The South China Sea: Back To Future? By Mark J. Valencia

They could dispense with nationalist rhetoric and legally unsupportable areal and baseline claims. They could build a web of functional co-operative arrangements in marine environmental protection, marine scientific research, navigational safety and search and rescue. None of these arrangements would threaten existing positions and they can all contain a clause that affirms that such arrangements are non-prejudicial to sovereignty and jurisdictional claims. As for a grand solution to the South China Sea disputes, this will be a long time in coming --- if ever. But the alternative – a festering sore covered by a scab that can be picked every time relations deteriorate or extra regional powers wish to do so --- should be a nightmare no regional state wants to repeat. But the window of opportunity [for an interim resolution] is closing.

Unfortunately, there has been little positive progress regarding the disputes. To the contrary, over the past two years there has been a sequence of developments regarding the South China Sea that has significant implications for regional security. These include the Impeccable incident, China’s unilateral banning of fishing in the Gulf of Tonkin and its arrests of Vietnamese fishing boats,[3] China’s declaration of the South China Sea as a “core interest,”[4] the Vietnam/Malaysia joint extended continental shelf submission, China’s official objection thereto, the US statement of ‘national interest’ in the outcome of the disputes, its offer to mediate them, China’s strong rejection thereof, and the ‘softened’ US-ASEAN statement on the South China Sea. These developments have occurred in the context of deteriorating US/China relations and a regional debate regarding the nature and very desirability of a US security role in the region. Moreover, these developments have become conflated and are reinforcing, raising fundamental questions for Southeast Asia concerning its regional security. This paper analyzes these threads and their reinforcing nature, identifies some of the fundamental questions they raise, and concludes that a dramatic compromise may be necessary to avert a worst scenario.

Recent Developments

US Secretary of State Hillary Clinton’s statements at the July 2010 ASEAN Regional Forum in Hanoi-- including a US offer to mediate the South China Sea disputes—not only triggered an angry response from China at what it views as US interference in its affairs,[5] but also a wave of China “threat” pieces in the Western media.[6] The United States has cleverly conflated some ASEAN countries’ fear of China’s aggressiveness regarding their conflicting claims to various features and ocean space in the South China Sea with its own angst regarding freedom of navigation. But as the United States well knows or should know, China’s objections to certain US military intelligence gathering activities in its exclusive economic zone have little or nothing to do with its purported claim to much of the South China Sea. Indeed, China is not challenging freedom of navigation itself but what it perceives as US abuse of this right. The activities of the US’s EP 3, the Bowditch, and the Impeccable probably collectively included active “tickling” of China’s coastal defenses to provoke and observe a response, interference with shore to ship and submarine communications, ‘preparation of the battlefield’ using legal subterfuge to evade the consent regime for marine scientific research, and tracking China’s new nuclear submarines for potential targeting as they enter and exit their base. Few countries would tolerate such provocative activities by a potential enemy without responding in some fashion. If actual, these are not passive intelligence collection activities commonly undertaken and usually tolerated by most states, but intrusive and controversial practices that China regards as a threat of use of force. A threat of use of force is a violation of the UN Charter let alone the 1982 Convention on the Law of the Sea. These activities should be carefully examined and adjudicated by a neutral body to determine if they are “legal” or not. But such an inquiry would risk making Secretary Clinton’s statement that the United States ‘opposes the use or threat of force‘ by any claimant seem a bit hypocritical.

