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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