ASEAN and the South China Sea: Movement in Lieu of Progress

After a period of relative calm during the second half of 2011, tensions in the South China Sea began to ramp up again in the first quarter of 2012. In particular a tense standoff in April between a Philippine Navy ship and three Chinese patrol boats over illegal fishing near the disputed Scarborough Shoal highlighted the increasing frequency of incidents at sea which, in the absence of conflict prevention mechanisms among the claimant countries’ armed forces, could escalate into more dangerous confrontations. Meanwhile, a meeting of ASEAN leaders earlier in the month revealed sharp divisions within the organization on how to proceed with an ASEAN-China code of conduct (CoC) for the South China Sea.

To quickly summarize the last year in the South China Sea, during the first six months of 2011, tensions generated by contested territorial and maritime boundary claims in the South China Sea arguably reached their highest point since the end of the Cold War. Particularly alarming for the Southeast Asian claimants was the use of aggressive tactics by China’s maritime law enforcement agencies against Philippine and Vietnamese survey ships between March and June. On the plus side, however, these incidents helped focus minds on the need to break the impasse on guidelines to implement the Declaration on the Conduct of Parties in the South China Sea (DoC), the non-binding conflict management agreement signed by ASEAN and China in 2002. Talks on the implementation guidelines had been stymied for several years on a minor point of procedure: Beijing had objected to a formal clause in the guidelines stating that ASEAN would meet as a group prior to discussions with China.

Rising tensions and the failure to reach agreement on the guidelines had called into question ASEAN’s credibility as the custodian of Southeast Asian security. In order to move the process forward, therefore, ASEAN finally conceded to China’s objection in July and the offending clause was dropped. Although Beijing had made no concessions, it too was probably keen to finalize the guidelines to deflect criticism from its assertive behavior in the South China Sea during 2010-2011. The new guidelines were issued last July.

The guidelines themselves lack specifics and do not go beyond existing clauses in the DoC. They simply reiterate the parties’ commitment to promote peace and stability in the South China Sea and pursue a peaceful resolution of the dispute; that the implementation of the DoC be conducted in a “step-by-step” manner; that participation in cooperative projects be voluntary; and that confidence-building measures (CBMs) be decided by consensus. Manila, which had pushed for a more detailed set of guidelines, could barely conceal its disappointment. Foreign Secretary Albert del Rosario bemoaned that without a more robust set of guidelines the DoC still “lacked teeth” (Straits Times, July 21, 2011).

In the months to come, the Philippine government was to face more disappointment vis-à-vis ASEAN’s position on the South China Sea. Earlier in the year, the administration of President Benigno Aquino had issued a proposal to transform the disputed area into a “Zone of Peace, Freedom, Friendship and Cooperation” (ZoPFFC). Unlike the DoC and CoC, the ZoPFFC is designed to resolve the dispute rather than just manage tensions. The ZoPFFC envisages a two-step process. The first is to “segregate” disputed from non-disputed areas. Essentially, this means declaring coastal waters, exclusive economic zones (EEZs) and continental shelves as “non-disputed” as these areas are governed by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Only the Spratly Islands is a truly disputed area and should be “enclaved” accordingly. The second step calls for the demilitarization of the Spratlys and the establishment of a joint agency to manage seabed resources and fisheries.

Despite the merits of the Philippine proposal, it quickly ran into strong headwinds. Beijing rejected calls by the Philippines to submit their overlapping maritime boundary claims to the International Tribunal of the Law of the Sea as the first step toward segregating disputed from non-disputed areas (Philippine Daily Inquirer, July 13, 2011). China’s state-run media derided the ZoPFFC as a “trick” designed to encourage U.S. “meddling” in the South China Sea  (Xinhua, November 15, 2011).

Much to Manila’s disappointment, its ASEAN partners were less than full-throated in their support for the ZoPFFC. The lack of support stems from the fact that ASEAN does not take a position on the territorial claims of its four members in the South China Sea—Brunei, Malaysia, the Philippines, and Vietnam—nor those of China. If ASEAN endorsed the ZoPFFC, it would require the organization to take a position on China’s claims so that the South China Sea could be “segregated” into disputed and non-disputed areas. This makes some ASEAN members uncomfortable, especially those with close economic and political links to China.

