Thursday, September 2, 2010

Who wants what in the South China Sea?

Many news reports and commentaries on the South China Sea have been published in recent weeks and this one is intended to help explain the complexity of the issue.

In this article, the South China Sea issues are separated into five categories, each with specific countries or parties concerned. This may be a rather crude simplification, but we must be clear about which issue we want to address, so appropriate solutions can be developed and directed to the right parties concerned.

The Paracels: This is a bilateral issue between Vietnam and China (and Taiwan) over the Paracel Islands, which Vietnam calls Quan Dao Hoang Sa, and China calls Xisha Qundao. China took control of the Paracels after defeating South Vietnamese forces in a sea battle on January 19, 1974. South Vietnam reportedly requested but couldn't obtain US intervention to repel the Chinese. The US at that time was pulling out of the war in Vietnam and didn't want any conflict with the Chinese.

After the end of the Vietnam War in 1975 and the reunification of the two Vietnams, the new government in Hanoi protested and maintained its objection to China's occupation of the islands. But Beijing contends that its ownership of the islands has been established since its victory in 1974.

The neighbouring countries have recently completed their land demarcation and will soon venture into maritime boundary demarcation. In the meantime they have some maritime cooperation activities in the Gulf of Tonkin. They also have a regular strategic defence dialogue, the next to be hosted by Hanoi later this year. It is safe to assume that Vietnam and China can make good use of this bilateral forum to resolve their dispute over the Paracels.

Thus, the Paracels issue need not concern other states unless and until China or Vietnam exerts its claim of a 320-kilometre exclusive economic zone (EEZ) and extended continental shelves around the islands.

The Spratlys: This well-known issue arises from overlapping claims of sovereignty over the archipelago of islands, islets, reefs, atolls and cays and adjacent waters, from Brunei, Malaysia, the Philippines, Vietnam (the four Asean claimant states) and China (and Taiwan). Vietnam calls the Spratlys Truong Sa, while China calls them Nansha. The Spratlys are reputed (but not yet proven) to have huge petroleum deposits. All of the parties concerned, except Brunei, have reinforced sovereignty claims with military occupation of the parts of the archipelago they claim.

The four Asean claimants have different claims over different parts of the Spratlys, whereas China (backed by Taiwan) claims all of the Spratlys and adjacent waters, as well as other islands further south of China's nine dotted dashes on its official map, which form a U-shape reaching down to Indonesia's Natuna Sea.

The Chinese claims are largely historical - that the South China Sea has been the "living place of Chinese fishermen" since the 15th century. Successive Chinese governments in modern times have continuously stated sovereignty rights over the Spratlys and other islands in the southern South China Sea without international objection.

Friendly talks preferred

As things stand, the preference of all parties concerned seems to be for friendly bilateral talks. More often than not, the Spratly talks are between China and one of the four Asean claimants. Occasionally, the Asean four also meet informally to compare notes on China's moves, or have bilateral talks to discuss specific issues between any two of the four. It should be pointed out that Asean itself does not and cannot take sides in favour of any of the four Asean claimants. And quite prudently, none of the four has ever requested Asean support for any of its own claims either.
The only common Asean position on the Spratlys is that the issue should be resolved by peaceful means between the concerned parties, without the use or threat of force.

This was clearly stated in the Asean Declaration on the South China Sea by the foreign ministers of Brunei, Indonesia, Malaysia, the Philippines, Singapore and Thailand in Manila in July 1992. The ministers also called for the use of the principles in the 1976 Treaty of Amity and Cooperation in Southeast Asia (TAC) as the basis for formulating an international code of conduct over the South China Sea. And they asked all concerned parties to support this idea.

Vietnam acceded to the TAC in July 1992 and joined Asean (becoming its seventh member) in July 1995. Vietnam has fully subscribed to the 1992 Declaration and has shown keen interest in working toward the proposed South China Sea code of conduct. China, on the other hand, will only support part of the 1992 Declaration, though it is not clear which part it supports and which it objects to.

In 1990, Chinese premier Li Peng offered to shelve the sovereignty issue and jointly develop resources in the disputed areas. But none of the four Asean claimants has taken the offer seriously.

Their reason is simple: Accepting the Chinese offer of joint development without settling the sovereignty issue first would be tantamount to recognising Chinese ownership of the disputed islands. Quite obviously, China assumes that it owns the entire archipelago and just wants to be magnanimous by offering a joint development solution.

In the 1990s, China began to develop cooperative relations with Asean. Asean-China talks on the South China Sea began informally at a working dinner of senior officials in April 1995 in Hangzhou.

The Chinese side was led by then vice foreign minister Tang Jiaxuan. But the South China Sea was so sensitive to China that China asked Asean not to put the subject on any formal Asean-China agenda. Nevertheless, China and Asean increased mutual understanding, and in the second half of the 1990s, Asean-China relations developed rapidly.

In July 1996, China became an Asean Dialogue Partner. Chinese president Jiang Zemin met with nine Asean leaders in the first ever Asean-China Summit in Kuala Lumpur in December 1997. At the end of their meeting, the leaders issued a joint statement on "Asean-China Cooperation Towards the 21st Century", in which Paragraph 8 stated:
"Recognising that the maintenance of regional peace and stability served the interests of all parties, they undertook to resolve their differences or disputes through peaceful means, without resorting to the threat or use of force.

"The parties concerned agreed to resolve their disputes in the South China Sea through friendly consultations and negotiations in accordance with universally recognised international law, including the 1982 UN Convention on the Law of the Sea.

While continuing efforts to find solutions, they agreed to explore ways for cooperation in the areas concerned.

"In the interest of promoting peace and stability as well as enhancing mutual confidence in the region, the parties concerned agreed to continue to exercise self-restraint and handle relevant differences in a cool and constructive manner. They further agreed not to allow existing differences to hamper the development of friendly relations and cooperation."

This commitment is very relevant now, in the light of recent reports about China's description of its South China Sea claims as constituting a national "core interest" comparable to Taiwan, Tibet and Xinjiang - in which the use of force can never be ruled out.

As far as Asean is concerned, the 1997 commitment on non-use of force remains valid. Moreover, China is also obliged under the 1976 Treaty of Amity and Cooperation in Southeast Asia (TAC), to which it acceded in October 2003, to settle differences or disputes among TAC parties by peaceful means, and to refrain from the use or threat of force in inter-state disputes in Southeast Asia.

running into difficulties

After 1997, Asean and China became even more comfortable talking about the South China Sea. They discussed the idea of a code of conduct, which would be a political statement with no real international legally binding effect.

Unfortunately, the talks ran into three difficulties: What would be the scope of the code of conduct? The contention of some countries here was that not all parts of the South China Sea were under dispute. The parties concerned have territorial waters that are beyond any dispute, but they don't want to subject these waters to any new regional code of conduct. Hence the code of conduct should apply only to disputed areas of the South China Sea.

This led to another difficulty: Vietnam wanted the code of conduct to cover the Paracels, which China objected to.

Lastly was the question of whether or not other countries such as Japan, Australia and the US, that enjoy freedom of navigation and flight in or near the disputed areas, can have any part in formulating the code of conduct.

Eventually Asean and China scaled down their expectations and settled for the second best outcome by formulating the Declaration on the Conduct of Parties in the South China Sea (DOC), signed by all Asean foreign ministers and Chinese special envoy Wang Yi in Phnom Penh on November 4, 2002, on the sidelines of the 6th Asean-China Summit.

By Termsak Chalermpalanupap director of the Political and Security Directorate
of the Asean Secretariat. This is part one of a two-part series to be concluded tomorrow I The Nation, Bangkok

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