The South China Sea Disputes: Some Blindspots and Misperceptions

The South China Sea disputes have in recent years emerged as, arguably, the most contentious issue on the security agenda in Southeast Asia. Fueled by heated rhetoric, mutual distrust, perceptions and misperceptions, and nationalism, it has become the most extensively discussed subject in the literature on security challenges in Southeast Asia, with experts expressing different, often contending views. At the same time, there are blindspots in the broader discussion on these disputes, where closer scrutiny is wanting, and misplaced assumptions hold. Four stand out. These relate to: 1) the identity of the disputants; 2) the possibility of open armed hostilities; 3) the US role; and 4) the place of international law in the search for resolution. While these various distortions by no means constitute the dominant view of the disputes, they are prevalent enough in the existing discussion on the topic to warrant closer scrutiny.

Intra-ASEAN Disputes as a South China Sea “Blindspot”

There is no gainsaying that China looms large over the South China Sea. Few would contest the observation that no serious study of this issue can be undertaken without taking into consideration the weighty role of China. At the very least, this is necessary given the fact that with its controversial yet ambiguous nine-dash line map, China is making the largest sovereignty claim in the South China Sea. Yet, widespread fixation with Chinese activity has tended to distract from the reality that the South China Sea dispute is in fact an atomized series of diplomatic tussles involving periodic saber rattling and demonstrations of strength, where China is by no means the only (other) actor in the script.

Aside from China and Taiwan, four states—Vietnam, the Philippines, Malaysia, and Brunei—are making claims to various parts of the South China Sea. Apart from Brunei, the other three Southeast Asian claimants have physically occupied more features in the South China Sea than China, a statistical imbalance Chinese policy makers are quick to repeat (and evidently, in a hurry to remedy). As the world’s gaze remains fixated on Chinese adventurism in the South China Sea, the Southeast Asian claimant states have struggled to find a common position among themselves on the matter of their respective claims, and have, in fact, continued to prosecute their claims against each other.

One of the first serious clashes between ASEAN countries in the South China Sea occurred in April 1988 in the Spratlys between the Philippines and Malaysia at Permatang Ubi (Ardasier Bank) when Malaysian authorities arrested 49 Filipino fishermen.¹ Intra-ASEAN disagreements over the sea gathered pace in the early 1990s, when Chinese activities in the Spratly Islands, which resulted in clashes with Vietnam and the Philippines, led Indonesia to convene a series of informal workshops on the South China Sea. When launched, they were envisaged as a confidence-building platform for claimant states and other ASEAN members to discuss ways to diffuse growing tension on this sea. Nevertheless by 1994, the workshops themselves became an issue of contention among ASEAN states, when some members expressed concern that Indonesia was attempting to transform the informal workshops into official conferences with the intent of “containing” China through multilateralism.²

Tensions between Malaysia and the Philippines escalated with Manila’s discovery of Malaysian features constructed on two Spratly reefs during the period between April and June 1999. Strains in their relationship peaked in July 1999, when Malaysia’s move to prevent the South China Sea issue from being tabled at the ASEAN Regional Forum meeting in Singapore elicited criticisms from the Philippines, which lamented the lack of support from one ASEAN member for another.³ That year witnessed the Philippines clash a total of six times with either Malaysia or Vietnam. Ownership of the continental shelf of the Natuna Islands in the South China Sea was also contested between Indonesia and Vietnam during this time, although they managed to avoid open confrontation over the issue.

Since 2010, ASEAN’s perceived unwillingness or reluctance to take a firmer stand against increased Chinese assertiveness has been a cause of frustration for the Philippines and Vietnam. Even so, this coincidence of interest has not translated into efforts at coordinating their positions, much less close cooperation. For its part, Manila has expressed displeasure towards the Vietnam-China six-point agreement, which it interpreted as containing statements that demonstrated disregard for multilateral means of conflict resolution.⁴ At the July 2012 ASEAN ministerial meeting in Cambodia, ASEAN foreign ministers failed to find consensus on a position in response to China’s assertive behavior in the previous months despite numerous attempts by senior officials of member states to propose different variations of an ASEAN statement and position on the issue. The result was the organization’s inability to conclude a joint communiqué for the first time in its history. Subsequently, even though Indonesian Foreign Minister Marty Natalegawa’s shuttle diplomacy paved the way for ASEAN states to agree to the “Six Point Principles” and an “early conclusion” to ongoing discussions for a Code of Conduct on the South China Sea, the damage to the organization’s reputation had been done.

