Of Claims and Freedoms: Diverging Perspectives on the South China Sea
BY LUCIO BLANCO PITLO III | OCTOBER 27, 2016 / Originally Posted at ASIA MARITIME TRANSPARENCY INITIATIVE
Power differentials between states affect how they view and respond to the South China Sea disputes. Small powers largely see them as a clash of unilateral territorial and maritime claims over all or part of the semi-enclosed sea, whereas big powers frame them in a more strategic manner – a contest for control over a critical international waterway. Small powers focus on immediate and direct concerns like resource access, whereas big powers stress universal freedoms of navigation and overflight. Lumping claims and freedomstogether muddles and complicates the resolution of South China Sea disputes. Disaggregating them, however, may allow for opportunities to tackle part of the dispute separately.Distinguishing between claims and freedoms narrows the determination of relevant parties and policy priorities. From a claims vantage point, Brunei, China, Taiwan, the Philippines, Vietnam, and Malaysia constitute the competing parties in the South China Sea, with Indonesia downplaying its involvement in the dispute despite a portion of the Natuna Islands’ waters falling within China’s expansive nine-dash line claim. From a freedoms standpoint, states which rely on unimpeded access to the South China Sea for their energy and trade requirements—such as the United States, Japan, and Australia—also figure as players in the contest.
Furthermore, from a claims standpoint, the South China Sea is a natural dispute between neighboring littoral states arising from overlapping maritime regimes—such as exclusive economic zones (EEZs) and traditional fishing rights—sanctioned under the United Nations Convention on the Law of the Sea (UNCLOS). Framers of UNCLOS foresaw the inevitability of conflict between neighboring coastal states, and therefore included provisions to encourage cooperation and peaceful dispute resolution. For instance, UNCLOS carries ample provisions for functional cooperation between claimants that have not yet delimited boundaries, as well as a duty to cooperate for states bordering enclosed/semi-enclosed seas like the South China Sea. It also includes cooperation for the management and conservation of straddling and migratory fisheries stocks, as well as combatting transnational crimes like piracy and narcotics trafficking. These provisions serve as anchors to actual state practice for joint resource development, establishment of regional fisheries management organizations, and collaborative efforts like joint maritime law enforcement patrols to address non-traditional security challenges.
Given these existing mechanisms and established state practices, it can be argued that disputes arising from claims are easier to manage than those arising from freedoms. In addition, the fact that disputants over claims are neighbors creates greater incentive for them to settle, or at least manage, their disputes. In contrast, disputes over navigational freedoms are largely seen as a contest between naval powers. And in the same way that big external powers maintain their strict neutrality on the disputes over claims, small power claimants also strive to maintain their impartiality over great power geopolitical rivalries. There are few mechanisms that govern big power competition, and their continued existence and observance rests largely on the state of relations between the powers. Measures such as the 2014 Code for Unplanned Encounters at Sea fall under this category.
Big powers and small powers, intentionally or unintentionally, blur the boundaries between claims and freedoms to advance their own interests and to make more room for policy maneuvering. To reduce power asymmetry, smaller and militarily disadvantaged Southeast Asian claimants enlist the aid of ASEAN or extra-regional actors like the United States, Japan, Australia, and India. These big powers, in turn, use that role as leverage in their geopolitical contest with China. Big power claimant China, on the other hand, in order to prevent interference of outside powers, considers the South China Sea an issue that should be handled via direct bilateral negotiations with claimants.
In this sense, two views of small powers emerge. The passive view of Southeast Asian states is that external pressures force them to take sides, while the active view holds that Southeast Asian claimants use major power competition to gain support against external threats and improve bargaining position for their claims. However, while it is true that small powers may have free agency, increased big power competition may impinge on their autonomy, limit policy options, and even erode chances for unified diplomacy (as with consensus-based ASEAN).
Deterioration in a claims dispute between a big power and a small power encourages the latter to solicit external support and refrain from entering bilateral talks. The small power will bandwagon with the freedoms issue insofar as it wards off further assertive actions from the big power co-claimant. However, uncertain outcomes, anxiety over further escalation, and failure of the “internationalization” approach to ameliorate tensions and deliver immediate results (e.g. return of access to fishing grounds or offshore energy blocks) may eventually condition accommodation to the big power, especially if the small power undergoes leadership change.
Internationalizing the claims dispute works best when the international community displays greater unity and empathy toward the small power. It becomes less effective when international will to criticize the big power fails to crystallize, the community of nations remains divided on the dispute, and the big power demonstrates a resolve and capacity to weather censure. For instance, lack of ASEAN unity, the inability of the U.S. regional security alliance to deter Chinese actions in the South China Sea, uncertainty over the U.S. election, difficulty in enforcing the arbitral tribunal award, and China’s increasing economic and political clout all encouraged the new Philippine government to recalibrate its strategy on the South China Sea and its relations with the big powers.
Unlike big powers, small powers generally have shorter time horizons and are more vulnerable to critical economic and security dilemmas. From a resource standpoint, the South China Sea is more important for the Philippines than for China. Most, if not all, of the Philippines’ existing offshore energy fields (including its biggest natural gas field, Malampaya) and most of its known reserves are all found just off the west coast, in the South China Sea. Scarborough Shoal (Bajo de Masinloc in the Philippines) is also an important traditional fishing ground for small-scale fishermen of northwestern Luzon. The downturn in Philippines-China relations following the 2012 Scarborough Shoal standoff meant lost economic opportunities while other fellow claimants still enjoyed robust economic and investment ties with China. If small powers like the Philippines fail to obtain modest results in the short term from internationalizing an issue, domestic pressure might compel leadership to try a different tack.
Small powers will continue to carve out an independent space amid big power tussles. Cordial relations between big powers can enable this space to grow, but increased friction between them will shrink it. Global and regional economic impulses and small power autonomous state action can channel big power competition away from the military field and into more productive endeavors, such as infrastructure funding (e.g. China-Japan competition for the Jakarta-Bandung High-Speed Railway and AIIB-World Bank co-financing of the National Slum Upgrading project, both in Indonesia). Big power-small power relations, especially between neighbors, are not necessarily a one-way street and should not be confined to security and political issues. Rather, they should be broad and comprehensive, taking into account other aspects of relations. Small powers can try to play off one big power against another to extract maximum concessions from both sides. Together, small powers can help prevent disputes over freedoms from turning the South China Sea into an arena for big power conflict.