First, ASEAN and China should strengthen strategic trust by extending mutual “strategic assurances” to one another.
China suspects several ASEAN member countries of allowing for or even facilitating the US’s “pivot” to Asia and in meddling in the South China Sea. On various occasions it reminded ASEAN “not to take sides” in regional power play. 4 ASEAN, on the other hand, subtly expressed its fear 5 of China’s hegemonic intension in the South China Sea, evidenced in its abandonment of charm diplomacy in place of surging waves of military and para-military assertiveness to change the fragile status quo. China’s recent unilateral announcement of the Air Defense Identification zone (ADIZ) in the East China Sea, and issuance of Hainan’s fishery regulations requiring “foreign” fishing vessels operating in two thirds of the South China Sea to seek permission from Chinese authorities, cast doubt on China’s ability to match its words with deeds, given the insistence of the new leadership in China on the continuation of a good neighborliness policy. This strategic mistrust could lead to cycles of actions and counter-reactions, such as regional re-armament or militaralisation, that may further aggravate the security environment and upset the regional balance of power with destabalising consequences. ASEAN and China need to immediately stop this spiraling strategic mistrust. China needs to re-assure ASEAN that it will continue its peaceful development strictly implementing what its leaders announced, and exercise greater self-restrain. Most importantly, China needs to prove that its rapid economic and military capability rise is a reason for ASEAN to cheer, not to fear. China has shown convincingly how its economic boom has benefited regional prosperity. China can do so with its naval capability by sending its modern vessels not to the disputed maritime zones, but to help fight piracy and armed robbery, or to help people and vessels in distress in the South China Sea, such as with relief operations during major disasters like the Haiyan typhoon that struck the Philippines in 2013. China should show that its territorial disputes will continue to be peacefully resolved without utilizing its might, be it military, para-military or economic. China should disperse any doubt within ASEAN that it sincerely favors dialogue by being more forward and engaging in talks with ASEAN on the South China Sea, such as in negotiating a binding regional Code of Conduct.
ASEAN, on the other hand, needs to assure China that it does not seek the help of extra regional powers to counter China. ASEAN needs to show that its aim is to engage major powers in the region in order to create a dynamic equilibrium 6 and cooperative framework that would benefit everyone. ASEAN also needs to show to China that South East Asia is neither interested in nor capable of meddling in a major power play, and that its ideology of constructing a peaceful, free and autonomous South East Asia region is still very much at the heart of its value right to this day. As the Australian scholar Hugh White bluntly but rather correctly said, “ASEAN will not help the US manage China for the US’s interest.” 7
Secondly, ASEAN and China should further work to strengthen the foundations of a rules-based regime in the South China Sea, particularly the 1982 UNCLOS.
China and ASEAN both agreed that UNCLOS is the foundation to create legal order in the South China Sea. China “attaches great importance to upholding the principles and purposes of the UNCLOS.” 8 ASEAN called for “the full respect of the universally recognized principles of International Law, including the 1982 UNCLOS.” 9 Yet many differences became apparent in the interpretation process, and the application and implementation of the UNCLOS, leading to several incidences of mis-understanding between the parties concerned. China’s claim of “historical rights” is a particular case in point. Whereas China insists it has historical rights in the South China Sea and such rights are not superseded by being a signatory to the UNCLOS. 10 ASEAN holds the views that such rights were already thoroughly considered and discussed in the 1982 UNCLOS negotiation process, 11 therefore superseded by the effect of the Convention. Other differences on the interpretation of UNCLOS could also have resulted from the intentional ambiguity during the negotiation of the text and newly emerging maritime issues that have not been, or adequately, considered during the drafting of the Convention.
Intentional ambiguity, such as the vagueness of the regime of islands and consequently the confusing maritime zones such features generate under UNCLOS created much mis-understanding in the context of the many tiny islands, rocks, and low tide elevations in the South China Sea. The rights and limit of military intelligence surveillance in the exclusive economic zone of a costal state that falls within the boundary of ‘peaceful purpose’ and ‘freedom of navigation’ is debatable, as reflected in the impeccable case of 2009. UNCLOS though, obliged coastal states in a semi enclosed sea to cooperate on various aspects and provided little or no guidance on how such cooperation should happen, for example on how military exercises are conducted without threatening navigational safety and the environment, or how states need to cooperate to preserve the straddling fish stocks.
Newly emerging issues due to the new utilisation of maritime space and/or its resources could trigger new disputes or incidences. Inadequate or unregulated issues, such as submarine cabling in the context of increasing regional submarine usage; increasing activities of bio-prospecting in seeking new resources from the oceans; increasing maritime tourism particularly ecotourism; the increasing number of obsolete installations; and structures at sea (the problems of decommissioning and retro-fit) that may affect safety of navigation, particularly if they are already abandoned, 12 could all be new sources of incidences and tensions if not properly addressed. After all, even in a perfectly regulated environment with unified interpretation, application and implementation of such regulations, incidences could still occur, for example through accidents due to rapidly increasing traffic in the busy South China Sea’s lines of communications. Cooperation to minimise the risks of such incidences serve the long-term interests of ASEAN, China and all other users of the South China Sea. Being the most important foundation of the legal order of the South China Sea, based on which other regimes such as the DOC was built and the future COC will be built, it is fundamentally important and necessary that ASEAN and China cooperate to promote mutual understanding of UNCLOS, and narrow the gap in the interpretation of the Convention in order to reach harmony in their application and implementation. ASEAN and China’s first step towards this direction could be to bring their maritime claims in accordance with UNCLOS.
