- By Chris Kremidas Courtney
There is a simple solution to the ongoing disputes in the South China Sea, at least on paper: all the competing claimants agree to maintain their current positions on the various rocks and reefs, recognise the other claimants’ current occupations and commit to occupying no further features. The claimants would then divide up the resources of the sea according to the rules laid down in the United Nations Convention on the Law of the Sea (UNCLOS) and cooperate to manage them sustainably.
There are two main obstacles to this simple solution: first, it would require governments to compromise on their territorial claims. Second, UNCLOS allocates marine resources in proportion to the length of the relevant section of a country’s coastline. Because of the elongated shape of the South China Sea, this principle – fair and agreed by almost every government in the world – would give the Southeast Asian claimants more than China.
European states have other levers, too
For the Chinese government, such a peace deal would require both a territorial compromise and an acceptance that its incoherent claim for ‘historic rights’ is not compatible with international law. China would have to be prepared to settle for maritime rights as defined by UNCLOS, which means that for the Chinese the solution appears to be all downside.
The governments in Vietnam and the Philippines would also face domestic political difficulties in compromising on their extensive territorial claims. For Malaysia and Brunei, as well as Indonesia which has maritime claims but no territorial ones, such solution is all upside.
This difficult road is worth taking, however, because it preserves the principles of the peaceful settlement of disputes and the primacy of UNCLOS. It is based upon a European belief that states must settle rival claims on the basis of right rather than might. And Europe could contribute by supporting the resolution of underlying territorial disputes and by defending UNCLOS.
The territorial disputes are commonly regarded as intractable because they are mutually contradictory. China claims every feature within a ‘U-shaped line’ that it first published on an official map in 1948. Taiwan has the same territorial claims as China. Vietnam and the Philippines have claims over most of the same islands, while Malaysia and Brunei have more modest demands. However, a more rigorous examination of the historical evidence reveals that, with a few exceptions, the occupations we see today are the only occupations that there have ever been: very few islands have changed hands during the past century and there is minimal evidence of effective occupations before then. If the states could be persuaded to make claims to specific features rather than to entire archipelagos the disputes could be resolved relatively easily.
This is where Europe could play a role by creating a ‘European taskforce’ consisting of universities and think-tanks that would collate, translate and assess the evidence put forward for the various territorial claims. It could also gather and make available the documents commonly presented in sovereignty cases, as many of them already exist in the archives of European governments. The findings of the taskforce would be disseminated to the claimant governments as well as experts and academics in those countries, together with associated media and communication campaigns in the relevant languages to inform the wider public.
The territorial disputes are commonly regarded as intractable because they are mutually contradictory
The defence and promotion of UNCLOS requires a different approach. The European Union and its member states need to maintain clear support for the convention in all their public statements on maritime affairs and communicate this frequently to the South China Sea claimants. Those EU states with the capacity to do so should be encouraged to demonstrate their continuing interest in the peaceful international order by deploying naval vessels into the South China Sea to demonstrate that Europe considers a threat to the international order in one part of the world to be a threat to it everywhere.
European states have other levers, too. They could refuse Chinese naval ships permission to make port visits and reduce other forms of military cooperation if China violates the principles of UNCLOS and the peaceful settlement of disputes. They could help Southeast Asian states build up the capacity to monitor and control their legitimate claims on Exclusive Economic Zones (EEZs) and increase military cooperation with them. They could sanction Chinese companies that are engaged in predatory behaviour within other countries’ legitimate EEZs. They could add stipulations about respecting legitimate EEZ claims to all maritime agreements with the claimant states and insist that fish catches, for example, are traceable to domestic EEZs. These, and other relevant and targeted, countermeasures have the potential to deter rule-breaking in the South China Sea.
This is clearly an idealistic strategy. It would demand funding and time, and it carries diplomatic risk. The alternative, however, is worse.
This article is from Friends of Europe’s discussion paper ‘My ASEM wishlist: how Asia and Europe should really be working together’, in which we go beyond officialdom and seek out ‘unusual suspects’ – students, teachers, activists, journalists, think tankers, etc. – who consider where they would like the state of Asia-Europe relations to be by 2030 and what the two continents should do to get there.
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