Knowing ASEAN claimants’ concerns and desiring to give China a ‘come-uppance’ regarding its lack of co-operation in punishing North Korea after the Cheonan sinking – and still smarting from the Impeccable incident—the United States verbally ambushed and embarrassed China in front of an Asian audience in its sometime nemesis, Vietnam. What made it worse for China was that the US call for multilateral negotiations was publically supported by several ASEAN countries despite the fact that China had privately asked them not to broach the subject and not to try to present a common position.[7] Now China believes the United States has fundamentally changed its policy on the South China Sea disputes and is essentially taking sides against it. The key phrase in Clinton’s speech was “legitimate claims in the South China Sea should be derived solely from legitimate claims to land features.”[8]

But if the ASEAN claimants – Brunei, Malaysia, the Philippines and Vietnam – think that such US statements favor their claims, they may need to think again. Secretary Clinton also said that the “United States has a national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China Sea.”[9] The claims by the Philippines to a large swath of features and the Sea as Kalayaan, and that of Malaysia to various features because they happen to lie on its claimed continental shelf are as spurious and weak as China’s historic ‘nine-dashed line’ claim. Moreover, Vietnam and Indonesia-- which has also formally objected to the relevant UN committee to China’s South China Sea claim ---contrary to the Convention that they have ratified-- do not allow innocent passage of foreign warships in their territorial seas without their consent, while Malaysia does not allow foreign military exercises in its claimed EEZ. The ASEAN claimants need to sort out their territorial and jurisdictional claim differences with each other and international law as well.

Despite US arrogance in offering to ‘facilitate’ multilateral talks on the South China Sea disputes – which is what really infuriated China – it is clear that China has been its own worst enemy in this matter. It refused to file a joint claim with Malaysia and Vietnam to extended continental shelf in the South China Sea. It then filed an objection to their claim attaching a map with its nine-dashed line ambiguously claiming most of the Sea. It publicly categorized the South China sea as a “core interest”[10] akin to Tibet and Taiwan, i.e. something it would fight over, and allowed its Ministry of Defense spokesperson Geng Yanshen, to say “China has indisputable sovereignty of the South Sea and China has sufficient historical and legal backing” to underpin its claims. These actions, its rising nationalism and accompanying large military exercises in the area provided a diplomatic opportunity for the United States and pushed the ASEAN countries into the US corner.

But it is still not clear whether China’s claim is to the features (and their territorial seas) or to the sea as well. To ameliorate ASEAN fears, China should immediately clarify exactly what it claims and why in the context of the 1982 Convention on the Law of the Sea. It should also elaborate in contemporary understandable ‘ legalese’ its objections to US military intelligence gathering activities in its EEZ. And to counter the US diplomatic advantage, China should agree with ASEAN on a formal Code of Conduct for the South China Sea. If this transpires then the US ploy will have helped tamp down the disputes over claims.

But the cost may have been high. China is unlikely to forgive or forget the fact and especially the manner of US interference. If anything, it may have convinced China that the die is cast. It could confirm its worst fears that the United States is stealthily trying to draw ASEAN or some of its components together with Australia, Japan and South Korea into a soft alliance to constrain if not contain China. And China will struggle to break out politically and militarily, setting the stage for rivalry and tension in the years ahead. Reflections of this dialectic can be found in US Secretary of Defense Robert Gates remarks at the ASEAN defense minister meeting. We have a national interest in freedom of navigation, in unimpeded economic development and commerce in respect for international law.” The United States has always exercised our rights and supported the rights of others to transit through and operate in international waters. This will not change, nor will our commitment to engage in activities and exercises together with our allies and partners.”[11] Meanwhile Tong Xiaoing, China’s ambassador to ASEAN said “irrelevant parties should stay out of territorial disputes in the region.”[12]

Intent and Strategies

China

The key question is what is China’s intent regarding the South China Sea? Of course China maintains that it is simply defending its security and sovereignty[13] and preventing what it perceives as ‘containment.’[14] It also denies that it is or will inhibit freedom of navigation.[15] But some say that it is China’s intent to regain its historic hegemony over the South China Sea and thereby Southeast Asia? Or is it just concerned with control of resources – oil, fish and sealanes (even though some say the latter is illogical).[16] Perhaps it wants to make the South China Sea a “sanctuary” for its nuclear armed submarines for a potential attack on India[17] or to deter possible intervention by US forces in the event of conflict over Taiwan?[18]

