Conflicting island and Maritime claims are the subject matters for the South China Sea (SCS) territorial disputes. The sovereign states involved are some ASEAN nations; outside ASEAN would be Taiwan and China.

An estimated 3.37 Trillion worth of global trade passes though SCS annually which accounts for a third of the global maritime trade 80mpercent of China’s energy imports and 39.5s% of China’s total trade passes through the SCS.

The disputes involve both maritime boundaries and islands. There are several disputes, each of which involves a different collection of countries:

1. The Nine-Dash Line area claimed by the Republic of China (1912-1949), later the People’s Republic of China (PRC), which covers most of the South China Sea and overlaps with the exclusive economic zones claims of Brunei, Indonesia, Malaysia, Philippines, Taiwan, and Vietnam.
2. Maritime boundary along the Vietnamese coast between PRC, Taiwan, and Vietnam.
3. Maritime boundary north of Borneo between the PRC, Malaysia, Brunei, Philippines, and Taiwan.
4. Islands, reefs, banks, and shoals in the South China Sea; Islands, reefs, banks, and shoals in the South China Sea to include Paracel Islands, Pratas Island, Vereker Banks, Macclesfield Bank, Scarborough Shoal, and the Spratly Islands between PRC, Taiwan, and Vietnam; and parts of the area contested by Malaysia and Philippines.
5. Maritime boundary in the waters north of the Natuna Islands between the PRC, Indonesia, Taiwan and Vietnam.
6. Maritime boundary off the coast of Palawan and Luzon between PRC, Philippines, and Taiwan.
7. Maritime boundary, land territory, and the islands of Sabah, Ambalat, between Indonesia, Malaysia, and Philippines.
8. Maritime boundary and islands in the Luzon Strait between PRC, Philippines, and Taiwan.

DOES MIGHT MAKE RIGHT?

Power Asymmetry

The concept of power asymmetry, developed by Brantly Womack, “inevitably creates differences in risk perception, attention, and interactive behavior between states, and … can lead to a vicious circle of systemic misperception.

The rise of China has transformed the territorial disputes over the Paracels and Spratlys in the SCS from relatively low-level bilateral tensions into a litmus test for relations between a big power and its smaller neighbors.

How do Malaysia, Philippines, and Vietnam as relatively smaller or weaker states manage their respective claims in relation to great power China?

Malaysia’s strategy may be described as one of accommodation and enmeshment, whereas Vietnam is engaged in a complex mix of internationalization, internal balancing, and assurance-seeking. In the Philippines, the strategy is one that relies on institutionalism and external soft balancing.

What strategies have the small states of Malaysia, Philippines and Vietnam adopted to preserve and enhance their leverage against great power China in relation to their territorial claims? Each of these states have employed different strategies, which depend on (1) the degree of threat perception or fear/suspicion of China (e.g., Malaysia being least suspicious and therefore most accommodating); (2) their strategic orientation culled from historical experience (e.g., internal balancing rather than alignment for Vietnam); (3) ideational or value preferences (e.g. institutionalism for the Philippines, non-alignment for Malaysia); or even (4) path dependence, or how history and past policies have locked in certain options (e.g., US alliance for Philippines). A future research agenda arising from this exploratory paper will need to address questions such as: Can a typology of small state strategies for dealing with asymmetry be developed based on a study of China-ASEAN relations? How successful have these strategies been in mitigating the effects of asymmetry and in promoting freedom of action for the smaller states? How does China itself deal with power asymmetry and manage perception problems in its relations with smaller states arising from its own size and strength?

Solutions

Prof. Pankaj Jha a pundit for the Modern Diplomacy Magazine, proposed last 2020 when Vietnam was the ASEAN chair for Vietnam to do the following:

1. Institute a high powered committee to expedite and build consensus on the draft for the Code of Conduct or COC among ASEAN.
2. Undertake Trilateral Initiatives with dialogue partners and claimants.
3. Create a Standard Operating Procedure or SOP among ASEAN nations and release a statement maintain status quo.
4. Formulate a Treaty of Amity and Cooperation on the SCS.
5. Vietnam to make a universal appeal to the international community.

Mark J. Valencia wrote in Modern Diplomacy questioning the proposal for call for a United Stand against China as if China would allow it. He suggests not to do that approach. And, to be mindful of China’s interests.

Bill Hayton, who is associated with the Yusof Ishak Institute, suggests to use the avenue of the ICJ, citing the Malaysia-Singapore example:

The ICJ was able to rule that Pedra Branca belonged to Singapore while Middle Rocks belonged to Malaysia even though the two are just a kilometer apart. It ruled in favor of Singapore over Pedra Branca mainly because Singapore had carried out acts of physical administration there, notably by building a lighthouse on the rock. The judges also specified a different fate for a third feature, South Ledge, because it is underwater at high tide and
therefore not a ‘territory.’ It ruled that sovereignty could only be settled later, once the two countries had agreed on a boundary between their territorial seas.

The ICJ rejected Malaysia’s vague claims that Pedra Branca had belonged to the Sultanate of Johor “from time immemorial” and instead examined the documented evidence of occupation and administration. It reached a conclusion based on the international legal principle of à titre de souverain –asking which state could better demonstrate that it had exercised actual authority over the feature. While legal principles such as this have their origins in Medieval Europe, they can now be considered global. They have been used to adjudge disputes in contexts as diverse as the Red Sea and the Caribbean as well as in Southeast Asia. It would be quite possible to apply them to all the disputed islets in the South China Sea.

