On 26 June 2020, the 36th Summit of the Association of Southeast Asian Nations (ASEAN) was held through video conferencing. While much of the focus of the Summit was on the measures to address the pandemic, for the first time, the ASEAN took the stand that the South China Sea conflict must be resolved according to the principles and tenets enshrined in the United Nations Convention on the Law of the Seas (UNCLOS). This is a huge step forward for the organisation that was unable to come out with a joint communiqué on the South China Sea in its 2012 summit, leading to a range of debates on the role of the ASEAN’s centrality and cohesiveness in tackling major power challenges in the region.
The current position of the ASEAN is actually not surprising given the stresses that have been visible in the region. Using the diverted attention of countries coping with the Covid-19 pandemic, China has continued its political opportunism in the region vis-a-vis the other regional countries. In April 2020, in the clashes over the disputed waters around the Paracel islands, a Vietnamese shipping vessel was sunk by the Chinese coast guard, one of the many transgressions that the Chinese have carried out against Vietnam in its own Exclusive Economic Zones (EEZs).
This followed last year’s stand-off in August/September in the Vanguard Bank region. The Chinese assertions of the nine-dash line violate the principles of Article 48 of the UNCLOS, which measures the length of the “territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf”. The Vietnam EEZ violations are clearly centred around pressurising the regional states into compliance on the nine-dash line, pushing the ASEAN’s multilateral back against the Chinese wall.
Similarly, in May 2020, a drilling vessel owned by Malaysia’s Petronas was forced to stop its activities by a Chinese vessel off the coast of Borneo. This led to a stand-off between the United States navy and the Chinese, pushing the envelope on geopolitical tensions in the region at this crucial time. On 13 July 2020, in a press statement released by US Secretary of State Michael Pompeo, the US reiterated that the Chinese position in the South China Sea is unlawful and challenged the rights of those countries that “endorsed a rules-based international order”.
There is probably no greater evidence of Chinese revisionism than the issues plaguing the South China Sea. From the 1990s till date, the Chinese position regarding the South China Sea and the islands have gone through clear revisionism. In 1990, during the visit of then Chinese Premier Li Peng to Southeast Asia, the key objectives were to look at joint exploration of resources and find resolution through negotiations. A decade after that, in 2002, China and the ASEAN moved towards the non-binding Declaration on the Code of Conduct (DoC), which was to become a binding Code of Conduct (CoC) within a decade. Today, nearly two decades later, there is still no move towards a binding CoC.
While in principle a Single Draft CoC has been agreed upon, there has been no move towards formalisation of the CoC. The recent events between China and other claimant states only add to the increased regional tensions in the South China Sea. In 2016, the Permanent Court of Arbitration (PCA) gave its resolution against the Chinese assertions of the nine-dash line and irredentist claims relating to the South China Sea. The PCA ruling was in response to the case filed by the Philippines over the issue of its claims to Scarborough Shoal.
Typically, this was considered to be a low-tide elevation, which simply means that it is a natural piece of land visible only when the tide is low and remains submerged when the tide is high. Such formations are not considered while assessing the limits of the EEZ and it is only valid for the limits of the territorial sea, which is 12 nautical miles under the UNCLOS. Likewise, the case of Mischief Reef is also critical. This too is a low-tide elevation that falls into the region of the Philippines EEZ and Continental Shelf. However, Mischief Reef has been constructed into an artificial island through dredging with an airstrip and naval facilities, completely in contravention to the UNCLOS.
These above instances clearly point to the relevance of the UNCLOS itself and why the summit last month led to a critical step for the ASEAN. Debates relating to the ASEAN’s cohesiveness attest to the role played by major power rivalry in the region. But it is imperative that cohesiveness must be internal to the ASEAN; it cannot be externally driven. Even as countries within the ASEAN have unresolved issues relating to their individual claims over the maritime spaces and features of the South China Sea, they must recognise the need to remain united in the face of Chinese assertions in the region.
From 2003 onwards, as ASEAN countries have made efforts to achieve community building akin to the European Union, there is a critical lesson that the South China Sea conflict brings to the fore. Rising powers such as China will bring structural changes and test the existing normative principles. But the credibility of the ASEAN-driven processes to the wider region of the Indo-Pacific (erstwhile Asia-Pacific) lies in its ability to reiterate the normative order as a grouping, which will definitely send the correct signal—the ASEAN is tethered together in the South China Sea.
Shankari Sundararaman
Professor at School of International Studies, JNU, New Delhi
(shankari@mail.jnu.ac.in)