ASEAN Player 1
1- Introducing the Convention on the International Regulations for
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ASEAN in which decisions will not be implemented due to the lack of common
agreement. In fact, it seems that when ASEAN and China had discussed and agreed
together on a binding COC, only in that moment, China will accept their joint
decisions. For instance, Indonesia drafted a “Zero Draft Regional Code of Conduct in
the South China Sea”, which incorporated the Convention on the International
Regulations for Preventing Collisions at Sea (COLREGS), and was presented to
ASEAN members to reach a common position before discussing it with China
(Thayer, 2013). However, some scholars argue that the provisions are too vague, and
not including China in the talks will make it to be rejected due to inequalities (Storey,
2013). Thus, even when there is progress in the development of a COC for SCS, in
order to have significant advancements, it has to be done not first by ASEAN, but
through joint consultations between a strong ASEAN and China.
Scholars also suggest other CBMs that can be used to lead the DOC into a real COC,
and are related with the safety of navigation and the communication issue. These are
(Storey, 2013):
1- Introducing the Convention on the International Regulations for
Preventing Collisions at Sea (COLREGS) into the COC. Promoted by UN
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International Maritime Organization (IMO), it basically establishes the
regulation to prevent collisions between ships.
2- Introducing the Code for Un-alerted Encounters at Sea (CUES). It offer
safety measures and tools to limit interference and uncertainty, meanwhile
facilitate communication when marine or air vehicles make contact.
In conclusion, the development of a COC for SCS, if it is done through joint
discussions involving all important stakeholders, will lead to the advancement of the
process and, eventually, to its implementation. Our SLOCs protection proposal should
incorporate the “COC Zero draft” COLREGS initiative, and also CUES CBM due to
they will be important in reducing uncertainty, and decreasing tensions in the regions
covered by the SLOCs. The more initiatives the COC has, the more our SLOCs
protection proposal can incorporate for its own improvement, as well as for
facilitating the final implementation of the COC in SCS.
4.4 Factors that Hinder Cooperation
The factors that will hinder cooperation for the SLOCs protection proposal are related
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with distribution of relative gains from three different issues, sovereignty, resources
(e.g. energy), and military development. In fact, these three issues are closely
interconnected due to under UNCLOS legislation, possessing the sovereignty rights
over a territory implies that, in those cases that comply with the legislation, they can
have exclusive economy zone (EEZ), which allow for the exploitation of the
resources in the zone. Moreover, in order to protect the disputed sovereignty of these
territories, the EEZs, and the SLOCs crossing the zone, many countries in South East
Asia has decided to increase their military buildup, which indicate they are
concentrating their interests in relative gains instead of absolute gains, undermining
the possibilities of cooperation on SLOCs protection, the possibilities of reducing
tensions, as well as of the possibility of increasing trust between actors in the region.
4.4.1 Sovereignty
As explained previously, Chinese main claim over the SCS is based on the nine dash
line similar to the eleven dash line showed in a previous atlas published in 1947 (Gao
& Jia, 2013), under the Republic of China Government (ROC). This line has been
criticized by Singapore and the United States, and it has been considered not legal by
some ASEAN countries like Vietnam, Indonesia, Malaysia, and the Philippines,
whose, together with Brunei, also have interests in protecting their sovereignty (Zou,
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2012), and EEZ rights in the SCS.
Claims over sovereignty will hinder cooperation as it is the main issue at stake, due to
it provides a country with the rights for resources exploitation in the EEZ, as well as
allow it to project its military capabilities on those islands, islets, reefs or rocks in
which the state has sovereignty. Moreover, as O’Rourke (2014) also mentions, the
link between sovereignty and EEZ allows a country to regulate all the activities in the
zone, including military activities, which can cause constraints in other countries’
freedom of navigation and their military operations (e.g. to US).
There are two clear examples of why sovereignty disputes will undermine cooperation,
not only on SLOCs protection, but also on resources. The first one was the military
clashes between China and Vietnam over the Paracels in 1974, with ended with
Chinese victory and occupation of the islands where the conflict took place, but also
with Vietnam occupying numerous islands in the Spratlys region. After the incident,
both countries claimed sovereignty over both archipelagos. Later, in 1987, China
occupied several islands within the Spratlys, causing other clash with Vietnam in
1988, which also ended with Vietnam ships defeated (Griffin, 2013). These kinds of
incidents related to sovereignty, increase tensions between the disputants, and lead to
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military clashes that can undermine the prospect for cooperation in different issues
due to the damage of their political relationships.
In a more recent example concerning the sovereignty issue in SCS, Philippines issued
a verbal note on 22 January 2013 in which it notified and claimed zones of the West
Philippine Sea as part of its sovereignty, and initiated the procedures for compulsory
arbitration against China based on UNCLOS legislation (Mincai, 2014). Despite of
Philippines’ claim, the People’s Republic of China (PRC) has already stated that it
will not take part in any arbitral proceeding initiated by the Philippines under
UNCLOS legislation (Talmon, 2014).
In the following months, we will probably observe China’s new responses to this
compulsory arbitration. Its first movement was the not acceptance of the arbitral
proceeding, and it can keep it until the end of the arbitration or decide to take part on
it. If we analyze the options China has in this issue we can foresee the following
consequences (Mincai, 2014):
1- China’s non-acceptance of the Arbitration. Despite China’s rejection of
the arbitration, as China accepted UNCLOS as well as the Philippines, the
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procedure will go on with or without Chinese participation.
2- China’s Re-participation in the Proceedings. As China cannot stop the
proceeding, China can decide to participate in a later time and make some
objections to stop the proceedings:
- Objections to the Arbitral Tribunal’s Jurisdiction. Implies
China does not accept the tribunal as the proper with power to
decide on this matter.
- Objections to the Arbitral Tribunal’s Admissibility. Chain can
argue that many of the Philippines’ claims have no solid
justification.