The South China Sea has become the epicenter of a whirlwind of
escalating territorial disputes among six countries in the region - Brunei,
China, Malaysia, the Philippines, Taiwan and Vietnam.
Now, with pressure on new
Association of Southeast Asian Nations (ASEAN) chairman Brunei and freshly
appointed Secretary General Le Luong Minh (from Vietnam) to find a new way
ahead, ASEAN holds the key to regional stability in the year ahead.
Expectations for the passage of a
binding Code of Conduct in the disputed areas were dashed last year through
disagreement among ASEAN members on how best to proceed. The issue has
increasingly polarized the regional group between countries that aim to
challenge China's rising assertiveness, led by the Philippines and Vietnam, and
those that prefer to take a neutral stand on the South China Sea issue and
prioritize deepening economic ties.
With those splits in ASEAN, the
Philippines and Vietnam have bid to reinforce their legal claims vis-a-vis
China at both national and international levels. The two ASEAN members have
chosen to downplay their own disputes, including in regard to features Vietnam
occupies in areas the Philippines claims as the Kalayaan Island group, as they attempt
to mount a more united front against China in the maritime disputes.
"There is a convergence but
not congruence of interests between Hanoi and Manila," said Carlyle
Thayer, a Vietnam expert at Australia's University of New South Wales. Thayer
said those mutual interests were reinforced by an agreement finalized last year
to conduct coordinated maritime patrols in waters where the two ASEAN countries
have overlapping claims.
Vietnam's new Law of the Sea took
effect on January 1, a legal shift that promises to agitate China. Adopted in
June 2012 by near unanimous vote of the Vietnamese National Assembly, the law
"provides for the baseline, the internal waters, the territorial sea, the
contiguous zone, the Exclusive Economic Zone, the continental shelf, islands,
the Paracel and Spratly archipelagos and other archipelagos under the
sovereignty, sovereign rights and jurisdiction of Vietnam."
Existing laws such as the 2003
Law on National Border and the Law of the Sea reaffirmed Vietnam's sovereignty
over contested islands, including the Paracel (Hoang Sa) and Spratly (Truong
Sa) archipelagos. "The most important part of the [new] Vietnam Law on the
Sea is Article 2.2, where the law states that if anything in the law
contravenes international law, international law takes precedence," Thayer
said.
Hanoi's new reference to the
primacy of international law is a clear message to Beijing, which has insisted
that any dispute should be resolved at a bilateral level and avoid multilateral
mechanisms, especially ASEAN summit meetings where international powers like
Australia, Japan, India, Russia and the United States have a voice.
Vietnam's nod to international
law also comes as the Philippines moves to challenge China's territorial claims
in the South China Sea at a United Nations tribunal. In January, Philippine
foreign affairs authorities announced that they would take Beijing to an
international arbitration tribunal under the 1982 United Nations Convention on
the Law of the Sea (UNCLOS). Both China and the Philippines are signatories to
the convention.
Philippine officials said they
aim to show that China's wide-reaching "nine-dash line" map setting
out its claims in the potentially oil-and-gas rich waters is
"unlawful" under the UNCLOS. The move to internationalize the dispute
comes after a series of incidents between Chinese and Philippine vessels in
contested waters, including last year's weeks-long stand-off in the contested
Scarborough Shoal area.
Philippine officials said they
expected the legal proceedings to take between three and four years and result
in a "durable solution" to the disputes. China responded in a
statement reaffirming its "indisputable sovereignty" over the islands
and features it contests with the Philippines.
China has specifically targeted
energy exploration vessels, underscoring what many analysts see as the root
cause of the disputes. In May 2011, Chinese patrol boats intentionally severed
a seismic cable towed by a Vietnamese survey vessel working about 120 miles
(193 kilometers) off Vietnam's shores and hundreds of miles south of China's
Hainan Island.
Last December, Chinese fishing
vessels cut the cables of a Vietnam Oil & Gas Group seismic ship in
Vietnam-controlled waters of the South China Sea, according to the company's
chief executive officer, Do Van Hau.
Despite these clashes, China has
consistently rejected international legal arbitration "partly because this
would involve a multilateral institution but also because China does not have a
strong case," according to a report entitled "Cooperation from
Strength: The United States, China and the South China Sea published last year
by the Washington-based, non-partisan Center for New America Security (CNAS).
In 2011, China refused a
Philippine proposal to submit their overlapping territorial and boundary claims
to the International Tribunal of the Law of the Sea (ITLOS), the body
established under UNCLOS to settle maritime disputes between countries that
have ratified the agreement. "Yet China opted out of ITLOS when it
ratified UNCLOS, which means that China will almost certainly continue to
oppose the proposal," the CNAS report states.
In any case, the UN tribunal
lacks the power to enforce any decision on issues of national sovereignty. From
China's perspective, Philippine and Vietnamese diplomatic efforts to lean on
international powers and enlist multilateral institutions to reaffirm their
respective sovereign claims is only worsening the situation. Beijing has responded
through a series of provocative actions.
After Vietnam's National Assembly
adopted the Law of the Sea, Chinese authorities reacted by raising the status
of Sansha to a prefectural-level city that administers the three disputed
island groups of Nansha (Spratly Islands), Xisha (Paracel Islands), and
Zhongsha (Macclesfield Bank). The new city also covers the three island group's
surrounding waters. On June 22, the National People's Congress, China's top
legislature, urged Vietnam to "correct" the law.
"So far China has not tested
Vietnam's law, but the incident last year involving Chinese fishing boats and
the cable-cutting incident are likely to be repeated," said Thayer.
ASEAN claimant states, namely
Brunei, Malaysia, the Philippines and Vietnam, still aim to sign and enact a
binding Code of Conduct between China and ASEAN based on the non-binding
Declaration on the Conduct of Parties in the South China Sea, which was first
adopted in Cambodia in 2002.
According to Tran Truong Thuy,
director of the Center for South China Sea Studies at the Diplomatic Academy of
Vietnam (DAV), "Beijing should accept a legally binding regional Code of
Conduct ... which would ensure smaller parties from being intimidated and
making them more confident to proceed with the cooperative activities in the
South China Sea."
But as tensions mount over the
bids by the Philippines and Vietnam to internationalize the disputes, expect
more discord than agreement in the year ahead.
Roberto Tofani
Business & Investment Opportunities
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