The inability of ASEAN claimant states to manage their own differences has also been manifested in the legal sphere. The differing submissions to the UN Commission on the Limits of the Continental Shelf (CLCS) by Vietnam, Malaysia, and the Philippines provide a case in point.⁵ On May 6, 2009, Vietnam and Malaysia made a joint submission to the CLCS concerning a “defined area” of the South China Sea. The Philippines responded with a separate Notes Verbale in August 2009, contesting the Vietnamese and Malaysian joint submission. Vietnam replied to the Philippines’ Notes (00818 and 000819) with Note No. 240 HC-2009, reiterating its position that its submissions to the CLCS concerning the outer limits of Vietnam’s continental shelf beyond 200 nautical miles, including its joint submission with Malaysia, constitute legitimate undertakings in implementation of the obligations of State Parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which conformed to the pertinent provisions of the said convention as well as the scientific and technical guidelines and the rules of procedures of the CLCS. Further, it maintained that its submissions have been made without prejudice to matters relating to the delimitation of boundaries between states with opposite and adjacent coasts as well as the positions of states which are parties to land or maritime disputes. Malaysia also sent a Note (HA 41/09) on August 21, 2009 responding to Note 000819 of the Philippines, strongly rejecting the Filipino claims over North Borneo, indicating perhaps that the land disagreement is linked to the two countries’ disputes in the South China Sea.⁶

In the case of the Philippines, it has delivered Notes with respect to three submissions: the joint submission of Malaysia and Vietnam, Vietnam’s partial submission, and the submission made by Palau. Its Note concerning the joint submission by Malaysia and Vietnam, wrote that: “[the] Joint Submission for the Extended Continental Shelf by Malaysia and Vietnam lays claim on areas that are disputed not only because they overlap with that of the Philippines, but also because of the controversy arising from the territorial claims on some of the islands in the area including North Borneo.” The Note did not name the exact area contended by the Philippines. Yet, it can be seen that the southern part of the claim in the Spratly archipelago partly covers the area marked out under the joint submission completed by Malaysia and Vietnam. Another subject discussed in the Note is the territorial dispute between the Philippines and Malaysia over North Borneo (i.e., the East Malaysian state of Sabah).

The Philippines Note concerning Vietnam’s partial submission asserts that the areas enclosed by Vietnam’s submission concerning the northern part of the South China Sea are “disputed because they overlap with those of the Philippines.” This seems to point to a likely continental shelf claim by the Philippines from Scarborough Shoal. In these Notes, the Philippines asked for the CLCS to abstain from taking into consideration the aforementioned submissions “unless and until after the parties have discussed and resolved their disputes.”

In reply to the Philippine objections, Malaysia reaffirmed its sovereignty over Sabah, and Vietnam did as described above. During the twenty-fourth session of the CLCS in August 2009, Vietnam and Malaysia reiterated their respective positions. They stressed that the joint submission was without discrimination to the query of delimitation between states and that paragraph 5 (a) of Annex I of the Rules of Procedure should not be summoned. Both Malaysia and Vietnam appeared to stand in agreement that such claims can neither be backed by international law nor be fit to be called disputes in the sense of paragraph 5 (a).⁷

Indonesia has objected to the addition of Palmas Island situated 47 nautical miles east-northeast of the Saranggani Islands off Mindanao in the Philippines. Meanwhile, the Philippine opposition to the Joint Submission of Malaysia and Vietnam and the submission by Vietnam appeared to have been a result of the country’s consideration of the “regime of islands” and whether or not they can create their own continental shelves or only territorial seas. This line of thought is made clearer in Note 5 of April 5, 2011 conveyed by the Philippines to the secretary general of the United Nations in response to China’s May 2009 Notes with maps enclosed showing the nine dotted lines. In this Note, the Philippines expressed that “under the international law principle of ‘la terre domaine la mer’…, the extent of the waters that are adjacent to the relevant geographical features are definite and determinable under UNCLOS, specifically under Article 121 (Regime of Islands) of this said Convention.”⁸

The legal and diplomatic posturing between ASEAN states over their respective CLCS submissions illustrates not only the gulf that remains between regional states over the South China Sea; it is also indicative of how difficult it is (and will continue to be) for them to present a common position on the disputes.

