South China Sea: prospects for code of conduct

By Carlyle A. Thayer  

Assessment of China’s latest moves in the South China Sea.

Q1. In your assessment, what is behind China’s move into Vietnam’s exclusive economic zone and continental shelf at Vanguard Bank? ANSWER: For the past three years China has been applying pressure on Vietnam, including threats of force, to stop Vietnam’s oil and gas exploration activities in the waters around Vanguard Bank, particularly in July 2017 and March 2018.

China argues that Vietnam is violating understandings reached by high-level leaders.

Since this issue remains unresolved, China has stepped up its pressure. It has dispatched a survey ship to conduct seismic tests in the Vanguard Bank area and China has deployed coast guard vessels to harass service ships in bloc 06-01 awarded to Russia’s Rosneft Vietnam BV that resumed operations in May this year.

Last year, China made clear in its submission to the ASEAN-China Single Draft South China Sea Negotiating Text that cooperation in maritime resources in the South China Sea should only be undertaken by companies belonging to China and ASEAN member states but not “outside countries.” China’s aim is to assert hegemonic control over oil and gas exploitation in the South China Sea by forming joint ventures with Southeast Asian states and excluding foreign companies.

Q2. Three years ago, the Arbitral Tribunal ruled in favour of coastal states like Vietnam and the Philippines in recognizing their exclusive economic zones and continental shelves, but China implemented a policy of “neither accepting the tribunal’s jurisdiction and its rulings nor enforcing its judgments.” How can one reconcile China’s position with international law? ANSWER: The Arbitral Tribunal ruled on what the Philippines is entitled to as a littoral state. It found that there were no islands in the Spratly archipelago and thus China could not claim a 200 nautical mile Exclusive Economic Zone (EEZ) any of its artificial islands. The Tribunal found that China’s claim to historic rights was extinguished when China acceded to the United Nations Convention on the Law of the Sea (UNCLOS); it also ruled that China’s nine-dash line map had no basis in international law. China as the flag state was found guilty of not controlling its fishing fleet.

Thayer Consultancy ABN # 65 648 097 123 2 Under UNCLOS, decisions by the Arbitral Tribunal are final, must be complied with immediately and are. not subject to appeal. The Award applied to China and the Philippines. Unfortunately, UNCLOS does not contain any enforcement mechanism.

International law and the Award by the Arbitral Tribunal were undermined by newly elected Philippine President Rodrigo Duterte who set aside the ruling in order to pivot towards China. If Duterte had asserted the Philippines’ rights, the international community, including members of ASEAN, could have given their support.

Given these circumstances, all Vietnam and the international community can do is call for China to carry out its legal obligation and carry out the Award and make diplomatic protests when China violate UNCLOS.

Vietnam has the option of initiating its own legal action under the compulsory dispute settlement mechanism in UNCLOS Annex 7.

Q3. What are China’s aims by promoting the use of its marine militia to assert its territorial or maritime claims in the South China Sea over other claimants? ANSWER: China seeks to change the status quo in its favour by using “grey zone tactics.” This means using forces disguised to appear as if they were not regular military forces and keeping the use of force at a low level. China has continually employed its fishing fleet, maritime militia and Coast Guard to challenge the legal presence of fishermen and maritime law enforcement agencies belonging to littoral states. In other words, China tries to undermine the sovereign jurisdiction of littoral states in their EEZs and continental shelf.

China’s use of “grey zone tactics” including low-level coercion is designed to intimidate claimant states and get them to backdown and concede to China.

Q4. China is in the process of negotiating a Code of Conduct (COC) with ASEAN. Could China’s current activities make that process more difficult as the COC aims to enforce rules of conduct in the South China Sea? Should China’s moves be considered its “preemptive coercion” against ASEAN countries to take advantage of the negotiation process? ANSWER: ASEAN and China officials were upbeat earlier this year at the 34thASEAN Summit in June about how their relations and negotiations on a Code of Conduct were progressing. China’s harassment of both Vietnam and Malaysia has undermined trust and is very likely to lead to hard bargaining to ensure the final COC contains effective rules to deal with deliberate illegal conduct and the use of force by any of the parties to the final COC. Unfortunately, the Single Draft Negotiating Text does not contain any effective enforcement mechanisms.

Vietnam should signal that it will not accept a COC unless its legitimate interests are protected.

Q5. What can other countries in the region do to strengthen themselves against a China wanting to control the South China Sea as well as to unite together to resolve disputes peacefully and in conformity with the principles of justice and international law? ANSWER: ASEAN states must rethink their declaratory policy, that is, how they set out their assessment on the South China Sea in statements following ministerial and 3 summit meetings. Usually one paragraph says something positive about relations with China, while the next paragraph notes concerns by “some members” about recent developments that have eroded trust.

ASEAN repeatedly invokes international law and UNCLOS, but it never mentions the Award by the. Arbitral Tribunal for fear of offending China. ASEAN only refers to “legal and diplomatic processes.” China’s recent behaviour of sending swarms of fishing boats and maritime militia to surround the Philippine’s Thitu (Pag-a-sa) island, China illegal intrusion into Vietnam’s EEZ at Vanguard Bank, and China’s harassment of Malaysian vessels at Laconia Shoal must be called out for what it is, a blatant deliberate violation of international law.

The three states concerned – the Philippines, Vietnam and Malaysia – should confer and present a united front to the other ASEAN members.

ASEAN should adopt stronger wording in its joint statements following summit and ministerial meetings. ASEAN members should also call on China to comply with the Arbitral Tribunal’s Award.

ASEAN diplomats must be blunt in their negotiations with China on a COC. They should make it clear that no progress can be made until China stops its illegal actions in the EEZs and continental shelves of ASEAN claimant states.

External states take their cue from ASEAN. ASEAN should follow Vietnam’s lead and call for cooperation with external or outside powers – the major powers and maritime states. China must be taught that its actions have consequences and its actions will only further internationalise maritime disputes in the South China Sea. ASEAN littoral states should step up cooperation with coast guards from the U.S., Japan and other states. These coast guards should be invited to conduct training, capacity-building and maritime domain awareness activities in the host state’s EEZ where oil exploration and production is taking place.

Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients. Thayer Consultancy was officially registered as a small business in Australia in 2002.

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