Article No. 40/2019
Courtesy: Carlyle A. Thayer, “South China Sea: The Role of the International Community,” Thayer Consultancy Background Brief, August 05, 2019
Following the discussion on South China Sea issue at the recent ASEAN Foreign Ministers’ Meeting, We would like your assessment on the following areas:
Q1. How do U.S. Secretary of State Mike Pompeo’s remarks at the 52nd ASEAN Foreign Ministers’ Meeting reflect Trump Administration’s policy on the South China Sea? What is the U.S. likely to do now?
ANSWER: It is clear that the Trump Administration views China as its main adversary and strategic rival. The Trump Administration is pursuing a strategy of a rules-based free and open Indo-Pacific region. The U.S. State Department issued a strong statement that China was threatening regional energy security and had adopted bullying. The statement singled out China’s actions in the Vanguard Bank. Reflecting Administration policy, Secretary Pompeo called out China for “coercion” in the South China Sea.
The U.S. seeks to create a network of allies and strategic partners to counter China’s predatory economic policies, intimidation and coercion of regional states, and militarization of the South China Sea. But the United States will not involve itself in confrontations between China in the Exclusive Economic Zone (EEZ) of a littoral state that is not a formal treaty partner.
Q2. This year the ASEAN joint statement was released on the first day of AMM52 [52nd ASEAN Ministerial Meeting] and used “stronger words” on the South China Sea issue than previous statements. What does this mean?
ANSWER: If you compare the joint statements issued after the 51st ASEAN Ministerial Meeting (AMM) in 2018 with the joint statement issued after the 52nd AMM there are only a few changes. The joint statements usually contain two paragraphs on the South China Sea. The first is generally positive about the direction of ASEAN-China relations. The second paragraph takes note of “some concerns” by ministers. For example, at the 51st AMM last year the joint statement “took note of some concerns on the land reclamations and activities in the area…”
This year’s 52nd AMM joint statement was more strongly worded: “We discussed the situation in the South China Sea, during which concerns were expressed by some Ministers on the land reclamations, activities and serious incidents in the area [emphasis added].” It is clear that one or more foreign ministers joined Vietnam in raising “serious incidents” caused by China. These concerns should flow through to the ongoing negotiations on a South China Sea Code of Conduct with China. Words are not the same as deeds. It remains to be seen if China will moderate its behavior and cease violating the Exclusive Economic Zones (EEZ) of Vietnam, Malaysia and the Philippines.
Q3. On this basis, will ASEAN nations contribute to resolve the South China Sea dispute and if so how? Can Vietnam do anything to push ASEAN nations, even the ones that do not have claims on the South China Sea, to lend their support in this case?
ANSWER: ASEAN works on the basis of consensus and this means adopting a stronger stance on the South China Sea is difficult to do. This year China has antagonized three members by its actions in the South China Sea.
First, China illegally intruded into Vietnam’s EEZ to conduct seismic surveys. At the same time, China Coast Guard ships attacked Vietnam Coast Guard vessels with high powered water cannons and conducted dangerous maneuvers by crossing the bows of Vietnamese ships. A China Coast Guard ship harassed service vessels and an oil exploration rig in a block operated by Russia’s Rosneft Vietnam.
Second, the same China Coast Guard vessel that harassed Vietnamese ships, also harassed Malaysian service vessels in Malaysia’s EEZ off the coast of Sarawak.
Third, Chinese fishing boats and maritime militia swarmed the waters around the Philippines’ Thitu (Pag-asa) island to prevent Filipino fishermen from fishing in their traditional grounds in their territorial sea and EEZ.
The concerns of ASEAN members will be reflected in negotiations on a Code of Conduct (COC) in the South China Sea. The COC will be a worthless document unless it restrains China from undertaking illegal actions in the EEZs of littoral states.
Vietnam will have a heavy responsibility as ASEAN Chair in 2020 to forge unity inASEAN to take a stronger stance towards China. ASEAN can only deal with China if it has the support of the major powers and maritime states.
Q4. The first reading of the draft COC has been completed and China keeps pushing ASEAN countries to finalize the code. Will this be a way to resolve the South China Sea problem?
ANSWER: When ASEAN members and China adopted the Single Draft South China Sea Code of Conduct Negotiating Text in August 2018 it was agreed it would go through three readings before adoption. ASEAN members and China have just completed their first reading.
The original Single Draft Negotiating Text was a compilation of suggestions from nine parties, China and eight ASEAN members. Laos and Myanmar made no submissions. The Single Draft Negotiating Text contained many areas of overlap. Some of the overlap has now been reduced. The hard work of addressing substantive issues remains.
In August last year, China said it would take three years to complete the COC. Up to this point ASEAN and China agreed to conclude negotiations on a mutually agreed timeline. China has been effusive in describing the progress made up to now. But in fact, its officials are still saying it will take three years to complete negotiations.
The present Single Draft Negotiating Text does not define the geographical area of the South China Sea that it will cover. China wants to exclude the Paracel Islands and only include the maritime area to the south of Scarborough Shoal. The Single Draft Negotiating Text includes sections on how disputes are to be resolved but it does not make dispute resolution compulsory nor does it include any rules for enforcement. The status of the Single Draft Negotiating Text is unclear. It is to be a legally binding treaty or merely another political declaration like the 2002 Declaration on Conduct of Parties in the South China Sea?
Finally, the Single Draft Negotiating Text does not spell out the role of third parties. China wants to exclude “outside countries” from cooperating in the exploitation of maritime resources such as oil and gas. China also wants the right to veto military exercises between ASEAN members and outside states.
Q5. There are reports that Vietnam can sue China for its actions in the South China Sea in an international court like the Philippines did. What is your comment on this? Is there a legal option that Vietnam can seek to go against China in their South China Sea dispute?
ANSWER: Vietnam has kept the option of legal action against China on the table for a number of years. China’s violations of Vietnam’s sovereign rights since 2016, when the Arbitral Tribunal ruled on the case against China brought by the Philippines, are likely to continue unless pressure is brought to bear on China.
Vietnam can follow the Philippines’ model and request compulsory dispute settlement by an Arbitral Tribunal set up under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The Arbitral Tribunal can hear Vietnam’s case even if China refuses to participate. Vietnam can request the Arbitral Tribunal to determine its entitlements in its EEZ and continental shelf and judge whether China has infringed on these entitlements. Vietnam has a strong case and is likely to win. There are drawbacks, however. UNCLOS has no provisions for enforcement. China could be brazen and refuse to comply with the final Award (rulijng). China could take punitive actions against Vietnam while the Arbitral Tribunal considers this case.
On the positive side, China’s prestige would suffer. More importantly, a wide coalition of the international community led by the United States is likely to support Vietnam. This coalition could include: Australia, Canada, EU, France, Germany, India, Japan,New Zealand, South Korea and the UK.
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