August 12, 2017

Sourabh Gupta

Over the first weekend of August, foreign ministers of the 10 Association of Southeast Asian Nations (Asean) held their 50th ministerial meeting in Manila – the second such meet since the issuance of the Permanent Court of Arbitration’s award on the South China Sea that overwhelmingly favoured the Philippines in its case against China.

Attention at the gathering, yet again, was inordinately focused on the language in their joint communique. Would China’s land reclamations be hauled up for criticism? Would it mention the court’s award? Finally, the communique “took note” of the concerns of some countries regarding the land reclamations and “emphasised the importance of non-militarisation and self-restraint” in the South China Sea. There was no mention of the tribunal’s award. The communiqué did, however, “warmly welcome” the improving cooperation between Asean and China and the adoption of the framework of a code of conduct in the South China Sea.

Seven years after five Asean countries had risen to voice their concerns at the 17th Asean Regional Forum in Hanoi that July, and which was backed thereafter by a long statement by the United States on its South China Sea position for the first time in a regional foreign ministers meeting, the wheel appears to have come full circle in terms of restoring stability to China-Asean interactions over this crucial body of water. The contrasting views between the Asean countries, as a group, and the West (US, Australia, Japan) on the importance and near-term fulfilment by China of the Permanent Court of Arbitration’s award, exemplifies their differences in approach.

For Asean and China, the award on July 12, 2016, constituted the closing of a tense chapter in its recent South China Sea-related political interactions and the opportunity to turn a new page of cooperation. That post-July 2016 cooperation has been manifested in the successful testing of a foreign-ministry-to-foreign-ministry hotline to manage maritime emergencies, the operationalisation of the observance of the Code for Unplanned Encounters at Sea, and the framework of the Code of Conduct in the South China Sea.

Asean-China relations are nowhere as fraught as hyped – or hoped – by extra-regional countries. In fact, every member of Asean, with the exception perhaps of Singapore, yearns for the success of Asean-China political relations – but not at the inadmissible cost of having to capitulate to Beijing’s unilateral and non-conforming sovereign rights claim to oil and gas resources in their respective exclusive economic zones in the South China Sea.
The turning of the wheel in favour of stability, dialogue and cooperation is also consistent with a pattern of easing and deterioration in the politics and security of the South China Sea over the past quarter-century. Four such cycles are evident: a deteriorating cycle from 1992 to 1999; an easing cycle from 2002 to 2008; a deteriorating cycle, again, from 2009 until 2016; and the current easing cycle underway since July 2016. Although no two easing or deteriorating cycles are identical, there are two clearly identifiable factors.

First, an unmistakable feature across each of the deteriorating cycles has been the slapping-down of a controversial and partially nonconforming maritime rights claim by China, which has been accompanied by actions that have visibly disturbed the status quo on the ground. In 1992, China promulgated its Law on the Territorial Sea and the Contiguous Zone and followed up by construction work on the Philippines’ continental shelf at Mischief Reef in 1995 – the first time that Beijing had moved against an Asean member country.

Asean’s common stance in the South China Sea stems from the Manila Declaration signed in 1992 in the wake of the territorial sea law that year. In 2009, China officially appended a map of the Nine Dash Line as a rejoinder to a joint Malaysia-Vietnam submission on the proposed outer limits of their continental shelf, and followed it up with a series of large-scale land reclamations from mid-2013 onwards in response to Manila’s filing of the arbitration case in January that year.

The US is consigned to a secondary role by and large in the politics and security of the South China Sea, except during the deteriorating cycles. Before Secretary of State Hillary Clinton’s forceful intervention at the Asean Regional Forum meeting in Hanoi in 2010, the most comprehensive earlier statement on the Spratlys and the South China Sea had occurred in May 1995 following Beijing’s occupation of Mischief Reef.

Highly self-publicised freedom of navigation operations, too, have all been conducted during this down cycle. The received view that the South China Sea disputes have migrated from competing sovereign rights and maritime jurisdiction claims to fiercer forms of geopolitical contests and waterway control involving the established power (the US) and the rising power (China) is a misreading of the dynamics at play. The current easing cycle, rather, will lend itself to a period of strategic calm in this critically important waterway. Without an agitated local claimant on whose behalf it can claim to be intervening to uphold the stability of the South China Sea, the US has few other tools at its disposal to assert its relevance and authority in this body of water other than to endlessly navigate its length and breadth.

Second, the Philippines has felt the most violated of the Asean claimant states by way of China’s actions, yet has been the most capricious in its policy responses. This has detrimentally affected Asean’s ability to speak with one voice. There have been wild pro-and-anti China policy pendulum swings by Manila that have accentuated and ameliorated the easing deterioration cycles in the South China Sea, coinciding with the election of a new president dating all the way back to Gloria Arroyo in 2001. Easing cycles have lent themselves to imaginative approaches to jointly explore and develop hydrocarbon resources, a notable example being the Tripartite Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea of March 2005, signed by the national oil companies of Vietnam, China and the Philippines.

President Rodrigo Duterte’s cancellation of major joint military exercises with the US, his barring of American naval vessels from using Philippine bases for freedom of navigation exercises, his cessation of plans for joint patrols in the South China Sea, and his blocking of US requests to upgrade and utilise an airbase that lies close to the China-Philippines area of dispute should once again open up political space to conduct imaginative joint and cooperative hydrocarbon development activities on the Philippines’ continental shelf. Unlike the case of the tripartite agreement, however, China-Philippines cooperation this time around will have to be structured as a non-state-to-state agreement conducted under Philippines sovereign law. Examples of similarly structured joint development projects abound, including at one of the oil blocks along the hypothetical median line in the East China Sea that in principle is to be developed by China and Japan.

The onus is on China to transform the current easing cycle into an enduring phase of peace, prosperity and cooperation in the South China Sea. It would have to grasp the opportunity at hand and bring its maritime rights and jurisdiction claims into greater conformity with the provisions of the United Nations Convention on the Law of the Sea. As part of this, it would have to imperceptibly bring itself into compliance with aspects of the arbitration court’s award, without acknowledging its validity. There are creative means to do so.

In parallel, Asean and China should aspire to devise a forward-looking and multilayered code of conduct that covers the claimant and non-claimant states of the region alike, is comprehensive in scope, subjects its signatories to some form of binding regional dispute settlement, and encourages extra-regional partners to adhere and accede to its purposes.

China and Asean enjoy an important opportunity to move beyond managing their differences to resolving some of them during this easing cycle. They should rise to the occasion and safeguard peace, prosperity and cooperation in the South China Sea.

This article originally appeared in the South China Morning Post