1.

HOPES TO REDUCE RISKS

a. THE LAW OF THE SEA AND INTERNATIONAL ARBITRATION
i. Intro
1. International law should be a means to resolve the South China Sea
disputes and thereby reduce tensions. The various claimant countries,
however, selectively use it to support their overlapping claims and
justify assertive action, including regular maritime patrols and
detention of vessels that enter disputed waters.
In addition, sovereignty claims are an ingrained part of the
national consciousness in claimant countries, particularly China and
Vietnam. This seriously limits the ability of policymakers to make even
the smallest compromise needed for a legal solution. As a result, to
date, a legal approach has not yet helped resolve the disputes.
ii. Claimants could significantly reduce tensions if they were to agree on the size
of the maritime zones surrounding each land feature, regardless of
ownership, and then promote joint development or administration of areas
where potential claims overlap.
iii. As of mid2012, Vietnam, Malaysia and the Philippines seemed to consider
that the disputed islands were not capable of sustaining habitation or
economic activity, and thus should not receive an EEZ or continental shelf.
This potentially reduces the size of the disputed areas, and could make it
easier to reach agreement on joint development.
1. China, on the other hand, considers that many islands are entitled to
additional maritime zones and fails to renounce its historical rights
within its nine-dashed line, a claim which is unsupported by
international law.
2. China has specifically rejected the mechanism for international
arbitration and adjudication provided by the United Nations Convention
on the Laws of the Sea (UNCLOS) on the grounds that wit will not
accept the presence of a third party in the search to resolve disputes
regarding the South China Sea.
b. ASEAN AND THE CODE OF CONDUCT
i. Intro
1. ASEAN forums are the primary multilateral platforms for discussing the
South China Sea, yet their achievements have been modest.313 The
1992 Declaration on the South China Sea and the 2002 Declaration on
the Conduct of Parties in the South China Sea set out basic principles
to avoid disputes but do not provide any mechanisms to resolve them.
2. When they signed the 2002 Declaration of Conduct, ASEAN members
agreed that the organization should be involved in the South China Sea
issue. They also stated that the declaration was the first step towards a
code of conduct, thus providing a basis for a role in the South China
Sea. ASEAN also became increasingly involved because of the creation
of new forums such as the ASEAN Regional Forum (ARF) and the East
Asia Summit (EAS), which bring together many countries from outside
the region that are closely watching the dispute.
ii. China is well aware of ASEANs internal politics and can choose to exploit
them. Beijing still prefers to abide by its strategy of treat each case
differently, and defeat each one separately33 in handling disputes in the
South China Sea. Beijing has consistently opposed ASEAN meeting behind
closed doors on the issue, and in September 2011 attempted to derail a

meeting of regional maritime legal experts in Manila and successfully

dissuaded Laos and Cambodia from attending.
iii. Even if China and ASEAN can agree on a code of conduct, it will at best help
manage the dispute by getting all sides to comply with a set of legally
binding rules. No one expects it to resolve the territorial claims.
2. JOINT MANAGEMENT OF RESOURCES
a. Intro
i. Cooperation on resource management in the South China Sea has been
proposed by experts as a way to deescalate tensions. By addressing the two
major resources at the core of current disputes, energy and fish, joint
development and preservation allow claimants to share the wealth of the sea.
Since joint management requires claimants to put aside, not renounce, their
territorial and maritime claims in favor of peaceful collaboration, it can be a
practical way to shelve disputes for tangible benefits.
b. However, the failure of joint hydrocarbon development, unilateral fishing bans and
increased military and law enforcement vessels patrolling the sea signal that
sovereignty claims remain more important than resource sharing. Experts have also
suggested a fisheries agreement between claimant countries to allow their
fishermen to enter disputed waters and protect the stock, but the prospect of such
cooperation remains distant due to a lack of interest.
c. Joint development is unlikely to take place due to complications inherent in
negotiating cost and resource sharing arrangements amid high political tension,
much to Chinas dismay.
3. Conclusion of Hopes to Reduce Risk
a. The claimants to the South China Sea are increasingly driven by domestic economic
and political imperatives that are slowly eroding the longstanding restraints on
conflict in the region. Vietnam and the Philippines, in particular, are experiencing
rising demands for hydrocarbon and fisheries exploitation, which push their survey
and fishing vessels farther out into disputed areas. Rising nationalism, and the
unwillingness of claimant countries to appear to their domestic audiences as
compromising their territorial claims, slowly nudge them towards a position of
greater confrontation with China.
b. The failure to reduce the risks of conflict, combined with the internal economic and
political factors that are pushing claimants toward more assertive behavior, shows
that trends in the South China Sea are moving in the wrong direction. The risk of
escalation is high, and as pressure in the region threatens to boil over, claimants
would benefit from taking concrete steps toward the joint management of
hydrocarbon and fishing resources, as well as toward reaching a common ground on
the development of a mechanism to mitigate or deescalate incidents, even if they
cannot agree on an overall approach to dispute resolution. In the absence of such a
mechanism, tensions in the South China Sea could all too easily be driven to
irreversible levels.
4.

