December 15, 2020

Modern Diplomacy published a proposed solution to the South China Sea disputes. The proposal suggests that the ASEAN claimant states – Indonesia (which claims it is not a party to the dispute), Malaysia, the Philippines and Vietnam form a united front that makes a joint declaration on issues they agree on and then issues a joint proposal for resolving the disputes.  (It is unclear why the proposal excludes Brunei – another claimant heavily dependent economically on China). Such attempts to find a solution to these seemingly intractable and dangerous disputes is a welcome respite from the usual China-bashing and calls for more US military intervention. But unfortunately it is unrealistic. While it is true that some of the elements of the proposed joint statement have been expressed individually and buried in ASEAN statements, a claimants’ joint statement against China regarding its claims would be a significant next level political statement that would provoke blowback from China.  International law does not exist in a political vacuum nor does it implement itself.

 

Indeed, the major flaw in this proposal is that it ignores the fundamental interests and influence of China, the region’s dominant indigenous power.  In brief, China believes that the former Western colonies are stealing its fish and petroleum in collaboration with outside Western companies and powers.  Worse, it thinks that the U.S. is using the disputes and the claimants to contain and constrain what it sees as its rightful rise to regional domination.

 

The point is that China would not sit idly by if these claimants try to implement a proposal that treats China’s claims as invalid and denies any share in the resources in the disputed area.   These claimants all want China’s continued economic largesse and each has their own political/military reasons for not wanting to fall out of its favor. China will likely use their individual needs as leverage to prevent such unity against it.

 

Indonesia’s principle security concern is internal stability.  To maintain that stability it needs rapid economic growth and China provides significant economic assistance and investment. Despite its differences with China in the South China Sea, it has so far preserved its national interests without endangering its Chinese investment or providing sufficient fodder for its domestic anti- China nationalists. Unless China loses patience and does something really foolish to upset the relations applecart, Indonesia is unlikely to abandon this “delicate equilibrium”. (see Prashanth Parameswaran, “Delicate Equilibrium: Indonesia’s Approach to the South China Sea”.

 

Malaysia as its then Prime Minister Mahathir Mohammad said, is simply “too small to face up to China.”  Moreover, China and Malaysia have agreed to a joint dialogue mechanism to search for solutions to their  South China Sea disputes.

 

The Philippines will not join such a ‘front’—at least under President Rodrigo Duterte. He has made his own political accommodation with China.

 

But issuing a joint statement is only the first hurdle in the proposal. If these claimants were to issue such a statement, the proposal then encourages them to define their EEZs and to provisionally share the resources in disputed areas. Versions of this temporary solution have been proposed before but to little avail.

 

It also suggests “all of the coastal states _ _ could expressly consent to submit all remaining legal issues to the International Court of Justice (ICJ) as a multi party, consolidated case.” But for the ICJ to entertain a case, both or all parties must agree to submit to its authority. None of these countries are likely to agree to do so.  They have had bitter experiences with international adjudication —  Malaysia with its loss to Singapore over Pulau Batu Puteh Indonesia o with its loss to Malaysia of Sipandan/Ligatan and of course China’s loss to the Philippines (an arbitration it refused to participate in or recognize).

 

Moreover settlement of these disputes through the ICJ would raise sovereignty issues including over Sabah (Malaysia/Philippines) and over the Paracel Islands (China/Vietnam), the latter because of China’s possible claim from them to part of Vietnam’s claimed EEZ and continental shelf. Agreeing to share resources in areas of overlapping EEZs based on disputed territory could imply recognition of the validity of the opposing sovereignty claim and thus claimants will be reluctant to do that.

 

The Sabah dispute is particularly sensitive. The Philippines objected to the 2009 Malaysia-Vietnam joint extended continental shelf claim because part of it was based on Malaysia’s state of Sabah.  Malaysia’s 2019 extended continental shelf claim is also partially based on Sabah. The Philippines’ objection is not likely to change because the Philippines claim to Sabah is part of its constitution.

 

When Malaysia and Vietnam were preparing their joint submission to the UN Commission on the Limits of the Continental Shelf, the Philippines was asked if it wanted to join as it would strengthen their individual positions against China’s sweeping claims. The Philippines replied that Malaysia  could make almost the same claim from Sarawak and the Peninsula and that if it dropped Sabah as a base point for an extended continental shelf, it would not object to the submission.   Malaysia did not do so — perhaps because it intended to eventually make its more recent claim also from Sabah. So the Philippines formally objected.  It stated that it was “requesting the Commission to refrain from considering the submissions unless and until the parties had discussed and resolved their disputes.”

 

It is simply unrealistic to leave China’s interest and influence out of the equation.  The only peaceful way out is compromise. The Philippines and China may be on the verge of showing the way. Now –after years of virulent criticism of Duterte’s policy regarding China’s South China Sea claims, retired Philippines Supreme Court Justice Antonio Carpio is praising its results. He says China has made a “soft admission” of the Philippines EEZ claim.  He says “The _ _ _ arrangement will satisfy the objective of the Philippines to preserve its sovereign rights in the EEZ in the West Philippine Sea [by retaining its Constitutionally -required 60 percent of the proceeds]. He says “it would also allow China, through its state-owned enterprise CNOOC and CNOOC’s partners, to get 40 percent of the net proceeds of the gas in Reed Bank.”  Another vociferous critic of Duterte’s policies former Secretary of Foreign Affairs Albert Del Rosario praised the tentative arrangement as a “constructive move”.

 

This praise may be premature.  The proof will be in the pudding.  But the agreement that appears to be taking shape is indeed promising.  Such an arrangement would ensure that the Philippines retains sovereignty over the resources. Indeed, it enabled Harry Roque, Duterte’s spokesman to say that allowing the exploration in the disputed area to proceed “was an exercise of the Philippines’ exclusive right in the area”. In other words it was an implementation of the Philippines’ arbitration victory.  On the other hand, assuming CNOOC is the minority partner, China’s leaders can argue to their people that the Philippines has tacitly acknowledged its claim to resources in the Philippines claimed EEZ by agreeing to give it a 40 percent share in the Reed Bank project.  Philippines Energy Secretary Alfonso Cuisi said “If they [ Philippines majority owned Forum Energy] can’t do it [by themselves –which they can not] and they need a partner, they have to [emphasis added] partner with China.”

 

Such an agreement—that implicitly gives China first refusal to participate in oil exploration projects in disputed areas– would also earn considerable and needed goodwill for China in the region and set a precedent for solutions to its disputes with its other rival claimants. By accepting this slight of hand, China would also be demonstrating that it can resolve its regional disputes to mutual satisfaction without the involvement of outside powers.

 

China recognizes that its relationship with the Philippines regarding the South China Sea is being watched carefully by the other claimants and it seems to be trying to make it a “showcase of its peaceful dispute management and good neighbor policy.”

 

Similar arrangements with other claimants could be the way forward. But disputes involving maritime claims based on disputed territory are another matter and perhaps best left for future generations to resolve.

 

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.

Link: https://moderndiplomacy.eu/2020/12/14/proposed-solution-to-south-china-sea-disputes-is-unrealistic/