ASEAN adrift in South China Sea

By David Brown

The dispute over sovereignty of the South China Sea that has flared up in recent weeks has become more than a neighborhood spat - it's also shaping up into a practical test of the notion that the United States and China can evolve a relationship that is "positive, cooperative and comprehensive".

The territorial dispute has festered for years for the 10-member Association of Southeast Asian Nations (ASEAN) as a chronic but not crippling disability. Now, China's harassment of oil and gas survey ships in Vietnamese and Philippine claimed waters has returned the South China Sea issues to a critical state. And Beijing's brazen challenge to a code of conduct agreement concluded by ASEAN in 2002 tests the grouping's continued

 
relevance in regional security matters.

The interplay of these circumstances frames the agenda and underlines the importance of pending multilateral meetings. On the near term horizon is the Asian Regional Forum in Bali, Indonesia, which will bring together ASEAN and other countries' foreign ministers from July 22-23. Indonesia will also host regional and global leaders at the East Asia Summit in mid-November.

That's a dicey proposition, according to Indonesia researcher Maria Monica Wihardja. "While the US wants nothing less than to bring hard security issues to the table - including free navigation and the avoidance of hegemonic dominance over the South China Sea - China will do anything to avoid this," she wrote for the East Asia Forum website, noting that Chinese premier Wen Jiabao, during a recent visit to Indonesia, reiterated that ASEAN should remain in the East Asian Summit's "driver's seat".

Last year's Asian Regional Forum featured a dramatic clash between China and the US. US Secretary of State Hillary Clinton reemphasized the US's strategic interests in the South China Sea. Her statement was praised by six of the 10 ASEAN members; and Chinese minister Yang Jiechi correctly sensed that he had been ambushed.

China has since seemed intent on demonstrating its growing capacity to challenge oil and gas exploration by neighboring nations, both in waters contested with Japan as well as in the South China Sea. On June 15, the day its newest patrol ship, the 3,000 ton, helicopter-toting Haisun 31, left Guangzhou on a high-profile visit to Singapore, Maritime Surveillance Force (CMS) officials briefed plans to expand by another two-thirds from its current 260 vessels and nine aircraft by 2020.



In the recent clashes in the South China Sea, China contended that its forces were the victims of Philippine and Vietnamese aggression, a claim refuted by video of some incidents. Questioned about the incidents, Chinese naval officers disclaimed responsibility; it was a police (CMS) matter, they said. Meanwhile, central government spokesmen insisted that the CMS was engaged in "normal law enforcement ... in China's jurisdictional sea area" and remained committed to "work together with interested parties to seek a solution to related disputes".

The more charitable explanation of China's behavior came from analysts who said they saw evidence of policy incoherence. No further clashes have been reported since June 9. Chinese accounts of meetings on June 25 in Honolulu with senior US diplomats and in Beijing with a special emissary from Hanoi suggested that the crisis is over for the time being.

The US reportedly agreed that the one-day Honolulu consultation, an exchange on policies and objectives looking toward the July 22-23 regional forum, the East Asia Summit and other multilateral meetings, was "friendly, candid and constructive". Meanwhile, Chinese state counselor Dai Bingguo and Vietnamese deputy foreign minister Ho Xuan Son "agreed to speed up consultations over a pact regarding fundamental principles to direct solving maritime disputes between Vietnam and China," according to a joint press release.

The upbeat report from Honolulu is not surprising, notwithstanding blunt warnings by Beijing before the meeting that - other than questions about freedom of navigation - the US should leave South China Sea matters to claimant states lest it "get burned by the fire".

Following sharp verbal clashes with China in 2010, including exchanges at the regional forum in Hanoi, Washington has invested heavily in resetting the bilateral relationship. President Hu Jintao's state visit in January capped the reconciliation. Chinese participants declared that the Hu-Obama meetings opened a new chapter in the bilateral relationship and that constructive relations between the two powers are essential.

China's ambitions in the South China Sea were, the New York Times noted at the time, "conspicuously absent" from Hu's agenda during his US state visit. The Times concluded that Chinese leaders were "happy to let the issue quiet down, perhaps for sake of smoothing over relations with the Obama administration". However, China's muscle-flexing in the South China Sea beginning in March challenged the assumptions on which the Sino-US detente was built.