In July 2011, ASEAN agreed to consider the Philippine proposal. At a meeting of ASEAN legal experts in Manila in September, Cambodia and Laos did not send representatives, allegedly under pressure from China [1]. With only 8 of the 10 members present, consensus on the ZoPFFC was impossible to achieve. Undeterred, the Philippines attempted to forge a consensus at a meeting of ASEAN foreign ministers in Bali in November but to no avail. According to Indonesian Foreign Minister Marty Natalegawa, some members felt the proposal would “interrupt the momentum” of the DoC/CoC process (Kyodo, November 15, 2011). Del Rosario, however, implied that China had used its influence with certain ASEAN members to scupper the ZoPFFC: “We have been given the impression that political and economic considerations had hindered a fruitful and mutually acceptable outcome on the discussions” (Wall Street Journal, November 16).

At the East Asia Summit that followed the ASEAN foreign ministers’ meeting, the Philippines attempted to spark discussion on the ZoPFFC but without success. So far, the only other ASEAN member to endorse the Philippine proposal publicly is fellow claimant Vietnam (Philippine Daily Inquirer, November 20, 2011). ASEAN Secretary General Surin Pitsuwan has promised the Philippine initiative “remains to be discussed further” (Kyodo, November 15, 2011). In fact, the ZoPFFC has been shunted off to the ASEAN Maritime Forum where it will be quietly forgotten. Due to Chinese opposition and the lack of consensus within ASEAN, the ZoPFFC is, for all intents and purposes, dead in the water.         

Action and Reaction in 2012

The first four months of 2012 were characterized by the usual pattern of claim and counterclaim between the Philippines and China, and Vietnam and China. In January, Manila accused Chinese warships of intruding into its waters a month earlier—an accusation Beijing rejected (Straits Times, January 8). In the same month, Vietnam protested China’s announcement that it would impose its annual unilateral fishing ban in the northern part of the South China Sea between May 16 and August 1 as a violation of Vietnamese sovereignty (DPA, January 20). In March, Hanoi and Beijing exchanged sharp words over the detention of 21 Vietnamese fishermen by China near the Paracel Islands (Agence France Presse [AFP], March 21). The fishermen were eventually released on April 20.

Although the DoC does not explicitly prohibit development projects in and around the disputed atolls, the claimants continue to protest each other’s activities. Vietnam has objected to plans by China to develop the tourism industry on the Paracels, while Beijing has protested Manila’s plans to construct a wharf on Philippine-occupied Paga-asaIsland in the Spratlys (Nhan Danh, February 24; Philippine Star, March 27).

By far the most serious set of disagreements in the South China Sea in 2012 has been between the Philippines and China over energy and fishery resources. At the end of February, 36 foreign energy companies submitted bids to the Philippine Department of Energy for licenses to explore for oil and gas in 11 offshore blocs— three of which lie close to the Reed Bank scene of a skirmish between two Chinese patrol boats and a Philippine-chartered survey vessel in March last year. The Aquino administration has rejected suggestions by Chinese officials that the two countries jointly develop hydrocarbon resources at Reed Bank on the grounds that the area falls within its EEZ (Philippine Daily Inquirer, February 27). China’s Foreign Ministry described the bidding process as “illegal” (China Daily, March 1).

In April, tensions between the Philippines and China took a more serious turn. On April 10, the BRP Gregorio Del Pilar—the ex-U.S. Coast Guard cutter transferred to the Philippine Navy last August—tried to detain eight Chinese fishing vessels anchored at Scarborough Shoal, 130 nautical miles west of Luzon and within the Philippines’ claimed EEZ. Scarborough Shoal does not belong to the Spratly archipelago, but both the Philippines and China contest its sovereignty. The Philippine Navy was prevented from detaining the fishermen by two China Marine Surveillance (CMS) vessels and a tense standoff ensued. In an effort to deescalate the crisis the Philippines withdrew its warship and replaced it with a coast guard vessel even as China sent another CMS ship into the area. The Chinese fishermen, together with their catch that Manila maintains was obtained illegally, were subsequently escorted back to China by two CMS vessels. On April 20, China upped the ante by sending its largest patrol boat, the Yuzheng 310, to Scarborough Shoal.

