SC43: Saturday 1:4 5 PM - 3:30 PM F ~ult lines and Security Dynamics Along Asia's lifeline

Sponsor(s):

Pan el

IntematianalSecurity Studie s

Room: Union Square 8. Hilton Union Square Chair Alexander Vuving Disc. Alexander Vuving Between a rock and a hard place: Philippines strategies toward China and the US in the South China Sea
Aileen Baviera, University of the Philippines

Sources of Sino-Japanese Cooperation in the East China Sea:

Implications for Dispute Management

James Manicom, Centre for International Governance Innovati on

Securing Maritime Security : Norms, Legal Regimes and Realpolitik

Carlyle Alan Thayer, University of New South Wales

The Security Implications of Cross-Strait Economic and Social

Exchanges

Yuan-Kang Wang, Western Michigan University

Chinese Views of Ind ian Seapower in the Indian Ocean

Toshi Yoshihara, Naval War College

259

Securing Maritime Security in the South China Sea: Norms, Legal Regimes and Realpolitik
Carlyle Thayer

Presentation to panel on Fault Lines and Security Dynamics Along Asias Lifeline International Studies Association Annual Convention Hilton San Francisco Union Square San Francisco, April 6, 2013

Securing Maritime Security in the South China Sea: Norms, Legal Regimes and Realpolitik
Carlyle A. Thayer* The University of New South Wales Introduction
The sea-lanes that transit the South China Sea lie in the heart of the Indo-Pacific maritime region. The sea-lanes are literally lifelines for the rapidly growing economies of South East and East Asia that are dependent on trade and the supply of energy resources from the Middle East. These sea-lanes are becoming increasingly congested, contested and prone to strife as the littoral states seek to assert sovereignty and sovereign jurisdiction over islands and rocks and their surrounding waters in the South China Sea. This paper discusses three major approaches to maritime security in the South China Sea: norms, legal regimes and realpolitik. These approaches are not mutually exclusive; they mutually reinforce each other. The paper focuses on efforts by the Association of Southeast Asian Nations (ASEAN) to promote norms and legal regimes as their preferred instrument to regulate the behavior of China in the South China Sea. The paper concludes that norms and legal regimes are a necessary but not sufficient component for the maintenance of maritime security. ASEAN has not yet matured as a multilateral organization and individual differences among its members undermine effective collection action. Some ASEAN states hedge and engage in soft balancing with the United States. China exploits differences among ASEAN members to promote its interests through a mixture of realpolitik and selective support for norms and legal regimes.

Norms
The ASEAN Way Since its founding in 1967 members of the Association of Southeast Asian Nations have sought to promote norms to guide relations with each other as well as their collective relations with external states. Collectively these norms are referred to as the ASEAN Way; they include (but are note limited to) non-interference in the domestic affairs of other countries, habits of dialogue and consultation, inclusiveness, decision-making by consensus, progress at a pace comfortable to all, non-use of force and peaceful settlement of disputes. The norms of inter-ASEAN relations are spelled out in the founding ASEAN (or Bangkok) Declaration, Treaty of Amity and Cooperation in Southeast Asia (TAC), the Bali Concord II and other documents. As ASEAN has developed it has attempted to become a more rules-based organization through the adoption of the ASEAN Charter. ASEAN has also * Email: c.thayer@adfa.edu.au. Academic papers are archived at Scribd.com.

set for itself the objective of becoming an ASEAN Community by 2015 composed of three pillars of which the political-security community is one. As ASEAN has promoted regionalism it has attempted to embed its norms in ASEAN- centric multilateral institutions such as the ASEAN Regional Forum. Further, ASEAN has attempted to promote legal regimes conducive to the security of its members. For example, the TAC was opened for accession by non-member states and made a requirement for admission into the East Asia Summit. The signatories to the TAC pledged to observe the following principles:
a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations; b. The right of every State to lead its national existence free from external interference, subversion or coercion; c. Non-interference in the internal affairs of one another; d. Settlement of differences or disputes by peaceful means; e. Renunciation of the threat or use of force; f. Effective cooperation among themselves.
1

