Open War in the South China Sea

Oleh: Roby Arya Brata, Ph.D.

The presence of the US naval force in the South China Sea can trigger a military conflict between the US and China in the disputed region. Will the South China Sea territorial and jurisdictional disputes trigger an open war in the region? If we think that wars are the last resort to settling disputes between sovereign states, the answer will be no doubt yes. History shows that if countries go to wars if the peaceful means of dispute settlement over territorial claims fail.

Thus, designing an effective, peaceful mechanism of conflict resolution is most important. However, the South China Sea case is so complex and difficult, involving overlapping territorial and jurisdictional maritime claims among six sovereign states: China, Taiwan, the Philippines, Vietnam, Malaysia, and Brunei. Perhaps, it is one of the most complicated and challenging maritime disputes ever.

So far, there have been no effective peaceful settlements to overcome the differences and claims among the countries. The dispute settlement mechanisms are weak, as has been evident in the latest incidents in the South China Sea.

Though this may look alarmist, in the future such mechanisms will not be able to avoid potential open wars involving the disputing states and those that have economic and geopolitical interest in the region, such as the US and Australia.

Further wars on a larger scale may destabilize the region. The Battle of the Paracel Islands between the naval forces of the People’s Republic of China (PRC) and the Republic of Vietnam (South Vietnam) on Jan. 19, 1974 is one example. The two countries have been fighting for the Paracel Islands, a tiny, uninhabited archipelago located in the South China Sea, roughly 200 miles from the nearest Asian mainland coast, leaving many killed on both sides.

The incident in the South China dispute, between China and the Philippines, sends a clear message to the claimant states that a more effective and durable dispute settlement procedure is urgently needed. The confrontation occurred in April 2012, when two Chinese surveillance vessels prevented the Philippine warship Gregorio del Pilar from capturing a group of Chinese fishermen in the Scarborough Shoal. The incident turned more complex when on April 14, 2012, the US and the Philippines held their joint annual exercise in Palawan, the Philippines.

By establishing a US military base in Darwin and given Washington’s “backing” for the claimant states, especially the Philippines, against the PRC, the US and Australia have deepened their involvement directly or indirectly in the conflict, making the region more vulnerable to war.

Moreover, the recent failure of the foreign ministerial meeting of ASEAN to release a joint communiqué, the first such failure in 45 years, indicates that the group’s member states are not united in approaching this dispute. If ASEAN cannot manage this dispute more carefully, it will face the risk of compromising its centrality, unity and peaceful principles stipulated in its Charter. The greatest potential danger of such a compromise will be the failure to establish the ASEAN Community in 2015.

Therefore, an effective peaceful and durable means of settling the disputes in the South China Sea must be designed. Before creating such a settlement mechanism we first must comprehend the root causes of the failure in resolving such disputes.

The most important of these is there is no automatic, independent and compulsory dispute settlement mechanism adjudicating the claims between sovereign states. Like the adversary procedure of the International Court of Justice, recourse to tribunal to settle disputes in the South China Sea, and therefore its binding decisions, as stipulated in Part XV Articles 279 – 296 of the United Nations Convention of the Law of the Sea (UNCLOS) 1982, must be agreed by the parties to the disputes.

The Declaration on the Conduct of the Parties in the South China Sea (DOC), which was signed by the governments of ASEAN and the PRC on Nov. 4, 2002 in Phnom Penh, and its guidelines adopted in Bali in 2011, do give hope to peacefully managing the disputes in the region. However, this document is merely political with no binding legal force. It only embodies the signatories’ political commitment to promoting peace, stability and peaceful resolution in the South China Sea.

The conflict in the South China Sea is actually a battle for fishing resources, crude oil and natural gas, especially those beneath the Spratly Islands. It is also a fight for strategic control over the core position in the region. In some cases, for example the Gulf War, such a battle triggered open military confrontation.

Therefore, without a strong, effective and permanent dispute settlement mechanism with a binding legal force, we can only manage, not settle, the disputes in the South China Sea. For this purpose, it is the time for the UN to reform the jurisdictional powers of the International Court of Justice and amend the dispute settlement provisions of the UNCLOS 1982.

The writer is an international law and policy analyst and lecturer, The University of  Indonesia. The views expressed are his own. (Source: Adapted from my article published in The Jakarta Post, 28 July 2012)