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    Southeast Asia
     Feb 8, 2013


Legality waves lap South China Sea
By Roberto Tofani

The South China Sea has become the epicenter of a whirlwind of escalating territorial disputes among six countries in the region - Brunei, China, Malaysia, the Philippines, Taiwan and Vietnam. Now, with pressure on new Association of Southeast Asian Nations (ASEAN) chairman Brunei and freshly appointed Secretary General Le Luong Minh (from Vietnam) to find a new way ahead, ASEAN holds the key to regional stability in the year ahead.

Expectations for the passage of a binding Code of Conduct in the disputed areas were dashed last year through disagreement among ASEAN members on how best to proceed. The issue has increasingly polarized the regional group between countries that aim to challenge China's rising assertiveness, led by the Philippines and Vietnam, and those that prefer to take a neutral

 
stand on the South China Sea issue and prioritize deepening economic ties.

With those splits in ASEAN, the Philippines and Vietnam have bid to reinforce their legal claims vis-a-vis China at both national and international levels. The two ASEAN members have chosen to downplay their own disputes, including in regard to features Vietnam occupies in areas the Philippines claims as the Kalayaan Island group, as they attempt to mount a more united front against China in the maritime disputes.

"There is a convergence but not congruence of interests between Hanoi and Manila," said Carlyle Thayer, a Vietnam expert at Australia's University of New South Wales. Thayer said those mutual interests were reinforced by an agreement finalized last year to conduct coordinated maritime patrols in waters where the two ASEAN countries have overlapping claims.

Vietnam's new Law of the Sea took effect on January 1, a legal shift that promises to agitate China. Adopted in June 2012 by near unanimous vote of the Vietnamese National Assembly, the law "provides for the baseline, the internal waters, the territorial sea, the contiguous zone, the Exclusive Economic Zone, the continental shelf, islands, the Paracel and Spratly archipelagos and other archipelagos under the sovereignty, sovereign rights and jurisdiction of Vietnam."

Existing laws such as the 2003 Law on National Border and the Law of the Sea reaffirmed Vietnam's sovereignty over contested islands, including the Paracel (Hoang Sa) and Spratly (Truong Sa) archipelagos. "The most important part of the [new] Vietnam Law on the Sea is Article 2.2, where the law states that if anything in the law contravenes international law, international law takes precedence," Thayer said.

Hanoi's new reference to the primacy of international law is a clear message to Beijing, which has insisted that any dispute should be resolved at a bilateral level and avoid multilateral mechanisms, especially ASEAN summit meetings where international powers like Australia, Japan, India, Russia and the United States have a voice.

Vietnam's nod to international law also comes as the Philippines moves to challenge China's territorial claims in the South China Sea at a United Nations tribunal. In January, Philippine foreign affairs authorities announced that they would take Beijing to an international arbitration tribunal under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Both China and the Philippines are signatories to the convention.

Philippine officials said they aim to show that China's wide-reaching "nine-dash line" map setting out its claims in the potentially oil-and-gas rich waters is "unlawful" under the UNCLOS. The move to internationalize the dispute comes after a series of incidents between Chinese and Philippine vessels in contested waters, including last year's weeks-long stand-off in the contested Scarborough Shoal area.

Philippine officials said they expected the legal proceedings to take between three and four years and result in a "durable solution" to the disputes. China responded in a statement reaffirming its "indisputable sovereignty" over the islands and features it contests with the Philippines.

China has specifically targeted energy exploration vessels, underscoring what many analysts see as the root cause of the disputes. In May 2011, Chinese patrol boats intentionally severed a seismic cable towed by a Vietnamese survey vessel working about 120 miles (193 kilometers) off Vietnam's shores and hundreds of miles south of China's Hainan Island.

Last December, Chinese fishing vessels cut the cables of a Vietnam Oil & Gas Group seismic ship in Vietnam-controlled waters of the South China Sea, according to the company's chief executive officer, Do Van Hau.

Despite these clashes, China has consistently rejected international legal arbitration "partly because this would involve a multilateral institution but also because China does not have a strong case," according to a report entitled "Cooperation from Strength: The United States, China and the South China Sea published last year by the Washington-based, non-partisan Center for New America Security (CNAS).

In 2011, China refused a Philippine proposal to submit their overlapping territorial and boundary claims to the International Tribunal of the Law of the Sea (ITLOS), the body established under UNCLOS to settle maritime disputes between countries that have ratified the agreement. "Yet China opted out of ITLOS when it ratified UNCLOS, which means that China will almost certainly continue to oppose the proposal," the CNAS report states.

In any case, the UN tribunal lacks the power to enforce any decision on issues of national sovereignty. From China's perspective, Philippine and Vietnamese diplomatic efforts to lean on international powers and enlist multilateral institutions to reaffirm their respective sovereign claims is only worsening the situation. Beijing has responded through a series of provocative actions.

After Vietnam's National Assembly adopted the Law of the Sea, Chinese authorities reacted by raising the status of Sansha to a prefectural-level city that administers the three disputed island groups of Nansha (Spratly Islands), Xisha (Paracel Islands), and Zhongsha (Macclesfield Bank). The new city also covers the three island group's surrounding waters. On June 22, the National People's Congress, China's top legislature, urged Vietnam to "correct" the law.

"So far China has not tested Vietnam's law, but the incident last year involving Chinese fishing boats and the cable-cutting incident are likely to be repeated," said Thayer.

ASEAN claimant states, namely Brunei, Malaysia, the Philippines and Vietnam, still aim to sign and enact a binding Code of Conduct between China and ASEAN based on the non-binding Declaration on the Conduct of Parties in the South China Sea, which was first adopted in Cambodia in 2002.

According to Tran Truong Thuy, director of the Center for South China Sea Studies at the Diplomatic Academy of Vietnam (DAV), "Beijing should accept a legally binding regional Code of Conduct ... which would ensure smaller parties from being intimidated and making them more confident to proceed with the cooperative activities in the South China Sea."

But as tensions mount over the bids by the Philippines and Vietnam to internationalize the disputes, expect more discord than agreement in the year ahead.

Roberto Tofani is a freelance journalist and analyst covering Southeast Asia. He is also the co-founder of PlanetNext (www.planetnext.net), an association of journalists committed to the concept of "information for change".

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