A missed chance in the South China Sea has come back to haunt Asean
- Hoang Thi Ha and Ian Storey examine the (dis)connect between the Asean-China Code of Conduct negotiations and the arbitration ruling
According to a leading member of the Philippines’ legal team who spoke with the authors while the case was under way, above all Manila sought a definitive legal judgment on the rights of coastal states within their exclusive economic zones and the legality of China’s nine-dash line as well as its so-called historic rights within that line.
When the arbitral tribunal handed down its verdict on July 12, 2016, the Filipino legal team received everything they had set out to achieve. The ruling declared that the nine-dash line was incompatible with the United Nations Convention on the Law of the Sea (UNCLOS), that Beijing’s claims to “historic rights” had been extinguished when it ratified the agreement, and that China’s activities in the sea had violated the Philippines’ sovereign rights in its exclusive economic zone.
The team’s euphoria was, however, all too short-lived.
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As the nine-dash line is found to have no legal basis and no feature in the Spratlys is qualified as an island that could generate maritime entitlements to an exclusive economic zone and continental shelf, the scope of the disputed features and overlapping maritime areas in the South China Sea would have been significantly reduced. Compliance with the award would also have strengthened the parties’ commitment to UNCLOS, which has been repeatedly stressed throughout the code of conduct process. Ultimately, it would have made the code more credible, both for the parties concerned and for the international community.
Instead, the parties now find themselves discussing the rights and wrongs of incursions into another country’s exclusive economic zone and the harassment by warships and coastguard vessels of survey ships and drilling rigs in areas where the coastal states’ sovereign rights are guaranteed by UNCLOS. Had the parties recognised the tribunal’s ruling, these issues would have been moot.
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CALM WATERS IN THE SOUTH CHINA SEA?
Since the ruling, China has promoted a narrative that “all is calm” in the South China Sea consisting of two elements:
Second, that the main cause of tensions is America’s increased military presence in the sea and especially its freedom of navigation operations in the Paracels and Spratlys.
To some extent, Asean was bought into the first part of this narrative. For example, at the Asean-China Summits in 2018 and 2019, their joint statements “warmly welcomed the continued improving cooperation between Asean and China, and were encouraged by the progress of the substantive negotiations for an early conclusion of an effective code of conduct”.
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In April 2020, China created two new administrative districts to govern the Paracels and Spratlys. And since the tribunal made its award four years ago, China has completed the reclamation of seven artificial islands in the Spratlys, allowing Beijing to project power into the heart of maritime Southeast Asia and exert military pressure on the other claimants.
Meanwhile, Asean and China have claimed progress in their code of conduct. In 2017 they issued a one-page COC Framework, followed by a 19.5-page Single Draft Negotiating Text in 2018, and a 20-page First Reading in 2019. Yet, all these cosmetic achievements have done little to resolve the substantive differences between both sides.
According to some officials involved in the process, the code of conduct draft after the First Reading remains an assortment of vastly divergent, if not irreconcilable, positions between China and the Southeast Asian claimant states.
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However, by buying into China’s narrative that “the South China Sea is calm and the region is in harmony”, Asean is at risk of compromising this very goal.
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CONNECTING THE DISCONNECTED
In all Chinese messaging on the code of conduct, the emphasis on the regionality and exclusivity of Asean-China arrangements to deal with the disputes is unmistakable. Speaking at the 2019 Shangri-La Dialogue, Chinese Defence Minister Wei Fenghe said: “We hope that relevant parties will not underestimate the wisdom and ability of regional countries to properly handle differences and maintain peace.”
This emphasis on regional solutions, through regional norms and rules that China hopes to enshrine in the code of conduct threatens not only to exclude external powers from the South China Sea but also to compromise the near-universal applicability of UNCLOS.
It is therefore imperative to keep the arbitration ruling alive to guard against the code of conduct being framed towards some form of regional exclusivism to international law.
Among other things, the ruling provides the legal basis for the formulation of applicable parameters for practical maritime cooperation under the code of conduct, including their modalities, scope and locations. Since China has proactively pushed for maritime cooperation activities as a key objective of the code of conduct, this is to make sure that such activities are not in contravention of UNCLOS and compromise the rights and interests of third parties.
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Furthermore, Indonesia, Malaysia, the Philippines and Vietnam, in their practice and statements, have directly or indirectly invoked the arbitral tribunal’s ruling to protest against China’s claims and actions, as recently demonstrated in Malaysia’s submission to the UN Commission on the Limits of the Continental Shelf in December 2019, and the subsequent notes verbales by the Philippines, Vietnam and Indonesia to the UN Secretary-General.
Since the arbitration ruling was handed down, Beijing has tried to push what it considers “just a piece of paper” into the dustbin of history.
Asean, bound by the divergent interests among its members and pressured by China, has been unable to speak out in defence of the ruling. Even so, the arbitral tribunal’s findings have provided the pervasive subtext for Southeast Asian littoral states in the South China Sea throughout the code of conduct negotiations.
Asean can no longer afford to be subtle over the South China Sea
As for Asean as a whole, a healthy dose of realism is urgently needed to guard against drinking too much of the Chinese Kool-Aid on the narrative of “code of conduct progress” and “regional harmony”.
Asean’s credibility is more at stake with a bad code of conduct than with no code of conduct.
Hoang Thi Ha and Ian Storey are Fellow and Senior Fellow at the ISEAS-Yusof Ishak Institute.
This article first appeared in the publication ASEANFocus 2/2020, titled The Arbitration Award: An Historic Opportunity Lost for Asean