the dominant power of the 20th century, and Japan, which it has overtaken economically but with whom China has traditionally had a difficult relationship.
In response to a May 2009 submission by Vietnam and Malaysia informing the United Nations of the demarcation of their continental shelf boundary, China reiterated its territorial claims and submitted its nine-dash map enclosing most of the South China Sea. This was the first time the map was circulated as a UN document, although it was based on a 1947 Kuomintang government map. The Chinese move unsettled several ASEAN states, especially the Philippines and Vietnam, but also Malaysia and Brunei, which all have competing claims.
The nine-dash map is widely circulated in China, appears prominently in many government buildings and is now reproduced in Chinese passports. As a consequence, many members of the Chinese public believe the entire area falls within China’s territorial waters — if highly charged comments on the Internet are indicative of wider opinion. The failure by knowledgeable Chinese international lawyers and foreign-policy makers to publicly clarify the Chinese position on the South China Sea has increased apprehension in the region.
China’s public assertion of historical rights is not sustainable under the UN Convention on the Law of the Sea, although the claim to sovereignty over the rocks and islands within the nine-dash line could be consistent with the convention. Chinese naval and fishery protection vessels have mounted patrols in waters within the exclusive economic zone (EEZ) of claimant states, while China has offered leases on petroleum exploration blocks within Vietnam’s EEZ, even though China could not claim an EEZ overlapping with these areas extending from islands represented by its map.
Because of these developments, ASEAN meetings continue to be distracted by the South China Sea issue. At the close of the ASEAN summit in Phnom Penh on 18 November, the Cambodian prime minister, Hun Sen, said there was an agreement not to internationalise the issue. Left unchallenged, such an agreement would reflect the Chinese position on the issue. However, the Philippines and Vietnam, as well as Brunei, Indonesia, Malaysia and Singapore, submitted letters formally disagreeing with this view and the chairman’s final statement did not contain such a reference. If the Cambodian delegation had insisted on its version, the likely outcome would have been a repeat of the ASEAN ministerial meeting in July this year, which failed for the first time in ASEAN’s 45-year history to issue a joint communiqué.
As a major power, China’s preference is for bilateral negotiations — where it exercises greater leverage. While China enjoys excellent ties with ASEAN, it has referred to ASEAN–China and ASEAN+3 (China, Japan and South Korea) as 10+1 and 10+3 meetings, highlighting China’s approach of dealing with ASEAN members bilaterally. Attempts to nudge China in the direction of the adjudication of maritime boundary disputes by the International Court of Justice or the International Tribunal for the Law of the Sea will not succeed. In ratifying the UN Law of the Sea Convention, China opted out of compulsory binding dispute settlement. Instead, ASEAN and China have focused on developing norms, building mutual confidence and promoting cooperative behaviour, as seen in the 2002 ASEAN–China Declaration on the Conduct of Parties in the South China Sea.
ASEAN is now prioritising engagement with China on a code of conduct in the South China Sea, which will focus on issues such as the prevention of incidents at sea, crisis management, confidence-building measures and encouraging joint development. But progress is likely to be slow. While a grand package should be envisaged, it would be timely to move first on the implementation of confidence-building measures. These measures should focus on increasing exchanges and discussions at a non-official level aimed at reducing misperceptions and encouraging mutual confidence, establishing a hot line at the operational level between navies and coast guard units of regional states, agreeing on prior notification of military exercises in the South China Sea, and facilitating the rescue at sea of people and vessels in distress.
Provocative gestures, such as China’s decision to include its nine-dash map in its new passports, should be avoided. All claimant states are also guilty of occupying uninhabited islands and land features. They should agree to refrain from doing so. The aim should be to strengthen crisis management capabilities and to lay the groundwork for agreement on rules and procedures aimed at defusing tensions. From a Chinese perspective, the management of China’s relationship with ASEAN is critical. As a resurgent power with an increasingly global presence, many states will be watching how China deals with its neighbours. Lessons will be drawn on the impact for them of a rising China.
Barry Desker is Dean of the S. Rajaratnam School of International Studies, Nanyang Technological University.
A version of this article was published here as RSIS Commentary No. 216/2012.
You omitted the most provocative of all recent Chinese acts in the South China Sea by not mentioning that China now can apply its maritime laws throughout the 9 dash map which covers 90% of this high traffics international waterway. This newest provocation runs counter to international laws and often cited as major concerns for non-claimant states. With 40% of global marine tonnages and 90% of crude oil tankers destined for the most active economic center of the world: China, Japan, Taiwan and S. Korea, the Chinese are attempting to create a strategic choke-point if not immediately answered.
I’m very surprised at how casual the international reactions were to this freedom of navigation threat. When China declares that it has the right to board, search and arrest vessels within 12 miles of Chinese territories and it had previously claimed this whole sea, what is there to clarify? With this deadly silence, the international community is allowing China to selectively impose its lawless authority on the regional and helpless claimants ( Brunei, Malaysia, Indonesia, the Philippines and Vietnam ) before it will take on the rest. It will be too late.
Brunei, Indonesia, and Malaysia just want to see peaceful resolution and free water way. They have no interest in joining the Philippines and Vietnam’s in their argument on disputed islands. So long the water way remains free they will go along with it. They also do not wish to see any military confrontation and they know China will not start one unless the Philippines and Vietnam start. Singapore is a US client and will report all this to the US and follow US lead on their position.
China is trying to strong arm into taking the disputed Spratly islands that much is clear and it is understandable that Vietnam is upset. Otherwise it does not pose any threat of invasion. It’s a matter between Vietnam and China.
The Philippines was, like Japan, trying to score brownie points by playing Nationalistic sentiments to gain popular support but played a dumb hand by sending a threat it cannot back up resulting in predictable humiliation. Again it is a matter of and island dispute between two nations.
Would be best for China to keep the status quo as it is now and the matter will calm down. There is no threat that the water way will be closed as the US knows very well and demonstrated by not issuing any warning the Chinese side and just highlighting the code of conduct for free water way. The US too has no interest in joining an argument between nations on disputed island.