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Asean Affairs    6 July 2012


By Gregory Poling, Research Assistant, Southeast Asia Program, CSIS

The CSIS Southeast Asia Program hosted its second annual conference on the South China Sea June 27–28. As expected, the event, titled “The South China Sea and Asia Pacific in Transition: Exploring Options for Managing Disputes,” saw its fair share of sparks between the panelists. This was especially true between the Chinese and Philippine and Chinese and Vietnamese speakers. But after a day and a half of heated discussion, one clear message had developed: ambiguity over the territorial and maritime claims in the South China Sea does not serve anyone’s interests.

While participants tended to revisit the issues of sovereignty and table ideas for just managing rather than resolving disputes, this year’s conference felt markedly different than the one on broadly the same theme last year. There was palpable tension in the room as each of three Chinese experts sought to defend Beijing’s positions. It is important to note the plural “positions,” because there was scant agreement as to what precisely the Chinese position is. Fellow panelists and several sharp questioners from the audience demonstrated that there was little appetite for vague pronouncements of Chinese policy and justifications.

What the audience was expressing was precisely the exasperation that has spread through policy communities both in Washington and Asia. It is exasperation not with the South China Sea dispute itself, or even with perceived recent aggressiveness from Beijing, both of which have become part of the regional landscape. Rather, it is frustration with the perpetual uncertainty created by a Chinese policy that amounts to avoiding taking a position at all costs. Without a defined Chinese position, resolving claims and reconciling positions is not possible.

China’s policy of strategic ambiguity, as it has been euphemistically called, serves its purposes well. It allows China the flexibility to interpret its position to serve the audience at hand. This is why the Ministry of Foreign Affairs was able to issue its well-publicized statement in February 2012 stating that no nation claims sovereignty over the entire South China Sea and that the dispute is only about the “islands and adjacent waters.” This raised hopes in the United States and among the other Asian claimants that China was backing away from the 9-dash lines claim and moving to bring its claims in line with international law.

That, however, has clearly not been the case. This year’s tensions in the sea started with a two-month standoff between Chinese and Philippine ships at Scarborough Shoal. That confrontation, despite pronouncements to the contrary from Beijing, served as an example of a creeping evolution in Beijing’s claims. For years the Chinese territorial claims in the South China Sea extended only to the Spratlys (Nansha, or “South Banks”) and Paracels (Xisha, or “West Banks”).

Any claim to other features, like Scarborough Shoal, was only implied in so far as they fell within the ambiguous 9-dash lines. Then China extended its claim to the entirely submerged Macclesfield Bank via the imaginary Zhongsha, or “Middle Banks,” despite there being no way under international law to claim title over a submerged feature as if it were an island. Further, in recent years, as Beijing has tried to move beyond an overreliance on the indefensible 9-dash lines, Scarborough Shoal has been incorporated as part of Zhongsha. The fact that it lies hundreds of miles from Macclesfield Bank or that it appears on none of the historical documents China puts forth to prove its title to the Spratlys and Paracels seemingly does not matter.

Beijing showed similar disregard for the policy put forth in its February Ministry of Foreign Affairs statement when in early May it reinstated its annual unilateral fishing ban for all of the South China Sea above the 12th parallel. Such a ban would be possible only if China were claiming all the waters within the 9-dash lines, not only its “islands and adjacent waters.” Then in late June, the China National Offshore Oil Corporation (CNOOC) fired a shot across Vietnam’s bow by announcing the company would open nine oil and gas blocks in the South China Sea to foreign bids. The catch was that all nine blocks lie within the 200 nautical mile exclusive economic zone (EEZ) of Vietnam, and many in fact overlap with existing blocks already leased by Vietnam, including those committed to Exxon-Mobil. More importantly, CNOOC’s blocks are not defensible under a claim to the “islands and adjacent waters” of the South China Sea because there is no island within 200 nautical miles (the maximum allowable EEZ) of all the blocks.

These developments highlight the need for the ASEAN claimants—Vietnam, the Philippines, Malaysia, and Brunei—to take a stand on what is genuinely in dispute in the South China Sea and what is not. As long as that fundamental fact remains unclear, China will continue to employ ambiguous and contradictory claims to pursue its interests in the South China Sea at the expense of its smaller neighbors.

Some steps have been taken in this direction. Vietnam and Malaysia’s 2009 joint submission of their southern extended continental shelves to the UN Commission on the Limits of the Continental Shelf was an important first step in this effort. The Philippines baseline law, passed the same year, establishing its coastal baselines in accordance with the UN Convention on the Law of the Seas (UNCLOS), was another.

Despite these steps, too much remains ambiguous in the South China Sea. Vietnam’s National Assembly recently passed a Law of the Sea reiterating its claim to the Paracels and Spratlys, but it remains unclear just what Vietnam is claiming in the maritime domain. Beyond its southern boundaries with Malaysia, where are its claimed baselines and its extended continental shelf? Does it consider the islands of the Spratlys and Paracels capable of generating an EEZ or not? The same questions must be asked and answered by the other three ASEAN claimants, Brunei, Malaysia and the Philippines.

The ASEAN parties have seen their positions on many of these questions slowly converge. For instance, all four appear to operate under the assumption that the Spratlys and Paracels are not legally islands, but merely rocks and therefore entitled only to a 12-nautical-mile territorial sea.

An honest effort to resolve the disputes in the South China Sea requires that this and other assumptions be codified in law. This does not mean any of the claimants have to give up anything regarding their claims to the features in the South China Sea. Instead, it would allow them to strengthen the legal basis of their maritime claims and separate the far more intractable, but geographically much smaller, territorial disputes. Most importantly, it would allow them to present a united front to China in arguing one crucial point: The only acceptable basis for maritime claims in the South China Sea must be international law, especially UNCLOS.

Were the ASEAN claimants to present an agreed-upon framework for establishing what is and is not disputed, the burden would rest with Beijing to clarify the basis for its own claims. At that point, Beijing would have limited options. Such pressure might give more moderate voices, like those in the Ministry of Foreign Affairs, more credibility, allowing China to clarify its claims by retaining those to the Spratlys and Paracels but giving up its egregious claims to the waters in between. This would mark an important step toward resolving the South China Sea disputes.

Alternately, Beijing could reject entirely the primacy of accepted international law in the dispute, but that would be extremely damaging to China’s larger interests. Beijing would more likely refuse to engage in any dialogue at all. While possible in the short-term, such a course of action would identify China as the undeniable remaining belligerent in the dispute and rally regional and international opinion around the ASEAN claimants’ position. Eventually, China would likely find it less damaging to its reputation and interests to clarify its claims than to cling to its traditional ambiguity.

Most of the time in the CSIS conference was spent discussing the bases of the disputes and exploring ways to manage inevitable incidents rather than suggesting means for actually solving the disputes. Given the complexity and longevity of the South China Sea issue, such difficulties are to be expected.

But the most important reason that there seemed little light at the end of the tunnel was that so much of the dispute remains ambiguous. It is time for the ASEAN claimants to fully codify, both in domestic legislation and in a multilateral framework, what is and is not in dispute under international law. That would be a position that the international community, including the United States, could legitimately support because it would mean not defending the claims of any individual party to the dispute, but rather supporting international law itself.

Courtesy: This post originally appeared on the Center for Strategic and International Studies cogitASIA blog

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