What would be the basis of this ‘Outside-UNCLOS’ framework? The starting-point is a recognition that ‘win-win’ is better than a contest with a winner and a loser.
The News Lens
Date: 2016/07/16
By: Stephen Grenville
Wednesday’s South China Sea adjudication demonstrates that the United Nations Convention on
Photo Credit: AP/達志影像
the Law of the Sea (UNCLOS) framework is totally unsuited to sorting out the complex conflicting claims in the South China Sea in a way that the relevant parties will accept. By effectively announcing the Philippines as winner and China as loser, the tribunal’s finding is now the basis for empty point-scoring. There is zero chance that China will accept an outcome arrived at in this way.
UNCLOS acknowledges the futility of this sort of process: the over-arching UNCLOS principle is that the parties involved should sort things out by mutual agreement. UNCLOS then blesses whatever they have agreed on, even if it doesn’t fit precisely into UNCLOS norms.
With the South China Sea, a complex multi-party solution will be needed rather than a few general rules-of-thumb and one-sided legal proceedings. The South China Sea disputes can’t be resolved by lawyers in a distant court or some surveyor’s equidistant lines on charts.
Before the disputing parties dig themselves into positions from which retreat is difficult, a different negotiating pathway needs to be opened up. The first step would be to bring all the parties together in a single negotiation forum. The obvious grouping is ASEAN and China (but not Taiwan, as it just raises too many side issues). ASEAN hasn’t had the unity or resolve to do this so far and China has worked to keep its dealings on a bilateral basis. But with Indonesia now feeling pressured by China in the Natuna Sea and China rebuffed in The Hague, there just might be the chance for ASEAN to seize the initiative. If this really is an important issue, the core ASEAN countries can’t let the weak peripheral members dictate continuing irrelevance.