Increasingly frequent clashes between China and its neighbors heighten the risk of escalating tensions and military
conflict over territorial claims in the East and South China Seas. Policy experts discuss a range of preventive measures
aimed at mitigating miscalculations by sea captains or political leaders that could trigger an armed conflict:
Resource Sharing -- Claimants in both the South China Sea and East China Sea could cooperate on the development of
resources,including fisheries, petroleum, and gas. A resource-sharing agreement could include bilateral patrolling
mechanisms, which would deter potential sources of conflict like illegal fishing and skirmishes arising from oil and gas
exploration. More collaborations in the mold of joint fishery deals like those between China and Vietnam and Japan and
Taiwan could mitigate risk by sharing economic benefits.
Military-to-Military Communication -- Increased dialogue between military forces has the potential to reduce the risk of
conflict escalation. Communication mechanisms like military hotlines to manage maritime emergencies, similar to the one
set up by China and Japan and the one that China and Vietnam agreed to institute in June 2013, could be established
among all claimants. These hotline systems would connect leaders in the event of a crisis that could arise from such
mishaps as naval maneuvers misinterpreted by captains of merchant vessels or fishermen. Lastly, joint naval exercises
could support greater military transparency and help develop shared rules of the road.
Building a Multilateral Framework -- The development of a multilateral, binding code of conduct between China and
ASEAN countries is often cited as a way of easing territorial disputes in the South China Sea. The parties have already
agreed upon multilateral risk reduction and confidence-building measures in the 2002 Declaration on the Conduct of
Parties in the South China Sea, but none have adhered to its provisions or implemented its trust-building proposals. While
China has historically preferred to handle all disputes bilaterally, the resumption of negotiations between Beijing and
ASEAN still holds promise for reinvigorating a multilateral framework toward greater cooperation and conflict resolution.
International Arbitration -- Bringing territorial disputes to an international legal body presents another means of conflict
mitigation. The International Court of Justice and the International Tribunal for the Law of the Sea are two forums where
claimants can file submissions for settlement. In July 2013, a UN tribunal was convened in The Hague to discuss an
arbitration case filed by the Philippine government contesting the legality of China's territorial claims in the South China
Sea. An outside organization or mediator could also to be called upon to resolve the disagreement, although the prospect
for success in these cases is slim given China's likely opposition to such options.

In the event that military conflict erupts between claimants in the East and South China Seas, the U.S. and the
international community must be prepared to take action. Policy experts outline a few immediate options facing the
countries involved:
Diplomacy -- Escalatory actions would likely trigger ramped up diplomacy. The United States could initially serve in a
mediation role in the event of crisis erupting in either sea. In the South China Sea, mediation could also come from
ASEAN or a trusted, neutral actor within the region like Singapore. Parties could also call for an emergency session of the
UN Security Council to negotiate a cease-fire, although China's seat on the council could limit the effectiveness of this
option. In the East China Sea, bilateral management of the dispute is the likely first option, with Beijing and Tokyo sitting
down to negotiate a common guideline for handling the conflict and preventing its escalation.
Economic Sanctions -- Despite extensive trade ties, the parties to the dispute could respond to a rise in tensions by
imposing economic sanctions. In response to a Chinese action, for instance, Washington could sanction financial
transactions, the movement of some goods and services, and even travel between China and the United States. In
retaliation, Beijing could bar U.S. exports and cut back on its extensive purchases of U.S. Treasuries. Claimants could
also manipulate exports and relaunch boycotts of goods. Some signals of such a response have already been seen: in
2012 Chinese protesters launched a wave of boycotts of Japanese-branded products. Japan also accused China of
halting exports of rare earth minerals after a territorial spat in 2010a charge Beijing deniedcausing a commodities
crisis for resource-dependent Japan.
Military Action -- If confrontation were to involve Japan in the East China Sea or the Philippines in the South China Sea,
the United States would be obligated to consider military action under defense treaties. Experts note that Washington's
defense commitments to Tokyo are stronger than those to Manila. Under its treaty obligations, the United States would
have to defend Japan in the case of an armed attack; the U.S.-Philippine treaty holds both nations accountable for mutual
support in the event of an "armed attack in the Pacific Area on either of the Parties." Military action would represent a last
resort, and would depend on the scale and circumstances of the escalation. In the event of armed conflict breaking out
between China and Japan, the United States could also use crisis communication mechanisms outlined in the U.S.-China
Military Maritime Consultative Agreement (PDF) to encourage a stand-down of forces and facilitate communication
between Tokyo and Beijing. Verbal declarations that communicate the seriousness of the dispute and convey support for
an ally, as well as offers of military assistance, can also serve as essential "coercive de-escalation" measures during a
crisis.