South China Sea: Asean states set course for Beijing’s red line

It’s like a fuzzy red line that China imposes on its weaker neighbours involved in the South China Sea dispute: protest all you like about the militarisation and artificial island-building, just don’t mention the international court ruling that rejected Beijing’s far-reaching territorial claims.


Until recently, the 10 member states of the Association of Southeast Asian Nations (Asean) appeared to abide by this unspoken rule from the behemoth next door.


Though the landmark award by the Permanent Court of Arbitration at The Hague in 2016 leaned in favour of the Southeast Asian claimants, statements from those countries’ leaders invoking the ruling against China have been few and far between.

And while tensions often run high over Chinese maritime assertions, regional hand-wringing has never spiralled into full-on finger-wagging against Beijing’s decision to ignore the ruling.


The court’s decision, in a case brought by the Philippines, flatly denied China’s historic territorial claims to about 85 per cent of the South China Sea, which it demarks on maps with a nine-dash line.

The court also noted that no feature in the Spratly Islands, among the two main island groups in dispute, officially constituted a fully entitled island – meaning they generated no more than 12 nautical miles of territorial waters.


That meant Beijing’s assertion of a vast coastal jurisdiction, based on drawing exclusive economic zones from the land features in the waters it claims ownership to, was invalid according to international law.

For the most part, since the ruling, Asean as a group has indicated that international law, in particular the United Nations Convention on the Law of the Sea (Unclos) under which the ruling was made, needs to underpin any resolution of the decades-old dispute.


But given Chinese antipathy towards the litigation – it did not participate in the case and on the day of the court’s decision President Xi Jinping declared Beijing would not comply with it – the region has until now exercised restraint in mentioning the case.



Beijing also argues that Asean claimants are bound by a 2002 document, the Declaration on the Conduct of Parties in the South China Sea, to settle the dispute bilaterally rather than through a world body such as the UN.

Its laundry list of gripes over the ruling include assertions that the Philippines initiated the case in bad faith, and the court had ruled on issues that China had lawfully declared it would not submit to the compulsory dispute settlement of Unclos. The arbitral tribunal, which considered these arguments, ruled that Manila was within its rights to launch the case.

Vietnamese ocean law scholar Trang Pham said Asean countries had refrained from invoking the ruling in public because of Chinese sensitivities.

“We did not want to immediately condemn or humiliate China just because they lost a case,” Pham said. “We first tried to see the reaction of China, and then we would react to that reaction.”

But with the sea dispute emerging this year as a proxy arena for the strategic battle between Beijing and Washington, scholars like Pham believe Southeast Asian countries may be about to take a new tack.

Legal researchers, in interviews with This Week in Asia and in recent public comments, say Southeast Asian claimants may be ready for a new escalatory phase in their lawfare over the row.

Robert Beckman, the Singapore-based emeritus professor seen as the region’s most eminent ocean law scholar, said in an August 12 webinar: “There’s clearly a change in attitude, due in part I think to China being increasingly viewed as a threat to the rules-based order set out in Unclos [and] because it is asserting rights in particular to the ocean resources that belong to its neighbours.”

Chinese scholars, such as Ding Duo from the National Institute for South China Sea Studies in Hainan, acknowledge the uptick in legal activism from Asean claimants.

Ding told This Week in Asia there were several reasons for the change in attitude. Among them, the belief among some of the countries that they should move now to capitalise on open US support for their lawfare amid the superpower tussle, and frustration over the slow pace of negotiations over a code of conduct in the sea between Beijing and Asean.

The US in July for the first time said it was aligning its views on the sea dispute with the findings of the arbitral tribunal. “What is certain is that among Asean countries, those that have territorial sovereignty and maritime delimitation disputes with China are constantly invoking arbitration awards to deny China’s claims to the South China Sea,” said Ding.


BATTLE OF THE NOTES VERBALE

The most obvious evidence of the lawfare is the series of diplomatic notes, called notes verbale, that Asean claimant states – and non-claimants the US and Australia – have issued to the United Nations over the past nine months with regard to China’s nine-dash line assertions.

These notes are not normal diplomatic notes between nations, but are submitted to the UN secretary general with a request that they be circulated to other member states.

They either directly challenged China’s sweeping claims by pointing out the findings of the arbitral ruling, or mentioned its key points.

The first of the notes was issued by Malaysia last December, as part of its effort to establish an extended continental shelf – beyond the conventional 200-nautical-mile limit – in the northern part of the South China Sea.

China then responded, asking the UN body in charge of continental shelves to disregard the Malaysian claim, which reached into its nine-dash line boundary.

Since then, some 15 notes verbale, along with two diplomatic letters addressed to the UN secretary general and a foreign ministry statement – put out by Brunei – have been issued in a flurry of exchanges that have been dubbed the “battle of the notes verbale”.

In their notes, The Philippines and Indonesia referred specifically to the 2016 arbitral ruling that Beijing had no historic claims in the South China Sea.
Vietnam did not mention the arbitral ruling, but mentioned its key points in its note verbale.

Brunei, in its statement in July on the row – a rare act for the kingdom otherwise known for its quiet diplomacy – highlighted the need for the sea dispute to be settled through Unclos mechanisms.

Also raising eyebrows was a statement issued by senior officials from Asean and the US following routine talks this month.
For the first time, the bloc as a group directly referenced the 2016 ruling, saying the verdict along with Unclos should form the basis of dispute resolution in the South China Sea.


FRESH ARBITRATION CASE?

So what could be the next phase of the lawfare strategy?