Concomitant with growing US-China military competition is political competition for the “hearts and minds” of Southeast Asians. The Global Times, which often reflects the position of China’s government, has warned that “regional stability will be difficult to maintain” if the Southeast Asian states “allow themselves to be controlled” by the United States.[19] China has had some success in splitting US allies and Southeast Asian countries. Australia appears to favor China’s bilateral approach to resolving the South China Sea disputes.[20] Non-claimants like Singapore and Thailand, and the flip-flopping Philippines also seem to prefer the current arrangement to multilateralizing the ASEAN summit’s agenda.[21]

But China has also contributed to its image problem by lapsing into episodes of bullying and fervent nationalism, scaring Southeast Asians as well as South Korea and Japan[22] into closer security ties with the United States. [23] Indeed, China has increasingly presented itself as a ‘prickly’ country and there seems to be general agreement among Western and Southeast Asian analysts that she deserved some ‘comeuppance’.

The United States

As Admiral Mike Mullen, the Chairman of the US Joint Chief of Staff puts it, the US military perceives China’s military as undergoing a “strategic shift, where they are moving from a focus on their ground forces to focus on their navy, and their maritime forces and their air force.”[24] Being more specific, US Secretary of Defense Robert Gates, says China’s investment in anti-ship weapons and ballistic missiles could threaten America’s primary way to project power and help allies in the Pacific. Whatever the reason, the United States believes that China’s military has recently been more assertive in Asia particularly in the South China Sea and that “this assertiveness has caused concern among China’s neighbors in the region ...”[25]

US marine security priorities in East Asia are supposedly better known than those of China. First and foremost, according to US Secretary of State Hillary Clinton’s speech in Honolulu on 12 January 2010 (and reinforced and elaborated in her 28 October 2010 speech also in Honolulu)[26] “the United States is back in Asia... to stay.” Indeed, President Obama says “The United States intends to play a leadership role in Asia.”[27] But it is difficult to fathom the real intent and motivation of the supposedly transparent United States in reasserting itself in Asia. Perhaps Ocam’s razor applies here – that is, the simplest explanation is the correct one – the US intent is to maintain its hegemony in Asia. This may stem from a long-term internal belief made public and prominent in the George W. Bush administration that the United States is the world’s ‘indispensable nation’ (savior) and it has not only a right but a responsibility to intervene in the affairs of virtually every country on earth.[28] This reeks of arrogance – which some Southeast Asians find objectionable.[29]

Of course, the United States explains its continued military presence in the region as necessary to maintain peace and stability, give ASEAN confidence and strength to balance China, constrain North Korea, keep Japan from rearming, support fledgling democracy and international law, protect US companies, interdict trade in WMD, keep the sealanes safe and secure, etc. But certainly China[30] and probably several of the more realist countries believe the simpler rationale. Indeed, China believes the Obama administration is trying to boost the confidence of Southeast Asian nations to stand up to China.[31] Moreover, it sees the US intervention in the South China Sea disputes as part of a broad plan to reassert itself in Southeast Asia. This includes signing the Bali Treaty, opening a mission and naming an ambassador to ASEAN, holding a US-ASEAN summit and strengthening bilateral military co-operation with specific countries.

The US navy currently has clear military superiority over Chinese naval forces, an advantage that is likely to extend for many years to come.[32] However, this does not negate real concerns about a Chinese threat to US naval operations close to China raising doubts about the US ability to defend Taiwan. And China is unlikely to ‘out source’ its sealane security to the United States forever. Moreover, US defense spending is expected to steadily decline in the aftermath of the financial crisis and there is a growing serious domestic debate about the size and cost of the US military. To compensate, some even predict the US-led evolution of a pan-Asian NATO – like organization involving most nations in Asia except China, North Korea, Myanmar, Bhutan, Iran and Syria.[33] Already the United States and ASEAN have agreed to elevate their relationship to a ‘strategic level.’[34] At the least, the circumstances may be encouraging the United States to seek military ‘friends’ in the region, like Vietnam and India.[35] But some analysts think there is disagreement in the US government over how to deal with China with one faction emphasizing economic benefits and the security establishment emphasizing a hard-line approach.[36] The U.S. government certainly faces a dilemma: how to build trust with China, while maintaining its naval presence in Asia and reassuring its anxious partners who feel threatened by China’s more assertive stance.[37]

