Exactly one year ago [December 12, 2019], the government of Malaysia submitted part of its continental shelf claim in the South China Sea to an international commission, pursuant to its rights as a coastal state under international law. Over the past year, that submission has led to a flurry of 25 diplomatic notes exchanged by 10 sovereign states. These states have included claimants (i.e., China, Indonesia, Malaysia, Philippines, and Vietnam) and non-claimants (i.e., Australia, France, Germany, United Kingdom and United States). Together, they represent four of the five permanent members of the U.N. Security Council, three non-permanent members of the Security Council, three of the four largest economies of the world, seven of the 20 largest economies of the world, and four of the 10 most powerful navies in the world. A global spotlight is now shining on this international situation.
Some observers have colorfully described this 2020 exchange of diplomatic notes as a “battle,” but this development has been positive in a several ways. First, this behavior among states is peaceful in nature. Diplomats exchanging letters is better than soldiers and sailorsexchanging bullets. Second, these notes are official in nature. This helps reduce confusion as to whether a speaker or publication is representing a government’s actual position. Third, these diplomatic notes provide some transparency, as they have been shared with the world and are now a matter of public record. Thus, states can identify where they share common ground on their national perspectives.
Unfortunately, this exchange of notes also shows that it will be impossible for the smaller claimant states to resolve their disputes with China solely through negotiations. Contemporary negotiating theory says that parties to a negotiation can “get to yes” and reach an agreement only if there is a zone of possible agreement (or “ZOPA”) of options that are acceptable to all of the parties. Given China’s refusal to abandon its invalidated nine-dash line claim that overlaps with the legitimate maritime zones of every other claimant state, there is no ZOPA among the claimant states. Is there anything that Hanoi, Jakarta, Kuala Lumpur, or Manila could say across a negotiating table to Beijing that would convince them that their claims are superior? Is there anything that Beijing could say to those capitals that would convince them that China’s claims are superior? If the answer to both of these questions is No, then the reality is that these claimants will never be able to “get to yes” and resolve these disputes with China solely at a negotiating table.
Fortunately, however,the 2020 exchange of diplomatic notes has opened the door to a potential solution for the South China Sea disputes. The commonalities in some of these diplomatic notes suggest that the smaller claimant states could collectively develop and pursue an alternative way to resolve the South China Sea disputes peacefully. This approach which would involve a combination of more diplomatic notes, followed by the use of a bargaining table, and concluding in an international courtroom.
First, the smaller claimant states could coalesce around a consensus position. More specifically, the governments of Indonesia, Malaysia, Philippines, and Vietnam could each issue a diplomatic note with an attached joint statement. Their collective declaration in this joint statement could include the following four elements:
(1) China’s nine-dash line and “historic rights” are invalid as maritime claims;
(2) None of the geographic features in the South China Sea is entitled to a 200 nautical mile exclusive economic zone (EEZ);
(3) No naturally-submerged feature or stand-alone low-tide elevation in the South China Sea may be upgraded by reclamation activities to an island entitled to a territorial sea; and
(4) Only archipelagic states may lawfully draw straight baselines around a group of off-shore islands.
Each of these elements of the joint statement is not far-fetched, but rather has already been expressed in one or more of the diplomatic notes unilaterally tendered by one or more of these four states in 2020. Through this consolidated position, these smaller claimant states could find bargaining power in numbers.
Second, these four smaller claimant states could then collectively propose the following way-ahead to China for resolving the South China Sea disputes:
(1) Each claimant state surrounding the South China Sea could draw a 200 nautical mile belt of EEZ from its mainland coast;
(2) For each area where two coastal states would have overlapping belts of EEZ, those two states could adopt “provisional arrangements” (i.e., temporary measures) until the boundary dispute is resolved, under which both states may exploit natural resources in the overlapping areaand both states may enforce their national laws to police resource-related activities by third parties;
(3) States could draw a 12 mile “enclave” around each naturally-formed high-tide elevation in the South China Sea. For those located within 200 miles of a claimant state’s coastline and currently unoccupied, the coastal state could administer that enclave as a provisional arrangement as part of its EEZ. For those located within 200 miles of a claimant state’s coastline and currently occupied by another claimant state, the occupying state could administer that enclave as a provisional arrangement.
(4) All of the coastal states surrounding the South China Sea could expressly consent to submit all remaining legal issuesto the International Court of Justice (ICJ) as a multi-party, consolidated case. Gradually, the ICJ could then determine feature-by-feature who has sovereignty of each of the high-tide elevations and its surrounding territorial sea, and also delineate “equitable solutions” for the maritime boundary in areas of overlapping EEZs between mainland coastlines.
This proposed way-ahead would fully comport with all applicable international law. Additionally, it would be the most equitable solution for all of the claimant states. Each state would have a maximized EEZ along its mainland coast, where it could predictably enjoy and enforceitssovereign rights for fishing and exploiting other natural resources. Collectively, it would achieve a peaceful resolution to all of these territorial and maritime disputes in the South China Sea and enhance regional security and stability, which would benefit claimant states and non-claimant states.
The substantive elements of this potential solution are easy to understand. The difficulty lies in the governments of the claimant states demonstrating the political will to pursue it. Admittedly, this way-ahead would take years to complete. But to paraphrase an ancient proverb in the region, the resolution of a thousand disputes could begin with a single diplomatic step.
The views expressed are those of the author and do not necessarily represent the views of the U.S. Department of Defense or its components.