Pham Minh Trang
Most observers usually look at the South China Sea disputes with pessimistic eyes. After capturing the attention of the world in 2009, when China for the first time officially introduced the nine-dash-line map, the conflicts in the region has continued to grow, tensions between the interested parties increasing. Furthering tensions, China ignored the judgment of an international tribunal in a 2016 suit against Beijing’s expansive claims. Thereafter, some observers have claimed that the disputes are too complicated to settle by law. But such pessimism ignores the fact that Southeast Asian countries have a culture of heeding international law. Whether judging from a realist lens or not, the law remains a useful tool for small countries to protect their interests.
Not So Complicated
From a legal perspective, disputes in the South China Sea are not as complicated as they may seem. There are two reasons for that statement.
First, all the claimants in the South China Sea – Brunei, China, Malaysia, the Philippines, and Vietnam – are parties to the two most important legal mechanisms dealing with multilateral disputes: the United Nations Charter (UN Charter) and the United Nations Convention on the Law of the Sea (UNCLOS). Under the regimes of these conventions, state parties have the obligation to settle their disputes by peaceful means, such as negotiation, regional arrangements, international arbitration, or courts/tribunals. Unlike the UN Charter, UNCLOS goes a step further and prescribed detailed methods of solving conflicts at sea for its parties in Chapter XV. In general, the consent of states is placed at the center of all dispute settlement mechanisms. However, UNCLOS particularly opens a chance for a state party individually to bring its conflict with another state before an international court or arbitration when it comes to certain types of disputes. These are called compulsory procedures, entailing binding decisions in section 2 of chapter XV of UNCLOS. When a state signed and ratified the Convention, it is understood that it has agreed with this settlement means in advance. This was the strategy the Philippines employed in its litigation against China in the South China Sea arbitration.
The second reason is that the whole situation in the South China Sea can be classified into specific legal categories, which could be settled separately by law.
The first category is related to conflicting claims of sovereignty over offshore maritime features. China and Vietnam claim sovereignty over all the features in the Paracels. For the Spratlys, the claimants include China, Brunei, Malaysia, the Philippines and Vietnam.
The second category concerns normal maritime boundary demarcation exercises of littoral countries. Coastal states usually have maritime zones overlapping with their opposite and/or adjacent neighbors, and so do the claimants in the South China Sea. For example, Vietnam and Malaysia have overlapping exclusive economic zones (EEZ) and continental shelves, or Brunei when extending its EEZ and continental shelf has recognized the future delimitation of boundaries with neighbors in the future. And there is China, which claims a maritime zone comprising 80 percent of the South China Sea within the infamous nine-dash-line. This claim, however, was rejected by the arbitral tribunal in the case between the Philippines and China in 2016.
Another group of disputes is related to the legal status of maritime feature in the South China Sea. According to UNCLOS, offshore features can be classified as “islands,” “rocks” or “low-tide elevations” with different legal effects. The Tribunal in the South China Sea case decided that all the features in the Spratlys Islands are not “islands.” They are either “rocks” or “low-tide-elevations,” and while “rocks” can generate a 12 nm maritime zone around them, “low-tide-elevations” are unable to have any independent maritime zone, regardless of being made into artificial islands or not.
The last groups of disputes mostly involve China. China’s artificial island building activities have harmfully affected the maritime environment in the area; in addition, China has disturbed economic activities of Malaysia, the Philippines and Vietnam in their EEZs and continental shelves.
All of the above-mentioned issues are addressed by international law, from treaty laws to customary international law. Except for the first two groups of disputes, which require explicit consent of both parties in order to bring them before an international judicial body, the rest do not need the same requisition. In fact, they fall neatly into the compulsory procedure under part XV of UNCLOS. More significantly, according to the decision on the jurisdiction of the Arbitral Tribunal in the South China Sea case, the dispute concerning the legal status of maritime features can be distinguished and settled separately from the dispute of their sovereignty.
In short, some disputes in the South China Sea can be settled first, paving the way for dealing with the more difficult issues later. In addition, not all issues in the South China Sea involve China; hence, other disputing parties can work together to solve problems between themselves. Fortunately, for those countries, international law is always an option.
Southeast Asia’s Culture of International Law
Except for China, the other claimants in the South China Sea (Brunei, Malaysia, the Philippines and Vietnam) are members of the Association of Southeast Asian Nations (ASEAN), and the countries in this organization have a culture of international law. For example, Singapore and Malaysia asked the International Court of Justice (ICJ) to make the final decision on problems concerning sovereignty over maritime features. Similarly, Indonesia and Malaysia have also settled a sovereignty dispute over some islands by the ICJ. Myanmar and its neighbor, Bangladesh, brought their maritime delimitation issues to International Tribunal for the Law of the Sea (ITLOS). The Philippines made history when initiating a case against China before an international arbitral tribunal, marking the first lawsuit about the South China Sea disputes. Furthermore, the member states of ASEAN have also approached to maritime problems, especially maritime boundary issues, with good faith, flexibility and modest cooperation.
Those countries also have a convenient tool to solve their regional disagreements: ASEAN. Indeed, the friendly and partnership environment of a myriad ASEAN meetings could be better for negotiation between relevant disputed states. Besides, according to article 23 of the ASEAN Charter, member states can request the chairman or the secretary-general of ASEAN provide good offices, conciliation and mediation.
Therefore, it is tenable to argue that ASEAN countries should settle disputes among themselves in the South China Sea first, especially delimiting their maritime borders. This practice will help them to build up more weight on the negotiation table with Beijing. Another lawsuit against China in the South China Sea, regardless of its consent, is also a possibility. Then, they will achieve certain pressures making China reconsidering its illegal activities at sea.
This article was first published on The Diplomat.