Multilateralism and the "Three Principles for the Rule of Law" in the South China Sea

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Multilateralism and the "Three Principles for the Rule of Law" in the South China Sea

Two recent developments in the ongoing South China Sea dispute would suggest countries in the region are getting closer to a peaceful resolution.  The first emerged when Japan proposed an intergovernmental "Shangri-La Dialogue Initiative" (SDI) aimed at fostering disaster preparedness, maritime domain awareness, and crisis management.  The SDI could become a vital platform for countries in the region to share information, negotiate disputes, and develop management frameworks for natural resources, shipping lanes, and territorial claims.  It builds on Japanese Prime Minister Shinzo Abe's "three principles for the rule of law" in the South China Sea.  Here's Tetsuo Kotani's breakdown:

In view of rising territorial and maritime tensions in the Asia-Pacific region, Abe called for countries to make and clarify claims based on international law, to avoid using force or coercion in resolving conflicts, and to seek to settle disputes by peaceful means. Putting these three principles of the rule of law into practice is essential for the stability of the Indo-Pacific region.

Sounds nice, but isn't the conflict unresolved in part because international law is ambiguous with respect to territorial and maritime claims?  It seems difficult to imagine China signing on to the SDI.  But here's Kotani again:

The next step is to establish a code of conduct in the maritime and air domains. Similar efforts are being made between the United States and China, and between ASEAN and China. These efforts are designed to manage crises through the application of existing international law (UNCLOS) and international rules (such as COLREGS and CUES). If they prove successful, they will contribute substantially to establishing the rule of law in Asian seas.

So there's some indication that China may be willing to participate, as evidenced by those bilateral peacebuilding efforts with Japan and the United States.  And that leads to the second development that might signal a warming in relations: 

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Environmental Peacebuilding in the South China Sea, Ctd

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Now that recent satellite images have revealed the extent to which Vietnam, the Philippines, Malaysia, and China are rapidly reclaiming coral reefs in the South China Sea, the countries are scrambling to come up with valid legal justifications for the brinkmanship.  

The Philippines is denying wrong-doing by claiming that its reclamation work constitutes maintenance, distinguishable from large-scale construction that would clearly implicate China:

The Philippine foreign minister denied China's accusations of recent massive reclamation, saying the country had done minor, but legal, repair and maintenance within its 200-mile Exclusive Economic Zone in the disputed area some years ago.  "We were doing some repairs and maintenance after the Declaration of Conduct of Parties in the South China Sea (DOC) but repairs and maintenance is allowed," Albert del Rosario said.  "Massive reclamation is not." 

Vietnam, so far, has kept a low profile since new images were released showing expanded construction in the Spratly Islands chain.  China's approach has been surprisingly proactive, acknowledging their own extensive reclamation efforts but framing them as necessary steps to fulfill obligations to the international community.  Its territorial expansions, supposedly, will be used to facilitate disaster relief, ocean and weather monitoring, and maritime search and rescue.  China even invited the United States to use their facilities for those purposes "when conditions are right."  

It is a shrewd argument that justifies China's reef building on the one hand, while undercutting the claims of its neighbors since they are not major powers with commensurate obligations to the international community.  If providing public services were a genuine objective it might provide some assurances to the United States and other countries that are concerned there may be impediments to navigation and overflight as a result of the territorial claims, though China could always claim "conditions aren't right" for joint use.  Unfortunately most of the installations appear militarized or have potential for militarization.  Even if that weren't the case, the real value of the reclamation work may not the be the installations themselves, but the maritime rights that would attach - in addition to fisheries and tourism, the waters of the South China Sea have untold oil and gas reserves.  

Image: CSIS Asia Maritime Transparency Initiative

Image: CSIS Asia Maritime Transparency Initiative

Environmental Peacebuilding in the South China Sea

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Environmental Peacebuilding in the South China Sea

In recent years the South China Sea has become a fiercely contested region.  China's rise as a regional and global superpower has emboldened an aggressive strategy to claim a larger share of the sea than would otherwise be allowed under the United Nations Convention on the Law of the Sea (UNCLOS).  While UNCLOS permits countries to exercise exclusive economic jurisdiction over a 200 mile extension from shore, China has claimed an ambiguously explained "9-dash line" that seemingly cuts into the maritime jurisdictions of Vietnam, Malaysia, and the Philippines (see map below the jump).  A 2002 agreeement between Association for Southeast Asian Nations (ASEAN) called for self-restraint in the area, but recently all countries have participated in an island development arms race to justify maritime and territorial claims.  China, in particular, has been the most aggressive:

In 2011 Chinese patrol boats harassed Vietnamese and Philippine oil-exploration vessels near the Spratlys. In 2012 China occupied Scarborough Shoal after a stand-off with the Philippines, which also has a claim. Last year a Chinese state-owned company sent an offshore oil rig into waters claimed by Vietnam, leading to violent anti-Chinese protests in Vietnamese cities. The rig withdrew months later. China has responded angrily to a case challenging the basis of its claims in the South China Sea which was filed in 2013 by the Philippines at a UN-backed arbitration panel. It has refused to co-operate with the hearings.

The refusal to acknowledge the jurisdiction of the Permanent Court of Arbitration under the auspices of UNCLOS is problematic for several reasons.  First, because it erodes the legitimacy and persuasiveness of a treaty if a major nation does not participate.  Second, because without a meaningful legal response the international community has less information with which to understand China's concerns and facilitate dispute resolution.  And finally, because uncertainty over the impending decision of the court is escalating island development ahead of the decision, destroying coral reef habitats.  

The South China Sea has now become a conflict of global concern.  Relations between China and its neighbors (including Japan) have deteriorated; much of the island development appears to be militarized; and the integrity of UNCLOS is being undermined.  The United States is deeply involved, with an interest in countering China's rising maritime influence by pivoting toward warmer relations with Japan, Vietnam, and the Philippines (although the US position that China's 9-dash line is invalid is somewhat undermined by the fact that the US is not a ratified party to UNCLOS).  

Less attention has been paid to the South China Sea environment itself.  In order to stake territorial claims (and the 200 mile exclusive economic zones that may go with them), countries are "reclaiming" shallow coral reef areas by dredging the seafloor in order to build artificial islands.  Shipping channels are cut and infrastructure is built over the reef.  One recently discovered artificial island has grown to accommodate an 82,000 square yard facility.  The land reclamation race only adds to the already fragile condition most reefs in the area find themselves in.  And given that legal jurisdiction is in dispute in the region, it probably goes without saying that fish stocks are plummeting due to overfishing.  Indonesia has resorted to sinking illegal fishing vessels, a move that has been criticized for antagonizing neighbors.  

But while many see the environment as a casualty of the South China Sea dispute, it also represents an opportunity for reconciliation.  

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