ASEAN finally pushes back on China’s sea claims

ASEAN finally pushes back on China’s sea claims

Regional grouping fires salvo at China with new insistence South China Sea disputes must be settled as US demands under UNCLOS

by Richard Javad Heydarian June 30, 2020 Asia Times

MANILA – In a sign of rising resistance to China’s Covid-19 strategic opportunism, the typically tight-lipped Association of Southeast Asian Nations (ASEAN) bloc has articulated a tougher stance on intensifying South China Sea disputes. 

In a major departure from its notoriously anodyne statements, ASEAN has “reaffirmed that the 1982 UNCLOS is the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones.”

It marks the first time that the regional body has explicitly identified the United Nations Convention on the Law of the Sea (UNCLOS) as the sole legal basis to resolve maritime and territorial disputes in the region. Regional leaders participated in the summit remotely online due to Covid-19 related travel restrictions.

Malaysia, Vietnam, Indonesia and the Philippines all have disputes with China in the contested maritime area. Taiwan is also a rival claimant but is not a member of ASEAN. 

The regional body referred to international law more vaguely as a basis to manage the disputes, never ruling out alternative principles and mechanisms to address the issue. By all accounts, China prefers a negotiated agreement that does not rely on UNCLOS.

But now, Southeast Asian countries are openly rejecting any bid by China to adopt alternative legal principles, including its controversial “historic rights” claims, as a basis of negotiating any conflict management regime in the contested sea. 

The bloc’s shift is likely due to the determined efforts of current rotating chairman Vietnam, which has sought to mobilize regional unity on the disputes despite the pandemic’s disruption to holding regional summits. 

Earlier this year, senior Vietnamese officials told this author that Hanoi is committed to ensuring ASEAN centrality and continued strategic relevance in managing one of the most contentious geopolitical conflicts in the region. 

“We have to work with everybody [towards an optimal consensus],” said Ambassador Pham Quang Vinh, former Vietnamese envoy to Washington and a current advisor on the country’s ASEAN chairmanship. 

“We can ensure those countries [Cambodia and Laos] participate to ensure peace and stability in the South China,” he added when asked about Beijing’s sway over smaller ASEAN members with no direct stake in the South China Sea disputes. 

The senior diplomat, who served as Vietnamese Ambassador to the US until 2018, also underscored the continued importance of ASEAN-US cooperation, stating how “generally we agree that the US is important for this region in terms of security and prosperity…we need the US to engage different ASEAN mechanisms since ASEAN is as strong as how it is engaged by major powers.

“We want to be neutral, but we don’t want anyone (China) to be dominant in the region too,” he added when asked about how Vietnam will balance its national interest with its role as the chairman of ASEAN amid intensified US-China rivalry. 

Long exasperated by ASEAN’s perceived acquiescence to China, US President Donald Trump’s administration warmly welcomed ASEAN’s latest statement on the South China Sea. 

In a June 29 tweet, US Secretary of State Mike Pompeo wrote, “The United States welcomes ASEAN Leaders’ insistence that South China Sea disputes be resolved in line with international law, including UNCLOS.”

“China cannot be allowed to treat the [South China Sea] as its maritime empire. We will have more to say on this topic soon,” he added. 

Pompeo’s statement comes as the US deploys a growing number of its aircraft carrier and warships to the South China Sea to check China’s expanding footprint in the area. 

Earlier this month, Kelly Craft, the US ambassador to the United Nations submitted a note verbale to the UN where it rejected China’s sea claims as “inconsistent with international law.” 

“[The US] objects to China’s claim to ‘historic rights’ in the South China Sea to the extent that claim exceeds the maritime entitlements that China could assert consistent with international law as reflected in the UNCLOS,” the US submission said.

In recent years, the Trump administration has actively prodded ASEAN to stand up to China over the sea disputes. Last November, David Stilwell, US assistant secretary of state for East Asia and the Pacific, openly called on regional states to emulate Vietnam’s tough stance in the South China Sea. 

“This is your turf, this is your place. Vietnam has done a good job of pushing back. I would think that regarding Asean centrality (the grouping) would join Vietnam to resist actions that are destabilizing and effecting security,” he said during a forum in Kuala Lumpur, Malaysia. 

One major area of concern for the US and other major regional players is the ongoing negotiation over an ASEAN-China Code of Conduct in the South China Sea. The Trump administration has warned the negotiating parties that it will reject any final deal that could compromise America’s interests in the region, particularly regarding freedom of navigation for its naval forces. 

In its latest statement, ASEAN noted China’s intimidation of smaller claimant states’ vessels in recent months, echoing earlier firm statements made by the Philippines and Vietnam. 

The statement “emphasized the need to maintain and promote an environment conducive to the COC negotiations, and thus welcomed practical measures that could reduce tensions and the risk of accidents, misunderstandings and miscalculation.” 

Among smaller regional powers, the mood has shifted from despair and helplessness to determined resistance to Beijing’s aggressive actions in adjacent waters, including its sinking of a Vietnamese vessel and harassment of Malaysian oil exploration activities earlier this year.

ASEAN’s emphasis on the UNCLOS is particularly significant in light of Indonesia’s recent verbal note to the United Nations, which directly questioned China’s expansive claims in the South China Sea.

“Indonesia reiterates that the nine-dash line map implying historic rights claim clearly lacks international legal basis and is tantamount to upset UNCLOS 1982,” stated Indonesia’s Permanent Mission to the United Nations in a late-May note.

Indonesia has tied the UNCLOS to the Philippines’ 2016 arbitration award at an arbitral tribunal at The Hague. The decision nullified China’s expansive ‘historic rights’ claims, which extend into Indonesia’s northern Natuna waters. 

Beijing rejected the decision, which lacks an enforcement mechanism.  

At the recently concluded ASEAN summit, Indonesian Foreign Minister Retno Marsudi called on ASEAN countries to finalize the COC negotiations in accordance with the UNCLOS. 

“Negotiation among claimant countries is key. Indonesia supports continuing the code of conduct negotiation that was halted due to the pandemic,” the Indonesian diplomat said, underscoring the urgency of negotiating a mutually-acceptable agreement. 

“ASEAN states should be solid in their resolve to respect international law, including the 1982 UNCLOS and the decisions made by the UN Permanent Court of Arbitration,” she added, reflecting a growing regional consensus to reject China’s wide-reaching claims in adjacent waters. 

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