ASEAN and the 27 years of sovereignty disputes in the South China Sea

South China Sea 2016 01 30 18 07 07According to scholars, the sovereignty disputes in the South China Sea have been around since the end of World War II, when the winners and losers sat down together to divide territories and war compensations. Over the time, the disputes escalated during the Cold War and even reached to the point of local armed conflicts in the South China Sea. However, apart from the victim, i.e. the Republic of Vietnam, “whining” for being “bullied”, almost nobody paid attention; even the Association of Southeast Asian Nations (ASEAN), the regional organization established in 1967, whose four out of five members except Thailand laid claims to the South China Sea(the Philippines, Malaysia, Indonesia, Singapore) , chose “not to say a word.” The main reason was that the region of Southeast Asia at that time was a battlefront between the communist and non-communist forces; for those 5 countries, the top priority was to join the US to deter the “red wave.” Therefore, neither the US nor ASEAN reacted to China’s use of force to occupy the Paracel Islands in 1974 and part of Vietnam's Spratly Islands in 1988. Nonetheless, these Chinese actions also startled the ASEAN-5, especially the Philippines, which sent troops to some features of the archipelago since 1971.

It was not until the Chinese navy displayed a greater presence in the Spratly Islands in the late 1980s, followed by the “absence” of US troops at Filipino Subic Naval Base and the Clark Air Base in the early 90s of the 20th century did ASEAN, especially the Philippines, "roll up their sleeves" to step into the South China Sea. In July 1992, in Manila, ASEAN adopted the “ASEAN Declaration on the South China Sea”, marking the first time the organization presented an official document expressing its view on the South China Sea, which was “any adverse developments in the South China Sea directly affect peace and stability in the region,” and emphasizing “the necessity to resolve all sovereignty and jurisdictional issues in the South China Sea by peaceful means, without resorting to use of force.”

In 1995, China blatantly sent troops to occupy several features in the Mischief Reef. This incident triggered an alarm to ASEAN that after Vietnam, China would “pay a visit” to other claimant states in the South China Sea. ASEAN countries now understood that peace was impossible. Therefore, with the same attitude as the US’s to openly protest China with respect to the Mischief Reef incident, ASEAN, which then had 7 members (including Vietnam), showed great solidarity and collective effort in 1995, g and made encouraging results. ASEAN constantly issued joint statements or communiqués on this issue. The ASEAN Foreign Ministers’ joint communiqué in March 1995 highlighted that they urged “all parties to refrain from actions that destabilize the region and threaten peace and security in the South China Sea," at the same time, ASEAN “specifically call for an early resolution of the problems caused by the recent developments in Mischief Reef.” The above items were also stressed in the Joint Communiqué of the 28th ASEAN Foreign Ministers’ Meeting (AMM-28) in Brunei in July 1995 and, especially, the Joint Statement of the 5th ASEAN Summit in Bangkok, Thailand in February 1995.

In July 1996, the 29th ASEAN Foreign Ministers’ Meeting (AMM-29) in Jakarta, Indonesia approved the idea of drafting and adopting a Code of Conduct in the South China Sea (COC). This initiative was reiterated in the Hanoi Action Plan in 1998. However, the drafting of the document did not start until 1999, when China agreed to participate in this process with their own draft. After nearly four years of negotiations with China, ASEAN failed to achieve its initial goal of having a legally binding document on the South China Sea (COC). Instead, a Declaration on Conduct of the Parties in the South China Sea (DOC) was adopted in November 2002 in Phnom Penh with quite general seven-point political commitments. Nevertheless, the DOC affirmed the commitments of the parties concerned to resolve the dispute peacefully, offered trust-building measures and legal activities in the South China Sea. This declaration, more or less, prevented China from sending troops to occupy new features in the South China Sea.

However, in reality, the DOC's non-legal-binding political commitments could hardly prevent the escalation of conflicts in the South China Sea. In response to the rising tension in the region, the ASEAN Foreign Ministers’ Meeting 2008 in Singapore issued a Joint Communiqué stressing "the need to increase effort to promote DOC implementation, including the early finalization of the Guidelines for the Implementation of DOC.” This item was also highlighted in the ASEAN Foreign Ministers’ Meeting 2010 in Hanoi. In 2011, when the South China Sea situation became quite tense, ASEAN countries joined effort with China to approve the “Guidelines for the implementation of DOC.” Although the eight-point content of this Guideline was still very general and not much different from the 2002 DOC, it contributed to temporarily "cool down" the tensions in the South China Sea and helped ASEAN overcome the challenges of being split, become united again to continue building the COC.