ASEAN, China and the DoC/CoC Process

Although the implementation guidelines were disappointing, agreement made possible progress on two fronts: the negotiation of CBMs and the framing of a formal and binding CoC.

In January senior officials from ASEAN and China met in Beijing to discuss the DoC. They agreed to establish working groups to examine joint projects in four areas: marine environmental protection, marine scientific research, search and rescue, and combating transnational threats (MindaNews, January 13). Future joint projects will be financed from a $476 million fund set up by China in November 2011 [2]. Whether these joint projects can be effectively implemented, and whether they will help reduce tensions, remains to be seen.

As talks on joint projects proceed, ASEAN also has begun internal discussions on a CoC. Progress, however, has been slowed by internal divisions within the organization, particularly between claimant and non-claimant members.

This year the ASEAN Chair is occupied by Cambodia. Since 1997 Cambodia has forged close political and economic ties with China, and the government of Prime Minister Hun Sen has been particularly supportive of Beijing on sensitive issues such as Taiwan, Tibet and Xinjiang. At the same time, however, Hun Sen also has been careful to maintain cordial ties with Vietnam, the country’s nearest neighbor. Accordingly, as ASEAN Chair Cambodia has tried to accommodate both Chinese and Vietnamese interests in the South China Sea.

In January, Hun Sen declared Cambodia would adopt a “neutral” stance on the South China Sea (VOA, January 24). Prior to the ASEAN Summit in April, however, Cambodia seemed eager to curry favor with China. Just days before the summit was held, Chinese President Hu Jintao paid a 4-day state visit to Cambodia. During Hu’s visit, ten bilateral agreements were inked—mostly covering Chinese concessional loans for agricultural and infrastructure projects in Cambodia. The two sides also agreed to double annual bilateral trade from $2.5 billion to $5 billion by 2017 [3]. Press reports suggested the two leaders had agreed that the South China Sea dispute should be settled bilaterally and not “internationalized”—both long standing Chinese positions (AFP, April 3; Reuters, March 31).

At the ASEAN Summit, Cambodia initially said the dispute would not appear on the formal agenda. Phnom Penh was forced to reverse this decision at the insistence of Vietnam and the Philippines. When the proposed CoC was raised, however, sharp differences of opinion emerged. Manila, backed by Hanoi, argued the ASEAN members should agree amongst themselves the draft text of the CoC before presenting it to China because, in President Aquino’s view, “it is important we maintain ASEAN centrality” (Washington Post, April 3). Cambodia, however, argued Beijing should be involved in the drafting process from the start. Other ASEAN members feared that if China was not consulted on the contents of the draft code it may reject the final document.

During the summit, del Rosario revealed that the role of China in the CoC process had led to a “big disagreement” within ASEAN, though it was only Cambodia that had sought China’s participation (Cambodia Daily, April 4). Later Hun Sen angrily denied that his government had been pressured or bribed by China into taking this position (Wall Street Journal, April 4). Suspicions remained, however, that financial aid promised by Hu had been a quid pro quo for Cambodian support on the South China Sea. As happened during negotiations on the DoC, China will be eager to influence the contents of the draft code so it can reject or water down clauses inimical to its interests without using proxies.

The divisions within ASEAN were not reflected in the final communiqué. The issue will be taken up again by ASEAN and Chinese officials in late April.

Given the difficult issues that need to be addressed in a CoC—such as the geographical scope of the agreement, what kinds of activities will be prohibited and, most importantly, how it will be enforced—it seems highly unlikely that a draft code will be ready by July, the deadline set by ASEAN Secretary General Pitsuwan. Meanwhile, with the monsoon season over, fishing trawlers and survey ships have returned to the South China Sea, raising tensions and also the prospects of more confrontation at sea that could escalate into more serious diplomatic or military crises.

Note:

1. Barry Wain, “Towards Peace and Prosperity in the South China Sea: Pathways for Regional Cooperation,” Paper presented at Forum on the South China Sea, Manila, October 17, 2011.
2. Taylor M. Fravel, “All Quiet in the South China Sea,” Foreign Affairs, March 22, 2012.
3. Joint Statement between the People’s Republic of China and the Kingdom of Cambodia, Phnom Penh, April 2, 2012.