• COMMENTARY

    Negotiation – the way forward

    4

    CHINA is the dominant regional player in the South China Sea disputes. Understanding its position and strategy is key to seeking a feasible solution to the issue. China will continue to insist on bilateral negotiations (through which it can divide and dominate the other claimants) and on the exclusion of outside powers from the process, particularly the United States.

    China will continue to attempt to stall any multilateral process regarding the South China Sea, featuring that the agenda and process may be manipulated by the United States or others.

    China’s strategy will continue to be a combination of dividing and dominating, obfuscation and ambiguity, careful timing and selective assertiveness.

    Sovereignty is likely to be awarded to those who can demonstrate the longest continuous effective control, occupation and administration of particular islands. Thus we can expect more occupations, as well as other unilateral actions.

    Different perspectives among the claimants on these goals are an impediment to progress. Thus the first step forward must be discussion and agreement on the desired goal. If the goal is joint development as an interim solution, several obstacles need to be addressed.

    Approaches and half-measures
    Many approaches and half-measures have been proposed which would help build confidence to move beyond the unstable status quo to an interim solution that is both equitable and stable. For example, Preventive Diplomacy (PD) such as proposed by an eminent persons group; a code of conduct; institutionalization of the multilateral dialogue; a maritime safety and surveillance regime and establishment of a marine preserve. The key stumbling block is agreement on a process. Other suggestions include cancellation, mediation or arbitration through the good offices of a third party or judiciary body such as the International Court of Justice (ICJ) or the Unclos tribunal.

    Unfortunately, all these mechanism are probably inadequate to address such an unconventional and complicated dispute with so many variables. The potentially high stakes make it unlikely that any but the militarily weakest claimants would submit to an independent judicial or arbitral body. Moreover, China has made it crystal clear that it will not accept the involvement of outside entities, and most Asian nations are deeply suspicious of Western methods.

    Direct negotiations are the current preferred method whether bilateral, serial bilateral or multilateral. Asean provides a general framework and specific mechanism for multilateral diplomacy in this preventative spirit. Indeed, Asean Regional Forum (ARF) endorsed the purposes and principles of the Asean Treaty of Amity and Cooperation in Southeast Asia (TAC) as a unique diplomatic instrument for regional confidence building, PD and political and security cooperation. Among the possibilities proposed pursuant to TAC are: negotiation of principles, such as a code of conduct or peaceful dispute settlement; a regional conflict prevention centre; crisis prevention exercise; appointment of a high commissioner for maritime affairs; establishment of permanent ad hoc committees or working groups; and more tract-two initiatives.

    Any such solution has to address or take into account the following regional political realities:

    • Need to demilitarize the features

    • A resource-management agreement

    Bilateral negotiation of provisional arrangement
    China has consistently insisted that all issues are bilateral and that they should be resolved through bilateral negotiations.

    Some observers believe it would be easier for two parties to agree to cooperate than for larger groups and that a web of bilateral agreements can form the basis for a multilateral process and solution.

    A multilateral management regime
    A multilateral maritime regime for the South China Sea must satisfy the following principles, objectives and political realities:

    The territorial sovereignty and sovereign integrity of every claimant should be equally recognized in the regime. Although the conflicting claims to maritime space in the Spratly area should be set aside, the ultimate resolution of these claims should be unaffected by the establishment of the regime.

    Regional disputes should be resolved through peaceful means. Provocative military activities, such as the establishment of military bases, and fortifications should be prohibited from this region.

    The resources of the South China Sea should be exploited pursuant to the principles of equity and fairness toward all countries and all people of the region.

    Cooperative regional exploration, development and management of the living and non-living resources of the South China Sea is the most equitable solution to the controversies concerning this area and will promote rational resource use and peace in this region.

    Objectives
    Enhanced peace and security in the South China Sea.

    Creation of a stable, predictable maritime regime for the South China Sea based on mutual restraint, transparency, trust and confidence.

    Demilitarising the Spratly features through an agreed, mutual, step-by-step process.

    Managing the resources in a good cooperative, equitable, efficient, rational and sustainable manner.

    Jose V. Romero Jr., PhD
    President, Philippine Council for Foreign Relations, Inc.

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    4 Comments

    1. With the imminent decision by international arbitration for China to abide by UNCLOS law, PH is in stronger position to dictate. Neither US or China’s interest that there will be conflict in West Philippine Sea. China has a lot to loose if war breaks out. It will not be good for US to abandon its close ally PH. PH is their first line of defense.

      China have resorted to the same tactics it has with many countries around its borders. They have used force to take over the lands/islands/sea.

      Negotiations or no negotiations, PH has the upper hand in its claim on 200 miles EEZ.
      If UNCLOS decide that China has no right to the sovereignty of Spratley Islets then it has to go. If not, then Filipinos have the right to take back these islands from the Chinese invaders whatever it takes.

      PH has to face this bully.

    2. ferdinand naboye on

      Hoy gising Let us accept that the philippines is the weakest in terms of arms we have no arms to use against china only your mouth wake up philippine government

    3. Consider please the alternative. It will take us at least another 20 years before we can upgrade our military capability to offer a (slightly) significant defense against a strong China. If the USA will change its foreign policy for economic gains, we will be holding the empty bag. On the other hand if USA will clash head-on with China, then we will be repeating WWII history being a sacrificial lamb.

    4. Mariano Patalinjug on

      Yonkers, New York
      16 Dec. 2015

      Negotiation is NOT “the way forward.” Period.

      Jose V. Romero, Jr. obviously ignores the stark fact that in “bilateral negotiations” China’s PRECONDITION is that the Philippines acknowledges its “historic sovereignty” over those disputed maritime structures, isles, islets and islands in the West Philippine Sea which the Philippines rightly claims under International Law [UNCLOS] as parts of its territory.

      The Philippines will be stupid if not a fool to acknowledge such a PRECONDITION, because once it does, China will then have all the legal right under International Law [UNCLOS] to compel the Philippines to get out of those disputed territories. China will thus have completely “turned the tables” on the Philippines!

      Without much legal ado, the UN Permanent Arbitral Tribunal in The Hague which is right now deliberating “on the merits” of the territorial-dispute case which the Philippines has brought to it against China, will then ipso fact throw out the case.

      The Philippines cannot be that STUPID!

      MARIANO PATALINJUG
      patalinjugmar@gmail.com