In order to expedite the COC process, in late June 2012, ASEAN finalized the “ASEAN’s Proposed Elements of a Regional Code of Conduct (COC) in the South China Sea” and then presented it to the 45th ASEAN Foreign Ministers’ Meeting (AMM-45) in Phnom Penh. On July 9, 2012, ASEAN Foreign Ministers agreed on the basic elements of the COC. However, due to differences in perspectives of some member states afterwards, ASEAN was unable to issue a Joint Statement regarding the South China Sea. A week later, the AMM-45 Conference took place, and with Indonesia's shuttle diplomacy efforts, ASEAN issued an "ASEAN’s six-point principles on the South China Sea" in which Point 3 mentioned the "early conclusion of the Code of Conduct in the South China Sea (COC)”. In terms of content, this six-point statement is a "standstill", if not a step backward compared to ASEAN’s previous documents regarding the South China Sea issue.

In 2013, before the not-so-positive changes in using diplomatic channels to resolve the Scarborough Shoal dispute with China, the Philippines chose a legal fight, officially filing a lawsuit against China in the United Nations Permanent Court of Arbitration (PCA) on January 22, 2013. China not only rejected the Philippines' demands, refused to participate in the lawsuit, but also exerted diplomatic pressure on ASEAN countries to persuade the Philippines to abandon its actions in return for restarting the negotiations on the COC. However, China's actions, including economic and diplomatic pressure on the Philippines, were ineffective. On the contrary, the Philippines' legal action forced China to change its attitude, agreeing to restart the COC process. China agreed to hold consultations on promoting the COC between ASEAN and China in mid-September, 2013 in Suzhou city. This meeting came up with a 2013-2014 working plan on DOC and approved a team of experts to support the COC process which would meet up in Thailand in 2014. Thus, although China seemed to be unwilling to negotiate officially the COC, they had to start addressing this process in order to reduce international pressure on themselves.

In 2014, ASEAN faced two incidents that put significant pressure on the resolution of the South China Sea dispute due to China’s actions to extend the “sovereignty” and threaten other countries, as follows:

First, China increased   its fishing boats' activities in water around Indonesia's Natuna Island, which China believed to be within their unreasonable “nine-dash line.” Indonesia had always played a leading role as an independent mediator in facilitating negotiations on the COC. However, China’s moves forced Indonesia, in the beginning of 2014, to formally reject China's claim of the “nine-dash line” which included the vast water surrounding Natuna Island, and declare to have a dispute in the South China Sea with China. Indonesia’s statement could make the South China Sea situation in general and the COC negotiation process in particular hard to predict. On the one hand, Indonesia's new action might create new pressure on China to compromise and come to the negotiation table; and on the other hand, it could make China "furious" with the claim of sovereignty in the South China Sea and act tough, even imposing an air defense identification zone (ADIZ) like they did in the East China Sea.

Secondly, in early May 2014, China illegally placed the HYSY 981 oil rig in Vietnamese water and encountered fierce response and protest from Vietnam. This incident caused ASEAN to make significant effort to prevent conflict from escalation in the South China Sea. Right after the incident, on May 10, 2014, at the 24th ASEAN Summit in Nay Pyi Taw, Myanmar, ASEAN released “Statement of ASEAN Foreign Ministers on the present development in the South China Sea", which expressed “serious concerns over the ongoing developments in the South China Sea ..." and "... urged all parties concerned to exercise self-restraint and avoid actions which could undermine peace and stability in the area; and to resolve disputes by peaceful means without resorting to threat or use force.” Next, the 47th ASEAN Foreign Ministers’ Meeting (AMM-47) in Myanmar in August 2014 also released a "Joint Communiqué of AMM-47", which highlighted the South China Sea issue with many new, specific details using tougher wordings than the general press releases. The statement affirmed that “We remained seriously concerned over recent developments which had increased tensions in the South China Sea and reaffirmed the importance of maintaining peace, stability, maritime security as well as freedom of navigation in and over-flight above the South China Sea”; “urged all parties concerned to settle disputes through peaceful means, without resorting to the threat or use of force, including friendly dialogue, consultations and negotiations, in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea" and "We agreed to intensify consultations with China on measures and mechanisms to ensure and further enhance the full and effective implementation of the DOC in its entirety, particularly Articles 4 and 5 as well as substantive negotiations for the early conclusion of the Code of Conduct in the South China Sea.” Thus, this joint statement, though not directly mentioning China for causing new tension in the South China Sea, implied that China's recent actions "undermine peace, stability, and security in the South China Sea.” Moreover, this time, ASEAN wanted to send a message of "substantive negotiations" to China.

