Hasjim Djalal, Singapore | Mon, 06/27/2011 8:00 AM
The informal workshop on the South China Sea was not intended to solve territorial disputes among the various claimants, but rather aimed at achieving three things: first, devising cooperative programs that include all participants; second, promoting dialog among the directly interested parties so they can find solutions to their problems; and third, to develop a confidence-building process so everyone can feel comfortable with each other.
Experiences in South China Sea issues indicate that technical cooperation is relatively easier to achieve than resource distribution and more difficult with regard to the territorial, sovereignty and jurisdictional issues. With regard to promotion and cooperation, for instance, it has been agreed on to work out a number of cooperative engagements, and some of them have been implemented such as the bio-diversity expedition. Others are in the process of being implemented such as monitoring rising sea levels and the environment. Also, the training programs for the Southeast Asian Network of Education and Training are also being jointly implemented by Chinese Taipei (2010) and China (2011), paid for by each of them and participated in by all South China Sea parties.
With regard to promoting dialog between the parties, China and Vietnam have been able to agree on maritime delimitation in the Gulf of Tonkin (Beibu) and, in some instances, joint cooperation on fisheries in the area. Vietnam and Indonesia have also agreed to delimit their respective continental shelves in the southern part of the South China Sea, north of Natuna.
To promote confidence building, ASEAN and China have agreed on a declaration of conduct with China. The Philippines has also agreed to codes of conduct with China and Vietnam. In the past, there has also been an understood restriction on occupying new features or increasing military presence in the South China Sea.
A number of lessons have been learned from managing potential or actual conflicts in the South China Sea. Some of these lessons learned may also be useful to other regions. Some of these lessons may be repetitious with other cases, but that may indicate their relevance in managing potential conflicts.
There are other forums that have dealt with the South China Sea issues such as the ASEAN-China dialogue and the informal discussion in the ASEAN Regional Forum and the Council for Security Cooperation in the Asia Pacific. However, participants of the South China Sea Workshop (SCSW) Process have agreed that the process should continue and should be supported by all the coastal states or authorities of the South China Sea.
Some lessons that I have learned from 20 years of managing the SCSW Process are:
The disputing parties must realize that conflict outbreaks — especially armed conflicts — will not settle the disputes and will not benefit any party. In fact, it may only bring mutual damage or loss.
Political will exists to settle the disputes peacefully and to take measures so keep the disputes from escalating into armed conflict. The parties must realize that solving the disputes is more in their interests than prolonging them.
The parties should not legislate any territorial claims and should involve public opinion as little as possible – especially in the areas where the claims are disputed. Legislating territorial claims and seeking support through public opinion tends to harden positions on all sides, making solutions, compromises or even temporary solutions such as joint developments more difficult.
There is a great need to increase transparency in national policy, legislation and documentation and hold more frequent meetings — formal or informal — among the legal officers of the involved countries to exchange their documentation and information and their legislative planning. Successful efforts often begin with informal efforts, either through track two processes or through informal, track one processes. After those efforts indicate possible success, a more formal track one approach can be attempted.
Preventive diplomacy should be undertaken by all parties that have interests in solving the problems, either regionally or internationally. Solutions that account for only national or regional interests and ignore the interests of states outside the region would not be effective, long-term solutions.
Several basic principles for launching an informal initiative should be observed.
1. Use an all-inclusive approach. Do not exclude any directly interested countries or parties.
2. Start with less-sensitive issues that participants will feel comfortable discussing without incurring animosity of their respective governments or authorities. Oil and natural resources, for example, proved to be sensitive topics. Environmental protection is a more comfortable topic.
3. The participants should be senior or important personalities in their governments or authorities, although they are participating in the process in their private capacities.
4. At least in the initial stages, do not institutionalize the structure of the process or create a permanent mechanism. Keep the process as flexible as possible.
5. Differences should not be magnified and cooperation should be emphasized. Bringing provocative international attention too early or immediately internationalizing the process may be detrimental in the long run.
