A way ahead in the South China Sea

By David Brown Asia Times Online Nov,8,2012 http://www.atimes.com/atimes/China/NK07Ad02.htmll A great deal of unrealistic hope has been invested in the notion that the Association of Southeast Asian Nations (ASEAN) will form a bulwark against China's expansion into Southeast Asian waters. It has been thought that braced by China's claim of "indisputable sovereignty" over "relevant waters" that apparently reach nearly to Singapore, ASEAN states would articulate a common interest and draw a line that non-regional powers such as Japan, Australia, India and in particular the United States could support. However, ASEAN operates on the principles of consensus and non-confrontational bargaining, in this instance a fatal flaw. Four of its 10 members - Myanmar, Cambodia, Laos and Thailand - have consistently given priority to preserving cozy bilateral relations with China over ASEAN unity. Thus divided, ASEAN's members have jawed endlessly in search of a framework that will minimally satisfy Beijing's ambitions. On this, they have gotten little help from Beijing. China's shirked every ASEAN proposal to set up a conflict-management scheme, including the so-called Code of Conduct in the South China Sea. Beijing won't agree to arbitration of rival claims or even discussions with more than one country at a time. Nor will China even deign to clarify just what it claims in the South China Sea. And so, for two decades, innumerable ASEAN meetings have kicked the can down the road. Four of the 10 ASEAN states are on the frontline of the dispute. Malaysia, Brunei, the Philippines and Vietnam claim sovereignty over all or parts of the Spratly islands, a host of reefs, rocks and islets that sprawl across the southern end of the South China Sea. Control of “land features” in turn generates claims to surrounding sea areas. Vietnam and the Philippines additionally claim islets and reefs farther north nearer to China. For Hanoi, those claims include the Paracel Archipelago, midway between Vietnam's central coast and China's Hainan Island, islets that Beijing wrested from the dying South Vietnamese regime in 1974 and where, early this year, Beijing set up the trappings of a prefecture that supposedly incorporates all of its expansive South China Sea claims. For Manila, the claims cover the Scarborough Shoal, rich fishing grounds only 200 kilometers off the coast of Luzon where in April it came out on the short end of a confrontation with Chinese coast guard cutters. Not surprisingly, it is the Philippines and Vietnam that have campaigned most vigorously for a robust answer to Chinese pretensions to domination of the seas stretching nearly 2,000 kilometers south from Hainan Island. Manila’s and Hanoi's eagerness to engage US naval might as a factor in the dispute has prompted tut-tutting among some of their ASEAN brethren. By contrast, Malaysia and Brunei have maintained a decidedly low profile. They have sorted out their claims between themselves and with Vietnam, relying on concepts codified in the UN Convention on the Law of the Sea (UNCLOS) and customary international law. Both have stood aloof from Vietnamese and Philippine efforts to defend their claims in the seas to the north. Uncharitable though the thought may be, both Kuala Lumpur and Bandar Seri Begawan seem to have hoped against mounting evidence that China's appetite could be satiated short of the waters they claim. Indonesia and Singapore also share an interest in discouraging China from pursuing its expansive claim. The seas within China's infamous nine-dash line overlap Indonesia's exclusive economic zone (EEZ) in the vicinity of the Natuna Islands. Jakarta and Singapore have until now distinguished themselves as the prime backers of an "ASEAN solution", with Singapore as usual deferring publicly to Indonesia's leadership. While professing to be ready to work things out bilaterally, China hasn't budged from its claim of historic rights in all of the waters within the nine-dash line. Beijing is thus asserting ownership of maritime resources in upwards of 85% of the South China Sea, notwithstanding the UNCLOS rule that all nations have exclusive sovereign rights to exploit adjacent seas out to 200 nautical miles from their coast, or beyond if their continental shelf is wider, unless they abut on another nation's EEZ. China has consistently refuted UNCLOS rules, claiming Its sailors and fishermen have plied these seas since time immemorial. All of the claimants can invoke historical precedent to justify their claims. For millennia, the South China Sea has been a global commons. Vietnam can produce stacks of 18th century maps and decrees that demonstrate a considerably more consistent interest than China in exercising sovereignty over various South China Sea atolls. As in China, these yellowing documents stoke nationalist passions. Historical argument, however, does not offer a way out of the tangle of claims unless, as at least some players on the Chinese side believe, it is backed up by irrefutable force. Chinese Foreign Minister Yang Jiechi famously declared at an ASEAN-hosted meeting in August 2010 that "China's a big country and other countries are small countries and that is just a fact." Roiled waters For several years now, hopes of a diplomatic breakthrough have risen in the autumn months, while the South China Sea is roiled by monsoons. Come calmer weather, Beijing's provocations multiply, directed in particular at harassment of Vietnamese and Filipino fishermen and at scaring off energy companies that presume to prospect for seabed oil and gas under licenses granted by Hanoi or Manila. Beijing has relied on hundreds of armed "maritime safety" and "fisheries protection" vessels to extend its control, while over the horizon is the increasingly potent People's Liberation Army Navy. Not surprisingly, Vietnam, Malaysia, Indonesia and Singapore have redoubled efforts to build up their own air and naval strength. The Philippines is a latecomer to the South China Sea arms build-up. Though Manila has been energized by recent clashes with China, its forces are particularly outgunned. It is the expected bonanza of seabed oil and gas, encapsulated within long-frustrated resentment of foreign affronts, that is driving China's attempt to bring the South China Sea under its sway. The failure of ASEAN confabulations to find a way out of the growing crisis, China's relentless application of a "talk and take" strategy, and the consequent engagement of the US in these quarrels has driven experts to despair. It is apprehension of how a revanchist China might dispose itself should it prevail in the current contest that has roused the US. Washington is not itching to fight and it is still unclear how the US might respond if Vietnam or the Philippines or even Singapore were obviously slipping into a Chinese sphere of influence. There seems little