Is Open Armed Conflict Inevitable?

A second view holds that China is the aggressor in the South China Sea, and Beijing’s actions are fundamentally threatening the stability of the region. This is premised on the fact that China has been increasingly assertive in staking its claims in the South China Sea in recent years, to the extent of harassing vessels belonging to other claimants (as well as non-claimants), building features at an accelerated rate, and reclaiming land in order to literally change the facts on the ground. At its extreme, this view hypothesizes that driven by this Chinese assertiveness, the current trajectory of affairs means that conflict is poised to break out not only between China and other claimant states but more alarmingly, between China and the United States.⁹ It is worth noting that this view is not confined to decision makers and policy elites, but is held by public opinion as well. According to a Pew Survey, the majority of Filipinos, Vietnamese, Malaysians, and Indonesians polled in a survey on threat perceptions expressed concern that “China’s territorial ambitions could lead to military conflict with its neighbours.”¹⁰The defense minister of a Southeast Asian claimant state has sounded an ominous warning that “if we are not careful, it (the South China Sea disputes) would escalate into one of the deadliest conflicts of our time, if not our history.”¹¹ Are the alarm bells warranted, and is China beating the war drums?

To be sure, the absence of conflict management mechanisms and the stoutly nationalist rhetoric that shapes discussions and statements on the South China Sea are cause for concern. More than anyone else, Chinese words and deeds have become the focus of attention of those who warn of the possibility of open hostilities. Illustrative of precisely such fiery and dangerous nationalist rhetoric in China, an editorial in the state-run tabloid Global Times identifies China’s two “bottom lines” in the South China Sea dispute—the completion of its reef reclamation and American “respect” for China’s territorial sovereignty and “maritime rights” in the South China Sea—, warning that armed conflict between China and the United States would be “inevitable” if the latter were to assume a bottom line of forcing China to halt its island-building activities.¹² It is also easy to see how Chinese deeds demonstrated in the development of a blue water navy and the building of military structures and reclamation of land in contested areas of the South China Sea add to the alarm.

Notwithstanding the above, there is good reason to believe that the incentives for restraint outweigh those for aggression. For starters, smooth passage for commercial ships such as that which presently exists in the South China Sea is critical for the Chinese economy. It is simply not in China’s interest to compromise commercial shipping in this sea by creating instability in the region. Moreover, there is no guarantee that an attempt by the Chinese to control shipping through punitive measures would work in its favor. Such actions would risk alienating ASEAN friends, and paradoxically, could provide the centripetal force that ASEAN currently lacks.

One further point needs to be made regarding the potential for conflict in the South China Sea. The view that China could use force precludes the possibility that the opinions of Chinese officialdom are fragmented on the issue of just what China claims and how Beijing should go about prosecuting those claims. For many Chinese decision-makers, the belief that China is reacting to provocations and defending legitimate core interests is not just palpable but real. It should be no surprise that Chinese assertiveness coincided with the US declaration of a “pivot” to the region, a move interpreted in Chinese circles as a source of regional instability. The challenge for Chinese decision-makers has been how to respond to this. Several opnions have emerged. As a specialist on Chinese policy on the South China Sea has observed:
“Within the policy community, there is a rather broad but private acknowledgement of the problematic nature of China’s policy towards the South China Sea, such as China’s strategic ambiguity over its claims, the status of the ‘nine-dotted line’ (which is constantly raised by experts but never acknowleged or denied by the government), the feasibility of bilateral negotiations of multiparty disputes, as well as the application of the United Nations Convention on the Law of the Sea (UNCLOS). However, such acknowledgement is collectvely silenced in public.”¹³

It is this uncertainty and lack of consensus within Chinese decision-making circles that has led a former US senior official to conclude that the fragmentation of views explains China’s inability and/or reluctance to clarify the extent of its claims.¹⁴

The United States “Security Guarantee”

