The Jakarta Post, Tue, September 6 2016 – With prevailing international legal measures producing stalemate and tension in the South China Sea (SCS), ASEAN and Indonesian experts are looking for innovative solutions to reach stable peace in the disputed waters.
Many regional and global options were discussed during the 2nd High Level International Workshop on Thursday, but particular attention was given to a proposal by Donald Rothwell, head of the Law School at the Australian National University and an expert on international maritime law, who suggested the formation of a new SCS commission.
This was seen as the most promising solution because all claimant states, particularly China, are more likely to respect the authority of an intergovernmental body that is not based at The Hague.
“The main criticisms emanating from this region is that current international law reflects a Eurocentric approach,” Rothwell said.
By setting up a new institution in the East, he said China would be more open to changing its view that external tribunals “lacked jurisdiction” — outlined in its December 2014 Position Paper and in its response to the Annex VII ruling in July.
Rothwell said the commission would comprise 15 regional and international members. All claimant states will be represented, namely Brunei, Malaysia, Indonesia, the Philippines, China and Vietnam. The remaining nine states consist of other non-claimant states in the region such as Singapore, Australia, Myanmar and Thailand.
Rothwell included Indonesia as a claimant state, although the country has repeatedly positioned itself as a non-claimant state.
Indonesia’s neutrality is now being questioned due to the increasing number of fishery conflicts involving Indonesia, said Haryo Budi Nugroho, an advisor to the Special Envoy to the President of the Republic of Indonesia for Maritime Delimitation.
“This neutrality has been called into question even though Indonesia fails to meet the traditional definition of a claimant state — a party that claims a right to a piece of land, a portion of the maritime waters or an island in the SCS,” he said.
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“China’s refusal to cooperate would automatically dismiss any case brought forward.”
Haryo added that Indonesia had evolved into something like a claimant state during the prolonged dispute.
Rothwell suggested that the commission have jurisdiction over subjects that no single UNCLOS dispute resolution mechanism covered. The subjects encompass land and maritime disputes, sovereignty over islands, rocks, reefs and low-tide elevations, maritime boundaries and entitlement to maritime features.
Although the International Court of Justice covers all these subjects, it requires both parties to give formal consent, he said.
“China’s refusal to cooperate would automatically dismiss any case brought forward,” he added.
Operating in three stages and in consultation with technical experts, the SCS Commission would have a “mediation capacity through the role of the commission president” that triggers a conciliation (non-binding) process if mediation fails and finally activates an arbitration (binding) if conciliation fails.
“All stages are to occur in a set time-frame to ensure a quick resolution,” Rothwell said.
Another possible solution was expressed by foreign policy observer Veeramalla Anjaiah, who called on China to forfeit its claim over the SCS through its “nine-dash line”.
“It starts and ends with China,” he said. “The ‘nine-dash line’ is the mother of all disputes.”
Meanwhile, Connie Rahakundini Bakrie suggested increasing the “regionalization of security” by increasing Indonesia’s naval capabilities through cooperation with Australia.
“By creating four fleets, Indonesia can replace external parties like the United States in the role of maintaining peace and order. As a Non-Aligned Movement member Indonesia is less likely to antagonize China,” said Connie, chairwoman of the Indonesian Institute for Maritime Studies.
Currently, Indonesia has a Western Fleet and an Eastern Fleet with a proposed Central Fleet. Connie also proposed the formation of a Pacific Fleet.
However, Rothwell went against Connie’s idea, saying that while a regional approach was necessary, expanding militarization would only increase tensions.
Siswo Pramono, head of the Foreign Ministry’s Policy Analysis and Development Agency, agreed, and said that “every effort to demilitarize the region would be beneficial”.
“ASEAN’s tendency to meet with one another before talking to external parties” is an essential part of the “quiet diplomacy [that] is central to how ASEAN works,” he said.
By using quiet diplomacy, Siswo said ASEAN nations could avoid misunderstandings that could escalate tensions.