Fundamental Questions for Southeast Asia

These events are all surface manifestations of deeper shifts in the Asia security paradigm. Indeed, the East Asian security paradigm may be at a tipping point.[38] Southeast Asia needs to determine what role it wishes the United States to play: to contain China – as some PLA leaders believe – or to balance it – or a combination thereof? Southeast Asians should be careful what they wish for. They face the fundamental question of “whether, how much and for how long Asians should remain complicit in facilitating, legitimizing, and essentially sustaining US hegemony.”[39] But without the United States can ASEAN stand united against a rising China – not only on South China Sea issues – which may be a litmus test of China’s “peaceful rise” – but in general? Or can hegemony and hegemonic change in Asia be negotiated?[40] Or is ASEAN essentially unable or unwilling to present a united front that would influence the outcome of the China-US struggle?[41] Worse, has the semi-united stand of ASEAN at the 2010 Hanoi ARF supporting the US call for multilateral negotiations with China only encouraged China’s advance towards hegemony in Southeast Asia?

As Surin Pitswaran, Secretary General of ASEAN, has said, “The US-China rivalry is certain to play out in ASEAN.”[42] Of course “nobody in Southeast Asia wants to choose between the United States and China.”[43] But that is not the reality. Vietnam is leading and prodding ASEAN on the South China Sea issue[44] and simultaneously edging closer to the United States. It seems to want to balance China (with US support) and seems willing to risk its relations with it. This may me a dangerous ‘game’ in more ways than one.[45] But already a fellow ASEAN South China Sea claimant, the Philippines appears to have dissented from a united stand preferring to negotiate bilaterally with China.[46]And Cambodia and Laos are said to be pro-China on this issue.[47]

Ways Forward

A policy paper is incomplete without suggestions for resolving – or at least reducing – the problem. However, I have little to suggest that I have not said before – and that others have repeated or elaborated. Unfortunately my worst scenario prediction appears to have been prescient. Left unresolved “the disputes remain a sore covered by a scab that can be picked for political purposes and which invites interference by outside powers.” Now the United States “has entered the fray, changing the nature of the game.” And Indonesia’s formal rejoinder regarding China’s claim probably did little to convince China that it was not being ‘ganged up upon.’

It appears that these disputes may get worse before they get better, and that they will be influenced by competition and tensions between big powers. Perhaps when they become serious enough to no longer be ignored by the international community, they will be addressed and a resolution or temporary solution more or less imposed from the outside. This scenario may be beginning to play out now. It is not too late to avoid the worst outcome of the worst scenario – conflict. In that hope I present below some possible ways to lessen tension. They are not new – but need to be reconsidered in these critical times.

A necessary – but not sufficient – condition for resolution of the disputes is for all claimants – particularly China – to clarify their claims in terms consistent with the 1982 Law of the Sea Convention (UNCLOS). By attaching a map to its an official communication to the UN protesting Vietnam and Malaysia’s claim to an extended continental shelf, China further confused the situation.[48] The map depicted a nine-dash U-shape line which some think is its official claim to the islands and waters encompassed by it. China could make an claim consistent with UNCLOS by claiming sovereignty over the islands and their 12 nm territorial seas, an EEZ and continental shelf from those features conceivably capable of “sustaining human habitation or economic life of their own,” and re-confirm its willingness to enter into joint development without prejudice to the final determination of sovereignty claims and maritime boundaries. This would enhance the legitimacy of its claims. Unfortunately China is highly unlikely to give up its U-shaped or historic claim without some quid pro quo. Why should it when the Philippines and Malaysia’s claims are also legally spurious? However, Malaysia and Vietnam now seem to be suggesting in their extended continental shelf claim that the features should not generate shelves or EEZs.[49] This is helpful. And China’s written statement accompanying its objection to their claim could be interpreted as being consonant with UNCLOS.[50] Maybe the claimants can agree to make their claims consonant with UNCLOS.

