China bares claws in maritime
dispute By Ian Storey
For more than two decades Beijing has
pursued a consistent policy in the South China Sea
composed of two main elements: gradually
strengthening the country's territorial and
jurisdictional claims while at the same time
endeavoring to assure Southeast Asian countries of
its peaceful intentions. Recent moves by China to
bolster its maritime claims have brought the first
element into sharp relief, while reassurances of
benign intent have, however, been in short supply.
Indeed, far from assuaging Southeast Asian
concerns regarding its assertive behavior, China
has fueled them by brazenly exploiting divisions
within the Association of Southeast Asian
Nations (ASEAN) to
further its own national interests.
China hardens its
stance Commentaries in China's state-run
media analyzing the South China Sea issue have
become markedly less conciliatory. Opinion pieces
highlight several new themes in China's official
line.
One theme is that China's territory,
its sovereignty as well as its maritime rights and
interests increasingly are being challenged by
Southeast Asian nations and Japan in the South and
East China Seas. China's response, it is argued,
should be to uphold its claims more vigorously,
increase its military presence in contested
waters, and, if necessary, be prepared to
implement coercive measures against other
countries. One commentary notes: "Cooperation must
be in good faith, competition must be strong, and
confrontation must be resolute."
Another
theme is that while China has shown restraint,
countries such as the Philippines and Vietnam have
been pursuing provocative and illegal actions in a
bid to "plunder" maritime resources such as
hydrocarbons and fisheries that China regards as
its own.
A third theme is that Manila and
Hanoi continue to encourage US "meddling" in the
South China Sea and that the United States uses
the dispute as a pretext to "pivot" its military
forces toward Asia. To reverse these negative
trends, Chinese commentators have urged the
government to adopt more resolute measures toward
disputed territories and maritime boundaries.
Nationalist sentiment, they argue, demands no
less.
Recent measures undertaken by the
Chinese authorities do indeed suggest a more
hardline position. Ominously, some of the
initiatives have included a strong military
element, presumably as a warning to the other
claimants that China is ready to play hardball.
Perhaps the most noteworthy attempt by
China to bolster its jurisdictional claims in the
South China Sea was the raising of the
administrative status of Sansha from county to
prefecture level in June.
Sansha
originally was established in 2007 as an
administrative mechanism to "govern" the Paracel
Islands, Macclesfield Bank and the Spratly
Islands. Sansha's elevation was an immediate
response to a law passed on June 21 by Vietnam's
National Assembly, which reiterated Hanoi's
sovereignty claims to the Paracels and Spratlys.
Both Vietnam and China protested the other's move
as a violation of their sovereignty.
Less
than a month later, Sansha's municipal authorities
elected a mayor and three deputy mayors and
China's Central Military Commission authorized the
establishment of a garrison for "managing the
city's national defense mobilization, military
reserves and carrying out military operations".
Earlier, in late June, China's Defense
Ministry announced it had begun "combat ready"
patrols in the Spratly Islands to "protect
national sovereignty and [China's] security
development interests". Embarrassingly for the
Chinese navy, however, on July 13, one of its
frigates ran aground on Half Moon Shoal, 70
nautical miles west of the Philippine island of
Palawan and within the Philippines 200-mile
exclusive economic zone (EEZ). The frigate was
re-floated within 24 hours, suggesting that other
Chinese naval vessels were nearby when the
incident occurred. These developments provide
further evidence of the growing militarization of
the dispute.
China also has moved to
undercut the claims and commercial activities of
the Philippines and Vietnam in the South China Sea
in other ways.
In June, the state-run
China National Offshore Oil Corp (CNOOC) invited
foreign energy companies to bid for exploration
rights in nine blocks in the South China Sea. The
blocks lie completely within Vietnam's EEZ and
overlap with those offered for development to
foreign energy corporations by state-owned
PetroVietnam. Accordingly, Hanoi vigorously
protested CNOOC's tender.
More important,
the blocks are located at the edge of China's
nine-dash line map and seem to support the
argument that Beijing interprets the dashes as
representing the outermost limits of its "historic
rights" in the South China Sea. Under the 1982
United Nations Convention on the Law of the Sea
(UNCLOS), however, coastal states are not entitled
to "historic rights" on the high seas. It is
therefore unlikely that any of the major energy
giants will bid for CNOOC's blocks - although
smaller companies may do so if only to curry favor
with Beijing with a view to landing more lucrative
contracts down the road. If, however, exploration
does move forward in any of the nine blocks, a
clash between Vietnamese and Chinese coast-guard
vessels will become a very real possibility.
On the issue of ownership of Scarborough
Shoal, scene of a tense standoff between Chinese
and Philippine fishery-protection vessels in May
and June, China's position remains uncompromising.
At the annual ASEAN Regional Forum (ARF) in Phnom
Penh in July, Chinese Foreign Minister Yang Jiechi
restated China's sovereignty claims to the shoal,
rejected the notion that it was disputed and
accused Manila of "making trouble".
According to the Philippine Foreign
Ministry, Chinese trawlers - protected by Chinese
paramilitary vessels - continue to fish in waters
close to Scarborough Shoal in contravention of a
bilateral accord whereby both sides agreed to
withdraw their vessels. [1]
After the ARF,
China kept up the pressure on the Philippines. In
mid-July, it dispatched a flotilla of 30 trawlers
to the Spratlys escorted by the 3,000-ton
fisheries administration vessel Yuzheng
310. The trawlers collected coral and fished
near Philippine-controlled Pag-asa Island and
Chinese-controlled Mischief and Subi Reefs. The
Philippine authorities monitored the situation but
took no action.
