Subject: NEGOTIATION – THE WAY FORWARD
NEGOTIATION – THE WAY FORWARD
By: Jose V.
Romero Jr., PhD
President, Philippine Council for Foreign Relations, Inc.
China is the dominant regional player in the South
China Sea disputes. Understanding its position and strategy are 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 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 prefered 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 demilitarise 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.
Objective
- · 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.
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