Why dispute resolution mechanisms fail

DARSHANA M. BARUAH

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UNILATERAL actions, lack of consensus and different interpretations of international law have led to chaos and heightened tensions in the South China Sea (SCS). Combined with the fact that the region is home to some of the critical sea lanes of communication and trade routes for emerging powers in Asia, the South China Sea is a volatile maritime hotspot carrying high risks of military confrontation. While all disputing parties and the international community alike have called for a peaceful resolution of the conflict, no kind of dispute resolution mechanism seems to work in this region. Although tension in the SCS is over small islands and reefs and their surrounding waters, believed to be rich in natural and hydrocarbon resources, a more compelling factor for current tensions is geopolitical competition and control over these busy sea routes for strategic purposes. This short essay looks at the factors challenging the possibility of dispute resolution and explores new and other possible models to manage tension in the region.

Despite the number of viable existing mechanisms for conflict resolution, tensions in the SCS continue to rise. Additionally, the rise of China, the US pivot to Asia, an emerging India and an evolving security architecture in the Indo-Pacific have contributed to increased tensions and strategic distrust among countries.

One of the major challenges relates to the differences in approach to conflict resolution between the disputing nations. Six nations (China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei) are competing for territorial rights with Beijing, claiming almost 80% of the South China Sea. The approach to dispute resolution can primarily be divided into two groups – China on one hand (bilateral) and Vietnam and the Philippines on the other (multilateral). While Hanoi and Manila have sought to resolve the disputes through international arbitration or in a multilateral platform, Beijing remains opposed to internationalizing of these conflicts. China insists that all disputes be resolved at a bilateral level and should not involve the participation of a third party. While bilateral communication between the disputing nations exists, Manila and Hanoi are reluctant to sit alone against China at the negotiation table.

Beijing’s refusal to go to an international tribunal or a multilateral forum is rooted in a lack of acknowledgement on the very existence of a conflict in the SCS. According to China, the islands within the 9-dash line belong to Beijing and there is no dispute regarding their sovereignty. The Chinese Foreign Ministry has time and again issued statements noting that ‘China has indisputable sovereignty over the SCS Islands (the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands) and the adjacent waters’.1 If and when a nation approaches an international tribunal or a court for dispute resolution, that nation by default accepts that there is indeed a dispute. This point was reflected recently when China refused to participate in the proceedings of an international tribunal court approached by the Philippines for dispute resolution.

 

The issue of international law is complex and mechanisms to implement the same are limited. Moreover, different interpretations of existing laws add to the complexities. Freedom of navigation through the SCS is a major concern for the international community at large, considering it is a crucial world shipping route. Hostility surrounding these waters is unnerving for all actors who time and again emphasize the right to freedom of navigation through the disputed waters. While Beijing has always maintained that it will uphold the right of passage through the high seas, there is some debate regarding the right of passage of foreign military vessels through another nation’s Exclusive Economic Zone (EEZ). While the US argues that all nations have a right to military passage through EEZs, China insists that the host nation reserves the right to regulate foreign military vessels passing through its EEZ. This discrepancy in interpretation of international law within the United Nations Convention on the Law of the Sea (UNCLOS) has led to many hostile incidents such as those involving the USS Impeccable in 2009 and USS Cowpens in 2014.2

 

A US Congressional report on the issue of Exclusive Economic Zones points out how and why Beijing’s notion for regulating foreign military vessels through its EEZ affects Washington. The report published in December 2014 notes that ‘The issue of whether China has the right under UNCLOS to regulate foreign military activities in its EEZ is related to, but ultimately separate from, the issue of territorial disputes in the SCS and ECS. The two issues are related because China can claim EEZs from inhabitable islands over which it has sovereignty, so accepting China’s claims to sovereignty over inhabitable islands in the SCS or ECS could permit China to expand the EEZ zone within which China claims a right to regulate foreign military activities.’3 With growing reports of China building artificial islands in the SCS, the overall issue of freedom of navigation through these waters is likely to get complicated.

While other non-claimant actors such as India too insist on freedom of navigation through international waters, these nations have not particularly rendered their support to Washington on the issue of freedom of military passage through EEZs. The reason is that India too reserves the right to regulate foreign military vessles in its EEZ. On ratification to the UNCLOS, India made the declaration that ‘The Government of the Republic of India understands that the provisions of the convention do not authorize other states to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal state.’4

 

However, growing hostility and unilateral actions to extend and assert its claims in the SCS is an increasing concern for India, who is willing to now play its part in collective security to maintain peace and security throughout the Indo-Pacific. Additionally, it is important to note that New Delhi has resolved its international maritime boundaries through international arbitration, as discussed below. The main point here is that although India subscribes to the same school of thought as China on the right of military passage through EEZs, New Delhi is neither hostile in its maritime disputes nor does it seek to evade dispute resolution mechanisms.

