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Avoiding Shipwreck in the South China Sea

May 02 , 2012

Rising tensions over maritime territorial disputes in the South China Sea are making this area one of the more dangerous geopolitical flashpoints in Asia.  The most recent standoff between China and the Philippines over fishing rights is but one of the examples of how things could go terribly wrong if claimants in the disputes fail to exercise restraint.  Due to the legal complexity of the claims and the context of great power rivalry between the United States and China in East Asia, a clear resolution of the South China Sea dispute will elude the concerned parties for the foreseeable future.  The most urgent task for the claimants, in particular China, Vietnam, and the Philippines, the three countries that are increasingly inclined to assert their claims forcefully, is to hold off any actions that could provoke accidental conflicts. 

The most bedeviling aspect of the South China Sea dispute is that, vehement assertions of rightful ownership notwithstanding, most of the claims over the disputed features lying barely above water in the South China Sea (mainly near the Spratly Islands) cannot be supported by existing international law, specifically the United Nations Convention on the Law of the Sea.   This reality, which favors parties with physical control over the features, creates the incentives for the claimants to contest fiercely for the actual possession of the features and to assert their sovereignty if they don’t have physical control.  Vietnam, which currently controls roughly 80 percent of the features, is in the most enviable position (even though only one of the features in Vietnamese possession might qualify as an island under international law).
China, by contrast, is the claimant laboring under the heaviest burden.  Its claims, the broadest in scope (because Beijing claims all of the disputed areas in the South China Sea), have received the most criticisms in the international media even though, in reality, they are identical with those of Vietnam.  As the most powerful country involved in the dispute, China is subject to greater scrutiny as its actions are more likely to be perceived as bullying.  Beijing’s long-held position insisting on bilateral negotiations and rejecting multilateral ones (or “internationalization”) has found few sympathetic ears in the region and may be increasingly untenable as a negotiating principle.  The much-publicized July 2010 statement by American Secretary of State, Hillary Clinton, on the South China Sea dispute has given an unmistakable impression that Washington has entered the fray decidedly on the side of those contesting Beijing’s assertion of sovereignty.  This has added another complexity – U.S.-China geopolitical rivalry – to the dispute.
Left to their own devices, Vietnam, China, and the Philippines may further escalate their actions in the disputed areas.  Vietnam, which has awarded exploration rights to Western and Indian energy firms, may expand the seismic surveillance activities deeper into the disputed waters, risking confrontations with China.  In 2011, a Chinese vessel severed an expensive seismic cable operated by a Vietnamese ship.  For China, which has intensified its fishery patrols in the region, it risks getting entangled in ugly incidents in which its fishery patrol boats detain or drive off Vietnamese and Filipino fishing boats.  Manila, hitherto the least assertive claimant, has recently changed its policy and become more willing to contest Chinese claims.
Making this volatile mix of conflicting claims and escalating actions even more dangerous is the rising nationalist sentiments in the three countries, where populist politicians and jingoists are irresponsibly fanning public anger over the perceived or alleged weakness of their governments and encroachment on their territorial interests by other countries.  In the case of China, its new leadership team, to be installed in October this year, may face greater pressure to show its toughness in defending China’s national interests and dignity in the South China Sea dispute.   If the current trajectory continues, we cannot rule out even uglier confrontations and more dangerous accidents.
Should such escalations occur, no one will benefit.  So the top priority for the three claimants for the moment is to exercise even more restraint.  This can be done in several steps.  First, all of them should stop sending official vessels to the disputed areas to assert sovereignty.  Second, they should work out an enforceable limit on the amount of fish their fishermen can catch in the disputed areas.  Third, they should impose a moratorium on all seismic explorations in the disputed waters.  Fourth, they must set up a track-two expert team to explore long-term solutions to the dispute.
For China, the South China Sea dispute will be a test case for its declared commitment to “peaceful development.”  Given the unfavorable media coverage it has received for its negotiating position and claims, Beijing may want to consider modifying its claims and its insistence on bilateral talks.  This may help China regain the moral high-ground without necessarily jeopardizing its legitimate interests since the ultimate solution of the disputes under existing international law will protect some of China’s claims. 
The role of the United States will also be critical in preventing the disputes from getting out of control. Its proclamations of neutrality notwithstanding, Washington has, for all intents and purposes, been dragged into the disputes because of its security ties with the Philippines, its naval activities in the region, the involvement of American oil firms in explorations for energy in the South China Sea, and its recent change of policy regarding the disputes.   In addition to encouraging the claimants to negotiate under international law and refraining from engaging in provocative actions, the United States itself should avoid being perceived as favoring Vietnam or the Philippines.   For example, by pure coincidence, the recent Chinese-Filipino naval stand-off occurred when a pre-scheduled U.S.-Filipino military exercise was held.  This could cement the widely shared suspicions in China that the United States is exploiting the South China Sea disputes to weaken China.
Frankly, in this atmosphere of escalating claims and heated rhetoric, even such a modest proposal may not be practical.  But the claimants may have no other choice – unless they want to see a shooting incident wreck their bilateral relations beyond repair.
Minxin Pei is a professor of government at Claremont McKenna College.
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