NEGOTIATION – THE WAY FORWARD

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
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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.