THE sovereignty claims in the South China Sea (SCS) have security ramifications that have shaken the stability of the region as well as impacting international shipping lanes and the freedom of navigation in these disputed waters.
The SCS is a key shipping lane that carries trade worth US$5 trillion (RM21.4 trillion) annually, and to resolve the SCS conflict, there is the need for practical solutions.
Besides China, there are many countries that have staked their claims on several parts and islets across the SCS including Brunei, Malaysia, Taiwan, the Philippines and Vietnam.
As a result of these claims, a full-blown conflict due to direct military confrontation, miscalculation or misunderstanding could have unimaginable implications to the entire world.
An opportune moment to discuss the challenges posed by conflicting claims and reach a solution on the SCS will at the Shangri-La Dialogue where Asean leaders will be joined by their counterparts from major global power at the 16th Asia Security Summit taking place from June 2 to June 4.
Since the 1990’s, various initiatives were put in place to address the conflict, such as multilateral consultations and bilateral agreements.
Preventive diplomacy, confidence building measures, strategic trust, conflict resolution are some of the measures that should be deployed to avoid conflicts.
In a way, the SCS dispute has turned out to be a successful case of conflict prevention — thanks to the Permanent Court of Arbitration (PCA) ruling delivered last year — and despite China’s increasing militarisation of the islands and so on, no serious clashes have happened so far.
The SCS dispute took a new turn following the landmark ruling by PCA which totally rejected Beijing’s claim to sovereignty over the waters as having no legal basis.
The PCA rejected Beijing’s argument that it enjoys historic rights over most of the SCS and blamed China of “irreparable harm” to marine life and environment.
This ruling also opened an avenue for China to reconsider its overall position and perhaps to take a softer approach, with diplomacy at the forefront, and for other claimants to work for practical solutions altogether.
Creating a form of strategic trust is important to avoid conflict, and efforts should be made by all parties toward reducing the increased level of distrust among the contenders that have taken place recently.
“We could realise that such challenges and risks of conflict are not to be underestimated.
“To build strategic trust, we need to abide ourselves by international law, uphold the responsibilities of nations, especially of major powers, and improve the efficiency of multilateral security cooperation mechanisms,” said former Vietnamese Prime Minister Nguyen Tan Dung in his keynote address at the 12th Shangri-La Dialogue in 2013.
The former prime minister also stressed the need to build strategic trust for peace, cooperation and prosperity in the Asia-Pacific region to overcome all challenges.
But trust should not be a precondition for mutual cooperation or compromise.
Perhaps the SCS claimants should start with building trust not only at a strategic level but also at an operational level such as establishing of a forum for handling civil maritime cooperation.
As tensions have recently flared up due to Beijing’s activities in the SCS, another practical solution to the problem could be for Asean and China to deploy the Code for Unplanned Encounters at Sea (CUES).
This will get them to operate a diplomatic hotline, similar to those of US-Russia or India-Pakistan, to address maritime incidents essentially and effectively.
Under this code, a country should not be allowed to cite excuses, such as domestic laws, to avoid overcoming sea accidents when requested through the hotline.
CUES should be applied to all government vessels operating in the SCS, including military and paramilitary vessels.
Another practical solution would be to demilitarise some of the disputed areas or getting China to stop further military and civilian construction.
This will be possible if there are a consensus and a strong political will among all those involved.
China and Asean need to build on their existing mutual soft power and constructive engagement for a positive regional order to avoid conflicts.
As the area is known to be rich with maritime resources, the claimant countries should work for a joint management of maritime resources, and for the protection of marine life, as they should not focus only on oil and gas alone.
It has to be said that such joint developments are not without precedents.
There is the Malaysia-Thailand Joint Development Area in the Gulf of Thailand, created as an interim measure to exploit the natural resources claimed by both nations to share the proceeds equally.
Claimant countries must also change their thinking and work based on functional cooperation and cooperative management such as joint scientific research and not beset on sovereignty issues alone.
Such agreements would be “without prejudice” to sovereign claims as joint developments can proceed while allowing the various countries to maintain their claims.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS), where littoral countries to the SCS are all parties, encourages nations to manage disputes by entering into “temporary arrangements of a practical nature” which are without prejudice to the final delimitation of maritime boundaries.
Asean member countries need to actively cooperate with each other and with other countries inside and outside the region, through regional and international forums such as the Asean, EAS, ADMM, ADMM+, ARF, contributing to the speeding up of the process of building trust and the implementation of preventive diplomacy to reduce the risk of collision and conflict at sea.
While the Asean and China had completed negotiations on the draft framework on a Code of Conduct (CoC), no one can guarantee whether China will commit to rules which likely to restrain its maritime ambitions.
The CoC will be effective only if it is legally binding but it has been a long time since the start of talks on the CoC which saw China playing the delaying tactics to further consolidate its gains in SCS.
Even if China agrees for a final legally binding CoC, how to check China if it goes against CoC? Is the CoC a watered-down solution?
The answer is that a gentlemen agreement based on trust, self-respect and consensus should be worked within the context of CoC which must be instrumental in explaining and resolving disputes.
According to Shangri-La Dialogue Senior Fellow for Asia-Pacific Security William Choong, the event in Singapore should ponder on Singapore’s Prime Minister Lee Hsien Loong who said last year “any outcome in the South China Sea must be premised on international law to be legitimate and sustainable.”
Thus, the dialogue should focus on the landmark PCA ruling, these practical measures should all be discussed, and solutions found in order for the Regional Peace, Stability and Prosperity.
This article was first published in Malay Mail Money