The South China Sea Dispute (Part One): Negative Trends Continue in 2013

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 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.

Part One of this essay will examine these recent developments and their immediate implications.  Part Two will examine these developments through the lens of Chinese policy on maritime territorial disputes, relevant regional perspectives and provide an outlook for the South China Sea over the course of the next 18 months.

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 Ups the Ante in the South China Sea,” China Brief, February 1, 2013). 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) (Xinhua, February 19). 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” (Philippine Department of Foreign Affairs, May 24).

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” (South China Morning Post, May 25) [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 (Straits Times, April 19).

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 (Straits Times, April 12). 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 (Agence-France Presse, April 22; “South Sea Fleet Exercises Shine Spotlight on Tensions,” China Brief, March 28).

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 communiqué (“China Pushes on the South China Sea, ASEAN Unity Collapses,” China Brief, August 4, 2012). 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” (www.asean.org, April 25). 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 (Voice of America, April 26).

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” (Chinese Ministry of Foreign Affairs, May 2). 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 (Xinhua, May 5).

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 (BBC News, March 26).

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) (Straits Times, May 19).

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 (Straits Times, May 17). 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” (Xinhua, May 10). 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 (Straits Times, May 8). On a visit to Hainan a month earlier, President Xi Jinping had promised Chinese fishermen greater protection (South China Morning Post, April 10). 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 <https://www.cnas.org/thesino-philippinemaritimerow>.
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 <https://www.cnas.org/SlippingAway%3F>.