ASEAN Is Failing On The South China Sea Issue

By Phar Kim Beng
Founder/CEO
Strategic Pan Indo-Pacific Arena
Strategicpipa.com
Twitter: @indo_pac

The Association of Southeast Asian Nations (ASEAN) is a collective of ten member states in Southeast Asia. There is a possibility that Timor-Leste, once known as East Timor and which used to belong to Indonesia until 1999, may become the eleventh member of ASEAN. But that possibility appears distant, as the country has not used English as an official language in their governing documents. Portuguese remains their predominant language.

Come what may, ASEAN is now in the midst of a discussion, albeit still at the level of a working group, to come up with the new Code of Conduct on the South China Sea (SCS). Foreign Minister Wang Yi of China would like to see the completion of this Code of Conduct by 2021. Yet no one in ASEAN, including the ASEAN Secretariat, is able to discern if Foreign Minister Wang Yi meant December 31, 2020 or prior to the start of January 1, 2022 when he stated “by 2021”. 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 “code of conduct” remains at the low-level working group. In other words, when discussions are merely at the “working group”, one can be sure China that does not treat it seriously, unless “external countries” are referenced. The latter is generically meant to suggest the United States, and potentially, other countries which the US has drawn into the “Quads”, namely Australia, India and Japan. Lately, the Pentagon has suggested that it is open to enlarging the concept of the “Quads”.

The ASEAN Secretariat, based in Jakarta, Indonesia, has never had any say on the substance of the expected new Code of Conduct. This was the case in 2002 with the old Code of Conduct, and remains the same today, as the Secretariat — led by media-shy and unfortunately ineffectual Secretary General Dato Lim Jock Hoi from the tiniest country, Brunei — is devoid of any power to say anything on behalf of all ten member states.

When the virtual ASEAN Leaders Summit, chaired by Vietnam in late June 2020, was convened, 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 Maritime Enforcement Agench for encroaching in Malaysian waters. So much for ASEAN solidarity.

In fact, in July 2019, the Department of Auditing in Malaysia noted that between 2016–2019 alone, China’s People Liberation Navy and the Chinese Maritime Coast Guard, not excluding illegal Chinese fishing flotillas, have encroached into the Exclusive Economic Zones (EEZ) of Malaysia 89 times.

Wisma Putra, the Ministry of Foreign Affairs in Malaysia, sent six diplomatic protests during that period. All to no avail. In a sense, neither Barisan Nasional nor Pakatan Harapan (political coalitions in Malaysia) has found a solution to deal with China’s behavior in Malaysia’s EEZ, which stretches out to 200 nautical miles. Failure to stop China’s encroachment will compromise Petronas’ interests, the key tax contributor to the Malaysian government, up to the tune of some 30 per cent 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.

To be sure, the Chinese Communist Party (CCP) defeated the Guomindang in the 1949 civil war in Mainland China. General Chiang Kai-Shek of the Guomindang immediately escaped to Taiwan, while still maintaining that the whole of China belongs to the Guomindang. Having emerged triumphant from the war, Chairman Mao of the CCP took full possession of the SCS in what was then known as the 11-Dash Line. The concept of 11-Dash Line was outlined by the late Yang Huairen, a geographer, in 1947. No one fully understands how these arbitrary dashes around the SCS were drawn by Yang.

As a gesture of close collaboration with the Vietnamese Communist Party (VCP), which was at war with France until the defeat of the latter in 1954 at the War of Dien Bien Phu and the subsequent conflict with the United States and the latter’s defeat in 1975, Mao erased two of the 11-Dash Lines to make it the infamous 9-Dash Lines as an expression of solidarity with Vietnam.

As things are, the 9-Dash Line puts contemporary China into immediate conflict with not just the claimants in Southeast Asia such as Brunei, Malaysia, the Philippines, and Vietnam, but the international community writ large as the latter fears an attempt to impede freedom of navigation. Given the international furore about the SCS, perhaps it would not be a stretch to invoke the article “We”, rather than member states of ASEAN per se, as a global source of concern, as China continues to entrench itself deeper in the maritime area. Either through enlarged reclamation, or, giving illegal Chinese fishermen much leeway to fish in other countries’s EEZ, the SCS has become a civilian and military flash point.

