CO07046 | Joint Development in the South China Sea: Time for ASEAN and China to Promote Cooperation?

Shelving the sovereignty claims may be the only viable option. Given the development of economic and political ties between China and ASEAN during the last decade and the principles in the 2002 Declaration, it is not likely than any of the Parties will attempt to resolve the disputes by the threat or use of force. Given the political sensitivity of the disputes and the potential resources at stake, the claimant states are not likely to reach an agreement to refer the disputes to an international court or tribunal and have them resolved in a win-lose format on the basis of which of the states has the stronger legal claim to sovereignty under international law. For similar reasons, it is highly unlikely that the claimants will be able to resolve the disputes through negotiations.

Furthermore, if the claimant states take a close look at the applicable provisions of UNCLOS, to which they are all bound, they should realize that their sovereignty claims over the “islands” in the South China Sea are fraught with potential legal problems. For example, many of the “islands” over which sovereignty is claimed are not “islands” entitled to a 200 nautical mile economic zone and continental shelf of their own, but “rocks’ entitled only to a 12 nautical mile territorial sea because they are not able to support human habitation or economic life of their own. Still others are geographic features which are not even entitled to a territorial sea of their own under UNCLOS because they not natural formed areas of land above water at high tide, but artificial islands, low-tide elevations, reefs or shoals.

Developing a management regime

Hence, the most viable option is to shelve the sovereignty claims and develop a management regime based on cooperation in order to deal with impending problems and issues such as the increasing need for offshore gas and oil resources, the potential collapse of fisheries resources in the region, and the need for cooperative measures to protect the marine environment and create good order at sea.

A new declaration to promote cooperation in the South China Sea will not succeed unless it addresses the major obstacle to enhanced cooperation. Some claimant states have been reluctant to cooperate because they fear that by cooperating they will be renouncing their own claim, recognizing the legitimacy of another state’s claim, or somehow assisting another state’s claim. Therefore, any new declaration must make it clear that existing sovereignty claims in the South China Sea are “shelved’ during the period of the declaration, and that a claimant state cannot prejudice or diminish its claim to sovereignty by cooperating under the declaration. The declaration should provide that it will be valid for a significant period of time, such as 50 years.

The proposed declaration should also contain a clause that will enable Taiwan to unilaterally declare or affirm that it supports and will abide by the declaration. This is essential, given that Taiwan occupies the largest island and is a major fishing entity in the South China Sea. One formula that could be considered would be to include a clause which permits states and “other entities with interests in the South China Sea” to unilaterally declare that they support and will abide by the declaration.