A
great deal of unrealistic hope has been invested
in the notion that the Association of Southeast
Asian Nations (ASEAN) will form a bulwark against
China's expansion into Southeast Asian waters. It
has been thought that braced by China's claim of
"indisputable sovereignty" over "relevant waters"
that apparently reach nearly to Singapore, ASEAN
states would articulate a common interest and draw
a line that non-regional powers such as Japan,
Australia, India and in particular the United
States could support.
However, ASEAN
operates on the principles of consensus and
non-confrontational bargaining, in this instance a
fatal flaw. Four of its 10 members - Myanmar,
Cambodia, Laos and Thailand - have consistently
given priority to preserving cozy bilateral relations
with China over ASEAN
unity. Thus divided, ASEAN's members have jawed
endlessly in search of a framework that will
minimally satisfy Beijing's ambitions.
On
this, they have gotten little help from Beijing.
China's shirked every ASEAN proposal to set up a
conflict-management scheme, including the
so-called Code of Conduct in the South China Sea.
Beijing won't agree to arbitration of rival claims
or even discussions with more than one country at
a time. Nor will China even deign to clarify just
what it claims in the South China Sea. And so, for
two decades, innumerable ASEAN meetings have
kicked the can down the road.
Four of the
10 ASEAN states are on the frontline of the
dispute. Malaysia, Brunei, the Philippines and
Vietnam claim sovereignty over all or parts of the
Spratly islands, a host of reefs, rocks and islets
that sprawl across the southern end of the South
China Sea. Control of “land features” in turn
generates claims to surrounding sea areas. Vietnam
and the Philippines additionally claim islets and
reefs farther north nearer to China.
For
Hanoi, those claims include the Paracel
Archipelago, midway between Vietnam's central
coast and China's Hainan Island, islets that
Beijing wrested from the dying South Vietnamese
regime in 1974 and where, early this year, Beijing
set up the trappings of a prefecture that
supposedly incorporates all of its expansive South
China Sea claims. For Manila, the claims cover the
Scarborough Shoal, rich fishing grounds only 200
kilometers off the coast of Luzon where in April
it came out on the short end of a confrontation
with Chinese coast guard cutters.
Not
surprisingly, it is the Philippines and Vietnam
that have campaigned most vigorously for a robust
answer to Chinese pretensions to domination of the
seas stretching nearly 2,000 kilometers south from
Hainan Island. Manila’s and Hanoi's eagerness to
engage US naval might as a factor in the dispute
has prompted tut-tutting among some of their ASEAN
brethren.
By contrast, Malaysia and Brunei
have maintained a decidedly low profile. They have
sorted out their claims between themselves and
with Vietnam, relying on concepts codified in the
UN Convention on the Law of the Sea (UNCLOS) and
customary international law. Both have stood aloof
from Vietnamese and Philippine efforts to defend
their claims in the seas to the north.
Uncharitable though the thought may be, both Kuala
Lumpur and Bandar Seri Begawan seem to have hoped
against mounting evidence that China's appetite
could be satiated short of the waters they claim.
Indonesia and Singapore also share an
interest in discouraging China from pursuing its
expansive claim. The seas within China's infamous
nine-dash line overlap Indonesia's exclusive
economic zone (EEZ) in the vicinity of the Natuna
Islands. Jakarta and Singapore have until now
distinguished themselves as the prime backers of
an "ASEAN solution", with Singapore as usual
deferring publicly to Indonesia's leadership.
While professing to be ready to work
things out bilaterally, China hasn't budged from
its claim of historic rights in all of the waters
within the nine-dash line. Beijing is thus
asserting ownership of maritime resources in
upwards of 85% of the South China Sea,
notwithstanding the UNCLOS rule that all nations
have exclusive sovereign rights to exploit
adjacent seas out to 200 nautical miles from their
coast, or beyond if their continental shelf is
wider, unless they abut on another nation's EEZ.
