by Mark Valencia*
2 July 2020
On 26 June, the leaders of the ten-member Association of Southeast Asian Nations (ASEAN) held their 36th annual summit by video conference, after the in-person summit scheduled for April was postponed because of Covid-19. The pandemic was the main topic of discussions. But also high on the agenda was the South China Sea conundrum.
In the run-up to the delayed summit, there were expectations in some quarters that the leaders – particularly of Vietnam and the Philippines – would strongly criticize China for its perceived transgressions against rival claimants in the South China Sea. But hope is not a good basis for objective analysis. As was predictable such hopes were dashed and the outcome of the meeting regarding the South China Sea was muted and ambiguous. That has left analysts to try to sort out the situation by reading the proverbial tea leaves.
Over the past year, China has taken actions that have alarmed some other claimants and stoked the US narrative that China is a threat to the region. After the early April sinking of a Vietnamese fishing boat due to a collision with a Chinese Coast Guard vessel in China’s claimed waters off the Paracels, the US State Department expressed serious concern, adding that “this incident is the latest in a long string of PRC actions to assert unlawful maritime claims”. But this was simplistic hype that lumped different political and geographic circumstances as well as the degree of egregiousness and legitimacy of China’s actions. Each should be dealt with individually and there may be reasonable explanations for many of them.
The China-Vietnam dispute over the Paracels and their attendant maritime zones is quite separate from its dispute with Vietnam and other ASEAN claimants over the Spratly features, maritime space and the resources there. China has occupied the Paracels for 45 years after seizing them from South Vietnamese forces in 1974. Fishing off China’s administrative capital, in violation of its laws, is extremely provocative. Moreover, it is not clear who was at fault.
The State Department went on to link this incident to China’s other actions in the Spratlys. But China has as good a claim to the features as several other claimants. As others have done, it claims the right to build such installations on its territory and to name administrative districts to govern them.
Another alleged transgression by China was the presence of its seismic research vessel in Vietnam and Malaysia’s claimed 200 nautical mile Exclusive Economic Zones (EEZ). Vietnam considers China’s claims and actions a violation of the UN Convention on the Law of the Sea (UNCLOS), to which both are parties. But China may have an UNCLOS-compatible claim to part of the area, namely that the Paracels belong to China, that they are legal islands and that they generate an EEZ and a continental shelf extending out to 350 nm. They could also point out that Vietnam uses an excessive baseline that extends its EEZ and continental shelf in this area further than allowed by UNCLOS. Moreover the joint Vietnam-Malaysia claim to extended continental shelf in the area is just that –only a claim – yet to be affirmed by the international process for doing so.
Until an arbitration or an agreement determines otherwise, neither country should unilaterally proceed with exploitation – although surveying is permitted.
Regarding “illegal” entrance of Malaysia’s EEZ, so far China’s vessels are only exercising their freedom of navigation there. Although the vessel appeared to have carried out a survey – it may have been in a carefully selected area beyond Malaysia’s 200 nm EEZ claim from a legitimate baseline off Sabah. Zubil Mat Som, the head of Malaysia’s maritime enforcement agency, said of the vessel, “We do not know its purpose but it is not carrying out any activities against the law”.
Vietnam has been the most vocal regional critic of China’s actions in the South China Sea. It is the current ASEAN Chair and was the summit host. In his opening speech, Vietnam’s Prime Minister Nguyen Xuan Phuc said, “While the entire world was fighting an epidemic of irresponsible actions that violate international laws and pose threats to security and stability was taking place in some areas, including Vietnam’s.”
But unlike the US, he did not call out China by name. Nor did any other leader, thus demonstrating respect, fear or both.
The Philippines is the current ASEAN lead interlocutor with China. President Rodrigo Duterte said little progress had been made “in producing deliverables” from the ASEAN-China dialogue. But perhaps his most significant observation was that ASEAN members and China “must find innovative ways and exercise flexibility to achieve our common goals”.
According to Philippines Presidential spokesperson Harry Roque, at least half of the ten ASEAN leaders raised the South China Sea issue. One can assume that, besides Vietnam and the Philippines, this would include Indonesia, Malaysia and Singapore. But it may not have been solely in veiled criticism of China.
The leaders were clearly concerned with the US-China military buildup in the region. As China’s PLAN continues its modernization and projections of power further out to sea, the US has responded by deploying forces from Europe to the Asia-Pacific. US Secretary of State Michael Pompeo declared, “We’re going to make sure we’re postured appropriately to counter the PLA [People’s Liberation Army].”
Indonesia’s Foreign Minister Retno Marsudi said that it was “important for ASEAN to keep sending out messages to great powers involved in the dispute to maintain regional peace and stability in the South China Sea”. Considering previous relevant statements by high-level Indonesian government officials, this appears to be a plea to both China and the US to back off and exercise more restraint in their military deployment in the region.
The statement of the ASEAN Chair said, “We underscored the importance of non-militarisation and self-restraint in the conduct of all activities by claimants and all other states [emphasis added] which could further complicate the situation and escalate tensions in the South China Sea.” That could be interpreted to mean a concern with the behaviour of both China and the US – which, unlike China, is a non-claimant. If this were truly the unanimous sentiment of ASEAN, it would be new.
The statement also “reaffirmed [emphasis added] that the 1982 UNCLOS is the basis for determining maritime entitlements, sovereignty, jurisdiction and legitimate interests over maritime zones.” If this endorsement of the sole role of UNCLOS in determining claims had been issued by ASEAN collectively, it could indeed be interpreted as a new level of veiled criticism of China’s claims. But it should be remembered that the non-negotiated statement was drafted by Vietnam, which has a particular axe to grind. Moreover, although some have seized upon this statement as “new“, it is not really “new”. Previous Chair statements have referred to UNCLOS as the guide for maritime claims and resolving disputes. Also several rival claimants have previously individually asserted this principle. What may be new is the dropping of the concurrent reference to “international law”.
But it appears elsewhere and in the same sentence in para 64 in reference to the South China Sea (“and we reaffirmed the importance of upholding international law, including the 1982 UNCLOS”). The difference is certainly not clear because in ratifying UNCLOS, states are agreeing that it supersedes other applicable international law. Nevertheless, Mike Pompeo, the Secretary of State of the US – a non-ratifier of UNCLOS – hypocritically welcomed such a statement and gratuitously added that “China can’t be allowed to think about the SCS as its maritime empire”.
The overall result regarding the South China Sea seems to be a mixed bag. The tea leaves say that regarding the South China Sea, ASEAN is still – or even more – disunited and worried about the China-US confrontation there and getting caught in between. For ASEAN and ASEAN-China relations in the South China Sea, little or nothing has changed.
*The author is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles. He is an adjunct senior scholar at the National Institute for South China Sea Studies in Haikou, China.A considerably shorter version of this piece first appeared in the Interpreter published by the Lowy Institute.
Photo Credit: Jeremy Horner/Getty Images as used by the Interpreter.