Preventive Diplomacy and Pro‑Activity in the South China Sea

Abstract

Introduction The dispute concerning sovereignty over the Spratly Islands and maritime jurisdiction in the South China Sea remains the most volatile, dangerous, and intractable issue in ocean affairs today. It is also the most discussed, although a great deal of what has been said on the subject is of questionable value, mainly because of the inability of analysts to appreciate or deal with the full complexity of the topic. To some extent, this is understandable or even excusable, but only up to a point. The debate cannot flourish while commentators cling doggedly to one view of the issue - their own - and do their best to dismiss or discount the views of others. Law of the Sea experts, for instance, persist in viewing the issue as one which requires the steady application of the rules of international law. Proponents of realpolitik are apt to dismiss such an approach as idealistic, at best. For them, might may not be right, but is of more consequence than legal norms or arguments hammered out in the security of a research office. And so on. To some extent, the problem lies in the different views of commentators as to what the dispute in the South China Sea is actually about. The common view, of course, is that oil is the ultimate prize, with maritime hegemony/dominance and national pride thrown in for good measure. There has been very little discussion as to the merits or value of these views; indeed, recent scholarship has (wittingly or otherwise) tended to support the oil lobby, if support it needs.(1) The very scale and complexity of the issues arising here is also daunting, but the problem is exacerbated by a failure to undertake a structured analysis. For instance, much ink has been spilt on the vexed issue of who owns the Spratlys?, while there has been little consideration of whether the answer really matters - for example, there is an assumption that the key to the dispute lies in the resolution of sovereignty over those islands. But such a contention would be absurd in any other marine area: no-one has suggested that the key to maritime jurisdiction in the Mediterranean lies in sovereignty over Corsica, Malta and Cyprus, and any one of these has a land area very much greater than all the Spratlys put together. Much is made of the potential of the Spratly area for the commercial production of hydrocarbons, but on what evidence? The focus of much of the debate has been on these two issues. But since the first is of greatly exaggerated importance, and the second largely a matter for speculation, it is hardly surprising that much of the literature is simply unhelpful, and is apt to miss the point. There has generally been a failure to question basic assumptions and to allow the protagonists - or the most vocal of them - to drive and set the terms and conditions of the debate. This article will argue that mono-disciplinarity - indeed, the contumacious disregard for the relevance of other points of view - vitiates much of the commentary and analysis of the situation in the South China Sea. It will offer a synopsis of developments in the South China Sea. The focus will to some extent be on the informal workshops that have attended attempts to resolve the disputes in that sea. It also looks at bilateral efforts, as well as the work of multilateral fora in reaching such a resolution. The starting point for the inquiry must be the international Law of the Sea, for it is that law which invests states with the very rights (and duties) over their adjacent ocean-space which are so fiercely contested between them. Claims and Counter-Claims This is not the place for a discussion of the rival claims and counterclaims either to the Spratly or Paracel Islands, or to the waters of the South China Sea; these issues have been discussed at length in the literature, though not always helpfully or accurately. The intractable nature of the debate stems from the tenacity with which the littoral states have maintained their respective positions; this is one of the reasons why discussion of issues of sovereignty and jurisdiction is prohibited at South China Sea Workshop meetings. …