South China Sea Territorial disputes in the South China Sea have severely challenged ASEANs promotion of norms and legal regimes both among its members and with regional states. In 1992, for example, ASEAN issued its first statement of concern in response to rising tensions in the South China Sea between China and then non-member, Vietnam.2 This declaration has little noticeable impact on state behavior as neither China nor Vietnam were members of ASEAN or signatories to the TAC. In 1995, when China occupied Mischief Reef, a maritime feature claimed by the Philippines, ASEAN foreign ministers issued their second statement on the South China Sea that expressed their serious concern and urged the parties directly involved to refrain from taking actions that de-stabilize the situation.3 Both China and Vietnam (which was about to become an ASEAN member) issued statements offering various degrees of support for the ASEAN Statement. This section reviews ASEANs unsuccessful efforts to negotiate a COC with China in the period from 1995 to 2002. Declaration on Conduct of Parties
1

Treaty of Amity and Cooperation in Southeast Asia, 24 February 1976; http://www.asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asia-indonesia-24 february-1976-3.
2 ASEAN Declaration On The South China Sea, Manila, Philippines, 22 July 1992;

http://www.aseansec.org/1196.htm.
3

Statement by the ASEAN Foreign Ministers on the Recent Developments in the South China Sea 18 March 1995; http://www.aseansec.org/2089.htm.

After Chinas occupation of Mischief Reef, the Philippines, as the aggrieved party, sought the backing from its fellow ASEAN members for a COC for the South China Sea that would constrain China from further encroachments on Philippines sovereignty. In late 1999, after four years of discussion, ASEAN members finally reached agreement on a COC.4 In March 2000, ASEAN and China exchanged their respective draft COCs and agreed to consolidate them into one document.5 However, four major areas of disagreement quickly emerged: geographic scope, restrictions on construction on occupied and unoccupied features, military activities in waters adjacent to the Spratly islands, and whether or not fishermen found in disputed waters could be detained and arrested. And impasse was reached. In November 2002, ASEAN member states and China signed a non-binding political statement entitled Declaration on Conduct of Parties in the South China Sea (DOC). The DOC contained four trust and confidence building measures:
Pending the peaceful settlement of territorial and jurisdictional disputes, the Parties concerned undertake to intensify efforts to seek ways, in the spirit of cooperation and understanding, to build trust and confidence between and among them, including: a. holding dialogues and exchange of views as appropriate between their defence and military officials; b. ensuring just and humane treatment of all persons who are either in danger or in distress; c. notifying, on a voluntary basis, other Parties concerned of any impending joint/combined military exercise; and d. exchanging, on a voluntary basis, relevant information.

The DOC also proposed five cooperative activities:

Pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities. These may include the following: a. marine environmental protection; b. marine scientific research; c. safety of navigation and communication at sea; d. search and rescue operation; and

For further background consult: Carlyle A. Thayer, Challenges to ASEAN Cohesion: The Policy of Constructive Engagement and a Code of Conduct for the South China Sea, Paper to international workshop on Regionalism and Globalism in Southeast Asia, Department of Political Science and International Relations, University of Tampere and the Centre for Southeast Asian Studies, bo Akademi University, Marienhamn, land, Finland, June 2-4, 2000, 31-44. ASEAN now comprised ten members with the addition of Vietnam (July 1995), Laos and Myanmar (1997) and Cambodia (1999). http://www.scribd.com/doc/103248217/Thayer-Challenges-to-ASEAN%E2%80%99s-Cohesion-The-Policy- of-Constructive-Engagement-and-a-Code-of-Conduct-for-the-South-China-Sea.
5

Association of Southeast Asian Nations, Regional Code of Conduct in the South China Sea (Draft), March 2000 and Peoples Republic of China, Code of Conduct on the South China Sea (Draft of the Chinese Side), March 2000. Both documents are in the authors possession.

5
e. combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms.

The parties to the DOC reaffirmed that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.6 The DOC was stillborn. It took a further twenty-five months before senior officials from ASEAN and China reached agreement on the terms of reference for the ASEAN-China Joint Working Group (JWC) to implement the DOC.7 In August 2005, ASEAN tabled draft Guidelines to Implement the DOC at the first meeting of the JWC. Point two called for ASEAN consultations prior to meeting with China.8 China objected and repeated its long- held position that the relevant parties should resolve sovereignty and jurisdictional disputes bilaterally. This proved such a sticking point that another six years of intermittent discussions and twenty-one successive drafts were exchanged before final agreement on the guidelines was reached. In summary, the above discussion illustrates that although ASEAN was able to forge consensus among its members on the norms for a COC for the South China Sea, it was unsuccessful in obtaining Chinas agreement to negotiate on these norms on a multilateral basis. However, once ASEAN made its concession on this point, it was able to engage China in promoting confidence-building measures (CBMs) with the ultimate objective of creating a legal regime, embodied in a COC, to govern state behavior in the South China Sea. The following section reviews ASEANs efforts to engage China in implementing the DOCs CBMs and to negotiate a legal regime bases on the COC to address tensions caused by territorial disputes in the South China Sea.

