ASEAN and the Prospect for Solutions to Disputes in the South China Sea

Figure 1: The South China Sea region

Source: South China Sea-Reference Map-Us CIA; available from

http://community.middlebury.edu/~scs/maps/South%20China%20Sea-reference%20map-US%20CIA.jpg

The South China Sea contains some of the world’s busiest sea lanes, which links the Northeastern Asia and western Pacific with Indian Ocean and the Middle East. More than 41,000 ships pass through the South China Sea a year[2]. Tanker traffic through the Strait of Malacca at the Southwestern end of the SCS is more than three times greater than that of the Suez Canal and well over five times more than that of the Panama Canal[3]. More than 80 % of the oil imported by Japan from the Middle East, Brunei, Malaysia and Indonesia transits through this area[4]. The SCS is also an important body of water that provide fish resources from fishing vessels of Japan, China, Taiwan, Vietnam, Cambodia, Indonesia, Malaysia, Brunei, Singapore and Thailand.

Apart from being the vital sea lane, the SCS is rich in fish resources and potentially rich in soil. Some Chinese experts estimated that the SCS could a reservation of as much as 225 billion barrels of oil and natural gas[5].

At the present, Brunei, Malaysia and Vietnam are all oil exporters, whereas, China have been the world’s greatest oil importers since 1993. China consumes about 7.85 million barrels per day[6] and by 2010, the figure is expected to go up to 10 – 12 million barrels, 53% of which are imported. In May 2008, China became the second largest oil importers in the world after Japan.

46% of its imported oil is from the Middle East, 32% from Africa and 5% from East Asia. More than 80% of China’s imported oil transits through the Strait of Malacca[7]. Advanced technology and the big oil reserves on the continental shelf and the other sea areas will make the South China Sea strategically important to any nation in the region, and particularly China, a nation with ambition to spread its influence over the world. Even, if the full extent of its claims over the territorial waters is accepted by other nations, China’s jurisdiction will be extended some one thousand nautical miles from its mainland, an area equal to that of the Mediterranean, to dominate the maritime heart of Southeast Asia[8]. The presence of China Navy in the region will not only threaten Philippines and Vietnam, but also Brunei, Indonesia and Malaysia. Additionally, China’s control over the South China Sea also threatens the security of Japan, the United States or any country transiting through the region.

Even though its naval power is not really strong, China never conceals its ambition to dominate the South China Sea. To date, China do not possess any aircraft carrier, however, they have planned to build two carriers in the years ahead. In February 2009, China sent some warships to Aden Bay and had a nuclear submarine base in Hainan. China openly stated their intent to implement Mahan’s doctrine[9] with a view to turn China into a regional naval power that can dominate the world.

In China’s scheme, the South China Sea has a position of great strategic importance. China, with an ambition toward the seas has envisioned the two main island chains[10], the first of which serves as a gateway to the second one, gradually control the Pacific Ocean and the Indian Ocean; thus fulfill China’s dream of being a naval power.

Figure 2: The first island chain and the second island chain in the seaward strategy of PRC

Source: Annual Report to Congress, Military Power of the People’s Republic of China, 2009, Office of the Secretary of Defense, Department of Defence, United of States of America.

             II. OVERLAPPING CLAIMS IN THE SOUTH CHINA SEA

The dispute in the South China Sea has impacted on regional bilateral relations and continues to trouble ties between the People’s Republic of China (PRC) and the Association of Southeast Asian Nations (ASEAN).

The Paracel Archipelago is now a subject of dispute between Vietnam and China (Taiwan included). China has controlled the Archipelago through the use of force since 1974. The Spratly Archipelago is the territory in dispute among Brunei, China (also include Taiwan), Malaysia, the Philippines and Vietnam. The dispute has been heavily influenced by a wide range of intertwined factors such as economy, legal matters, strategic diplomacy and other geopolitical interests.

The dispute in the South China Sea may be examined in the Context of the Third United Nations Convention of the Law of the Sea (UNCLOS III). The UNCLOS III was approved by the United Nations on 30th April 1982 and came into force on 16th November 1994. All the ASEAN and China has become the state member of the Convention.

