South China Sea Disputes Need More than Principles

During his visit to Australia for the China-Australia Diplomatic and Strategic Dialogue, Chinese Foreign Minister Wang Yi suggested that all parties involved in the South China Sea disputes, particularly the Spratly Islands dispute, follow four guiding principles.

Briefly, the four call for involved parties to respect historical facts, international law, direct dialogue and consultation between parties, and efforts to maintain peace and stability.

However, not unlike the failed 2002 Declaration of the Conduct of Parties in the South China Sea signed between Asean member states and China, or proposals for a code of conduct, the four principles may ultimately fail in the face of claimants resolved that they are in the right.

Although the four principles fall short of a code of conduct, they nevertheless seek to establish certain parameters within which negotiations will occur. Moreover, at a glance, there appears to be little reason to disagree with Yi’s principles. It is only when claimants are asked to interpret these respects will there be difficulty.

First, Yi’s call for parties to respect historical facts aims to advance China’s claim of historical ownership over the Spratly Islands, in addition to the Paracel Islands (disputed by Vietnam). China’s claim of historical ownership is contested by Vietnam, arguing that it has documented proof regarding Vietnam’s rule over the Spratlys and Paracels since the 17th century.

Second, respect for international law is subverted by China’s recent attempt to build artificial islands on five reefs in the Spratlys. The islands have been viewed as an attempt on the part of China to expand its maritime territory and claim over the region, especially if Beijing can successfully populate the islands with a civilian presence. Another fear is that China will use the islands to base its military.

Regardless of these islands’ ultimate use, China’s island-building activities will attempt to work around international law, particularly Article 60 of the United Nations Convention on the Law of the Sea (UNCLOS), which states that artificial islands will not be granted the same status as islands. If said artificial island is established on top of an existing, natural formation, however, the law becomes less clear.

Of course, all of this is not to say that China will respect any ruling passed down by UNCLOS. Far from it, China has expressed that it will not be bound by any ruling due to the nature of the territorial dispute as one of sovereignty. In the eyes of Beijing, the international community has no place in a dispute that is between China and other claimant states.

Third, direct dialogue and consultation between parties must first be agreed upon by the other party. The Philippines have so far rejected attempts at bilateral negotiations, believing that such negotiations will inherently favor China due to its size and might. China has thus far balked at effort by the Philippines and Vietnam to internationalize the disputes.

Lastly, Yi’s request that all sides respect efforts to maintain peace and stability flies in the face of recent Chinese activities in Southeast Asia, which have raised tensions and regional instability. The recent oil rig dispute between China and Vietnam over the summer is one such incident.

The incident began this past May when China relocated one of its oil rigs, HD-981, into disputed waters off the coast of Vietnam, presented by Beijing as an exploration mission, and kicking off a confrontation between the two countries’ coast guards. In Vietnam, reaction to the oil rig ignited a storm of anti-China protests and riots targeting Chinese-owned factories, killing more than 20 people. The dispute was settled only when China voluntarily withdrew the offending oil rig in July.

The Spratly Islands dispute is far too complex to be resolved alone between China and claimant countries. Yet, given China’s general refusal to accept international arbitration, as was the case with the Philippines, it is also unlikely that multilateral talks will gain much traction, either.

Resolving the South China Sea dispute will require more than four guiding principles. Concrete action requires more than verbal commitment. Absent a binding declaration supported by the political leaders of all sides, the dispute will likely drag on for years, potentially decades, longer.

Khanh Vu Duc is a lawyer and part-time law professor at the University of Ottawa. His research covers Vietnamese politics, international relations and international law. Duvien Tran is a special research associate at VDK Law Office in Ottawa focusing on foreign policy and South China Sea security issues.