Legal Regimes
Guidelines to Implement the DOC In July 2011, ASEAN dropped its insistence on prior consultation among its members before discussing the COC with China. ASEAN now agreed, to promote dialogue and consultation among the parties, a considerable watering down of its original position. China and ASEAN now reached agreement on the Guidelines to Implement the DOC. The ASEAN draft Guidelines included one new point specifying that activities and projects carried out under the DOC should be reported to the ASEAN-China Ministerial Meeting.9
6

Declaration on Conduct of Parties in the South China Sea, November 4, 2002, Point 10, http://www.aseansec.org/13163.htm.
7

ASEAN-China Senior Officials Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea, Kuala Lumpur, 7 December 2004 and Terms of Reference of the ASEAN- China Joint Working Group on the Implementation of the Declaration on the Conduct of Parties in the South China Sea; http://www.aseansec.org/16888.htm and http://www.aseansec.org/16885.htm.
8

Tran Truong Thuy, Recent Developments in the South China Sea: From Declaration to Code of Conduct, in Tran Truong Thuy, ed., The South China Sea: Towards a Region of Peace, Security and Cooperation (Hanoi: The Gioi Publishers, 2011), 104.
9

Guidelines to Implement the DOC, http://www.aseansec.org/documents/20185-DOC.pdf.

In all other respects the 2011 Guidelines remained unchanged from the original ASEAN draft tabled in 2005. Implementing the DOC After the DOC Guidelines were adopted, two separate diplomatic tracks emerged. The first track involved discussions among ASEAN members themselves on a draft Code of Conduct that they would later present to China. The second track involved negotiations between China and ASEAN member states on practical measures to implement the DOC. On November 11, 2011, ASEAN Senior Officials (ASEAN SOM) met in Bali to follow up on the DOC Guidelines in preparation for the 19th ASEAN and related summits.10 According the Ade Padmo Sarwono, Director General of ASEAN Politics and Security in Indonesias Foreign Ministry, the ASEAN SOM decided that its members should meet first to agree on what cooperative activities and projects in the South China Sea might be carried out before meeting with Chinese officials. The aim of the meeting with Chinese officials would be to discuss implementation and continuation of declaration on conduct (DOC) including several projects in [the] South China Sea and to determine what, when, where and how the project would be carried out.11 Also, according to Ade Padmo Sarwono, a working group of ASEAN Senior Officials discussed the Code of Conduct as a follow up to the ASEAN SOM discussions in July. Once ASEAN members and China had agreed on measures to implement the DOC Guidelines, they would resume their dialogues on COC which contains specific and technical matters related to cooperation around the South China Sea.12 Indonesias Foreign Minister Marty Natalegawa offered this clarification of the negotiating process: We have begun the conversation of the code of conduct among ASEAN first, but there will be a time when we begin to engage China.13 In a later interview he confirmed that after agreement on the DOC Guidelines ASEAN members were now moving on to the Code of Conduct (CoC).14 Later, Marty noted that after the DOC Guidelines were adopted there was
some apprehension, a doubt, because China used the terms appropriate timing and appropriate conditions. We chose not to be preoccupied by what is meant by appropriate, we are just getting on

10

According to Kavi Chongkittavorn, Senior Asean officials met and discussed the terms of reference last year [November 2011] among themselves, ignoring Chinas request to sit in on the meeting, see: New chair Cambodia can reset Asean power, The Nation, January 16, 2012.
11 12 13

Antara, ASEAN ready to discuss continuation of doc with China, November 14, 2011. Antara, ASEAN ready to discuss continuatin of doc with China, November 14, 2011.

Ahmad Pathoni, ASEAN starts work on South China Sea code of conduct, Deutsche Presse-Agentur, November 16, 2011.
14

Mustaqim Adamrah, ASEAN can persuade China toward CoC negotiation, mediate regional conflict, The Jakarta Post, November 25, 2011.

7
with it. Having decided to move forward with the process of the CoC, China is now saying its ready to 15 join in the initial session.