By ruling out vague claims of sovereignty “from time immemorial” and demanding specific evidence of physical acts of administration, the ICJ also gave the South China Sea claimants a route out of their impasse. Governments and their advisers do not need a comprehensive knowledge of every period of South China Sea history to reach conclusions about sovereignty. They simply need to examine the evidence for physical acts of occupation and administration by the different state authorities.

LCDR Arnold Enriquez PN wrote on the Philippine-Indonesia Border Agreement in the Royal Australian Navy Sea Power Soundings:

Prospects in the South China Sea Maritime boundaries and borders do not really exist in the South China Sea. As such, it is important to distinguish between maritime borders/boundaries and maritime frontiers in the maritime realm. Boundaries or borders are where political limits are demarcated, whereas frontiers tend to be rather flexible, since they are geographic zones where states have yet to establish complete political control or are in the process of doing so. Thus, a significant portion of the various claimed maritime zones in Southeast Asia may be considered as maritime frontiers.

Nevertheless, the recent conclusion of negotiations over maritime boundaries between Indonesia and the Philippines is a significant development for the two ASEAN member states. This is viewed as a positive turn amidst rising tensions in the South China Sea sparked by worsening disputes over competing maritime claims. The successful conclusion of the talks between Jakarta and Manila holds an important lesson for all claimant states over disputed waters in the South China Sea. The current prevailing law to settle maritime boundaries is articulated in the UNCLOS, which has a gravitas and consequence far beyond local custom. Thus, the Philippines–Indonesian Border Agreement clearly signifies the emergence of a state practice whereby a maritime boundary dispute shall be settled through and aligned with prevailing international law.

Further, the Maritime Border Agreement of the Philippines and Indonesia is a prime example of conflict prevention and management of disputes regardless of the existence of boundaries. They have shown that it can be done by putting shared aspirations and common interests forward for the sake of regional stability and security. (16 Issue 43, 2021). Conclusion. As a democracy, a maritime nation and member of the community of
nations, the Philippines has a vested interest in becoming a more influential and constructive actor in the security affairs of the region. This means that the Philippines will need to pay greater attention to the strategic dimension of its treaty commitments, its multilateral relationships, and to work more cooperatively on transnational issues.

Strengthening and nurturing bilateral relations is undeniably a prerequisite for initiating border negotiations as it affects success particularly in addressing maritime border issues. The favorable outcome of the Philippines-Indonesia Maritime Border Agreement has shown how good diplomatic relations between neighboring countries are important to maritime border settlement. It has also been proven that collaborative approaches or any similar undertakings may successfully end border disputes with proper consideration for the prevailing international law. Although the author also considers certain prerequisites are necessary and not all disputes can be easily settled in the same manner, as is the case in the South China Sea, nevertheless it can still be done. The Philippines–Indonesia Maritime Border Agreement was instrumental in the promotion of peace and stability in the Southeast Asian region with the expansion to other agreements such as the TCA in addressing terrorism. This Maritime Border Agreement has certainly opened more opportunities for collaboration and cooperation, not only with Indonesia but also with the rest of the ASEAN member states, especially in acknowledging the dynamic and volatile security environment in Southeast Asia and the rest of the world.

Conclusion. There must always be a balance of diplomatic solutions and military solutions. We cannot avoid having superpower neighbors with whom all we could do is to maintain vigilance through our national security and national defense measures. Though a united stand by ASEAN is questioned by a pundit, my humble opinion is to proceed with the united stand, but mindful of everybody’s interests. There is also the ICJ approach which the Philippines is very familiar with. We had a milestone in conflict resolutions by having a maritime border agreement with Indonesia which was 20 years in the making. The bottom line goal is to make a maritime dispute cease to be seen as a zero-sum undertaking by all claimant countries to give agreements a chance to truly work for peace and security.

References:

• https://en.wikipedia.org/wiki/Territorial_disputes_in_the_South_China_Sea
• https://ndcp.edu.ph/wp-content/uploads/2022/01/BAVIERA_China-ASEAN-Conflict-and-Cooperation-in-the-South-China-Sea-Managing-Power-Asymmetry.pdf
• https://moderndiplomacy.eu/2020/04/18/south-china-sea-theneed-for-a-lasting-solution/
• https://moderndiplomacy.eu/2020/12/14/proposed-solution-tosouth-china-sea-disputes-is-unrealistic/
• https://www.iseas.edu.sg/articles-commentaries/iseasperspective/2022-25-how-to-solve-the-south-china-sea-disputesby-bill-hayton/
• https://www.navy.gov.au/sites/default/files/documents/Soundings_Papers_43_2021.pdf

About the Author:

Karl Misa Garcia is an independent contributor giving a layman’s point of view regarding maritime and national security affairs. He was a former consultant to Senators Biazon and Trillanes, and he is attempting to follow the footsteps or fill in the shoes of his father, retired Navy Commodore Plaridel C. Garcia by writing. He earned an MBA from DLSU Graduate School of Business in 2004.