The ongoing naval standoff between China and the Philippines at Scarborough Shoal clearly indicates the difficulties in constraining Beijing from unilaterally asserting its “indisputable sovereignty” over all of the islands, rocks, and adjacent waters in the South China Sea. The reality is that China’s actions in prolonging the standoff are a portent of the difficulties that the Association of Southeast Asian Nations (ASEAN) will face in trying to constrain China by negotiating a Code of Conduct in the South China Sea.
The current standoff began early last month, when the Philippines dispatched the naval frigate BRP Gregorio del Pilar to investigate an earlier sighting of several Chinese fishing boats in the lagoon at Scarborough Shoal. An armed boarding party from the frigate discovered that one of the fishing boats contained large amounts of giant clams, coral, and live sharks that appeared to have been illegally harvested from waters lying within the Philippines’ Exclusive Economic Zone (EEZ).
Two unarmed China Marine Surveillance (CMS) vessels interposed themselves between the fishermen and the frigate, thus precipitating the standoff. China and the Philippines proceeded to trade diplomatic protests over this incident. In an effort to diffuse tensions, the Philippines replaced the navy frigate with the Coast Guard cutter BRP Edsa
China, meanwhile, reinforced its presence by dispatching an armed Fishery Law Enforcement Command (FLEC) ship to relieve one of the CMS vessels. The Chinese fishing boats later slipped away with their catch. On April 20, China further reinforced its presence at Scarborough Shoal with the arrival of its most advanced FLEC ship, Yuzheng 310.
Both China and the Philippines claim sovereignty over Scarborough Shoal and argue that that it’s an integral part of their national territory. Under the U.N. Convention on the Law of the Sea (UNCLOS), a rock is entitled to a 12 nautical mile territorial sea. The Philippines further claims that the waters surrounding Scarborough Shoal fall within its 200 nautical mile EEZ.
The Philippines has invited China to join it in submitting claims to the International Tribunal on the Law of the Sea for arbitration. This is an inappropriate forum, however, as the Tribunal can only decide matters of maritime jurisdiction, not questions of sovereignty which need to be solved first.
China’s claim to sovereignty rests on historic rights arising from prior discovery. The Philippines, on the other hand, bases its claims to sovereignty on intermittent occupation and continual administration since independence. This matter could be decided bilaterally by China and the Philippines or by an international court if both parties agree. Neither prospect seems likely given that the Philippines refuses to negotiate bilaterally and China refuses to place the matter before an international court.
The Philippines has thus turned to ASEAN and the United States for support. But the standoff over Scarborough Shoal has provoked a domestic outcry and made it abundantly clear that the Philippines holds misconceived expectations over the roles that ASEAN and the U.S. can play.
ASEAN divisions over how to best handle sovereignty disputes in the South China Sea date back over a decade. ASEAN members and China first began negotiations on sovereignty disputes in the South China Sea in 2000. Even at this juncture, the Philippines pushed strongly for a Code of Conduct (COC) to constrain China’s “creeping assertiveness,” but failed to gather sufficient support from its fellow ASEAN members and consequentially had to accept a watered down version in the form of the Declaration on Conduct of Parties in the South China Sea (DOC).
The DOC is merely a non-binding political statement calling on parties to undertake confidence building measures and cooperative activities pending the settlement of sovereignty disputes. Moreover, progress on implementing the DOC didn’t occur until last summer when China and the ASEAN member states finally adopted guidelines to implement the DOC. Even still, progress has been limited to setting up four expert working groups (marine environmental protection; marine scientific research; search and rescue operation; and transnational crime) and planning future workshops. Even a fifth proposed cooperative activity on safety of navigation and communication at sea proved too contentious an issue for China and ASEAN members to agree upon.
The 2002 DOC took note of the Code of Conduct and pledged that the parties would “work, on the basis of consensus, towards the eventual attainment of this objective.” With the adoption of the DOC Guidelines in 2011, the proposal for a more legally binding COC resurfaced.
In 2011, ASEAN senior officials began drafting a COC with the intention of presenting a final agreed upon draft to China for discussion. When ASEAN foreign ministers met in Cambodia in January 2012, however, it quickly became apparent that they were divided over three Filipino proposals. The first of these called for an ASEAN-sponsored meeting between China and the claimant states. The other two proposals advocated including provisions in the COC that would distinguish betweendisputed areas and non-disputed areas in the South China Sea and establishing a dispute settlement mechanism.
Internal ASEAN divisions also resurfaced at the 20th ASEAN Summit held in Phnom Penh from April 3 to 4 under the chairmanship of Cambodia. Prior to the summit, Chinese President Hu Jintao made a high-profile visit to Cambodia, where he made clear to Prime Minister Hun Sen that Beijing opposed holding talks on a binding Code of Conduct too quickly.
