Legal Mechanisms to De-escalate Tension in the South China Sea – Hitoshi Nasu

The recent tension over the South China Sea, involving multiple parties in Southeast Asia, has raised concerns for the potential outbreak of an ‘inadvertent war’. As the claimants attempt to consolidate their claims, bolster their strategic position and exploit energy resources in disputed areas, there is potential for maritime incidents to recur, with the associated risks of escalation into a major outbreak of warfare. The United States Secretary of Defense, Chuck Hagel, highlighted this risk at the May 2014 Shangri-La Dialogue when he stated that:

in recent months, China has undertaken destabilizing, unilateral actions asserting its claims in the South China Sea. It has restricted access to Scarborough Reef, put pressure on the long-standing Philippine presence at the Second Thomas Shoal, begun land reclamation activities at multiple locations, and moved an oil rig into disputed waters near the Paracel Islands.

Arbitral proceedings, commenced by the Philippines against the People’s Republic of China (PRC), are unlikely to result in any form of settlement, given the PRC’s outright refusal to participate in the proceedings. Rather, they have the potential to exacerbate the dispute, depending on how the arbitration tribunal handles the proceedings.

The regional efforts to manage the dispute have focused upon negotiations towards the adoption of a legally binding Code of Conduct. Indeed, the ASEAN Foreign Ministers once again agreed in August 2014 on the need for a legally binding Code of Conduct in the South China Sea. While adopting such an instrument may have political significance, does the legally binding status of an agreement make any difference in preventing an ‘inadvertent war’ in the region?

A mutual undertaking of restraint by the disputing parties has already been agreed upon at the policy level — expressly provided in the Declaration on the Conduct of Parties in the South China Sea (DOC) adopted in 2002 — between ASEAN member states and the PRC. It confirms in paragraph 4 that ‘[t]he Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force’, which is merely re-affirming their existing legal obligations under articles 2(3) and 2(4) of the UN Charter.

While the DOC also refers to the Parties’ commitment to ‘exercise self-restraint in the conduct of activities that would complicate or escalate disputes’ in paragraph 5, it does not clearly set out what conduct is considered to constitute an activity that would complicate or escalate disputes. In the absence of a clear, mutual understanding of prohibited conduct through practical guidelines for example, the disputing parties may simply engage in ‘lawfare’ by justifying their military action with reference to legal concepts favourable to their position, such as sovereignty, the right of self-defence and freedom of navigation. Although scholars and policy makers appear to consider that the adoption of a legally binding Code of Conduct will somehow improve the situation, it is doubtful whether any concrete set of practical guidelines can be produced through political and diplomatic processes.

In this respect, the new Code for Unplanned Encounters at Sea (CUES), adopted at the 14th Western Pacific Naval Symposium held in Tsingtao in April 2014, could be of greater significance. Based on the Convention on the International Regulations for Preventing Collisions at Sea, CUES offers safety measures and procedures, a basic communications plan and manoeuvring instructions for when naval ships and aircraft encounter each other unexpectedly. They are expected to provide a much needed de-escalation mechanism.

CUES is limited in its ability to prevent maritime incidents in situations where, for example, one navy deliberately chooses to act in a way that irritates or threatens another: a destroyer locks its fire control radar on another, or one navy vessel observes the military exercises of another. Nevertheless, the successful adoption of CUES amidst rising tensions in the Asia-Pacific signifies room for negotiations towards a wider range of mutual understandings of prohibited conduct in the South China Sea, designed to avoid misunderstanding as to what might be considered as a threat or a hostile act and intent in manoeuvring vessels in the area.

The best way forward to deal with such highly politicised disputes is to remove political actors as much as possible from the negotiating tables in producing a concrete set of practical guidelines on prohibited conduct in the South China Sea.

Hitoshi Nasu is Senior Lecturer, ANU College of Law, and Co-Director, Center for Military and Security Law (CMSL) and Australian Network for Japanese Law (ANJeL)