One view is that as like-minded countries join the bandwagon, Vietnam could undertake an arbitration case of its own. The country is already the most strident of the claimants in its criticism of China’s maritime assertions.

For some time, there have been rumblings from within its communist government that such action could be taken as a “last resort” to resolve its long-standing dispute with China over the waters.

The two countries are unique among the claimants in having briefly engaged in a bloody naval battle over the control of Johnson Reef in the Spratly Islands in 1988.

Pham, a lecturer at the Vietnam National University, said various obligations that Vietnam needed to satisfy before mounting such a challenge, such as publicly conveying its views, had been satisfied through its recent note verbale and other actions.

What was left was a “political decision” for the government in Hanoi to decide whether – and when – it should mount the legal challenge, she said.

A source said the relationship between the two countries’ communist parties was a key consideration.

Domestic pressures could also weigh on Hanoi’s decision, amid pressure from within for definitive action amid a series of actions that have riled citizens.

The Vietnamese government last week criticised Beijing for “jeopardising peace” after Chinese fighter jets and at least one bomber, the H-6J, were deployed to the Paracel Islands close to Vietnam’s 3,200km (2,000-mile) coast.

Last year, ships from both countries were embroiled in a three-month stand-off after a Chinese oil-exploration ship conducted operations in Vietnamese-controlled waters, in an apparent bid to disrupt drilling conducted by the Russian oil firm Rosneft.

In 2018, the state oil firm PetroVietnam instructed Spanish energy firm Repsol to suspend a project after coming under pressure from Beijing.

Ding, the Chinese legal scholar, said various intimations from Vietnam suggested the government there was indeed preparing for arbitration – but questioned whether the move would benefit the Southeast Asian country.

“The maritime delimitation dispute is only a small part of the bilateral relationship between China and Vietnam,” he said. “However, once Vietnam initiates arbitration, China may adopt various countermeasures … Can Vietnam solve the problem if it raises arbitration? I think the answer is no.”


FACE-SAVING SOLUTION

Some scholars argue that if the main issue is ownership of the sea’s resources – it is said to have reserves of seven billion barrels of oil and 900 trillion cubic feet of natural gas – a face-saving solution for all sides could be greater cooperation with the state-run China National Offshore Oil Corporation.
Such an arrangement, as well as agreements among the claimants on fishing rights – another key area of contention – was among “conciliatory moves” countries could take in the interim, Beckman said in the webinar organised by the Centre for Strategic and International Studies.

Song Xue, a Fudan University researcher who studies joint development projects in the disputed waters, said Beijing was unlikely to negotiate joint development projects if Asean claimants launched a fresh arbitration case.

Joint development projects, as opposed to ad-hoc cooperative projects, have their own pitfalls as they may involve joint ownership of the resources, which could be construed as an acknowledgement of sovereignty.

Xue said talks between the Philippines and China over joint development showed China’s willingness to cooperate in such projects if there were signs of genuine goodwill, despite the court case between them.

“Against the background of Asean claimants’ recent actions, Chinese analysts, observers and scholars [have] not questioned the Chinese government’s supportive stance on joint development,” Xue said. “There is scant pressure to change the policy.”


CHOOSING SIDES? DREAM ON
Asked to predict the likely trajectory of the lawfare strategy, observers questioned whether the Asean claimants – Malaysia, the Philippines, Brunei and Vietnam alongside concerned party Indonesia – could keep a united front.

The Southeast Asian countries themselves have conflicting territorial and maritime claims. Two of these disputes, between Malaysia and the Philippines and Malaysia and Vietnam, flared up recently.

In the Malaysia-Philippines saga, the foreign ministers of both countries in July exchanged barbs over the Malaysian state of Sabah.
The autonomous region on the island of Borneo is in Kuala Lumpur’s control, but Manila from time to time has asserted that the region is part of its Sulu province.

And between Malaysia and Vietnam, tensions have risen since the Malaysian coastguard last weekend shot dead a Vietnamese fisherman on a boat fishing illegally in Malaysian waters.

Men on two boats had thrown diesel bombs at Malaysian coastguard vessels, triggering the use of force.

Australian observer Bec Strating said the US, which hopes its new stance on the dispute will embolden Southeast Asian claimants to forge this united front, might find the countries reluctant to abandon their long-time strategy.

“Despite having clear stakes in the disputes, these states largely maintain an approach broadly described as ‘hedging’ – trying not to side with one state or another,” said Strating, a South China Sea expert at La Trobe University

Beckman, the National University of Singapore professor, said disappointment loomed for those hoping claimant nations – and Asean as a whole – would draw a line with China over the dispute.

He said: “If people expect Asean to choose sides they are going to be disappointed. Both individual states and Asean as a group, which has to act on the basis of a consensus, are highly unlikely to make a clear choice favouring one side or the other.”

And from China’s point of view, that could be all the better. As it faces down an increasingly hostile administration in the US wielding an array of policy measures to tighten the screws, not having to deal with a full-on strategic tug of war in the South China Sea could be a welcome reprieve.

Comments by China’s Foreign Minister Wang Yi in a state media interview this month suggested China might be ready to adopt a conciliatory approach in the disputed waters.

He did not mention the nine-dash line, and said the sea was “the shared home for the countries in the region” that should not be “a wrestling ground for international politics”.

Ding, the Chinese scholar, echoed these views.

“Asean countries cannot become the cats paws of the United States and cannot become victims of the strategic confrontation between China and the US,” he said. ■

South China Sea: Asean states set course for Beijing’s red line | South China Morning Post