China has consistently refuted UNCLOS rules,
claiming Its sailors and fishermen have plied
these seas since time immemorial.
All of
the claimants can invoke historical precedent to
justify their claims. For millennia, the South
China Sea has been a global commons. Vietnam can
produce stacks of 18th century maps and decrees
that demonstrate a considerably more consistent
interest than China in exercising sovereignty over
various South China Sea atolls. As in China, these
yellowing documents stoke nationalist passions.
Historical argument, however, does not
offer a way out of the tangle of claims unless, as
at least some players on the Chinese side believe,
it is backed up by irrefutable force. Chinese
Foreign Minister Yang Jiechi famously declared at
an ASEAN-hosted meeting in August 2010 that
"China's a big country and other countries are
small countries and that is just a fact."
Roiled waters For several years
now, hopes of a diplomatic breakthrough have risen
in the autumn months, while the South China Sea is
roiled by monsoons. Come calmer weather, Beijing's
provocations multiply, directed in particular at
harassment of Vietnamese and Filipino fishermen
and at scaring off energy companies that presume
to prospect for seabed oil and gas under licenses
granted by Hanoi or Manila.
Beijing has
relied on hundreds of armed "maritime safety" and
"fisheries protection" vessels to extend its
control, while over the horizon is the
increasingly potent People's Liberation Army Navy.
Not surprisingly, Vietnam, Malaysia, Indonesia and
Singapore have redoubled efforts to build up their
own air and naval strength. The Philippines is a
latecomer to the South China Sea arms build-up.
Though Manila has been energized by recent clashes
with China, its forces are particularly outgunned.
It is the expected bonanza of seabed oil
and gas, encapsulated within long-frustrated
resentment of foreign affronts, that is driving
China's attempt to bring the South China Sea under
its sway. The failure of ASEAN confabulations to
find a way out of the growing crisis, China's
relentless application of a "talk and take"
strategy, and the consequent engagement of the US
in these quarrels has driven experts to despair.
It is apprehension of how a revanchist
China might dispose itself should it prevail in
the current contest that has roused the US.
Washington is not itching to fight and it is still
unclear how the US might respond if Vietnam or the
Philippines or even Singapore were obviously
slipping into a Chinese sphere of influence. There
seems little doubt, however, that Washington is
determined to prevent Beijing from controlling
navigation through the South China Sea.
If
ASEAN won't fill the breach, who will? The US and
the rest of the world require a solid argument to
justify sustained and effective engagement.
Recently burned by the weapons of mass destruction
chimera in Iraq, the American public is wary of
another foreign military adventure. Japan is
congenitally wary of an assertive posture. If they
want more from the US and its allies than
expressions of determination to uphold freedom of
navigation through the South China Sea, the
Southeast Asian nations on the sea’s littoral must
make a compelling case that they need and merit
assistance.
Many in the Western foreign
policy establishment believe that the US ought to
make a partner of “rising China.” Rising tensions
in the South China Sea are a threat to their
vision of a peaceful and prosperous Pacific
community. Ready to concede a sphere of influence
to China, they say - like ASEAN - that they won't
take sides in the dispute. Many Western "strategic
thinkers" still discuss the confrontations as
though all parties are equally culpable.
This perception, however, can be changed.
All that is needed is for Brunei, Malaysia, the
Philippines and Vietnam to negotiate a common
position - which they can do by sorting out, if
not settling, their claims amongst themselves by
applying the precepts of the UNCLOS and general
international law. They could also commit to
arbitration of remaining disputes. Non-claimants
Indonesia and Singapore could support such an
ASEAN state process.
The immediate outcome
should be clarification of these four nations'
currently overlapping claims to the Spratly
Group's islands, reefs and rocks. They could aim
to agree on the "maritime space" these land
features generate, and thus establish the
geographical limits of the disputed areas. That
would in turn clarify the implications of these
claims for control of surrounding seas.