The acts included harassment of Vietnamese fishermen (now a routine seasonal occurrence), planting "no trespassing" markers on reefs near the Philippines and harassment of oil and gas survey ships. These last incidents, involving attempts to cut the tow cables of two vessels belonging to Vietnam's national oil company and a third under contract to a Philippine firm, all well within the 200-mile (321-kilometer) exclusive economic zones (EEZs) claimed by Hanoi and Manila, were without precedent.

Soft language, hard agenda
With their gaze fixed on the bigger picture, US officials in Washington have not exactly backed away from the robust principles voiced by Clinton at last year's Asian Regional Forum, including US readiness to facilitate negotiations towards a peaceful resolution to the conflicting claims.

Still, the tone of official American comment has been distinctly low-key. Chinese moves have been characterized as "troubling" when dozens of stronger adjectives - "egregious" or "provocative" - would have better served.

Washington has taken pains to emphasize that the US "doesn't take sides" in the territorial dispute. The "take no sides" point is disingenuous provided the US continues to hold that the competing national claims must be reconciled with reference to "customary international law".

By this, Washington means the rules for fixing the boundaries of an exclusive economic zone (EEZ) and a territorial sea that are laid down in UNCLOS, the United Nations' Law of the Sea Treaty that came into force in 1994 and has been ratified by 161 nations.
Application of UNCLOS rules to the sea area claimed by China, a vast expanse stretching 1,000 kilometers south from Hainan Island, would by most calculations leave it with the northeastern two-thirds of the waters around the Paracels - the group of islets and reefs in the northern half of the South China Sea - and none of the waters around the Spratly Islands to the south.

Nor would UNCLOS rules likely allow China to use baselines drawn from Paracels islets to expand its EEZ. China grounds its claim on evidence of historic exploitation, implicitly backed up by the fast-growing capabilities of its naval and maritime security forces.

In the current context, what US diplomats are saying to reporters is not particularly important if backstage they are busy stiffening ASEAN backbones and dissuading China from giving in to its worst impulses. Meanwhile, Vietnam and China have agreed to restart negotiations of a bilateral "agreement on basic principles guiding the settlement of sea issues", despite the fact Hanoi's oft-expressed preference is for a multilateral framework.

There is a great deal of institutionalized contact between Chinese and Vietnamese elites - party to party, ministry to ministry, mass organization to mass organization, province to adjacent province - and a fair number of leaders on both sides who have invested in a healthy and stable relationship.

Since early 2010, working level officials have held six rounds of talks aimed at clarifying positions on sea jurisdiction in the Paracels area, the part of the South China Sea where only China and Vietnam claim ownership. These talks - which seem so far to have made little substantive progress - were interrupted by the current crisis, a coincidence that lends some support to the theory that the incidents show Beijing's true objectives being undercut by a cabal of Chinese super-patriots.

True or not, it is unlikely that Beijing will repudiate incidents perpetrated by its maritime security forces after the fact. Indeed, Chinese spokesmen have been at pains to portray the recent clashes as justified reactions to provocations by Vietnam or the Philippines. Thus China has de facto moved toward a doctrine of intervention to ensure a monopoly right to exploit the South China Sea's resources anywhere within its notorious "nine dash line" encompassing the area.

So what can be done to put the tangled claims on a track toward an equitable resolution grounded in international law? It's up to Indonesia to prove ASEAN's continued relevance to the disputes by managing the coming Asian Regional Forum and East Asia Summit meetings to bring about a result, if not a consensus. Beyond November, ASEAN's chairmanship passes to Cambodia, then to Myanmar and after that Laos - all perceived as China client states which would be unlikely to stand up to Beijing's pressure.

A recent editorial in the Jakarta Post suggested a new direction. It argued that after 10 years of straining to find a lowest common denominator consensus, ASEAN members ought first come to a common platform on a code of conduct, thus placing pressure on China to act responsibly as a regional superpower.

As long as ASEAN members cannot agree among themselves, China will find it hard to resist the temptation to pick off rival claimants one by one. Once the Philippines and Vietnam have been brought to heel, in divide and rule fashion, Malaysia and Brunei will be easier to press. Conversely, if the four ASEAN claimants can settle territorial claims amongst themselves, they will be in a considerably stronger negotiating position vis-a-vis China. Nor, except for foot-dragging by China's clients within ASEAN, should dividing up the portion of the South China Sea that includes the sprawling Spratly archipelago prove so difficult. All four ASEAN claimants have indicated their willingness to apply UNCLOS rules; China continues to resist.

David Brown is a retired American diplomat who writes on contemporary Vietnam. He may be reached at nworbd@gmail.com.

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