Whether acting under Chinese inducement or not, Cambodia, as ASEAN chair, reportedly removed formal discussion of the South China Sea from the summit agenda. The Philippines and Vietnam objected and pressed their case at a meeting of ASEAN foreign ministers held the day before the summit and again at the summit itself.
The main area of disagreement at last month’s summit, however, was over the timing of China’s inclusion in the COC drafting process. At the pre-summit meeting, Indonesia’s Foreign Minister Marty Natalegawa argued that ASEAN should “listen and…hear what China’s views are so that we can really develop a position that is cohesive and coherent.” Cambodia supported this proposal.
On the other hand, Philippines Secretary of Foreign Affairs del Rosario stated: “We’re saying that we’re happy to invite China but this should be done after the approval of the COC (by ASEAN). I think that we should be masters of our own destiny as far as the COC is concerned,” adding that Vietnam expressed a similar sentiment. Del Rosario also made clear that as long as the Philippines and Vietnam objected, ASEAN would find it difficult to reach consensus on including China’s early in the drafting process.
The Philippines and Vietnam also rejected outright a Chinese proposal to set up a ten-member group of experts and eminent statesmen that would help propose solutions. Other ASEAN members, particularly Indonesia, objected to the Philippines’ proposal to include a dispute settlement mechanism in the draft COC.
These disagreements were revisited at the ASEAN Summit itself. On the first day, President Benigno Aquino argued that it was “important we maintain ASEAN centrality” and ASEAN should meet with China on the draft COC only after it has been finalized by ASEAN members.
South China Sea issues were then taken up at the informal ASEAN Leaders’ retreat held on the last day of the summit. The gist of these discussions were summarized in the Chairman’s Statement issued after the summit under the heading South China Sea: “We reaffirmed…to move for the eventual realization of a regional code of conduct (COC)” and “stressed the need to intensify efforts to ensure the effective and full implementation of the DOC based on the Guidelines for the implementation of the DOC.”
At a post-summit press conference, Indonesia’s foreign minister revealed that a compromise on China’s participation had been reached. According to Marty Natalegawa: “This is not necessarily a neat sequential process isn’t it. Of course, ASEAN… first and foremost, must have a solid consolidated position. But at the same time as we proceed, there will be constant communication through the ASEAN-China framework, so that whatever final position ASEAN comes up with will have benefited from having some kind of communication with China.”
The standoff at Scarborough Shoal occurred less than a week after the ASEAN Summit. China’s actions produced a strong domestic reaction in the Philippines. Key Filipino senators and congressmen were critical of ASEAN and the United States for not initially supporting the Philippines. Sen. Joker Arroyo stated, for example, “not even a resolution of concern or of sympathy” had been issued by ASEAN. “We are left to fend for ourselves. What happened to us? We’re like orphans…without allies. That’s our dilemma.”
Arroyo’s remarks, which were echoed by many of his colleagues, reveal the Philippines’ misconceived expectations about the role of ASEAN and the United States. Not only is ASEAN divided on the issue, but several of its members are critical of the Philippines handling of its dispute with China. One Malaysian commentator has gone so far as to assert that the Philippines hijacked the ASEAN Summit.
And while the Philippines and the United States are treaty allies, their bilateral Mutual Defense Treaty can only be invoked when “the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific.”So far, China has refrained from the use or threat of force and U.S. policy is to not take sides in territorial disputes, although the U.S. today reaffirmed its commitment to mutual defense with the Philippines.
The Scarborough Shoal standoff reveals that China’s continual assertion of “indisputable sovereignty” in the South China Sea based on historic rights provides little basis for resolving disputes according to international law.
ASEAN’s single minded focus on implementing the DOC’s confidence building measures and cooperative activities, meanwhile, simply doesn’t address the security challenges posed by Chinese assertiveness. A Code of Conduct that doesn’t identify the areas in dispute and which contains no enforcement mechanism will not constrain China from acting unilaterally.
Both the DOC and COC are premised on maintenance of the status quo until sovereignty disputes are resolved. This is a false premise as long as China unilaterally responds to any activity it objects to within its nine-dash line ambit claim to the South China Sea. And, whatever Philippine expectations might be, its Mutual Defense Treaty with the United States is not an appropriate instrument to respond to China’s tactics of using civilian paramilitary ships and intimidation to enforce its sovereignty claims.
Carlyle A. Thayer is Emeritus Professor, The University of New South Wales at the Australian Defense Force Academy, Canberra.