The Convention provides the legal jurisdiction over the territorial waters of the coastal states. The convention governs internal water, archipelagic water, territorial sea, contiguous zone, exclusive economic zones, continental shelves and high seas. It provides coastal states with the authority to extend their sovereignty jurisdiction under a specific set of rules. It also provides for the extension of territorial sea to 12 nautical miles and limits the contiguous zone to 24 nautical miles from the baselines. The sovereignty rights of a coastal states over the Exclusive Economic Zone are limited to the exploration and exploitation of its living and non-living resources. Continental shelves may not be extended beyond a limit of 350 nautical miles from territorial baseline. The sovereignty rights of coastal states over the continental shelves are reduced to the exploration and exploitation of non-living resources.

It is debatable, however, whether most of the Spratly Islands can generate maritime zone. Article (1) 121, UNCLOS III defines an island as a naturally formed area of land, surrounded by water, which is above water at high tide. An island is capable of naturally supporting life. Reefs in contrast cannot sustain human habitation or economic life and have no exclusive economic zone or continental shelf[11]. Feature that cannot sustain human life and artificial island are only entitled to 12 nautical mile territorial sea and 500 meter safety zone respectively.  Therefore, most islands in the Spratly Archipelago only feature 12 nautical mile territorial sea.

The claims made by the parties involved in the South China  Sea dispute can be separated into historical claims of discovery and occupation of islands in the Paracels and Spratlys and claims that rest on the extension of sovereign jurisdiction under interpretations of the provisions of the UNCLOS 1982. The People’s Republic of China views the South China Sea as an exclusive Chinese sea and claims nearly 80% of the sea through “U-shaped line”[12]. Its claims are based on the discovery and occupation of the territory. Since the ratification of the UNCLOS in May, 1996, PRC claimed a straight base line around the Paracel Archipelago while under the UNCLOS only archipelagic states, exercise the rights to such a straight line, Indonesia and the Philippines are the only two archipelagic states in the region.

Relying on similar legal arguments, Taiwan has claimed their same territorial sovereignty as China’s. Since 1956, Taipei has occupied the island of Itu Aba, the largest feature in the Spratly group. The People’s Republic of China has supported for Taipei’s territorial claims in the dispute[13].

Vietnam’s claims (including the claims indicated by the government of  the Republic of Vietnam) are based on historical claims of discovery and occupation[14].

The original ASEAN members[15] involved in the dispute present their claims relying on International Law, including the extension of the continental shelf, rather than on historical evidence. Among the member countries, the Philippines claims the largest area of the Spratlys – a feature referred to as Kalayaan (a land of freedom in the Philippine language). First officially proclaimed in 1971, a 1978 presidential decree declared Kalayaan as part of the Philippines’ national territory[16]. The Philippines also established a 200- nautical-mile Exclusive Economic Zone. Meanwhile, Malaysia extended its continental shelf in 1979 to include features of the Spratlys in its territory[17]. Brunei then established an exclusive economic zone of 200 nautical miles that extends to the south of the Spratly Islands and comprises Louisa Reef[18]. Finally, Indonesia is not a party to the Paracel and Spratly dispute; however, the waters above the Natuna gas fields, currently exploited by Indonesia were within the extension of Chinese claims with the U-shaped line[19].

             III. ARMED CONFLICTS AND STATUS QUO IN THE SOUTH CHINA SEA

China’s naval power and ambitions to dominate the region has seriously challenged ASEAN. With the exception of Vietnam and the Philippines, who feel threatened by China’s actions, the problem of sovereignty in the SCS is not regarded as a direct threat to the national security of the individual ASEAN countries[20]. It looked like that all states left the dispute status quo exist because of their own calculations. China and the ASEAN countries have been negotiating for years for a code of conduct for the South China Sea. Beijing does not want to be bound by a multilateral commitment which limits its ambition in the Spratlys to dialogue. Furthermore, there exists a division in ASEAN, specially differences in points of view by Malaysia on the one side and the Philippines and Vietnam on the other side in connection with the Code of Conduct in the South China Sea.

