From January through
May, the South China Sea dispute continued to trend in a negative direction.
Consistent with the pattern of developments over the
past several years, the dispute continued to be characterized by an
action-reaction dynamic in which attempts by one or other of the claimants -
most notably, China, the Philippines and Vietnam - to uphold its territorial or
jurisdictional claims led to protests and countermoves from the other
claimants.
Although the United Nations appointed a panel of
judges to examine a Philippine legal challenge to China's expansive claims in
the South China Sea, and tentative steps were taken by China and the
Association of Southeast Asian Nations (ASEAN) to begin talks on a code of
conduct (CoC), there was little optimism that either of these processes would
reduce tensions in the short term or provide an environment conductive to a
resolution of the problem in the medium to long term.
The action-reaction dynamic, and urgent need to stem
ongoing tensions, were brought into sharp relief on May 9 when Philippine
authorities shot dead a Taiwanese fisherman in disputed waters, provoking a
major crisis in Philippines-Taiwan relations. The tragic incident was not the
first of its kind in the South China Sea nor, sadly, is it likely to be the
last.
This essay will examine these recent developments and
their immediate implications.
The Philippine legal
submission to the UN
On January 22, the Philippines angered China by
unilaterally submitting the Sino-Philippine dispute over jurisdictional rights
in the South China Sea for legal arbitration under the United Nations
Convention on the Law of the Sea (UNCLOS). Manila's submission argues that
China's "nine-dash line" and apparent claims to sovereign or historic
rights within the line, are incompatible with UNCLOS and therefore invalid.
Given China's long-standing preference to resolve
territorial and boundary disputes with neighboring countries through bilateral
negotiations rather than international legal arbitration, it came as no
surprise that it formally rejected the Philippine submission on February 19.
China's foreign ministry declared the Philippine submission was "factually
flawed", "contained false accusations" and violated the 2002
ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DoC).
The Philippines, however, remained firmly committed to
the arbitration process. Speaking in Tokyo on May 23, Philippine Foreign
Secretary Albert del Rosario emphasized that, unless the claimants pursued a
"rules-based" solution, the "status quo will favor military and
economic might, and diplomacy will veer toward appeasement, which undermines
any attempt to build a system based on equity and rules".
China's rejection of the Philippine submission was met
with disappointment by a number of legal experts. Law professor Jerome Cohen,
for instance, argued that by refusing to participate in the proceedings, China
was projecting the image of a "bully" and a "violator" of
international law, while Peter Dutton noted that China had missed an important
opportunity to reassure "increasingly anxious neighbors that it is
committed to institutional rather than power-based resolution of disputes"
[1].
Despite China's decision to snub the case, legal
proceedings will continue. During March the president of the International
Tribunal of the Law of the Sea, Shunji Yanai, appointed the remaining judges
for the five-person Arbitral Tribunal, including one to represent China. Once
convened, the tribunal will decide whether the submission falls within its
jurisdiction.
A decision on this issue could be reached as early as
July. If the tribunal decides that it does have jurisdiction, it could be
several years before it issues a final ruling. Any ruling handed down by the
tribunal will be binding but not enforceable. Should the tribunal rule that China's
claims are incompatible with UNCLOS, however, it will represent a legal and
moral victory for the Philippines and would put the onus on China to clarify
the bases of its maritime claims. Given China's rejection of the tribunal,
however, Beijing is likely to simply ignore the ruling.
A code of conduct for
the South China Sea
On the diplomatic front, there was some slightly
encouraging news concerning the prospects of an ASEAN-China CoC. When ASEAN and
China signed the DoC in 2002, all parties committed themselves to work toward a
formal code of conduct in the future.
It wasn't until late 2011, however, that China agreed
in principle to begin discussions with ASEAN. But in mid-2012, China threw a
spanner in the works when it announced that the "time was not ripe"
to begin talks, mainly because, in its view, there was little point in
discussing a CoC when Vietnam and the Philippines were repeatedly violating the
DoC (an allegation Hanoi and Manila have frequently leveled at Beijing) [2].
