Communication Over Condemnation: The Unecessary Option of International Arbitration in the South China Sea Dispute



Nine-dotted line (highlighted in green) as claimed by the P.R China – US CIA – Wikipedia

Territorial disputes between China and member states of the Association of South East Asian Nations (ASEAN) in the South China Sea are neither a novel nor infrequent phenomenon. Nevertheless, two incidents involving China with the Philippines and Vietnam respectively in recent months have escalated tensions and led some analysts to fear the increased potential for armed conflict in the region.

So what makes this region worth disputing so vehemently? The answer lies in the value of a number of archipelagos including the Spratly and Paracel Islands, rich in natural gas and hydrocarbons and the fact that $5 trillion of ship-borne trade passes through the South China Sea every year. China claims by far the largest proportion (approximately 90% of the region) with their claim demarcated by what Beijing terms the “nine-dash line” which stretches hundreds of miles from the South China island of Hainan, encompassing the Paracel and the Spratly islands, finishing in the east between the Philippines and Taiwan.

The primary cause of tension amongst the six nations involved revolves around differing interpretations of national Exclusive Economic Zones (EEZ’s) as set out by the United Nations Convention on the Order of the Sea (UNCLOS). The Filipino Government’s decision on the 31st of March to submit evidence against China to a UN tribunal is routed in their belief that the “nine-dash line” violates UNCLOS as it comes within 30 miles of their coast thus cutting into their 200 nautical mile EEZ.

The second source of tension has come from the disputed Paracel Island chain where a Chinese oil rig named as HYSY 981, on the 2nd of May, reportedly entered waters claimed by Vietnam to explore for oil and gas. Vietnam reacted by dispatching military vessels to the rig leading to a series of ramming incidents and a two month standoff between opposing maritime forces.

Whilst none of the nations involved have shown any intent for armed conflict, the focal problem presented by this heightened tension is the concentration of actors which include coastal patrols, naval ships and fishing boats from 6 different nations operating along tight boundaries in territorially disputed waters. Such a situation heightens the risk of one of these nations misidentifying a military from a non-military vessel and partaking in an unnecessary act of aggression.

The scale of this tight proximity can be exemplified by the current Chinese encirclement of the Filipino vessel, Sierra Madre, which was strategically placed on the Second Thomas Shoal in the Spratly Islands in 1999 as a means of retaining Filipino presence in the area after the Chinese occupation of Mischief Reef just 13 nautical miles away in 1994. To this day Chinese ships are stationed just several hundred yards away and if a mistaken act of aggression were to occur, it has the potential to escalate swiftly with the United States possessing a mutual defence agreement with the Philippines. The priority for policy-makers must therefore be preventative measures to avoid tensions exacerbating with the two primary options being international arbitration or improved cross-military communication.

A Rusting Symbol of Integrity: The rapidly depleting Sierra Madre in the contested Second Thomas Shoal continues to be inhabited by Filipino Forces with Chinese vessels stationed only a few hundred yards away. Mdhennessey via Wikimedia Commons

Regarding international arbitration, the principal motivation for the Filipino government filing their case to the UN is to hopefully reach out to other nations to follow suit and challenge the legality of China’s largely historical claim to the territory. Nevertheless, such arbitration will prove largely ineffective given that there is currently no “enforcement mechanism” for sanctions under the current UNCLOS legal framework with the invalidation of the “nine dash line” being the best possible outcome which would not remove China’s claims to other land features. Furthermore, any reference to international law will render the United States of America’s position in the dispute strategically weak given the fact that they do not currently adhere to UNCLOS. Consequently, the US cannot challenge China’s claims through the mechanism of “international law” without taking a largely hypocritical stance.

However, despite there being no legal enforcement mechanism, it is still not in Beijing’s interests for other nations to follow the route of international arbitration as it encourages greater cooperation against them exemplified by recent meetings between the Filipino and Vietnamese representatives in February, March and May to discuss the arbitration against China. The negotiating table therefore stands as China’s principle option exemplified on August 28th by Beijing inviting Vietnamese envoys for talks in order to calm tension after the two month stand off in the Paracels with Chairman Xi Jinping being quoted as saying, “A neighbouring nation cannot be moved, and it is in the common interest of both countries to be friendly to each other”.

Trade statistics show how an armed conflict is in no nation’s national or material interest. Since the signing of a free trade agreement in 2010 between China and ASEAN, trade has more than doubled from $136.5 billion in 2010 to $350.5 billion in 2014 with ministers targeting $500 billion by the end of 2015. Part of this target comes from plans for two silk roads with the “Maritime Silk Road” heading south through the disputed territories, joining up with the “New Silk Road” in Europe. Part of the aim of these routes is to establish economic cooperation with all nations that it passes through, any conflict would prove highly detrimental to such a project.

Based on the obvious fact that economic cooperation deters conflict, the prudent option for the international community is to encourage cross-military communication through the development of a military hotline and the potential organisation of naval exercises as the most appropriate means of short term conflict avoidance. This will reduce the chances of miscommunication in a region with such narrow state boundaries leading to unnecessary aggression. Furthermore, international arbitration at this stage will only lead to China looking to deter further sanctions through threats to their neighbours. In a region burgeoning with economic potential, the longer a conflict is avoided, trade ties will develop and over time, increasingly diminish the motivation for any nation to have a vested interest in armed conflict as a means of upholding their territorial integrity.

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