The Phnom Penh
debacle In the past, after China has
undertaken assertive actions in the South China
Sea it has tried to calm Southeast Asia's jangled
nerves. At the series of ASEAN-led meetings in
Phnom Penh in mid-July, however, Chinese officials
offered virtually no reassurances to their
Southeast Asian counterparts. Worse still, China
seems to have utilized its influence with Cambodia
to scupper attempts by ASEAN to address the
problem, causing a breakdown in ASEAN unity.
In the final stages of the annual meeting
of ASEAN foreign ministers (known as the ASEAN
Ministerial Meeting or AMM), the Philippines and
Vietnam wanted the final communique to reflect
their serious concerns regarding the Scarborough
Shoal incident and the CNOOC tender. They were
supported by Singapore, Indonesia, Malaysia and
Thailand, which felt that ASEAN should speak with
one voice. Cambodia - which holds the rotating
chairmanship of ASEAN and has close political and
economic ties with China - objected because, in
the words of Foreign Minister Hor Namhong, "ASEAN
cannot be used as a tribunal for bilateral
disputes." Attempts by Indonesian Foreign Minister
Marty Natalegawa to reach a compromise on the
wording were unsuccessful and for the first time
in its 45-year history, the AMM did not issue a
final communique.
The fallout from the AMM
was immediate and ugly. Marty labelled ASEAN's
failure to reach agreement "irresponsible" and
said the organization's centrality in the building
of the regional security architecture had been put
at risk. Singaporean Foreign Minister K Shanmugam
described the fiasco as a "severe dent" in ASEAN's
credibility.
Cambodia and the Philippines
blamed the failure on each other.
Cambodia
was pilloried by the regional press for its lack
of leadership and for putting its bilateral
relationship with China before the overall
interests of ASEAN. One analyst alleged that
Cambodian officials had consulted with their
Chinese counterparts during the final stages of
talks to reach an agreement on the communique. [2]
China's Global Times characterized the
outcome of the AMM as a victory for China, which
does not think ASEAN is an appropriate venue to
discuss the dispute, and a defeat for the
Philippines and Vietnam.
A few days after
the AMM, Indonesian President Susilo Bambang
Yudhoyono dispatched his foreign minister to five
Southeast Asian capitals in an effort to restore
ASEAN unity. Marty's shuttle diplomacy resulted in
an ASEAN foreign ministers' statement of July 20
on "ASEAN's Six-Point Principles on the South
China Sea". [3] The six points, however, broke no
new ground and merely reaffirmed ASEAN's
bottom-line consensus on the South China Sea.
In response to the joint statement,
China's Foreign Ministry said it would work with
ASEAN to implement the 2002 Declaration on the
Conduct of Parties in the South China Sea (DoC).
One of the six points calls for the early
conclusion of a code of conduct (CoC) for the
South China Sea, but the Phnom Penh debacle has
made that target highly doubtful.
Although
China agreed to discuss a CoC with ASEAN in
November 2011, Beijing always has been lukewarm
about such an agreement, preferring instead to
focus on implementing the DoC. Undeterred, this
year ASEAN began drawing up guiding principles for
a code and in June agreed on a set of "proposed
elements". While much of the document is standard
boilerplate, there are two aspects worthy of
attention.
The first is that ASEAN calls
for a "comprehensive and durable" settlement of
the dispute, a phrase that seems to repudiate late
Chinese leader Deng Xiaoping's proposal that the
parties should shelve their sovereignty claims and
jointly develop maritime resources. Clearly, the
four ASEAN claimants have rejected Deng's formula
as it would be tantamount to recognizing China's
"indisputable sovereignty" over the South China
Sea atolls.
The second interesting aspect
concerns mechanisms for resolving disputes arising
from violations or interpretations of the proposed
code. The document suggests that disputing parties
turn to the 1976 Treaty of Amity and Cooperation
(TAC) or dispute resolution mechanisms in UNCLOS.
Neither, however, would be of much utility. While
the TAC does provide for a dispute-resolution
mechanism in the form of an ASEAN High Council,
this clause has never been invoked because of the
highly politicized nature of the council and the
fact that it cannot issue binding rulings.
Moreover, although China acceded to the TAC in
2003, Beijing almost certainly would oppose
discussion of the South China Sea at the High
Council because it would be outnumbered 10-1.
UNCLOS does provide for binding
dispute-resolution mechanisms, including the
submission of disputes to the International Court
of Justice or the International Tribunal on the
Law of the Sea. Beijing always has rejected a role
for the ICJ in resolving the territorial disputes
in the South China Sea and, in 2006, it exercised
its right to opt out of ITLOS procedures
concerning maritime boundary delimitation and
military activities.
On July 9,
Vice-Foreign Minister Fu Ying indicated to ASEAN
foreign ministers that China was willing to start
talks on a CoC in September. Two days later,
however, as ASEAN wrangled over their final
communique, Foreign Minister Yang seemed to rule
this out when he stated discussions could only
take place "when the time was ripe". At present
ASEAN and China are not scheduled to hold any
meetings on the CoC, though officials currently
are discussing joint cooperative projects under
the DoC.
If and when the two sides do sit
down to discuss the CoC, it is probable that
Beijing will demand all reference to dispute
resolution be removed on the grounds that the
proposed code is designed to manage tensions only
and that the dispute can only be resolved between
China and each of the other claimants on a
one-on-one basis. Taken together, these
developments have dimmed seriously the prospect of
China and ASEAN reaching agreement on a viable
code of conduct for the South China Sea any time
soon. As such, the status quo will continue for
the foreseeable future.
Ian Storey is a fellow at the
Institute of Southeast Asian Studies, Singapore,
and the author of Southeast Asia and the Rise
of China: The Search for Security (Routledge,
May 2011).
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