Drafting the ASEAN Code of Conduct A meeting on drafting a COC with China was scheduled for January 2012 with a view to completion by July 2012.16 It was at this point that China changed tack and sought a seat at the ASEAN discussions. The timing of Chinas involvement with ASEAN in drafting the COC quickly became a contentious issue within ASEAN. ASEAN Foreign Ministers met on January 11, 2012 in Siem Reap, Cambodia prior to the scheduled talks between ASEAN members and China. Philippines Secretary for Foreign Affairs, Alberto del Rosario, reiterated an earlier proposal that a meeting be held as soon as possible among the claimant states and China, under the guidance of ASEAN.17 Del Rosario told his colleagues that the Philippines is willing to commit to a Code of Conduct that addresses the very core of the issue and that is to define, clarify and segregate the disputed areas from the non-disputed areas in the West Philippine Sea [South China Sea].18 Prior to the meeting of the foreign ministers, the Philippines circulated an informal working draft simply titled, Philippines Draft Code of Conduct. The document was eight pages in length and comprised ten articles. In line with official Philippine foreign policy promoting the South China Sea as a Zone of Peace, Freedom, Friendship and Cooperation (ZOPFF/C), the draft COC proposed a Joint Cooperation Area in the South China Sea (Article III), a Joint Permanent Working Committee to implement the ZOPFF/C (Article IV), the Application of Part IX of the 1982 United Nations Convention on Law of the Sea in the South China Sea (Article V),19 and Dispute Settlement Mechanisms (Article VI). The remaining articles contained standard provisions such as principles (Article I), objectives (Article II), reservations (Article VII), signature and ratification (Article VIII), entry into force (Article IX) and review and amendments (Article X).20 According to a press release issued after the meeting, the ASEAN ministers stressed on the need to intensify efforts to ensure the effective and full implementation of the DoC
15

Mustaqim Adamrah, ASEAN can persuade China toward CoC negotiation, mediate regional conflict, The Jakarta Post, November 25, 2011.
16

Antonio Siegfried O. Alagado, ASEAN, China to set ground rules on sea issues in January, BusinessWorld, November 28, 2011 and Senator Franklin Drilon quoted in Butch Fernandez, Senator help DFA lobby for code of conduct on South China Sea, Business Mirror, January 11, 2012.
17

Associated Press, Philippines seeks Asian summit on disputed islands, The Economic Times, January 15, 2012 and J. P. D. Poblete, ASEAN, China tackle cooperation, BusinessWorld, January 15, 2012.
18 19

J. P. D. Poblete, ASEAN, China tackle cooperation, BusinessWorld, January 15, 2012.

Part IX of UNCLOS is headed Enclosed or Semi-Enclosed Seas. It contains two articles, Article 122 (definition) and Article 123 (cooperation of states bordering enclosed or semi-enclose seas).
20

Carlyle A. Thayer, Is the Philippines an Orphan? The Diplomat, May 2, 2012. http://the- diplomat.com/2012/05/02/is-the-philippines-an-orphan/.

in order to maintain peace, security and stability in the South China Sea.21 However, according to del Rosario, the COC was not discussed in a comprehensive manner and there was no real focus given to the DOCThere were strong expressions, however, on the desirability of finalizing a binding DOC in 2012.22 ASEAN-China Discussions on the DOC Two days after the ASEAN Foreign Ministers meeting, ASEAN and Chinese senior officials met in China for three days (January 13-15) to discuss practical measures to implement the DOC and how to utilize the three billion yuan (US $476 million) China-ASEAN Maritime Cooperation Fund announced by China in November 2011.23 At the conclusion of the meeting it was agreed, to speed up specific cooperation projects, and to host seminars on maritime disaster-relief, environment, rescue and biology [sic] research.24 Towards this end four experts committees were set up: maritime scientific research, environmental protection, search and rescue, and transnational crime. These committees were derived from the five cooperative activities listed in the 2002 DOC. Significantly no expert committee on safety of navigation and communication at sea was established due to its contentious nature. Little progress was made on a Code of Conduct; according to the Peoples Daily, China fully respects the position and consideration of the ASEAN and would discuss and draft Code of Conduct with the ASEAN when conditions permit [emphasis added].25 ASEAN Foreign Minister and Senior Officials Meeting The issue of ASEANs draft COC and the timing of Chinas involvement in the drafting process came to a head at the 20th ASEAN Summit held in Phnom Penh from April 3-4, 2012. Prior to the summit President Hu Jintao made a high-profile visit to Cambodia. In discussions with Prime Minister Hun Sen President Hu indicated that Beijing did not
21 22 23

Xinhua, ASEAN FMs end meeting with agreements on regional, international issues, Shanghai Daily, January 11, 2012. J. P. D. Poblete, ASEAN, China tackle cooperation, BusinessWorld, January 15, 2012.
th

