The rule of law in the seas of Asia

TOKYO—In the seas of Asia, disputes and conflicts frequently arise between China and other countries, particularly around the Spratly and Paracel Islands in the South China Sea. There have been instances in which these countries’ warships and other vessels confronted each other, or even collided. For the seas of Asia to be open and stable, we must first verify the extent to which these countries have the same interpretation of what is and is not allowed under the present international law of the sea, and the points in which they differ. Next, they must work together to come up with remedial measures. With these efforts, the ambiguity and insufficiencies of the international law of the sea should become clear.

Because of the ambiguity of the international law of the sea, the concerned countries’ responses to specific cases are likely to differ. If resolving these differences in interpretation proves difficult, we need to clarify these differences, assume in advance that confrontations and collisions may happen in specific individual cases, and prepare to prevent and mitigate them. In short, we need to properly manage these differences internationally.

The insufficiencies of the international law of the sea make it reasonable to argue for new international rules, or to make a request to change it. There are various factors to determine whether this request is accepted by concerned countries and leads to the thesis for a new international law of the sea, such as systems like the continental shelf and exclusive economic zones that were created in the past. Another important point is whether the international order that forms under the new international law of the sea is better than the existing one.

But in the case of China, it is unclear whether the rule of law in the seas of Asia means the present international law of the sea or a new one corresponding to its vision for a better international order.

In 2002, Asean and China adopted the Declaration on the Conduct of Parties (DOC) in the South China Sea. The DOC advocates compliance with the charter of the United Nations and the UN Convention on the Law of the Sea (Unclos); respect for freedom of navigation in the South China Sea; peaceful settlement of disputes on territorial rights and jurisdiction over the waters; and restraint on acts that could result in the complication and aggravation of disputes.

Because the DOC is not legally binding, the parties also agreed to move forward with the adoption of a legally binding code of conduct (COC) in the South China Sea. No real progress was made after that, but the parties agreed at the fourth official high-level meeting last August to accelerate negotiations on adopting the COC. This sentiment was echoed in the remarks of Liu Zhenmin, China’s vice minister of foreign affairs, who indicated that a draft of a framework for the COC would be completed by mid-2017.

But even if the COC is adopted in the future, it is not certain how effective it would be in overcoming confrontations and disputes in the seas of Asia. Still it is important to encourage countries to clarify their views and the points on which they differ, and share these through negotiations conducted within Asean’s multilateral framework. Asean has adopted a decision-making system called the “Asean Way,” by which the member-countries reach unanimous agreement through negotiations.

If negotiations among Asean countries can clarify the extent to which they share the same interpretation of the Unclos on specific individual problems arising in the seas of Asia and the points in which they differ, they will arrive at a common framework for exchanging assertions and conducting negotiations in the future.

Also, if the concerned countries reach a unified interpretation of the Unclos, they will be able to avoid and prevent disputes from deteriorating. Ultimately, the negotiations for adopting the COC itself could hold great significance toward ensuring the rule of law in the seas of Asia.

Jun Tsuruta is associate professor at Japan’s National Graduate Institute for Policy Studies.