6. In view of the delicacies and sensitivities of certain issues, it is wise to start with what is possible and follow a step by step approach, taking into account principles of cost effectiveness.
7. Understand that the process of managing potential conflicts is a long-term, continual process, where lack of immediate, concrete results should not be cause for despair or frustration.
8. Keep the objectives simple. The South China Sea workshops have three objectives: To learn how to cooperate, to encourage dialogue between the directly involved parties and to develop confidence so the participants feel comfortable discussing difficult issues.
9. The roles of the initiator, the interlocutor or the convener of the process and the roles of disinterested supporters and sponsors are crucial. The initiator, the convener or the interlocutor must be impartial and have patience, dedication, tenacity and sufficient knowledge of the delicate issues involved. At the same time, he or she must be able to retain the respect and the continued support and cooperation of all participants. He or she must have the interests of all in mind and should be motivated by the general good rather than sectoral or group interests, although he or she must be aware of all those conflicting interests and should be in the position to accommodate them. He or she should strive to arrive at the decision by consensus.
After launching the informal process 20 years ago, I have learned additional lessons:
1. Bigger countries in the region should be mindful of the views of their neighbors, especially the smaller ones. The bigger countries should be careful to avoid being perceived as dominating or bullying their smaller neighbors.
2. Attempts should be made to broaden the participants in cooperative programs and deepen the areas of cooperation while promoting the regional states’ growth. The more cooperative efforts are made to develop mutual economic benefits, the more likely success becomes.
3. There should be more emphasis on regional and common interests. The regional countries should learn how to pursue national interests and maintain regional harmony. In fact, they should perceive regional interests as part of national interests.
4. There should be a gradual progression from the concept of national resilience to promoting regional resilience and regional cohesion. The positive experiences of ASEAN have been very instructive. The concept of national resilience teaches that the strength of a country depends on and will be negatively affected by its weakest links. National resilience will increase if the weaknesses of the component parts are remedied and the link and cohesion amongst all the components are strengthened. Equally, regional resilience will be negatively affected by instability in one or more of the national components if the links and cohesion among the members degrades.
5. The countries in the region should be less sensitive to the concept of national sovereignty, since more and more issues that in the past might have been arguably of a national character are becoming more and more regional and have more regional implications, such as environmental issues, certain domestic political stability issues, severe human rights problems and even certain monetary and financial issues, as shown recently in Southeast Asia.
However, ASEAN has been able to develop this notion from the concept of regional cooperation to the concept of constructive engagement, later to the concept of enhanced interaction in the general interest of all and to create a sense of a greater community, either in political and security issues or in economic or social issues.
6. Within the true sense of oriental good neighbors, the countries in the region should be helpful to their neighbors in need if required. Any aid offered by the richer and stronger countries to the poorer and weaker countries in the region should not always be based on calculations of strict national and business interests, but should have a strong element of “do-good-ism” and “disinterestedness”, which in the end will promote stronger regional cohesion.
7. The countries in the region should avoid arms races amongst themselves. In fact, they should be able to coordinate their defensive needs, thus bolstering regional harmony and transparency. There is a lot of non-military security cooperation that could be developed in the region, which in the end would avoid arms races such as preventing piracy and armed robberies at sea, illegal drug trafficking, refugee problems, international terrorism, smuggling and others.
8. Major external powers, wherever possible and practicable, should support the development of a constructive atmosphere in the region for peace, stability and progress.
The external powers, however, should not involve themselves in territorial or jurisdictional disputes unless requested by the parties concerned or if the consequences of the disputes are such that they have already endangered or will be endangering peace and stability in the region.
9. Countries in the region should exercise preventive diplomacy by preventing disputes from becoming open armed conflict or by preventing conflicts from spreading or aggravating. More dialogue and confidence-building measures or processes among all concerned parties, assisted as appropriate by third-party offices, are necessary.
Prof. Dr. Hasyim Djalal represents Indonesia at several UN conferences on maritime law. He has been an Ambassador in Ottawa and Bonn. This article is based on his presentation at the Conference on Joint Development and the South China Sea, hosted by the Singapore Center for International Law.