The issue regarding the right of military passage is likely to persist, with neither party (China and US) ready to compromise on its interpretation of the law. In such a situation, the possibilities of an incident involving military vessels within Chinese claimed EEZs remains high. Further, it does not help that Washington has failed to ratify the UNCLOS, a point Beijing repeatedly makes asking the Americans to stay out of the disputes.

The Philippines began legal proceedings on 22 January 2013 ‘with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea’ at the UN Permanent Court of Arbitration.5 The West Philippine Sea is the Filipino name for the SCS. The proceedings were instituted under Annexe VII of the UNCLOS.6 On 19 February 2013, the Philippines Department of Foreign Affairs (DFA) released a statement stating that China had refused to participate in the proceedings and rejected Manila’s notification and statement of claim. The DFA further explained that ‘In its Note Verbale, China reiterated its often stated position that it has undisputable sovereignty over the entire SCS encompassed by its 9-dash line claim. This excessive claim is the core issue of the Philippines’ arbitration case against China.’7

 

On 7 December 2014 China released a position paper detailing its right of refusal to participate in the proceedings stating that ‘...in 2006, the Chinese Government made a declaration in pursuance of Article 298 of UNCLOS, excluding disputes regarding such matters as those related to maritime delimitation from the compulsory dispute settlement procedures, including arbitration. Therefore, the request for arbitration by the Philippines is manifestly unfounded. China’s rejection of the Philippines’ request for arbitration, consequently, has a solid basis in international law.’8 The paper also detailed why the case does not fall within the jurisdiction of the UN Permanent Court of Arbitration.

While dispute resolution through an international tribunal remains ineffective in the SCS, it has been successful in other cases. In a recently concluded proceeding, the United Nations Permanent Court of Arbitration ruled in favour of Bangladesh in a maritime dispute with India. Bangladesh approached the UN tribunal in 2009 and the verdict awarded Dhaka with 19,467 sq. km of 25,602 sq. km sea area of Bay of Bengal.9 The resolution of this long-standing dispute through international arbitration is a prime example of how to reduce tensions and maintain peace and stability.

 

Another mechanism to manage, if not resolve, disputes is an agreement amongst the claimants on a Code of Conduct (CoC) in the disputed area. China and the members of ASEAN signed a Declaration on the Conduct (DoC) of parties in the SCS in November 2002. The declaration noted that the final objective was to reach a consensus on a Code of Conduct in the SCS. However, so far, members of ASEAN and China have not been able to reach a consensus. The DoC is not legally binding and nations are only expected to uphold it as a gesture of goodwill. Furthermore, with an increase in the number of naval incidents between disputing nations, the DoC stands ineffective with an urgent need for a legally binding CoC.

Bilateral arrangements between nations too exist to diffuse tension, such as maritime hotlines. China and Vietnam have agreed to establish an emergency hotline in an effort to elevate their deteriorating bilateral relationship.10 Such a mechanism however is again dependent on a nation’s goodwill to accept and abide by the agreement.

 

With an emerging notion of the Indo-Pacific, a resolution of disputes in the region has become a priority. Assertive and aggressive claims by nations not only challenge regional opportunities on cooperation, the lack of a regional security architecture carries the possibility of heightened tensions due to maritime disputes. While organizations such as ASEAN, ASEAN Regional Forum (ARF) and East Asia Summit do provide a platform for stakeholders to discuss security issues in the region, they do not have any provision for the implementation of the outcome of these discussions.

Based on the strengths and weaknesses drawn from the SCS, the following recommendations can be adapted for the Indo-Pacific.

1. The ReCAAP model: The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) is the first inter-government agreement to check maritime piracy. The model has been successful in curbing incidents of piracy in the waters of Southeast Asia. A similar model can be adopted in the Indo-Pacific region to manage and diffuse tensions arising from maritime disputes. This model can perhaps build on the emergency hotline concept at a multilateral level – an institution to mitigate risks and incidents on the high seas. Such a multilateral arrangement will add toward shared responsibility and collective security in the IOR. However, without China’s participation, such a mechanism is unlikely to be effective. Beijing will refuse to participate for the simple reason that it is a multilateral arrangement.

2. A binding regional institution on maritime disputes: There is perhaps a need to create a regional institution primarily dealing with territorial disputes. If the key actors in the region were to agree, other powers will be inclined to join in solely for reasons of inclusion in a new security architecture. However, it is understood that such a model is far-fetched given the number of actors involved, and the varying interpretations of law combined with strategic interests.