Most analysts agree that US declaratory policy on the South China Sea has gathered strength in recent years, accompanied by a strengthening of diplomatic, military, and economic ties with key Southeast Asian littoral states, notably the Philippines and Vietnam. Secretary of State Hilary Clinton went so far as to declare that the United States considers “peace and stability” and “respect for international law” in the South China Sea a matter of “national interest to the United States.” Specifically, she mentioned: “The United States has a national interest in freedom of navigation, open access to Asia’s maritime commons and respect for international law in the South China Sea.”¹⁵ Slightly over a year later during a visit to the Philippines, Clinton would refer to the South China Sea by its local nomenclature: “We are strongly of the opinion that disputes that exist primarily in the West Philippine Sea between the Philippines and China should be resolved peacefully. Any nation with a claim has a right to exert it, but they do not have a right to pursue it through intimidation or coercion.”¹⁶ The significance of this gesture was not lost on the Philippines, whose leaders expressed “pleasant surprise” at the endorsement they were receiving.¹⁷

Viewed in the context of the much-publicized “rebalance” to Asia, it should be no surprise that the vast majority of analyses on the evolving American role in the South China Sea have concluded that this policy has been a source of consternation for the Chinese, while at the same time emboldening some Southeast Asian claimant states, particularly the Philippines, a US treaty ally. Yet, while the United States is clearly ready to intervene in the event of an outbreak of hostilities in the South China Sea, would it be willing to do so? Notwithstanding the flurry of military and diplomatic activity in recent years, it is prudent to bear in mind that the United States has consistently maintained a position of neutrality on the South China Sea and continues to do so. Indeed, its current position on the South China Sea hews closely to its original stance articulated in 1995 in the wake of China’s occupation of Mischief Reef in the Spratly island chain. This position has been encapsulated in the following five points:

1. Peaceful Resolution of Disputes: “The United States strongly opposes the use or threat of force to resolve competing claims and urges all claimants to exercise restraint to avoid destabilizing actions.”

2. Peace and Stability: “The United States has an abiding interest in the maintenance of peace and stability in the South China Sea.”

3. Freedom of Navigation: “Maintaining freedom of navigation is a fundamental interest of the United States. Unhindered navigation by all ships and aircraft in the South China Sea is essential for the peace and prosperity of the entire Asia-Pacific region, including the United States.”

4. Neutrality in Disputes: “The United States takes no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls, and cays in the South China Sea.”

5. Respect for International Principles: “The United States would, however, view with serious concern any maritime claim or restriction on maritime activity in the South China Sea that was not consistent with international law, including the 1982 United Nations Convention on the Law of the Sea.”¹⁸

Beyond these five points, several new elements have been introduced to frame US policy on the South China Sea. These include: “resolving disputes without coercion;” support for “collaborative diplomatic process by all claimants” to willingly “facilitate initiatives and confident building measures consistent with the 2002 Declaration on the Code of Conduct;” “support for drafting of a full code of conduct;” and the position that legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.¹⁹ Yet, arguably, the most controversial perceived shift in the US position on the South China Sea relates to the possibility of active military intervention should a crisis materialize. Several US officials have on occasion indicated that Washington would come to the aid of their allies in times of crisis. Indeed, former Secretary of Defense Chuck Hagel allegedly assured the Philippines of American protection in its dispute with China.²⁰ These presumed assurances notwithstanding, there are reasons for doubt.

First, while the United States and the Philippines are doubtless bound together by the Mutal Defense Treaty that dates back to 1951 and was reinforced with the Manila Declaration of 2011, it remains unclear if Washington considers the agreement to cover Philippine claims in the South China Sea, particularly since their very status as part of the sovereign territory of the Philippines is being disputed, not only by China but in some cases by Vietnam and Malaysia as well. Compounding this ambiguity is the fact that the Philippine claim to the Spratlys was made after the signing of the 1951 Mutual Defence Treaty, and, therefore, was not taken into account by Washington when it made that commitment. Nor have American officials offered clarification on what actions would trigger their “protection,” for instance, if Philippine forces came under attack in areas outside of Philippine territory.²¹

Second, and more to the point, it is unlikely that the United States would risk triggering a larger conflagration with China for the sake of an ally’s contested claims over atolls and features in the South China Sea. Even measured military intervention on behalf of the Philippines would likely lead to an escalation of tensions, and, possibly, direct US-China conflict. In turn, such escalation would undermine the United States; it could compromise sea lines of communication, the interests of US energy companies, US interests and relations with Southeast Asian states, and, indeed, its own image as a benign power that can contribute constructively to the management of tension and conflicts in the region. At the same time, from their close observation of crises in Iran, Syria, Georgia, and Ukraine, Chinese officials are keenly aware of the difficulties that the United States faces, both domestically and internationally, when the need arises to follow up on bold declaratory statements with actual punitive measures.