Regarding claims outside of the Spratly
area, a poor bargain is arguably better than none
at all. China has controlled the Paracels for
nearly four decades and now seems determined to
hold the Scarborough Shoal as well. At this point,
successful assertion of historic rights by Vietnam
and the Philippines over these contested
territories seems a forlorn hope.
A
pragmatic course would be to insist on Beijing's
recognition of EEZ's generated according to UNCLOS
rules, a course which if upheld may return a
western slice of the Paracels to Vietnam as well
as the Scarborough Shoal to the Philippines. This
much Malaysia, Brunei, Indonesia and Singapore
ought to support, though they have shied at
endorsing claims of historic right.
These
steps, perhaps arrived at after a few months of
intense and secret negotiation, would establish a
foundation for peaceful resolution of what is now
undeniably a crisis. It would also give the US and
its friends a sound basis for robust support, and
even - should it come to that - military
intervention.
Historical
baggage China, with its leadership renewed
and set for the next several years, may by then be
looking for a way back from confrontation. Chinese
spokesmen have said on occasion that claims should
be settled according to international law, and
that pending such resolution agreements on the
joint exploitation of South China Sea resources
can serve to reduce tensions.
It will not
be easy, however, for China to back away from its
historical claims. Such a retreat is inconceivable
unless Vietnam does the same - that is, unless
Hanoi also agrees to establish maritime boundaries
based solely on UNCLOS and related principles of
international law.
Like China, Vietnam is
heavily invested in historical arguments. Indeed,
some independent scholars say that based on the
historical evidence Hanoi's claim to the contested
islets is superior. It will be no easier for
Vietnam to put history on the shelf; it is, after
all, a nation that has forged its identity beating
off Chinese invasions every few hundred years
since 938 AD And yet, unless these ancient and
asymmetrical rivals can rise above this bitter
history, there is scant chance of a happy ending
to the current South China Sea crisis.
Some will argue that dismissing China's
historical claims and putting forth a jointly
established negotiating position based on sound
legal principles will simply infuriate Asia's
rising superpower. However, it is hard to imagine
that failure to resist Chinese pretensions can
lead to a better result.
There is still a
potentially hopeful scenario. Motivated by a
realization that time has run out, the four ASEAN
claimants work out sea boundaries amongst
themselves by applying relevant legal principles.
Supported in concept by Indonesia and Singapore,
if not ASEAN collectively, they announce their
readiness to enter negotiations with China on the
same basis. Instead of denouncing what's been
accomplished thus far or insisting that it will
only negotiate bilaterally, China agrees to the
process. Before long a deal is hashed out that
acknowledges China's mastery of most of the
Paracels and toeholds in the Spratlys.
These parties then turn to discussion of
related matters, for example a Code of Conduct.
This would not be the same watered-down document
that ASEAN has discussed but a robust document
that supports the territorial accommodations
discussed above. Joint exploitation of energy
resources could bind together the various elements
of a constructive future in the South China Sea.
The parties could then agree to an 'open door' for
entities from all the littoral nations subject to
responsible behavior.
Put another way, any
regime for governing the South China Sea cannot
endure unless it assures fair access for Chinese
entities to the region's maritime resources. The
other littoral states must welcome and facilitate
Chinese investment and joint ventures, including
Chinese participants to exploit seabed
hydrocarbons. Fisheries could be managed jointly
and sustainably and joint patrols could enforce
the agreed rules. Finally, the littoral states and
the principal maritime nations could negotiate
rules governing shipping channels, notifications
and rights of navigation within the South China
Sea.
Some may protest that this happy
scenario would be fatal to the organizational
principles and leadership practices that embody
the so-called "ASEAN Way." But acknowledging that
in this instance ASEAN has failed to make the
consensus model work is likely to be less
corrosive of the organization's overall
effectiveness than continuing an ineffectual
effort to assert ASEAN's centrality in the
intensifying disputes.
David
Brown is a retired American diplomat who
writes on contemporary Vietnam. He may be reached
at nworbd@gmail.com.
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