3. Balance of power: Countries such as India, Japan, Australia, US, Indonesia, Vietnam and the Philippines should reach a consensus on a Code of Conduct in the disputed waters of the region. An amalgamation of key players in the region will be an effective way to manage tensions and maintain peace and security. The balance of power is key to such a model. In an arrangement between China and ASEAN, the balance of power is tilted toward one nation, i.e. China. However, an arrangement between the middle powers and key stakeholders in the region will carry much more weight in implementing a CoC. Given the presence of non-disputing actors in this arrangement, the primary goal of such a model would be to establish norms of behaviour in international disputed waters to manage tensions rather than try and resolve disputes at the core.

 

Out of the three models, a conglomeration amongst key actors is most likely to work as a deterrence to unilateral action in the region. Enhanced military engagement amongst regional actors and an increased presence through the Indo-Pacific will provide a collective security architecture monitoring developments and incidents at sea. As mentioned, a balance of power is pivotal to such a model and a group of middle powers together would be enough to deter any hostilities in the maritime domain. While it is unlikely that any kind of legally binding institution will emerge out of such a formation, cooperation amongst the navies of the region to monitor and patrol the disputed waters will be enough to diffuse and manage tensions in the region. Such a model is not aimed at resolving the dispute and is less likely to be seen as a ‘contain China’ initiative. All that this model aims to achieve is to diffuse tension in the region and establish a code of conduct in disputed international waters.

 

One may point out that there are many instances where China has managed to suppress the issue of SCS from being discussed at meetings and forums. However, these situations most often arise in ASEAN dominated organizations. China has been, and is likely to remain, a powerful ASEAN partner and will enjoy leverage over what is discussed within this grouping simply because Beijing is the most powerful country compared to all ten nations of the ASEAN. However, an arrangement with the presence of similar powers such India, Australia, and Japan among others, may ensure that no one country will be able to dominate the proceedings or discussions of the group. If these nations manage to arrive at a consensus on norms of behaviour in international waters at a regional level, Beijing will be under international pressure to abide by such an understanding.

Dispute resolution in the SCS can be attained in two ways – international arbitration or bilateral diplomatic negotiations. Due to a difference in approach and vested strategic interests, dispute resolution mechanisms have so far failed in the SCS and are most likely to remain in a stalemate. In such a situation, the focus should be on maintaining security and stability around these key trade routes by diffusing tension. Increased cooperation and enhanced naval engagement amongst the key actors in the region may emerge as an effective deterrent against unilateral actions.

 

Despite the existence of multiple dispute resolution mechanisms in the SCS, the differences in approach and interpretations of international laws remain a challenge. To avoid tension from spilling out into the Indian Ocean (where China is looking to increase its presence), cooperation amongst the navies of the region must be strengthened. Most of all, every nation must uphold norms of behaviour in international waters. Collective security is the way forward in the new emerging security architecture in the Indo-Pacific, and cooperation between countries is critical to such an engagement. All maritime issues such as HADR, climate change, transnational crimes, and maritime piracy can be tackled through cooperation and information and knowledge sharing between nations.

The deadlock emerging out of territorial disputes can be best resolved through dialogue and discussion. A multilateral engagement on such issues would prove more effective with a balance of power. It is of course important that the countries engaged in disputes continue a bilateral dialogue to manage tensions. Aversive behaviour to international law or refusal to participate in international dialogue will only add to heightened tensions. The high seas are a global commons and conflict in international waters should be resolved at an international level, should the disputing nations fail to reach a consensus at a bilateral level. Cooperation and collective security with a key balance of power is the way forward in the emerging security architecture in the Indo-Pacific, a region well within China’s sphere of strategic interest.

 

Footnotes:

1. ‘Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines’, Foreign Ministry of People’s Republic of China, 7 December 2014, available at: http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml

2. Edward Schwarck, ‘Freedom of Navigation and China: What Should Europe Do?’ Centre for Strategic and International Studies, 18 August 2014. Also see, Ronald O’Rourke, ‘Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress’, Congressional Research Service, 24 December 2014, available at http://fas.org/sgp/crs/row/R42784.pdf

3. Ibid.

4. Oceans and Law of the Sea: Declarations and Statements, United Nations, available at http://www.un.org/depts/los/convention_ agreements/convention_declarations.htm# India Declaration made upon ratification

5. ‘The Republic of the Philippines v. The People’s Republic of China’, Permanent Court of Arbitration, United Nations, available at http://www.pca-cpa.org/showpage.asp? pag_id=1529

6. Ibid.

7. ‘DFA Statement on China’s Response to the PH Arbitration Case Before UNCLOS’, Statement of Department of Foreign Affairs, Government of Philippines, 19 February 2013, available at http://www.gov.ph/2013/02/19/dfa-statement-on-chinas-response-to-the-ph-arbitration-case-before-unclos/

8. Op. cit., fn. 1.

9. Haroon Habib, ‘Bangladesh Wins Maritime Dispute With India’, The Hindu, 9 July 2014.

10. ‘Vietnam Plans Hotline to China to Manage Tensions’, The Wall Street Journal, 18 October 2014.

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