As the chairman of ASEAN in 2013, Brunei has made the
CoC a priority as has the organization's new secretary general, Le Luong Minh.
Singapore also has been pushing for a code and Indonesia's foreign minister,
Marty Natalegawa, has been working behind the scenes to try and make it happen.
Until China gave the green light to talks, however, progress was impossible,
and it was not until the spring that a breakthrough of sorts occurred.
On April 2, the 19th ASEAN-China Senior Officials
Meeting Consultation took place in Beijing. ASEAN officials paid a courtesy
call on China's recently appointed foreign minister, Wang Yi. At that meeting,
Wang reportedly told the visiting Southeast Asian officials that the South
China Sea dispute should not be allowed to undermine ASEAN-China relations, and
that China was willing to begin exploratory talks on the CoC.
On April 11, ASEAN foreign ministers met in Brunei in
preparation for the 22nd ASEAN Summit later that month. Following that meeting,
Foreign Minister Natalegawa informed the press that China had agreed to start
talks on a code, though official confirmation from Beijing was not forthcoming.
Natalegawa kept up the pressure on China by
criticizing it for taking "unilateral steps" that violated the spirit
of the DoC - possibly a reference to Chinese naval exercises at James Shoal in
March and other incidents.
At the 22nd ASEAN Summit, Brunei used its considerable
diplomatic skills to ensure consensus on the South China Sea, thereby
preventing a repeat of the embarrassing fiasco in July 2012 when the dispute
derailed a final communique. Although much of the language of the chairman's
statement was boilerplate and broke no new ground, it did note that the leaders
had tasked their ministers to "continue to work actively with China on the
way forward for the early conclusion of a [CoC] on the basis of
consensus".
Encouragingly, Foreign Secretary del Rosario said the
dispute had been a "major topic" for discussion and that there had
been "solidarity" on the need to convince China to move forward with
a CoC.
A few weeks after the summit, China's Foreign Minister
Wang Yi traveled to Indonesia, Thailand, Singapore and Brunei on his first
overseas trip as foreign minister. In a meeting with Natalagewa on May 2, Wang
stated that China had agreed to "discuss the promotion of the CoC
procedure under the framework of the Joint Working Group [JWG] on DoC
implementation". Additionally, according to a press statement issued in
Brunei on May 5, agreement had been reached to advance progress on the code
"in a step by step manner during the implementation of consensus" and
that an Eminent Persons Expert Group (EPEG) would be formed to compliment the
work of the JWG.
It was hardly a ringing endorsement of the CoC process
by China, but at least it represented progress after a hiatus of nearly a year.
Most likely, China changed its position in order to relieve pressure from the
ASEAN states, appear constructive and accommodating, thereby enabling it to
focus its attention on the Senkaku/Diaoyu dispute in the East China Sea, which
Beijing considers a much more serious problem than the Spratlys.
That negotiating the CoC will be painfully slow was
demonstrated on May 29 when the ASEAN-China JWG on the DoC met in Bangkok.
According to someone familiar with the meeting, officials made little progress
in deciding either the role or composition of the EPEG. The issue will be taken
up again at a meeting of China's and ASEAN foreign ministers in August. It is
completely unrealistic, therefore, to expect that the CoC will be ready to sign
at the ASEAN-China Summit in October.
Resource disputes
provoke crises
Competition over energy and fishing resources remains
one of the central drivers of the South China Sea dispute. In the first five
months of 2013, the activities of fishermen in disputed waters triggered a
number of serious-and one fatal-incidents that fueled tensions between the
claimants.
On March 20, Chinese vessels fired warning shots at
four Vietnamese trawlers near the Paracels, setting one of the vessels ablaze.
Vietnam condemned the incident as "wrongful and inhumane", but
Beijing rejected calls from Hanoi to compensate the fisherman's family.