These two incidents have pushed ASEAN to act strongly in 2014. It can be said that, after 22 years, since 1992, ASEAN released a new Joint Communiqué on the South China Sea like the one in May 2014 which was quite serious, detailed and "deeply concerned" about new developments in the South China Sea regarding China’s illegal deployment of the oil rig in Vietnam's exclusive economic zone and continental shelf. However, contents of the above statements did not have any "breakthroughs" compared to the ones ASEAN issued before.

In 2016, the PCA issued a historical ruling on July 12 in the Philippines vs. China case. The PCA Ruling bluntly rejected China's unjustified sovereignty claim in the South China Sea based on the "nine-dash line"; along with that was a strong "wave" of public opinions condemning and criticizing Beijing's "disobedient" attitude. The situation created significant pressure, forcing China to change its behavior, go back to "consulting" with ASEAN on the COC. Fairly speaking, although the PCA ruling could not force China to “implement” and nobody "supervised the execution of the award", it was the factor that made China more serious about the COC process which they were not interested in.

In the first half of 2017, ASEAN and Chinese officials met thrice to discuss the COC. It was at the 19th ASEAN-China Joint Working Group meeting on the implementation of the DOC (JWG-DOC) in Bali, Indonesia on February 27, 2017 that the two sides agreed on a basic draft of the COC framework. The discussion continued at the 20th JWG-DOC in Siem Reap, Cambodia in March 2017. This draft was later amended in SOM-DOC meetings in Guiyang, China in May 2017. In August 2017, the new COC framework was approved.

In 2018 and 2019, ASEAN and China discussed and negotiated the detailed content of the COC. So far, scholars have yet not seen anything positive from this Code of Conduct, except the promise of Chinese Prime Minister Li Keqiang that the COC could be completed within 3 years. Meanwhile, the actual developments in the South China Sea have not reduced the risk of destabilization in the region.

In addition to establishing the DOC and moving toward the COC, ASEAN and its member countries have used various bilateral and multilateral dialogue and cooperation channels to promote the process of "materializing" the above mechanisms. ASEAN took advantage of the Regional Security Forum (ARF) to promote preventive diplomacy, including the South China Sea issue. From the 17th ARF Conference in 2010 onwards, the participating countries, especially the ASEAN claimant states and the US, have discussed the dispute in the South China Sea many times, seeking peaceful solutions for this “raging” sea. In ARF joint statements of recent years, member countries emphasized the need to fully implement the DOC, the UNCLOS 1982, and to complete the COC. In different forums such as the East Asia Summit (EAS) and the ASEAN Defense Ministers Meeting (ADMM +)..., ASEAN countries have also raised the issue of the South China Sea for discussion and receive increasing supports for the idea of "internationalization", resolution of disputes through peaceful means and freedom of navigation in the sea.   

It can be said that, ASEAN countries, since the early 90s, have been concerned that the parties’ assertive actions to claim sovereignty in the South China Sea, especially China’s, could   destabilize the region, thus making collective efforts to create institutions to reconcile the conflicts and prevent dispute escalation in the area. In reality, institutions such as the 1992 ASEAN’s Declaration on the South China Sea, the 2002 DOC and the 2011 Guidelines for Implementation of DOC, the 2012 ASEAN’s Proposed Elements of a Regional Code of Conduct, the 2014 “ASEAN Foreign Ministers’ statement on the current development in the South China Sea” and “AMM-47 Joint Statement” as well as other ASEAN’s efforts in multilateral security forums such as ARF, EAS, ADMM +, Asia Security Summit Shangri-La, Expanded ASEAN Maritime Forum... have been contributing to build trust, promote peaceful cooperation, create political and legal bases for the making of a Code of Conduct (COC) in the future. ASEAN and its member countries have the right to hope that their tireless efforts over the past quarter of a century will achieve a substantive, practical and effective COC that would bring peace, stability and long-term cooperation to the region.