The People’s Republic of China has, on many occasions used its superiority of military strength to gain footholds on necessary positions. In January 1974, China succeeded in driving out the military forces of the Republic of Vietnam from the Paracels and quickly gained control of the islands. This military action was partly the Sino-Soviet struggle but reinforced China’s influence in the South China Sea. Partly, the PRC remained absent from the Spratly Islands until the second half of the 1980s. Claiming the entire archipelago, China needed urgently to secure a military presence in the Spratlys through the use of force. Most claimants have maintained their forces in reefs in the Spratlys. A naval confrontation with Vietnam on 14 March 1988 led to renewed Chinese seizure of territory. Yet the issue was overlooked in most ASEAN capitals due to the ongoing Cambodian Conflict (1978-1991). Moreover, the People’s Republic of China did not act aggressively against any of the ASEAN claimants during that period[21].

After the resolution of the Cambodian Conflict with the signing of the Paris Accords in October 1991, the territorial dispute over the Spratlys drew more attention.  February 1992 Beijing passed the Law of China on the Territorial Waters and Contiguous Areas[22]. It reiterated China’s claims in the South China Sea and stipulated the right to use force to protect islands, including the Spratlys, and their surrounding waters. The law blatantly challenged the peaceful resolution of the territorial dispute enshrined in the UN charter and was regarded by ASEAN as a direct military provocation.

On February 8, 1995, the Philippines discovered the occupation of Chinese military forces in the Mischief Reef, located in Kalayaan, one part of the Philippines’ territory. And then, the conflict between the two sides broke out. This was probably the first time, China directly came into conflict with a member of ASEAN on the issue of territorial sea.

The Mischief Reef incident occurred against a special background of the withdrawal of the US from Subic Naval Base and Clark Air Base in the Philippines in 1992, leaving power vacuum in the South China Sea that created opportunity for China to assert its military presence in the Spratly Island, following the1988 incident. Then Philippine President Fidel Ramos energetically condemned China’s   action.   Manila   responded   to   the   discovery   of   the   Chinese occupation  by  seeking  multilateral  support  and  taking  retaliatory  measures  that included  the  destruction  of  Chinese  territorial  markers  and  the  arrest  of  Chinese fishermen  in  March  1995[23].  The Philippines also announced a defence modernization programme. China and the Philippines eventually signed in August 1995 a bilateral agreement that rejected the use of force and called for the peaceful resolution of their bilateral disputes in accordance with the principles of the 1982 Convention on the Law of the Sea.

Since  the  Mischief  Reef  incident,  it looks like that China has considered a “status quo” and moved on to respect international norms and standards rather than undermining the international order. One scholar stated that "Beijing’s diplomacy has been remarkably wise and sharp, seeking support of the whole region”[24].

This has been proved by its actions in the South China Sea as well as its attempt to expand the presence in the Mischief Reef. Even though it expanded its military bases on the Reef in November 1998, Beijing’s policy towards the South China Sea has  been  developed in  recent  years  toward dividing  the  ASEAN countries. China’s willingness to give economic assistance to ASEAN countries can be explained by its attempts to seek other support to compensate for the loss results from the Sino- Japanese tensions and the connection with the re-establishment of U.S military bases in Southeast Asia after the 1 September 2001 incident.

The use of military force to take control of reefs has led to friction over the disputed territories. Tension has surged between the Philippines and Malaysia, Malaysia and Vietnam, and Vietnam and the Philippines. In March 1999, Malaysia’s seizure of Navigator Reef, claimed by the Philippines, strained relations with Manila and was condemned by Vietnam, Brunei and China. In August 2002, Vietnamese troops based on one islet fired warning shots at Philippine military planes flying overhead. Additionally, some claimants have also  used  non-military means to advance their interests. In May 2004, Vietnam started re-building a runway  on  the  disputed  island  of  Truong  Sa  Lon  (Big  Spratly)  with  the  purpose  of sending of Vietnamese tourists to the South China Sea. China energetically condemned the Vietnamese actions and  claimed that Vietnam must abide by the Declaration on the Conduct of Parties in the South China Sea.