Far more serious was the fatal shooting of a Taiwanese
fisherman by the Philippine Coast Guard (PCG) on May 9. The incident took place
in the Bashi Channel in an area where the 200 nautical mile exclusive economic
zones of Taiwan and the Philippines overlap. The PCG claims it opened fire on
the fishing boat when it tried to ram one of its patrol boats; Taiwan maintains
that there is no evidence to support this claim and has accused the PCG of
using excessive force in violation of UNCLOS (the trawler was riddled with over
50 bullet holes).
Taiwan's reaction was furious. It demanded a formal
apology, an investigation and punishment of the perpetrators, compensation for
the fisherman's family and talks on a fisheries agreement to prevent further
incidents (and similar to the one Taiwan had signed with Japan in April).
In an unprecedented show of force, the navy, air force
and coast guard conducted exercises in waters near to where the incident had
occurred. Taipei went on to reject two apologies from Manila as being
"insincere" and imposed 11 punitive measures, including a hiring
freeze on Filipino workers and an advisory that Taiwanese refrain from visiting
the Philippines. Toward the end of the month, tensions eased when the two sides
agreed to conduct parallel investigation into the incident.
Prior to the spat, Taiwan had played a relatively
low-key role in the South China Sea dispute, despite occupying the largest of
the Spratlys, Itu Aba or Taiping Island. Taipei's robust response seems to have
been motivated by several factors. First, the government of President Ma
Ying-jeou felt compelled to reflect the genuine anger felt by the Taiwanese
people over the death of the fisherman. Second, Taipei's response reflected in
part growing frustration at being excluded from talks on the dispute with the
other claimants due to China's "One China" policy. Third, Ma may have
been seeking to divert domestic attention away from sluggish economic growth
rates and boost his low approval ratings.
Beijing moved quickly to provide moral support to
Taipei, condemning the incident as a "barbaric act". Speculation
concerning the prospects of enhanced cooperation between China and Taiwan in
the South China Sea-including military cooperation-following the incident,
however, was misplaced. Despite improvements in cross-strait relations since
Ma's election in 2008, Taiwan still views China as its primary security threat
and, therefore, is extremely cautious about initiating military-to-military
links.
In addition, the government does not want to be
perceived as being used by Beijing to support its claims in the South China Sea,
even though Chinese and Taiwanese claims are almost identical. Closer
cooperation with Beijing also would undermine relations with certain Southeast
Asian countries and, more importantly, the United States.
Further clashes between maritime agencies and fishing
boats over the next few months cannot be ruled out. On May 16, China imposed
its annual three-month fishing ban north of the 12th parallel - a ban that
Vietnam has consistently rejected as a violation of its sovereignty. It remains
to be seen how vigorously China enforces the ban this year. A week earlier, an
organized fleet of 30 fishing vessels and supply ships had set sail from Hainan
Island on a 40-day mission to the Spratlys.
On a visit to Hainan a month earlier, President Xi
Jinping had promised Chinese fishermen greater protection. China's actions will
guarantee another cycle of action-reaction dynamics as Beijing commits to
maintaining a commercial fishery presence in the Spratlys - a presence it has
pledged to protect, with force if necessary.
Conclusion
Despite agreement by ASEAN and China to initiate talks
on a CoC, developments in the first half of 2013 demonstrated that the overall
trajectory of the South China Sea dispute keeps moving in the wrong direction.
So long as the actions of the principal actors continue to be motivated by
nationalist rhetoric, an unwillingness to compromise sovereignty claims and
competition over access to maritime resources, there is little prospect that
this trend will be reversed any time soon.
Notes:
1. Peter A Dutton, "The Sino-Philippine Row:
International Arbitration and the South China Sea", Center for a New
American Security, East and South China Sea Bulletin #10, March 15, 2013,
Available online .
2. Ian Storey, "Slipping Away? A South China Sea
Code of Conduct Eludes Diplomatic Efforts", Center for a New American
Security, East and South China Sea Bulletin #11, March 20, 2013, Available
online.
Ian Storey
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