Instead of complying with the previous or old Code of Conduct on the South China Sea in 2002, where all claimants including China promised not to “militarize” the contested areas in the SCS, Beijing has been transforming various islets in the Spratly Islands into areas that can have military-sized runways and anti-missile weapons and platforms since 2009. This is a dangerous turn of events, which ASEAN has only belatedly tried to address together with the international community.

Unfortunately, the virtual foreign ministers summit of ASEAN hosted by Vietnam can only echo the views of several leaders, such as those of President Duterte mentioned earlier. ASEAN as a collective entity cannot do much, if anything at all. Historical claims are not recognized by international law, especially the UN Convention on the Law of the Sea. The decision of the Permanent Court of Arbitration which saw the 2013–2016 case brought against China by the Philippines disallows “historical claims” in the SCS. China 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. Tun Dr. Mahathir Mohammad, the former Prime Minister of Malaysia, explained that if the SCS belongs to China just because the word “China” is in the geographical expression, then India has the historical right to claim the entire “Indian Ocean” as well.

Meanwhile, in May 2020, Indonesia became the first country in ASEAN to acknowledge the verdict of the UN Tribunal of 2016. Beyond Indonesia, however, no other ASEAN country has made any outcries so far. Indonesia has also resisted any overtures from China to negotiate on any bilateral territorial claims in the North Natuna Sea, with the Ministry of Foreign Affairs in Indonesia affirming that there is no disagreement on this area to begin with, as the North Natuna Sea that surrounds the Natuna Island belongs entirely to Indonesia anyway, even though part of the maritime area seems to come within a hair’s breadth of touching the 9-Dash Line. Some scholars have affirmed that Indonesia, whether they acknowledge it or not, is another country that is deeply involved in the process of finessing the new Code of Conduct. But since Indonesian statecraft combines openness with opacity, no one knows which way Indonesia will swing.

As the debate on the SCS rages on, many illegal Chinese fishermen have encroached into the areas of the other countries in the SCS that are rich with marine life. The flotilla of illegal fishermen seems

to be protected by the Chinese Maritime Coast Guard, whose size and tonnage are equal to that of foreign warships and frigates. This has led Richard Heydarian, an academic at the University of the Philippines, to speak of the “militiasation” of the SCS.

To have a breakthrough, China has to accept that there is no such thing as a “historical right” in UNCLOS, to which China is a signatory. In order to make the role of the US in the SCS even more legitimate, the US should sign on and ratify the UNCLOS as well. It is worth keeping in mind that the UNCLOS was introduced, and accepted, by the international community in 1982. China embraced UNCLOS without any foreign pressure in 1996.

As things stand, more countries should ask how have they “lost” the SCS to China, where the assertiveness of the Chinese Coast Guard and People’s Liberation Navy is compounded by the illegal activities of Chinese fishermen flotillas. After all, both militarization and militiasation have happened between 2002–2020. This is an important issue beyond the concept of the freedom of navigation insisted on by the international community.

The SCS is host to USD 5 trillion dollars’ worth of maritime trade each year, according to William Pesek, formerly of Bloomberg Press. By some accounts, potentially USD 6 trillion; both figures were prior to the COVID-19 pandemic. Without a doubt, the SCS is a key artery of maritime global trade, with close to 60 per cent coursing through the Strait of Malacca, before passing through Natuna Island, and into SCS. Therefore, the stakes to any country, especially China, cannot be higher.

On sheer projections alone, there are some 11 billion barrels of oil that are believed to be under the sea bed of the SCS, with another 190 trillion cubic feet of Liquefied Natural Gas (LNG). Unless the international community can make China yield on its questionable actions in the SCS, the SCS is likely to be a permanent point of contention that can lead to future wars.

Therein lies the dangers of the as yet unresolved issue of the SCS. If the SCS continues to undergo more militarization and militiasation with China gaining the upper hand, then the international community, especially the claimant states of ASEAN, can only bide their time, as they wait for the international community to recover from their severe exposure to COVID-19 in order to counterbalance China.

Otherwise, given the current situation, ASEAN cannot do much to compel China to behave. This is why Singapore believes that the United States should, at the very least, play the role of an “external balancer” of the South China Sea, ideally with Japan, India, and Australia all taking up their responsibilities, to curtail China’s actions in other countries’ EEZ time and again. 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.

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Founder of Strategic Indo-Pacific Arena (Strategicpipa.com)

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Phar Kim Beng, PhD

Phar Kim Beng, PhD

Founder of Strategic Indo-Pacific Arena (Strategicpipa.com)

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