Most of the reefs in the Spratly Islands are too small to build military bases and carry out military activities. At present, China still has not acquired sufficient conditions to control the entire Spratly Islands by military means. However, China naval forces have been modernized and become more powerful navy than those of any country in the region.

China’s power as well as its military operations in the Spratly Islands worry the concerned disputants, especially Vietnam and the Philippines. Vietnam is deeply aware of the antagonism between itself and China from its millennium-old history; therefore, the conflict in the Spratly Islands is an extension in a series of events related to the  relationship between the two countries.

However, Vietnam does not possess sufficient military strength to oppose increasing military actions by China in the South China Sea. Against the influential naval power in the South China Sea, Vietnam should seek support from the outside, yet Vietnam still has no military relations with the U.S even though two sides established official relations on 11 July 1995. Furthermore, the U.S. has clearly expressed that the view that it will not involve in the dispute in the South China Sea.

The Mischief Reef incident also showed that how disadvantageous in this dispute the Philippines is when their military forces is not sufficiently strong. In addition, the Philippines were unable to involve the United States in this dispute, except for a statement on the freedom of navigation on international sea lanes. Instead, The United States reminded Philippines that its territorial claims were  not  covered  by  the  Mutual  Defence  Treaty  of  30  August  1951[25] between the two sides. The US unwillingness to get  involved  in  the territorial dispute may result from a desire not to further complicate its relations with China. In that context, the Philippines has agreed to sign  a  Visiting  Forces  Agreement  with  the  United  States  in February 1998[26], to strengthen its deterrence against China.

Vietnam  and  the  Philippines  cannot  rely  on  ASEAN  for  security. The Association is unable to support in the South China Sea. ASEAN does not have any military agreements and is not able to build military alliance, therefore; ASEAN members are confronted with a permanent threat. All ASEAN members are concerned about China’s increasing influence, between them  and China but there are so many ties of races, economic matters and external ones. In addition, the ASEAN countries feels that they do not benefit from military confrontation with China in the South China Sea. Briefly, "ASEAN is not capable of carrying out military activities because the Association does not have a permanent army and no member countries are willing to enter into a military alliance.[27]

             IV. THE IDEA OF A CODE OF CONDUCT IN THE SOUTH CHINA SEA

The Mischief Reef incident worried ASEAN and requires their immediate action. The Philippines and Vietnam with the weakness of military potential, especially the Naval forces, had to find another support. They can not rely on ASEAN as a military block or military alliance, but they can enlist ASEAN for diplomatic measures in multilateral negotiations to adopt a law on the Code of Conduct in the South China Sea which helps them maintain the position in the South China Sea against a stronger competitors. Prior to this incident in 1995, ASEAN made no public statement regarding any non-member in the issue of South China Sea. ASEAN hopes that China and ASEAN will jointly approve the law on the Code of Conduct in the South China Sea which can restrain China from the use of  military strength to resolve this maritime dispute.

A multilateral dialogue to resolve sea disputes between China and ASEAN was firstly established through a workshop called “Managing Potential Conflicts in the South China Sea”. This Workshop was conducted in Indonesia with the financial sponsorship of Canada, It focused on building trust among the parties before the dispute is resolved. The Workshop avoided the issue of sovereignty and concentrated on cooperation. These workshops taking place during the 90s always encouraged multilateral dialogues to control the conflict as well as the use of peaceful measures to resolve conflicts. In January 1990, a small seminar was held in Bali to make a premise for a preliminary meeting among the ASEAN members. The next seminar was held in July 1991 in Bandung, including members of ASEAN and China, Taiwan, Vietnam and Laos. In his inaugural speech, Indonesian Foreign Minister, Ali Alatas stated: "It is our views to  continue looking for a general cooperation framework instead of Potential Conflicts, from which all parties benefit”[28]. However, the conference ended with no result as expected.