While the South China Sea is a matter of national interest for the United States, its explicit interest is freedom of navigation and unimpeded commerce, both of which China has guaranteed. Commerce, however, has little if anything to do with the concerns that both parties have. Underlying their differences on this matter is their competing interpretations of UNCLOS in relation to military activities within a state’s Exclusive Economic Zone. Whereas Washington has taken the position—despite not having ratified UNCLOS—that such activities are permitted under the convention, Beijing has opposed this, which takes on urgency because of US plans to use the naval base on Hainan island, home to China’s nuclear submarine fleet, as a major base from which to project naval power into the South China Sea, which Beijing views as its natural sphere of influence. These differences aside, it is unlikely that Washington will consistently raise this issue given that China is not the only regional state that has expressed reservations about military activities being pursued within a state’s EEZ.²²

The Role of International Law

Much about the South China Sea dispute evokes international law. While ultimately a sovereignty dispute, claims and counter-claims over the South China Sea possess a definite legal dimension. ASEAN states have called for resolution of the improglio in accordance with international law, and the Philippines (with the support of Vietnam) has taken China to the International Tribunal of UNCLOS (ITLOS) in the hope that ITLOS can compel the latter to at least clarify the extent of its claims. Meanwhile, ASEAN and China are deep in discussion over the formulation of a (hopefully) legally-binding Code of Conduct to govern claims, activities, and interactions in the South China Sea.

The UNCLOS regime is critical in this regard, and also one that disadvantages China despite the fact that Beijing, along with all the Southeast Asian claimant states, are signatories to it. The fact that UNCLOS granted littorial states the right to establish a 12 nautical mile territorial sea and a 200 nautical mile EEZ was welcomed by the Southeast Asian littorial states as it translated, for instance, to sovereign rights to marine resource exploitation within the EEZ, particularly of fish, a main source of dietary protein for local communities in Southeast Asia. For China’s South China Sea claims, however, UNCLOS has posed a problem as it would not be able to make a legal claim extending from the mainland, and can only do so from the Spratly Islands.

nternational lawyers have weighed in on the debate, and the broad consensus in this community maintains that China’s claim of historical rights over the South China Sea has no standing in the eyes of international law. China has not exercised continuous and uncontested sovereignty over the South China Sea, nor does the sea itself constitute coastal waters that might be accommodated by a claim based on historical rights. Others have ventured to propose legal ways to get around the impasse of competing claims, such as a more specific definition of an EEZ. For instance, Robert Beckman and Clive Schofield have suggested that:

“China could limit its exclusive economic zone (EEZ) claims to just larger islands, such as the 12 largest islands in the Spratlys. The same logic can be applied to the largest features among the Paracel Islands group together with the Pratas Islands. Claiming only the larger islands will not limit China’s maritime reach significantly. But it would bring these claims more in line with international law…Under our proposal, the total land area of the larger islands that China might claim is only about 2 square kilometers. But they all have vegetation and, in some cases, roads and structures have been built on them. Therefore, it can be argued in good faith that they are “islands” entitled in principle to EEZ and continental shelf rights of their own, as allowed under the 1982 UNCLOS. They are not ‘rocks which cannot sustain human habitation or economic life of their own’ that are only entitled to a territorial sea of 12 nautical miles. As ‘islands’ they would be entitled to the full 200 nautical miles of exclusive economic zone activity. Next, China can trigger a paradigm shift in the disputes in the South China Sea if it were to issue charts indicating the outer limit of its EEZ claims from the islands over which it claims sovereignty. The EEZ extends to a full 200 nautical miles over the open sea from the coastal fringes of the islands being claimed.”²³

While there are legal ways to get around the impasse, it can be argued that the South China Sea dispute is ultimately not about international law. Political will, or in this case, lack thereof, is the reality that lies at the heart of the matter. Regardless of all the legal contents being put forward by claimant states to substantiate their claims, it all boils down to this: if there is political will on the part of these claimants to seek resolution and compromise, then legal recourse offers a viable way out. If, however, claimant states insist on the “indisputable sovereignty” of their respective claims, then international law will fall by the wayside as strategies of self-help will be pursued.