Russia and the South China Sea issue: In search of a problem-solving approach, by Evgeny Kanaev

Thursday, 08 December 2011 03:00 quanghung299

The South China Sea has traditionally been an area where the key strategic interests of the most influential Asia-Pacific powers are focused and intertwined. Currently, the scenario that the issue will rise in the priorities of these powers and acquire a global dimension looks highly probable.

Along with these developments, regional multilateral dialogue platforms – the way they have been tackling the issue – will hardly be able to produce an appropriate response to these changes. Current trends suggest that multilateral diplomacy is likely to use conservative approaches while in the post-2002 period efforts should be aimed at not changing the parameters of conflict resolution but rather at creating a regional milieu conductive to keeping actual and potential contradictions in a non-explosive state.

With this in view, complementary means moving beyond the previous patterns to influence upon the issue need exploring. One of these is a potential contribution which can be made by the Russian Federation.

The paper consists of three parts. Part One assesses the role of South China Sea issue in the evolving Asia-Pacific geopolitical order. Part Two offers critical insights into the nature of recent efforts taken by ASEAN and the ASEAN Regional Forum. In Part Three, Russia’s policy options towards the issue are under consideration. The conclusion summarizes the foregoing analysis.

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The South China Sea in Asia-Pacific Geopolitics

The Declaration on the Conduct of Parties in the South China Sea (DOC) signed in 2002 – with all its shortcomings – laid down the legal parameters of conflict resolution in relations between the parties involved in the dispute. Later on, however, the issue acquired a qualitatively new dimension as its core has shifted from the problem of sovereignty over the islands to geopolitical rivalry between the United States and China.

The first manifestation of this trend was provided by the incident with the American ship the Impeccable in early 2009. It raised a sensitive problem – whether the US military activities in the South China Sea, no matter declared or presumable, would be tolerated by China. Although the conflict didn’t have significant repercussions for US – China relations, prospects for new clashes of their interests in this maritime area were evident.

These expectations were reinforced in early 2010, when the US’ top military figures expressed apprehensions that American interests in the South China Sea might be threatened by China. Among the reasons, two were given an emphasis. First, China’s naval modernization was developing more rapidly than Washington had originally expected. Second, a huge rise of China’s nationalistic sentiments would result in Beijing’s more assertive maritime policy[i].

To China’s credit, it originally tended to avoid getting into the scramble. The maximum of what it did was the statement that the South China Sea falls within its “core interests”[ii]. This doesn’t seem to have carried a provocative message – Beijing just reiterated what had been outlined in the Law of Territorial Sea and the Contiguous Zone 1992. Consequently, the argument that Beijing turned to a more hard-line stance is hardly convincing. In this light, the great amount of criticism voiced by the United States is a definite indication of the immense importance attached to this area by Washington.

Under these circumstances, the issue was bound to come to the forefront of Asia-Pacific geopolitics. This happened at the at the Hanoi session of the ASEAN Regional Forum in summer 2010. Speaking there, the American Secretary of State touched upon a number of points each of which deserves special attention.

First, moving to Code on Conduct of Parties in the South China Sea (COC) was proposed. Although DOC outlines this possibility, in practical terms it was too faint to be taken seriously. Second, Mrs. H.Clinton stressed the US’ readiness to act as an intermediary between the parties involved in the dispute. Third, a necessity to differentiate the legimacy of claims to the islands the South China Sea and its waters was emphasized[iii]. At the next ARF Summit in Bali, many of these points were reiterated[iv].

As a result, the US has become a de-facto player in the South China Sea game. In the near future, its increased influence upon the situation in this maritime area is very likely. The reasons are threefold.

First, the Obama administration will have to provide continuity between its current and previous Asia-Pacific policy statements, namely, “being back” and “strengthening American leadership”[v]. Presumably, several priorities will motivate Washington. One of them is to correct the impression that the U.S. is losing influence upon Southeast Asia or even “conceding” it to China[vi]. Another task is to provide the US’ Northeast Asian allies with strong guarantees that American role in setting out the rules of the game in maritime Asia-Pacific will remain unchanged.

Second, maintaining freedom of navigation has recently been raised to a higher level in Washington‘s strategic thinking[vii]. Exerting influence on the situation in the South China Sea, which links the Pacific Ocean with the Indian Ocean, as well as Northeast Asia with Southeast Asia, is part of this strategy.

Last but not least, Washington will have to allay fears of American corporations that drill for oil and gas in the South China Sea. The reason stems from precedents, still fresh in the memories of energy business elites, when the plans to explore the resources in some parts of the South China Sea were abandoned due to the disputed status of these areas, as well as frictions between China and leading multinational oil companies over the already operational projects in contested zones[viii]. In periods of overall instability, these apprehensions may rekindle.

