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Three ASEAN states push back on Beijing in South China Sea

China Protests (SFT HQ/WikiCommons)
April 17, 2020

This article was originally published by Radio Free Asia and is reprinted with permission.

In an unusual show of unity against China, Southeast Asian nations have been pushing back on Beijing’s sweeping assertion of sovereignty over the South China Sea amid dissatisfaction over its stance in negotiations for a Code of Conduct, analysts say.

Last week, China faced criticism from several quarters over the sinking of a Vietnamese fishing vessel near the Paracel islands. That came not just from Vietnam and the United States – typically its boldest critics – but also the Philippines, which issued a “statement of solidarity” with Vietnam despite forging closer ties with Beijing.

This week, it emerged that a Chinese survey ship involved in a months-long standoff with Vietnam last year was on the move again. The Hai Yang Di Zhi 8 passed Tuesday through Vietnamese waters with an escort of China Coast Guard ships. On Wednesday, they were heading south for Malaysian waters, ship-tracking data reviewed by Radio Free Asia show.

Their destination could be the Luconia Shoals, a site of recent Malaysian oil exploration in the southern reaches of the Spratly Islands within Malaysia’s exclusive economic zone. Vessel tracking data shows the China Coast Guard ship Haijing 5203 has been loitering in that area since April 1.

But perhaps even more significant than all this activity at sea has been the diplomacy waged in the background.

There have been a flurry of diplomatic notes following a Malaysian submission to the U.N. in December claiming sovereignty over an extended continental shelf in the South China Sea off its northern coast, potentially an area with significant undersea resources. After China strongly objected, both the Philippines and Vietnam weighed in, submitting protests to China’s own territorial claims.

Malaysia, Vietnam and the Philippines, all members of the Association of Southeast Asian Nation (ASEAN), each cited a 2016 decision by the Permanent Court of Arbitration brought by the Philippines that invalidated the legal basis of China’s claims in the South China Sea.

Lai Yew Meng, a regional security analyst with the Universiti Malaysia Sabah, believes this could be intentional.

“There could even possibly be a confluence of strategic interest to forge a ‘united front’ among the three ASEAN states, sort of a de facto axis to leverage against Chinese assertive behavior and responses in the SCS (South China Sea),” he explained.

That may reflect shared anxiety over China’s efforts to bring an early end to protracted negotiations over the Code of Conduct.

The 10-nation ASEAN bloc and China agreed on a Declaration of Conduct back in 2002, which was a statement of principles on how parties should behave in the South China Sea. But completing a more detailed – and binding — Code of Conduct (CoC) has proved much more difficult. Negotiations only began in earnest in 2016. A draft of the text of the agreement has since been released.

The tentative deadline for CoC negotiations is in 2021. Those closely watching the negotiations surmise China would like to end negotiations early, without touching basic but contentious parts of it – including what China actually claims in the South China Sea and what the South China Sea encompasses.

“China could, by forcing an early resolution to the Code of Conduct, just shut everybody up,” said Carl Thayer, professor emeritus at the University of New South Wales. “‘Sorry, we closed the door, we can’t change anything, what we occupy is China and you relinquish it,’” said Thayer.

China’s Unyielding Claims

Against this backdrop, Malaysia did something that it surely knew China would object to. It submitted its claim to the U.N.’s Commission on the Limits of the Continental Shelf (CLCS).

Malaysian officials did not respond to a request for comment on why they lodged their claim. It’s doubtful they expected a quick ruling in favor of their sovereignty. The CLCS evaluates claims on a technical basis, and cannot make judgements on disputes.

“What’s really going on is that this is a forum where states publicly reveal their claims,” said Julian Ku, the Maurice A. Deane distinguished professor of constitutional law at Hofstra University’s law school.

The effect of the diplomatic note was to draw a response from China, stating its opposition to Malaysia’s continental shelf claim. And China did so in a way that characteristically set it apart from other claimants, with its assertion it has sole sovereignty over the South China Sea, based not just on its claims to land features, but also on the basis of having “historic rights” to the waters themselves – a maximalist position with no legal validity to it under the United Nations Convention on the Law of the Sea (UNCLOS).

As the CoC negotiations enter a key phase, Ku said there’s been speculation that China would drop the assertion of historic rights. “But it hasn’t done that, so that means China’s not really backing down, not even in a subtle way,” he said.

A United Front?

In the face of Chinese intransigence on its claims, Thayer said that Malaysia’s submission to the U.N. was intended to prompt other claimants to follow suit, which they all did, with reference to the 2016 tribunal case between China and the Philippines.

“Malaysia is trying to encourage its neighbors to enter into discussions so they can all make claims to the extended continental shelf and negotiate among each other how to reach a solution to this,” Thayer said.

This helps explain why Vietnam then issued its own objection on March 30 – not to Malaysia’s original claim, but to China’s response to Malaysia’s diplomatic note – although it did follow up with two more notes on April 10 in response to Malaysia and the Philippines’ claims, simply reiterating its own claims to the Spratly and Paracel Islands.

“Viet Nam opposes any maritime claims in the East Sea (South China Sea) that exceed the limits provided in UNCLOS, including claims to historic rights; these claims are without lawful effect,” Vietnam’s initial note said, citing the 1982 convention  as providing “the sole legal basis” for maritime entitlements.

Ku said the language of the Mar 30 note showed that Vietnam was starting to treat the tribunal’s 2016 decision as valid and not threatening to its own claims in the area.

“I think we can read Vietnam’s note as, ‘We just want to make sure everyone’s clear we don’t accept any of these Chinese arguments, whatever they might be.’ And just to be safe they list all the possible arguments that China has made even though the statement China submitted doesn’t spell out all those arguments,” he said.

This potentially opens the door for Vietnam, the current chair of ASEAN, to pursue its own case against China. Vietnam’s foreign ministry spokeswoman was non-committal when asked about this possibility at a press conference last week. Ku said that Hanoi’s decision to do so would be a political consideration, not necessarily a legal one.

Philippines shows ‘solidarity’

Under President Rodrigo Duterte, the Philippines has not pressed its advantage from the 2016 tribunal ruling, preferring instead to foster better political and economic ties with Beijing.

That’s why its Department of Foreign Affairs statement of “solidarity” with Vietnam on April 8 over the sinking of the Vietnamese fishing vessel was so unusual.

It also followed Manila’s two diplomatic notes in response to Malaysia’s continental shelf claim – one protesting Malaysia’s claim; another disputing China’s note. The latter referred to the tribunal ruling and was very similar to Vietnam’s note.

“The Tribunal conclusively settled the issue of historic rights and maritime entitlements in the South China Sea,” the note said. “The Tribunal ruled that claims to historic rights, or other sovereign rights or jurisdiction that exceed the geographic and substantive limits of maritime entitlements under UNCLOS, are without lawful effect.”

The Philippines and Malaysia have an actual dispute over their continental shelves due to land both sides claim, which explains why the Philippines addressed Malaysia’s as well as China’s claims in two separate notes. But Thayer believes the alignment of Malaysia’s submission and the Philippines’ note around the 2016 tribunal ruling means the two could work toward resolving that dispute in the interest of more unity against China’s far more expansive claims.

However, other analysts remain skeptical about the prospects for a “united front” on the South China Sea issue.

Lai notes that there are other factors in play when it comes to how Southeast Asian nations manage relations with Beijing. He said that states seek “a delicate balance in their ties with China to maximize their respective national interest.”