despite support from several countries, as well as its lack of enforcement power, this channel is likely to be inconclusive.
Looking forward
However, the reactions of the international community in the aftermath of the court’s ruling is bound to put pressure on the disputing parties. The ruling may also provide a justification for coalition action.
To resolve the disputes peacefully, the claimants should be willing to abandon their confrontational attitude and agree to find some common grounds even if this requires sacrificing certain portions of their claims.
For example, one possible peaceful solution would be for all claimants to limit their claim to the areas of 200 nautical miles of the Exclusive Economic Zone in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). By agreeing to such proposal, the parties to the dispute can also reach an agreement to leave international waters for free navigation.
Another way out is for the parties concerned to establish a common ownership of the disputed areas whereby all the revenues from the South China Sea are equitably shared among the littoral countries.
Yet other possibility is for the disputing countries to specifically lay out their claims and allow a neutral party to adjudicate on the basis of the UNCLOS or any other relevant international laws.
But for now, all eyes are on the July 12 ruling.
Nehginpao Kipgen is Assistant Professor and Executive Director of the Center for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University.
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