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[i]For details, see: China’s Activities in Southeast Asia and the Implications for US Interests. Testimony of Deputy Assistant Secretary of Defense Robert Scher Before the US – China Economic and Security Review Commission. Asian and Pacific Security Affairs. Office of the Secretary of Defense. February 4, 2010. // http://www.uscc.gov/hearings/2010hearings/written_testimonies/10_02_04_wrt/10_02_04_scher_statement.pdf; Statement of Admiral Robert F. Willard, US Navy Commander. US Pacific Command Before the Senate Armed Services Committee on US Pacific Command Posture. March 24, 2010. // http://armed-services.senate.gov/statemnt/2010/03%20March/Willard%2003-26-10.pdf

[ii]See: Wong E. Chinese Military Seeks to Extend Its Naval Power. The New York Times. 23 April 2010. // http://www.nytimes.com/2010/04/24/world/asia/24navy.html

[iii]Remarks at Press Availability. Hillary Rodham Clinton. Secretary of State. National Convention Center. Hanoi, Vietnam. July 23, 2010. // http://www.state.gov/secretary/rm/2010/07/145095.htm

[iv]Clinton on South China Sea. The Voice of America. 08.08.2011. // http://www.voanews.com/policy/editorials/asia/Clinton-On-South-China-Sea--127263758.html

[v]Current priorities in US Asia-Pacific policy are revealed at: Clinton’s Speech on U.S. Agenda in Asia-Pacific Region. US Department of State. Office of the Spokesman. October 28, 2010. // http://www.america.gov/st/texttrans-english/2010/October/20101028191722su0.9814875.html&distid=ucs

[vi]Among the American political and expert community, these apprehensions are remarkably widespread. See, for instance: Brown P.J. US Ponders China's Southeast Asian Rise. Asia Times Online. March 10, 2010. // http://www.atimes.com/atimes/Southeast_Asia/LC10Ae01.html

[vii]See: Naval Operations Concept 2010. – Washington, 2010. // http://www.navy.mil/maritime/noc/NOC2010.pdf; National Security Strategy. – Washington, 2010. // http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf; Quadrennial Defense Review Report. – Washington, 2010. // http://www.defense.gov/qdr/qdr%20as%20of%2029jan10%201600.pdf

[viii]For a recent example, see: BP Prefers to Manage Chinese Pressure over South China Sea in Commercial Channels. The Telegraph. 04 February 2011. // http://www.telegraph.co.uk/news/wikileaks-files/london-wikileaks/8305028/C-BP-PREFERS-TO-MANAGE-CHINESE-PRESSURE-OVER-SOUTH-CHINA-SEA-IN-COMMERCIAL-CHANNELS.html

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Third International Worshop

Can a limited purpose maritime and air defence identification zone be established over the South China Sea?, by Mary George

To stimulate South China Sea regional security cooperation in the control of piratical attacks against ships, this paper proposes the establishment of a limited purpose maritime and air defence identification zone over the South China Sea.

Recent Developments in the Philippine Baselines Law, by Raul C. Pangalangan

The Philippines recently passed a 2009 Baselines Law that, it was hoped, would finally confront its long-standing dilemma on whether to abandon its 1898 “treaty lines” altogether and adopt the modern rules on the Law of the Sea. That hope did not come to pass.

International Law in the South China Sea: Does it drive or help resolve conflict?, by Stein Tønnesson

Abstract

The interplay of power and law in the South China Sea is not well understood. To analyze the disputes over navigation rights, sovereignty to islands, and delimitation of maritime zones we need to grasp how states define and defend their geopolitical interests as well as the ways in which international law influences their claims and conflict behaviour. This paper starts with the huge difference in interpretations made by geopolitically oriented political scientists and more normatively or legally oriented scholars. Then the paper asks how developments in international law have affected the conflicts in the South China Sea historically. It establishes parallel histories of alternation between periods of conflict and détente and of legal developments, both in customary and treaty-based international law. The main emphasis is on the law of the sea. The paper concludes by establishing causal linkages between the two histories, while seeking to ascertain in what ways the law as such has influenced conflict behaviour. Has it exacerbated disputes by encouraging conflictual claims? Or has it established rules and procedures that help manage or resolve conflicts? The paper is written on the assumption that the answers we give to these questions may influence the way we see the prospects of future peace in the South China Sea.