In  July  1992,  the  ASEAN  Foreign  ministers  signed  the  ASEAN Declaration on the Conduct in the South China Sea in Manila - the capital of the Philippines, in line with the idea of Bandung Conference earlier. The Manila Declaration is the attitude expressed publicly by ASEAN for the first time, however, it did  not  deal with  the  problem  of  sovereign jurisdiction but was instead an attempt to promulgate an informal code of conduct based on self-restraint, the non-use of force and peaceful resolution of disputes. All these principles are based on the norms and basic principles initially introduced in the ASEAN Treaty of Amity and Cooperation (TAC) of 1976. It relied on the norms and principles initially mentioned in the ASEAN Treaty of Amity and Cooperation of 1976. This was the fore-runner of the Code of Conduct in the South China Sea based on the notions of conflict management and avoidance rather than conflict resolution. Despite overlapping claims, the member states share an interest in promoting regional stability and avoiding any confrontation with China.

However, the success of the Manila Declaration was belittled by the lack of support by parties directly involved. While Vietnam supported the Declaration, China refused to recognize the Manila Declaration, to accept the principles contained in the Declaration. Beijing has repeatedly stated its preference for bilateral dialogue rather than multilateral solution for the dispute in the South China Sea. Meanwhile, the U.S does not seem to support the Declaration, retaining a neutral position and avoiding being involved in the dispute.

At the first ASEAN Regional Forum (ARF) meeting in July 1994, China’s Foreign Minister Qian Qichen repeated Beijing’s peaceful intentions and rejected the use of force as a means to solve the dispute[29].Yet China refused to discuss the question of sovereign jurisdiction in a multilateral forum. By limiting itself to bilateral negotiations with the other claimants, China aimed to dominate the discussions. Through these difficult negotiations, an idea of a Code of Conduct in the South China Sea was developed. Prior to the second ARF meeting in August 1995, however, China’s Foreign Minister Qian Qichen made some concessions to the ASEAN members. He declared that China was prepared to hold multilateral discussions on the Spratlys, rather than hold bilateral talks, and to accept the 1982 Convention on the Law of the Sea as a basis for negotiation[30]. These concessions resulted from a need to accommodate the Southeast Asian countries in light of the Mischief Reef incident, as well as from a deterioration of Chinese relations with the United States and Japan. Yet they did not alter China’s territorial objectives in the South China Sea, as Beijing was still unwilling to address the question of sovereign jurisdiction and repeated its territorial claims over nearly the entire area.

At the informal ASEAN Summit of November 1999, the Philippines, supported by Vietnam, proposed a new draft of a Code of Conduct. The draft contained provisions based on the ideas to peacefully manage the South China Sea by preventing a deterioration of the situation. In particular, it aimed at preventing an additional occupation by the claimants of disputed and still uninhabited features. The initiative seemed more feasible than the 1992 Manila Declaration. It tried to move beyond simple assertion of standard principles and proposed joint development of the Spratly Islands. The Philippine’s draft was rejected by both China and Malaysia[31]. Malaysia had until the 1990s been critical of China’s actions in the Spratly Islands but its diplomatic stand on the South China Sea gradually changed over subsequent years and came closer to the Chinese position. Malaysia refused to address the question of sovereignty. It favoured bilateral negotiations with China and preferred to avoid a binding regional code of conduct or external mediation. At the ASEAN Summit of 1999, the Chairman’s press Statement of the Informal Summit declared that “the Heads of State and Government would note the report of the Ministers that ASEAN now has a draft regional code of conduct, and further consultations will be made on the draft with a view of advancing the process on the adoption of the code”[32].