But this option would still have serious limitations. UNCLOS is of little help in resolving the sovereignty disputes. The only role it might play is to use its dispute resolution provisions and/or the ITLOS to decide which features are legal islands – and which are not – without China’s consent, assuming that the question is brought before it. The sovereignty issue and question of which features are entitled to an EEZ and continental shelf cannot be referred to any international court or tribunal. Moreover China has exercised its right under Article 298 of UNCLOS to not be subject to the compulsory binding dispute settlement procedures regarding the delimitation of maritime boundaries. And the boundaries are unlikely to be negotiated before the sovereignty of the islands is resolved. As for joint development, China has consistently offered the same as soon as the other claimants acknowledge its sovereignty in the area to be jointly developed. And in the only joint exploration agreement China has entered into – with the Philippines and Vietnam – the Philippines allowed joint exploration in areas on its shelf and in its EEZ that China did not even claim! So much for that way out of the imbroglio.

Nevertheless, it appears that all may not be lost – at least between the United States and China. There is a sense among some analysts that the latest row is ‘little to do about nothing’ compared to the 1995 Taiwan Strait crisis, the 1999 NATO bombing of the Chinese Embassy in Belgrade, and the 2004 EP-3 incident.[51] The two countries have agreed to a resumption of military exchanges, and dialogue[52] and two senior US officials were in China in early September trying to soothe US-China relations and keep them “in bounds.”[53] Indeed the past four months have seen a sequence of opportunities to improve relations, [54] assuming that is what is desired by both parties.[55] Chinese Premier Wen Jiabao attended the UN General Assembly in New York in late September and met with President Obama. The ASEAN defense ministers conference in Hanoi in October facilitated meetings between the US and Chinese defense ministers.[56] Although the South China Sea was not on the agenda, nor mentioned in the meeting’s ‘joint declaration’ the United State, China and others express differing opinions on the disputes and how to resolve them.[57] A working group on maritime security was formed to be headed by Australia and Malaysia.[58] In November Presidents Hu and Obama met at the APEC Leader’s Meeting in Yokohama and at the G20 meeting in South Korea. And China has invited US Secretary of Defense Robert Gates to visit perhaps in early 2011.[59] Perhaps most important the United States postponed its planned naval exercise in the Yellow Sea after China’s strong objections.[60] So the recent differences between the two may be just blips on the radar to be navigated around. Perhaps the two will finally edge towards an INCSEA mechanism or guidelines for military activities in foreign EEZs. Some even think that a fundamental bargain may be in the offering... if the United States backs off on selling arms to Taiwan particularly to F 16s, China will co-operate on economic matters.[61] However others like Minister Mentor Lee Kuan Yew of Singapore foresee a decades’ long struggle between China and the United States for supremacy in Asia.[62] In this regard, US officials believe that calling China out has made it “clearly move back to a more collaborative approach.”[63] Whether true or not, Washington and Asian capitals have obviously indicated to Beijing that its behavior in the South China Sea will influence their policies towards it.

This brings us back to the present – and the future. The best that can be expected under the current political circumstances – including US pressure and Indonesian leadership of ASEAN beginning in 2011 --- is to formalize a code of conduct. However some say China is dragging its feet and agreement on a formal code is unlikely.[64] Nevertheless it is auspicious that China and ASEAN have started talks to move towards such a code,[65] with a focus on sanctions for non-compliance.[66] Sanctions will be the most difficult hurdle and probably in the end rely mainly on public opprobrium. Such a code would most importantly ban “the use or threat of force by any claimant attempting to enforce disputed claims in the South China Sea.”[67] But the ‘prisoner’s dilemma‘ of disarmament and demobilization of the Spratlys may be the next stumbling block—who will remove their troops first?