Where’s the Stake? U.S. Interests in the South China Sea, by Jonathan G. Odom

Introduction

Much of the legal discussion about the ongoing situation in the South China Sea focuses upon the United Nations Convention on the Law of the Sea (UNCLOS)[1], a convention that was concluded in 1982. During that early 1980's timeframe, there was an iconic television commercial[2] in the United States promoting the fast-food chain of restaurants known as Wendy’s. The commercial showed three little old ladies standing at a cash register of a fictional restaurant that was competing with Wendy’s. Behind the ladies was a sign on the wall that read, "Home of the Big Bun." On the countertop was a large hamburger bun with an extremely small meat patty. Each of the old ladies stared intensely at the bun. Two of the ladies were admiring the bun. The middle lady said, "It certainly is a big bun. It's a very big bun. It's a big fluffy bun. It's a very big fluffy bun." The lady on the right, however, was wholly unimpressed with the large bun. Over and over, she kept yelling "Where's the beef?" across the counter to anyone who might listen. At the conclusion of the television commercial, as the screen faded to black, the viewer could hear the third lady doubtfully telling her colleagues, "I don't think there is anybody back there."

A Bilateral Network of Marine Protected Areas between Vietnam and China: An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?, by Hai-Dang Vu

Since 1999, China has enacted an annual fishing ban for two or three months in the summer in the North-Western part of the South China Sea. This year (2011), the ban took place from May 16^th to August the 1^st and in an area between the latitude 12° North to the North and longitude 113° East to the West.[1]Any fishing vessel that goes into this area during the banis subjected to fines and its catches and gear confiscated.[2]According to Chinese news and scholars, this fishing ban is necessary to protect the sustainability of marine life in this area and prevent overfishing[3] and has produced positive results[4].However, critics, including from China, question the effectiveness of this measure. Many commercially important fishes are not breeding at the time of the fishing ban. Furthermore, after a long pause due to the ban, fishing activities would increase manifold, which causes more risk of depletion of the stocks.[5]

Regional Cooperation in the South China Sea, by Jon M. Van Dyke

The Duty to Cooperate in Semi-Enclosed Seas

The South China Sea is a semi-enclosed sea governed by Part IX of the Law of the Sea Convention,[1] which says in Article 123 that countries bordering such seas “should co-operate with each other in the exercise of their rights and the performance of their duties under this Convention” More specifically, they are instructed to “endeavor, directly or through an appropriate regional organization (a) to co-ordinate the management, conservation, exploration, and exploitation of the living resources of the sea” and also to co-ordinate their activities “with respect to the protection and preservation of the marine environment.” The countries bordering on the South China Sea have failed to create an effective regional organization, and their cooperation “directly” has been generally unsuccessful as well. The Coordinating Body on the Seas of East Asia (COBSEA) has been mostly dysfunctional and the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA)has been modest in its accomplishments. No effective organization to manage the shared fisheries has been established.

Resolution to Fishery Disputes in the South China Sea through Regional Cooperation and Management, by Kuan-Hsiung Wang

The disputes in the South China Sea could be categorized into two parts: one is on the sovereignty of those island features, and the other is the maritime zones that could be claimed. It is understandable that the best way to solve the disputes might be delimiting boundaries so that the areas of sovereignty and jurisdiction could be decided. However, such situation is not always possible. It is mainly because negotiation and adoption of a maritime boundary between the related States always focused on political considerations and there are no well-established laws for making boundaries. Although it is recognized that “equitable solution” is one of the most important principles in making boundary. However, there is no definite elements which have been decided, in spite of geographical and geological factors, coastal length, traditional fishing activities, relative impact on the livelihood and economic dependency are the considerations recognized in different cases.

The South China Sea: Cooperation for Regional Security and Development, by Hasjim Djalal

The efforts to develop cooperation for regional security and development, so far, has involved some formal approach of ASEAN and some informal approach by academic institutions and some informal unofficial approach by some South China Sea officials in their personal capacities. The formal approach has resulted in the Declaration of Conduct by the Foreign Minister of ASEAN and China in 2002 as well as by China and the Philippines, the Philippines and the Vietnam in formulating some confidence building measures or Code of Conduct between them. The informal approach has been initiated by Indonesia through the Workshop Process on Managing Potential Conflicts in the South China Sea since 1990. It should be noted however, that while the formal approach excludes Chinese Taipei in the process, but include Myanmar as an ASEAN Member although it is not located in the South China Sea, the second informal approach, however, includes Chinese Taipei as an “entity” in the South China Sea issues although no states around the South China Sea area has any diplomatic relations with the Chinese Taipei.

The Internationalization of the South China Sea: Conflict prevention and management, by Leszek Buszynski

Introduction

The South China Sea issue began as a territorial dispute over the sovereignty of the islands and sea territory involving China and five ASEAN countries, Vietnam, the Philippines, Malaysia, Brunei and Indonesia. Both China and Vietnam claim the entire area and the islands within while the Philippines, Malaysia and Brunei have laid claims to contiguous areas based on EEZs and continental shelves and first discovery. Had it been just a territorial issue it could have been resolved in some way as a product of Chinese efforts to reach out to ASEAN and to forge stronger ties with the region. Later the issue involved access to the oil and gas reserves of the sea which became critical as global demand for energy rose and claimants devised plans to exploit the hydrocarbon reserves of the area. Disputes erupted over the competing claims, particularly between China and Vietnam, which at times threatened to escalate. Claims to energy resources need not result in conflict, however, and can be managed on the basis of joint or multilateral development for which there are various precedents and models though none quiet as complicated as would be required for the South China Sea.

Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco Benatar

I. Introduction

The South China Sea (SCS) dispute has proven to be a hotbed for a variety of juridical quarrels, ranging from the extent of maritime zones[1], to territorial insular claims[2] and navigational rights.[3] One of the outlying issues that warrants closer examination concerns the baselines to be drawn around mid-ocean SCS islands.[4] As a starting position, one would surmise the applicability of the regime of normal baselines in accordance with the United Nations Convention on the Law of the Sea.[5]

UNCLOS and maritime security in the South China Sea, by Nguyen Thi Lan Anh

Maritime security is a relatively new concept and there are several approaches on its definition within the overall concept of security in international relations. Maritime security is developed to emphasize the importance of maintaining good order at sea in terms of the use and management of the marine resources for human development. In a hotspot like the South China Sea, where sovereignty disputes and overlapping maritime claims are still escalating and complicated, the maintenance of maritime security is a vital issue, covering all aspects of traditional and non-traditional security. With regard to traditional security, the current tension and the modernization of army, particularly navy forces indicated that the parties had prepared for the use of force and armed conflict at regional level may occur. In non-traditional aspects, maritime and aviation safety, marine environmental protection, marine biodiversity and the maintenance of good livelihood for the people are among the fields that currently being seriously threaten.

Exclusive Economic Zone in Major Media and Academic Journals in 2011: South China Sea and Other Seas, by Yearn Hong Choi

Introduction

Every coastal nation attempts to expand its sea territory by extending or expanding exclusive economic zone to the maximum possible. The EEZ was a new concept and a specific legal regime in the Law of the Sea Convention, building on the “exclusive fishing zones” and “fishing conservation zones” already in existence. The EEZ regime in the Convention was primarily aimed at living resources of the waters superjacent to the seabed. Although Article 56 (1) (a) stipulates that in the EEZ, “the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil,” Article 56 (3) affirms that the rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.” The EEZ is and must be an environmental conservation concept: However, it is far from such a novel concept in reality. It is considered or interpreted as the coastal State’s privilege to claim its sovereign sea. Rights without obligations or duties have been claimed, rather blindly. This is something pathetically wrong or very ridiculous. Under the circumstances, 200 nautical miles of exclusive economic zone has been rather abused.

Growing tension in South China Sea – Causes and Cures, by S. D. Pradhan

The recent escalation in tension in South China Sea has indicated the need for objectively looking at the causes of dispute and the recent developments both negative and positive with a view to suggest measures todiffuse the situation, which according to some security experts has the potentials to escalate into an armed conflict and to help the involved nations to find a permanent solution.

Abstract of The Risk of Applying Realpolitik in Resolving the South China Sea Dispute: Possible Implications on Regional Security. by Renato De Castro

Located in the heart of Southeast Asia, the South China Sea is a semi-enclosed sea surrounded by China and several smaller and weaker Southeast Asian powers such as the Philippines, Vietnam, Malaysia, and Brunei. Since the mid-1970s, these littoral states have been locked in a chronic competition as each one seek to extend its sovereignty and jurisdictional claims over more than a hundred islets, reefs, and rocks and their surrounding waters. The biggest among the claimant states, China has shown propensity to use coercive diplomacy and even actual force to pursue its territorial claims. In 1974, its forces drove the South Vietnamese from the Paracel Islands north of the Spratlys. Then in 1988, Chinese forces dislodged Vietnamese forces from Johnson Reef, after they sunk three Vietnamese trawlers near Fiery Cross Reef. China’s promulgation of a territorial law claiming a large portion of the South China Sea in 1992, and Manila’s discovery of Chinese military structures on Mischief Reef in 1995 triggered a serious diplomatic row between the Philippines and China in the mid-1990s.

South China Sea: China’s Rise and Implications for Security Cooperation, by Koichi Sato

In March 2010[1], Chinese diplomats told senior Obama administration officials that China (People’s Republic of China: PRC) would not tolerate any interference in the South China Sea, now part of China’s “core interest” of sovereignty. The People’s Liberation Army (PLA) navy and the Chinese maritime security agencies have begun to deploy their battleships and patrol boats in the South China Sea. Tensions between China and its Southeast Asian neighbors are on the rise. The United States, Japan, and Australia also show concern for the security of Sea Lines of Communication (SLOC) in the South China Sea. It is also said that the PLA navy has a plan to develop aircraft carriers. This paper analyzes these maritime challenges and explores implications for the security cooperation between China and its neighboring countries including Japan and the United States.

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