Thirdly, China and ASEAN should immediately work on drafting the content of a binding Code of Conduct in the South China Sea.
It is worth recalling that concluding a binding regional code of conduct on the South China Sea has been ASEAN’s aspiration since the early ‘90s, 13 which was also shared by China when it agreed to enter the process of negotiating a regional COC in the late ‘90s. The DOC, which was signed in 2002, was an un-finished COC in which ASEAN and China had to water down the code when they could not agree to the scope of application of such a document. 14 ASEAN and China subsequently reiterated in the DOC itself (article 10) and among the Heads of States of the two sides in 2006, 15 that they would continue the unfinished business and work towards the eventual adoption of a regional code of conduct for the South China Sea. In September 2013, ASEAN and China started the “consultation” process on the COC by holding the first Senior Official Meeting on the COC in Suzhou, China. The second meeting is planned for April 2014 in Thailand. However, despite a constant effort by ASEAN to reach an early conclusion of the COC process, there seems to be no sense of urgency on China’s side, and no specific time line nor work plan has been agreed on the “consultation” process as of yet.
Many believed that China’s proactive role in drafting the COC would foremost benefit China because it shows ASEAN and China can work together to manage the problem on their own. That would be the strongest guarantee against any foreign interference or meddling, something China always wanted. In drafting the COC, ASEAN and China should be mindful of the DOC’s limitations and ensure that the COC squarely addresses them. First, the COC should be more detailed and try to avoid, whenever possible, the ambiguity in language that is quite common in the DOC. Second, the COC should have a clear mechanism to ensure compliance, such as an institutionalised review mechanism. Third, the COC should embody a dispute settlement mechanism on the interpretation and application of the COC itself. Lastly, the COC should not only contain overarching rules and principles but should also have clear cut procedural guidelines that will help parties trapped in incidences readily know what to do to de-escalate a potentially eruptive dispute.
There are strong reasons to believe that the South China Sea situation can be manageable. ASEAN and China’s geostrategic interests on the South China Sea can converge. ASEAN and China’s legal perspectives on the South China Sea can be made compatible. Many of the differences between ASEAN and China on the South China Sea arose from or depend on mis-understanding or a lack of mutual understanding which can be overcome through enhancing dialogue and cooperation between the two parties. ASEAN and China, therefore, must take immediate steps to implement the above three priority measures in order to stabilize the strategic environment, strengthen the legal foundation of the region and promote confidence to lower tension in the South China Sea.
The author is Director of Policy Institute for South China Sea Studies, Diplomatic Academy of Vietnam.
The views expressed in this article are of his own.
- Robert Kaplan, “The South China Sea Is the Future of Conflict”, Foreign Policy, Sept/Oct 2011 ↩
- International Cris Group Report, “Stirring up the South China Sea: Regional response” ↩
- Michael Wisley of the Lowye Institute, “What is at stake in the South China Sea”, 25 July 2012 ↩
- Fu Ying message delivered in Bangkok in June/2012, reported on The Nation, accessed http://www.nationmultimedia.com/politics/Chinese-minister-Asean-can-shape-power-play-in-E-A-30184834.html on 28/8/2012 ↩
- ASEAN Foreign Ministers Meeting in Bali, July 2011, expressed its serious concerns over incidences in the South China Sea; accessedhttp://www.asean.org/documents/44thAMM-PMC-18thARF/44thAMM-JC.pdf, on 28/8/2012 ↩
- As pointed out by Indonesia President SBY at the Shangri-la dialogue, Singapore, July 2012, reported on Indonesia Foreign Ministry’s website:http://www.setkab.go.id/mobile/international-4585-sby-encourages-durable-peace-for-asia-pacific-architecture-to-forge-a-new-understanding-of-stability-and-prosperity.html, accessed 30/8/2012 ↩
- Hugh White in his commentary in the Lowye Institute’s The Interpreter, accessed http://www.lowyinterpreter.org/post/2012/08/02/ASEAN-wont-help-US-manage-China.aspx on 28/8/2012 ↩
- China’s Foreign Ministry’s spokes person, Hong Lei, said on 21 July 2012, accessed http://www.fmprc.gov.cn/eng/xwfw/s2510/t955114.htm, on 29/8/2012 ↩
- Principle number 4 of ASEAN’s 6 Point Principles Statement on the South China Sea. ↩
- Art.14 of the Exclusive Economic Zone and Continental Shelf Act of 26 June 1998 provides that “[t]he provisions of this Act shall not affect the historical rights of the People’s Republic of China”. ↩
- See the Philippines’ proposal at UNCLOS at A/AC.138/SC.II/L.46 ↩
- Hasim Djala, Thirty years after the adoption of UNCLOS 1982, Jakarta Post, 21 August 2012 ↩
- Article 4 of ASEAN’s first Declaration on the South China Sea reads “COMMEND all parties concerned to apply the principles contained in the Treaty of Amity and Cooperation in Southeast Asia as the basis for establishing a code of international conduct over the South China Sea;” ↩
- Ralf Emmers, “ASEAN, China and the South China Sea: an opportunity missed”, IDSS Commentaries, 30/2012 ↩
- At their Commemorative Summit on 15th anniversary of ASEAN-China relations, ASEAN – China pledged to “work towards the eventual adoption, on the basis of consensus, of a code of conduct in the South China Sea, which would enhance peace and stability in the region”. (Article 14 of the Joint Declaration, accessed http://www.aseansec.org/18894.htm, on 28/8/2012) ↩