The 10 members of the Association of Southeast Asian Nations (ASEAN) are currently in the midst of discussions over the long-awaited Code of Conduct on the South China Sea (SCS). In August, China’s Foreign Minister Wang Yi said that he was hoping to see the completion of the Code of Conduct (COC) by 2021. But no one in ASEAN, including the ASEAN Secretariat in Jakarta, has been able to discern whether Wang meant the beginning of 2021 or the end. While seemingly a simple issue, the ASEAN member states appear to lack the courage to seek clarification on it.
A former high-level member of the ASEAN Secretariat has noted that the dialogue for the COC is currently being handled by a low-level working group. When discussions languish at the “working group” level, one can be sure China that does not treat them seriously, unless “external countries” are referenced. The latter is generically used to mean the United States, and potentially other countries that the U.S. is seeking to draw into its loose “Quad” alliance, namely Australia, India, and Japan.
The ASEAN Secretariat has never said anything public on the substance of the expected new COC. This was the case with the 2002 Declaration of the Conduct of Parties for the SCS, and remains the same today, as the Secretariat – led by the media-shy and unfortunately ineffectual Secretary General Dato Lim Jock Hoi, from the region’s smallest country, Brunei – is devoid of any power to say anything on behalf of the 10 member states.
When the last ASEAN Foreign Ministers’ Meeting was convened virtually in late June, President Roberto Duterte of the Philippines was the first to “warn” of the increasing danger in the SCS. Yet what did that “warning” lead to? Nothing. Two months later, a Vietnamese boatman was killed by the Malaysian coast guard after encroaching in Malaysian waters. So much for ASEAN solidarity.
In July 2019, the Department of Auditing in Malaysia noted that between 2016 and 2019, China’s People Liberation Navy and the Chinese Maritime Coast Guard, not including illegal Chinese fishing flotillas, encroached into Malaysia’s 200-nautical mile Exclusive Economic Zone (EEZ) 89 times.
The Malaysian Foreign Ministry made six diplomatic protests to China during that period, all to no avail. In a sense, neither Barisan Nasional nor Pakatan Harapan nor Perikatan Nasional (the last three ruling coalitions in Malaysia) has found a way of addressing China’s incursions into their country’s EEZ. This is no small issue. Failure to stop China’s encroachment could compromise the interests of the state-owned oil and gas firm Petronas, which is Malaysia’s top taxpayer, contributing around 30 percent of tax receipts each year. If Petronas’ own ship, West Capella, cannot conduct its activities freely within Malaysia’s own EEZ, one can only imagine the difficulties faced by other member states.
As things are, China’s expansive “nine-dash line” claim in the South China Sea puts its government into direct conflict with not just Southeast Asian claimants like Malaysia, Brunei, the Philippines, and Vietnam, but the international community as a whole, given the latter’s fears that Beijing may choose to impede freedom of navigation in the crucial waterway. Instead of complying with the Declaration of Parties signed in 2002, in which all claimants including China promised not to “militarize” contested areas in the SCS, Beijing has been transforming various hunks of rock and coral in the Spratly Islands into artificial islands equipped with military-sized runways and anti-missile weapons and platforms. This is a dangerous turn of events, which ASEAN has only belatedly attempted to address.
Unfortunately, the virtual ASEAN Foreign Ministers’ Meeting hosted by Vietnam could only hope to give voice to the views of individual leaders, such as those of Duterte mentioned earlier. ASEAN as a collective entity cannot do much, if anything at all.
Historical claims are not valid under the U.N. Convention on the Law of the Sea (UNCLOS), as the Permanent Court of Arbitration (PCA) ruled in 2016, in the case brought against China by the Philippines in 2013. China nonetheless remains insistent on this right.
In the view of Malaysia, China’s insistence on its historical rights on the SCS is questionable to the extreme. Dr. Mahathir Mohammad, the country’s two-time prime minister, explained that if the SCS belonged to China just because the word “China” is in its title, then India has the historical right to claim the entire Indian Ocean.
True, in May 2020, Indonesia became the first country in ASEAN to acknowledge the arbitral award handed down by the PCA of 2016. Beyond Indonesia, however, no other ASEAN country has made a similar outcry. Indonesia has also resisted overtures from China to negotiate on any bilateral territorial claims in what it terms the North Natuna Sea. The country’s foreign ministry affirms that there is no dispute in this area, which it says belongs entirely to Indonesia, even though part of the maritime area seems to overlap with the southern part of the “nine-dash line.” Some scholars have acknowledged that Indonesia, whether is acknowledges it or not, is another country that is deeply involved in the process of finessing the new COC. But since Indonesian statecraft combines openness with opacity, no one quite knows which way Indonesia will swing.
As the debate on the SCS rages on, Chinese fishing boats have repeatedly and illegally encroached into the EEZs of other countries. Chinese fishermen seems to be protected by the country’s Coast Guard, whose overall size and tonnage is equal to that of many foreign navies’ warships and frigates. This has led Richard Heydarian, an academic at the University of the Philippines, to speak of the “militiazation” of the SCS.
In order for there to be a breakthrough in the SCS, China will have to accept that there is no such thing as a “historical right” under UNCLOS, to which China is a signatory. It is worth keeping in mind that UNCLOS was introduced, and accepted, by the international community in 1982. China embraced UNCLOS without any foreign pressure in 1996. In order to bolster the legitimacy of the U.S. role in the SCS, Washington should sign and ratify UNCLOS as well.
The stakes of the SCS disputes – to all nations, but especially to China – could not be higher. The SCS sees around $5 trillion worth of maritime trade each year, according to William Pesek, formerly of Bloomberg Press, with close to 60 percent of it entering via the narrow Strait of Malacca. Moreover, some 11 billion barrels of oil are believed to lie beneath the seabed, in addition to 190 trillion cubic feet of liquefied natural gas. Unless the international community can make China yield on its questionable claims over the majority of the SCS, the waterway is likely to be a permanent point of contention that could lead to future conflicts.
Therein lie the dangers of the as-yet unresolved issue of the SCS. If China continues its militarization and “militiazation” of the SCS, then the claimant states of ASEAN can only bide their time, as they wait for regional powers to recover from their severe outbreaks of COVID-19 in order to counterbalance China.
Given the current situation, ASEAN cannot do much to compel China to behave. This is why Singapore believes that the U.S. should at the very least play the role of an “external balancer” in the South China Sea, ideally with Japan, India, and Australia in supporting roles, in order to curtail China’s repeated infringements on other countries’ EEZs. For now, China seems to enjoy the upper hand to the extent it has recovered from the chaos of the COVID-19 pandemic, while other key powers still remain trapped in their own malaise.
An earlier version of this article misidentified the Malaysian agency responsible for the killing of a Vietnamese fisherman in August. It was the Malaysian Maritime Enforcement Agency, not the Royal Malaysian Navy.