doubt, however, that Washington is determined to prevent Beijing from controlling navigation through the South China Sea. If ASEAN won't fill the breach, who will? The US and the rest of the world require a solid argument to justify sustained and effective engagement. Recently burned by the weapons of mass destruction chimera in Iraq, the American public is wary of another foreign military adventure. Japan is congenitally wary of an assertive posture. If they want more from the US and its allies than expressions of determination to uphold freedom of navigation through the South China Sea, the Southeast Asian nations on the sea’s littoral must make a compelling case that they need and merit assistance. Many in the Western foreign policy establishment believe that the US ought to make a partner of “rising China.” Rising tensions in the South China Sea are a threat to their vision of a peaceful and prosperous Pacific community. Ready to concede a sphere of influence to China, they say - like ASEAN - that they won't take sides in the dispute. Many Western "strategic thinkers" still discuss the confrontations as though all parties are equally culpable. This perception, however, can be changed. All that is needed is for Brunei, Malaysia, the Philippines and Vietnam to negotiate a common position - which they can do by sorting out, if not settling, their claims amongst themselves by applying the precepts of the UNCLOS and general international law. They could also commit to arbitration of remaining disputes. Non-claimants Indonesia and Singapore could support such an ASEAN state process. The immediate outcome should be clarification of these four nations' currently overlapping claims to the Spratly Group's islands, reefs and rocks. They could aim to agree on the "maritime space" these land features generate, and thus establish the geographical limits of the disputed areas. That would in turn clarify the implications of these claims for control of surrounding seas. Regarding claims outside of the Spratly area, a poor bargain is arguably better than none at all. China has controlled the Paracels for nearly four decades and now seems determined to hold the Scarborough Shoal as well. At this point, successful assertion of historic rights by Vietnam and the Philippines over these contested territories seems a forlorn hope. A pragmatic course would be to insist on Beijing's recognition of EEZ's generated according to UNCLOS rules, a course which if upheld may return a western slice of the Paracels to Vietnam as well as the Scarborough Shoal to the Philippines. This much Malaysia, Brunei, Indonesia and Singapore ought to support, though they have shied at endorsing claims of historic right. These steps, perhaps arrived at after a few months of intense and secret negotiation, would establish a foundation for peaceful resolution of what is now undeniably a crisis. It would also give the US and its friends a sound basis for robust support, and even - should it come to that - military intervention. Historical baggage China, with its leadership renewed and set for the next several years, may by then be looking for a way back from confrontation. Chinese spokesmen have said on occasion that claims should be settled according to international law, and that pending such resolution agreements on the joint exploitation of South China Sea resources can serve to reduce tensions. It will not be easy, however, for China to back away from its historical claims. Such a retreat is inconceivable unless Vietnam does the same - that is, unless Hanoi also agrees to establish maritime boundaries based solely on UNCLOS and related principles of international law. Like China, Vietnam is heavily invested in historical arguments. Indeed, some independent scholars say that based on the historical evidence Hanoi's claim to the contested islets is superior. It will be no easier for Vietnam to put history on the shelf; it is, after all, a nation that has forged its identity beating off Chinese invasions every few hundred years since 938 AD And yet, unless these ancient and asymmetrical rivals can rise above this bitter history, there is scant chance of a happy ending to the current South China Sea crisis. Some will argue that dismissing China's historical claims and putting forth a jointly established negotiating position based on sound legal principles will simply infuriate Asia's rising superpower. However, it is hard to imagine that failure to resist Chinese pretensions can lead to a better result. There is still a potentially hopeful scenario. Motivated by a realization that time has run out, the four ASEAN claimants work out sea boundaries amongst themselves by applying relevant legal principles. Supported in concept by Indonesia and Singapore, if not ASEAN collectively, they announce their readiness to enter negotiations with China on the same basis. Instead of denouncing what's been accomplished thus far or insisting that it will only negotiate bilaterally, China agrees to the process. Before long a deal is hashed out that acknowledges China's mastery of most of the Paracels and toeholds in the Spratlys. These parties then turn to discussion of related matters, for example a Code of Conduct. This would not be the same watered-down document that ASEAN has discussed but a robust document that supports the territorial accommodations discussed above. Joint exploitation of energy resources could bind together the various elements of a constructive future in the South China Sea. The parties could then agree to an 'open door' for entities from all the littoral nations subject to responsible behavior. Put another way, any regime for governing the South China Sea cannot endure unless it assures fair access for Chinese entities to the region's maritime resources. The other littoral states must welcome and facilitate Chinese investment and joint ventures, including Chinese participants to exploit seabed hydrocarbons. Fisheries could be managed jointly and sustainably and joint patrols could enforce the agreed rules. Finally, the littoral states and the principal maritime nations could negotiate rules governing shipping channels, notifications and rights of navigation within the South China Sea. Some may protest that this happy scenario would be fatal to the organizational principles and leadership practices that embody the so-called "ASEAN Way." But acknowledging that in this instance ASEAN has failed to make the consensus model work is likely to be less corrosive of the organization's overall effectiveness than continuing an ineffectual effort to assert ASEAN's centrality in the intensifying disputes. David Brown is a retired American diplomat who writes on contemporary Vietnam. He may be reached at nworbd@gmail.com. (Copyright 2012 Asia Times Online (Holdings) Ltd. All rights reserved. Please contact us about sales, syndication and republishing.)