Maritime Energy Resources in Asia: Legal Regimes and Cooperation

Recent Practices in Dispute Management in the South China Sea

79 the national bureau of asian research nbr special report #37 | february 2012 JIANWEI LI is Director of the Research Center for Marine Science at the National Institute for South China Sea Studies. She can be reached at . RAMSES AMER is an Associate Professor in Peace and Conflict Research and a Senior Research Fellow in the Department of Oriental Languages at Stockholm University, a Guest Research Professor at the National Institute for South China Sea Studies, and a Research Associate at the Swedish Institute of International Affairs. He can be reached at . Recent Practices in Dispute Management in the South China Sea Jianwei Li and Ramses Amer EXECUTIVE SUMMARY This essay describes the dispute situation in the South China Sea and adjacent areas and studies the advantages and disadvantages of various approaches to dispute management, with a special focus on China’s policy and practice. MAIN ARGUMENT Although there have been periods of tension among claimants, the South China Sea remains a reasonably stable area, and the maritime disputes are managed through various measures. A preference for bilateral approaches is evident and has resulted in both formal settlement and joint development arrangements. However, some bilateral disputes are still unresolved. Less tangible progress has been made in relation to multilateral disputes. Joint development has been proposed by some countries so as to shelve their territorial disputes for the short term in order to utilize nonliving resources. While the experiences gained from joint development in the Gulf of Thailand provide an alternative model for dispute management, such development has so far not occurred in the South China Sea proper. At the regional level, protracted negotiations resulted in the first regional document on the South China Sea, the Declaration on the Conduct of Parties (DoC) in 2002, followed by the Guidelines for the Implementation of the DoC in 2011. POLICY IMPLICATIONS • Bilateral efforts as well as regional initiatives, such as the 2002 DoC, are positive steps forward in terms of dispute management, but further efforts are needed. • A correct assessment on the level of tension relating to the disputes in the South China Sea is crucial for dispute management in this area. The notion of a sharp increase in tension between claimants in the period 2009–11 cannot be substantiated, particularly not in comparison with developments in the 1990s. • Progress made both in formal settlement and through other forms of management underscores the importance of the political will of the parties to the disputes for achieving results. • The lack of progress can be attributed to the complexities involved in dispute situations and to a lack of political will among the parties to address the core dimensions of dispute situations. • Aborted attempts at settling disputes or pursuing joint arrangements may result from the domestic politics of one or more of the parties involved. 81 DISPUTE MANAGEMENT IN THE SOUTH CHINA SEA u LI AND AMER T his essay assesses the different approaches to dispute management utilized in the South China Sea with the aim of shedding light on their implications for the future of conflict management in the region. For the purpose of this study, the geographical area considered will include not only the South China Sea proper but also adjacent maritime areas such as the Gulf of Tonkin, the Gulf of Thailand, the Sulu Sea, and the Strait of Malacca. Dispute management includes both dispute settlement and conflict management,1 and this essay examines the topic within these two broad categories. In the first category, the approaches applied and implemented include formal settlement through direct negotiations, international jurisprudence, and joint development arrangements (JDA). In the second category, various confidence-building measures (CBM) are outlined. Particular attention is devoted to China’s perspectives as reflected by its related policies and practice. The essay first lays out the dispute situation in the studied region. The overview of the disputes is divided into two categories: settled and unsettled. The following section analyzes the dispute management approaches applied in the South China Sea. Direct negotiations and international jurisprudence have been utilized to formally resolve some of the disputes. Pending final settlement, JDAs and various CBMs are practiced to prevent disputes from escalating. Bound by a mutually reached agreement, JDAs are used to temporarily settle disputes by shelving the issues of sovereignty and maritime delimitation. Therefore, in this study, JDAs are grouped into the “settled dispute” category. CBMs are intended to cultivate trust among relevant members...