The somewhat softened US-ASEAN Summit statement “... reaffirmed the importance of regional peace and stability, maritime security, unimpeded commerce, and freedom of navigation, in accordance with relevant universally agreed principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS) and other international maritime law, and the peaceful settlement of disputes.”[68] But it excluded (from the US draft) language that some ASEAN members thought would be objectionable to China including ‘opposing the use or threat of force‘,[69] as well as the words ‘South China Sea’. This compromise was agreed so that it would not appear that ASEAN was doing the bidding of the United States vis a vis China.[70] This was an important gesture and manifestation of Southeast Asian concerns. Most important, China has been assured that Clinton’s remarks in Hanoi applied to all claimant countries, and that all the United States wants is “a more stable, predictable environment.”[71] The United States should demonstrate this in a more even-handed manner. For example it should ratify the 1982 UNCLOS and press other claimants – not just China - to abide by it and “international law.” And ASEAN claimants should try to settle their differences on this issue. They should also stop blatantly conspiring against China on this issue lest it provoke a worst scenario response. For different reasons, ASEAN, China and the United States all desire a peaceful future for the South China Sea. But it will take genuine good will, considerable self restraint, and probably a grand formal or informal compromise—as well as ambitious and clever diplomatic work--- to achieve and maintain it.

Author’s Biography

Mark Valencia

Dr. Mark J. Valencia is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. Currently he is a Research Associate with the National Asia Research Program. Recently he was a Visiting Senior Fellow at the Maritime Institute of Malaysia and a Visiting Senior Scholar at Japan’s Ocean Policy Research Foundation. From 1979 to 2004, Dr. Valencia was a Senior Fellow with the East-West Center where he originated, developed and managed international, interdisciplinary projects on maritime policy and international relations in Asia. Before joining the East-West Center, he was a Lecturer at the Universiti Sains Malaysia and a Technical Expert with the UNDP Regional Project on Offshore Prospecting based in Bangkok. He has a Ph.D in Oceanography from the University of Hawaii and a M.A. in Marine Affairs from the University of Rhode Island.

Dr. Valencia has published some 15 books and more than 150 articles and is a frequent contributor to the public media. Selected major policy relevant works include The Proliferation Security Initiative: Making Waves in Asia (Adelphi Paper 376, International Institute for Strategic Studies, October 2005), Military and Intelligence Gathering Activities in the Exclusive Economic Zone :Consensus and Disagreement (co-editor, Marine Policy Special Issues, March 2005 and January 2004); Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia (Martinus Nijhoff, 2002); Sharing the Resources of the South China Sea (with Jon Van Dyke and Noel Ludwig, Martinus Nijhoff, 1997); A Maritime Regime for Northeast Asia (Oxford University Press, 1996); China and the South China Sea Disputes (Adelphi Paper 298, Institute for International and Strategic Studies, 1995); Atlas for Marine Policy in East Asian Seas (with Joseph Morgan, University of California Press, Berkeley, 1992); and Pacific Ocean Boundary Problems: Status and Solutions (with Douglas Johnston, Martinus Nijhoff, 1991).

Dr. Valencia has been a Fulbright Fellow to Australia (2007) and to Malaysia (1985), an Abe Fellow, a DAAD (German Government) Fellow, an International Institute for Asian Studies (Leiden University) Visiting Fellow, and a U.S. State Department –sponsored international speaker. He has also been a consultant to international organizations (e.g., IMO, UNDP, UNU, PEMSEA); government institutions and agencies (in, e.g., Canada, Japan, Malaysia, the Republic of Korea, Singapore, Taiwan, Vietnam and the USA); and numerous private entities (e.g., Shell, CONOCO, and legal firms handling maritime issues).