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en, countries in the region should develop cooperative efforts so that potential conflicts could be managed by converting them into actual cooperation.

Any potential conflicts also contain elements for cooperation. Efforts to formulate and implement cooperative projects should move beyond the expression of political support to actual implementation by providing the necessary financial, technical and administrative support.

11. Countries in the region should develop various forums for dialogue — either bilateral or multilateral, either formal or informal. The various forums should hopefully, in the end, be able to produce a set of agreed upon codes of conduct for the region. The contribution of track-two activities to preventive diplomacy should not be underestimated.

12. Countries should pursue various avenues of peaceful settlement of disputes through negotiation, bilateral if the disputes are bilateral or multilateral if the disputes are multilateral. Since most of the parties are already members of the UN and parties to the 1982 UN Convention of the Law of the Sea and all have pledged their commitments to peaceful dispute settlements, they should put those commitments to practice by solving their disputes peacefully as soon as possible.

13. Third-party mechanisms for settling disputes should also be explored and utilized, such as good offices, mediation, arbitration and, if necessary, adjudication through the International Court of Justice or the Law of the Sea Tribunal. The 1976 ASEAN TAC (Treaty of Amity and Cooperation) had already formulated certain mechanisms for settling disputes among ASEAN countries, although they were never invoked. A new mechanism for the South China Sea as a whole should be considered, either by drawing from the TAC or from other models.

14. The countries in the region should attempt to settle their land, maritime and jurisdictional boundaries as soon as possible and respect the agreed upon boundaries. They should not settle boundary problems by unilaterally enacting national legislation, because legislation tends to harden positions rather than enabling parties to seek solutions. Delays in settling territorial and jurisdictional disputes are not helpful in promoting regional peace and stability. In fact, the longer the delay, the more each party’s position hardens, making it more difficult to settle the dispute, detrimental to the countries concerned and to the region as a whole.

15. In some disputed areas, the application of a joint development concept might be useful as long as the zone of the dispute, the subjects to be jointly developed, the mechanism for such a joint development and the participants in such a joint development concept can be identified and the parties concerned are willing to negotiate seriously on the modalities for the joint development concept in a particular area.

16. While encouraging track one activities in the Asia Pacific region to be more responsive and imaginative in dealing with potential conflicts, more discussion through track two activities – including academics and think tanks – could also be helpful.

17. The interests of non-regional countries should be taken into account, and their potential contribution to avoid conflict in the region should not be discarded altogether.

18. Recently, there have been suggestions that certain ASEAN countries should unite against China on the South China Sea territorial and jurisdictional issues (for instance, as published in Kompas, on June 1, 2011). This endeavor may be difficult for several reasons:

a. Some ASEAN countries are already in dispute with each other, such as the Philippines and Malaysia. In fact, when Malaysia and Vietnam jointly submitted the limits of their continental margin in the South China Sea to the United Nations Continental Shelves Commission, it was protested by the Philippines and China.

b. Among the 10 ASEAN Countries, there are four countries involved in the territorial disputes in the South China Sea (Vietnam, Malaysia, Brunei and the Philippines), the other six (Indonesia, Singapore, Thailand, Cambodia, Laos and Myanmar) are not involved or are not directly involved. Except within the context of solidarity, the six may not have specific interests to get involved in the territorial dispute, except for the need to assure peace and stability in the region. It may be possible, though, that the six ASEAN non-claimants may make a joint initiative to offer good offices to bring the four claimants to the negotiating table with the other two non-ASEAN claimants.

c. The formation of ASEAN unity against China would seem to be a confrontational approach rather than cooperational. The SCSW process was motivated by a cooperational approach within the last 20 years in order to avoid confrontational situations. Experiences have indicated that China seems to be more responsive to cooperation than confrontation.

d. Finally, with regard to possible joint development for the hydrocarbon resources in the South China Sea, this possibility exists if the countries concerned can take into consideration some of the lessons that I have enumerated.

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.