Malaysia proposed a declaration for the Spratly Islands at the ASEAN Ministerial Meeting (AMM) in Brunei in July 2002. However, this non-binding document even failed to mention the Spratlys by a name in English. It was also unclear whether the document would be referred to as a code of conduct or as a declaration. Most member countries refused to support the Malaysian proposal, with Vietnam and the Philippines insisting, for instance, on the adoption of a binding document for the South China Sea. Unable to reach consensus, the Foreign Ministers announced in the joint communiqué their decision to work closely with China towards a Declaration on the Conduct of Parties in the South China Sea.[33] The ASEAN Foreign Ministers and China’s Vice Foreign Minister Wang Yi finally signed a Declaration on the Conduct of Parties in the South China Sea on the sidelines of the ASEAN Summit in Phnom Penh, Cambodia in November 2002. The agreement was intended to prevent further tensions over the disputed territories and to reduce the risks of military conflict in the South China Sea. The parties stipulated their adherence to the principles of the UN Charter, UNCLOS, the ASEAN Treaty of Amity and Cooperation of 1976 (TAC) and the Five Principles of Peaceful Coexistence and reaffirmed their respect for and commitment to ‘the freedom of navigation in and over flight above the South China Sea[34]. They agreed to resolve their territorial disputes by peaceful means, ‘without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law[35]. The parties also pledged to practice self-restraint in activities that could spark disputes and to enhance their efforts to “build trust and confidence between and among them”[36].

In summary, the signing of the 2002 Declaration on the Conduct of Parties in the South China Sea among the claimants was the first step for setting a foundation to ease tensions over the disputed territories in the Spratly islands. The diplomatic process was dramatically hastened after China had landed troops in the Mischief Reef. The DOC shows a desire by the different parties involved to pursue their claims by peaceful means. It openly denounces the use of force in the South China Sea and sent a message that the parties would be willing to work together for a joint agreement. In that sense, it contributes to the easing tensions among the claimants. The Declaration on the Conduct of Parties is essentially part of ASEAN’s search “for explicit confirmation that China’s presence in the South China Sea will not jeopardize peaceful coexistence”[37]. This shows that though it took on the significance of a multilateral commitment paving the way for co-operation in the disputed territories, the Declaration is not considered as an important step forward in controlling conflicts and making resolutions. The Declaration does not help prevent territorial clashes or other possible sources of conflict such as the arrest of fishermen by foreign navies and the building of military forces on reefs. Tonnesson points out that “the Declaration does not establish a legally binding code of conduct: it is simply a political statement”[38].

The failure to develop a code of conduct should be blamed on all claimants. China does not want to be bound by a multilateral code providing for its conduct in the South China Sea. Moreover, the code would limit itself to the sovereignty over the Spratlys and focus on dialogue rather than sovereign jurisdiction. Nevertheless, the absence of consensus and solidarity among the ASEAN member countries o in connection with the South China Sea needs to be kept in mind, particularly between Malaysia on the one hand, and the Philippines and Vietnam on the other. The ASEAN claimants involved in the dispute are also unwilling to shelve their territorial claims and moved together to resolve the problem of sovereign jurisdiction. Finally, cooperation on the South China Sea has been affected by mistrust existing even among the ASEAN claimants. Differences among ASEAN countries made it difficult to develop a Code of Conduct in the South China Sea[39].

V. CONCLUSION

The sea disputes in the South China Sea remain a status quo. Diplomatic measures to manage or even resolve the disputes have been rather limited. The 1992 Declaration on the South China Sea only applies to the ASEAN countries while the 2002 Declaration on the Conduct of Parties in the South China Sea is based on a multilateralism aimed at resolving the dispute by peaceful means. Pending a resolution to the disputes, the Declaration is a political agreement. Despite the use of force by China and others to take control of some uninhabited features in the South China Sea, the measures taken remains primarily political rather than military. China has so far managed to divide and maintain military threat against the Southeast Asian countries[40].

In the short and medium term, a major armed conflict leading to the confrontation between China and the ASEAN seems unlikely although risks exist of military clashes. In the longer run, however, the sea disputes could become a major military threat to China, the ASEAN countries and the other parties concerned if these countries continue the armed race. As oil prices have risen substantially over recent years, the strategic environment in the South China Sea would see complicated and unpredictable developments. Whether the strategic environment would change for the better or worse depends on the regional and global geo-politics and the status of China-ASEAN relations. There are many reasons for us to be more optimistic when examining the conflicts and measure to resolve them.

It is possible that in a near future, the claimants to the South China Sea would not be able to resolve sovereignty, a complicated and sensitive problem considered sacred and very important. However, we can expect a moderate solution from the parties involved on joint exploration and development in these disputed territories.

Lecturer, Law School, Ho Chi Minh National University, Viet Nam