This was the 4 ASEAN-China SOM on implementing the DOC. Darwin Wally T. Wee, ASEAN, China hold three-day meet to reduce tensions in the South China Sea, MindadNews, January 13, 2012; Xia Wenhui, Maintaining Safety Valve in South China Sea is Vital, Xinhua, January 13, 2012 and Darwin Wally T. Wee, Situation in South China Sea peaceful and stable, MindadNews, January 15, 2012. Kavi Chongkittavorn asserts that this meeting took place after months of delay; see: New chair Cambodia can reset Asean power, The Nation, January 16, 2012.
24

China, ASEAN hold meeting on South China Sea, Xinhua, January 15, 2012. Other reports referred to joint workshop on marine ecological environment and monitoring techniques (to be held in China) and search and rescue (Vietnam), see: Erwida Maulia, RI lauded for S. China Sea maritime proposal, The Jakarta Post, January 18, 2012. For a critical view that argues joint workshops would not address core problems in the area that must be resolved to bring about durable stability in the Asia-Pacific region, see: Fahlesa Munabari, A look into ASEAN-Chinas DOC, The Jakarta Post, February 7, 2012.
25

Zhong Sheng, Resolving South China Sea issue needs concrete measures, Peoples Daily Online, January 17, 2012.

want talks on a binding code of conduct to move too quickly.26 Whether acting under Chinese inducement or not, Cambodia, as ASEAN Chair, dropped the South China Sea from the formal agenda of the ASEAN Summit.27 ASEAN foreign ministers and senior officials met on April 2nd the day before the start of formal proceedings. Both Vietnam and the Philippines immediately raised the South China Sea issue and the drafting of a legally binding COC.28 When ASEAN Secretary General Surin Pitsuwan announced that China might be invited to take part in the drafting of the code he precipitated what del Rosario called a big disagreement.29 Both the Philippines and Vietnam objected strongly and a compromise was reached; ASEAN would proceed on its own to draft a COC, while communication with China would take place through the ASEAN Chair at the same time.30 When the meeting of ASEAN foreign ministers and senior officials considered a proposal relayed from China for the setting up of a group of experts and prominent statesmen that would help think of solutions, Vietnam and the Philippines rejected it outright.31 Secretary del Rosario later issued a statement that noted the ASEAN SOM Working Group was currently engaged in identifying the main elements of the COC. Del Rosario argued, I think the difference of opinion lies in the fact that we are advocating a draft of the COC be prepared before we sit down with China. Others are taking the view that China should be invited to come in for the initial discussions.32 Indonesias Foreign Minister Marty Natalegawa, for example, said ASEAN should hear Chinas views before presenting Beijing with a draft code. He said it was important to listen and we hear what Chinas view are so that we can really develop a position that is cohesive and coherent. According to del Rosario, Were saying that were happy to invite China but this should be done after the approval of the CoC (by ASEAN). I think that we should be masters of our own destiny as far as the CoC is concerned, adding that Vietnam expressed a
26 27 28

Reuters, Philippines pushes South China Sea issue at summit, ABS CBN News, April 2, 2012. Lindsay Murdoch, Islands off agenda but still split ASEAN, The Sydney Morning Herald, April 4, 2012.

Heng Reaksmey, In Surprise, Cambodia Puts South China Sea on Summit Agenda, VOA News, April 3, 2012 and Jim Gomez (Associated Press), Southeast Asian countries, China bring South China Sea territorial rift to regional summit, The Washington Post, April 3, 2012.
29 30 31

AFP, ASEAN paralysed over China sea dispute, say analysts, April 4, 2012. Thayer, Is the Philippines an Orphan?.

Sopheng Cheang, Southeast Asia nations, China bring riff to summit, Associated Press, April 3, 2012; Jim Gomez (Associated Press), Southeast Asian countries, China bring South China Sea territorial rift to regional summit, The Washington Post, April 3, 2012 and Amiel Ungas, Cambodia Wants Economic Focus: Vietnam & Philippines Differ, Israel National News, Global Agenda, April 4, 2012. China proposed a group of twenty, ten from China and one from each ASEAN member.
32

Irwin Loy, Burma, S. China Sea Dominate ASEAN Summit Discussions, VOA News, April 2, 2012 and Irwin Loy, Burmese Election, South China Sea, Draw Attention at ASEAN Summit, VOA News, April 2, 2012.

10

similar sentiment. Del Rosario said it would be difficult for ASEAN to have all of the ten members agree on inviting China to be involved in the codes drafting. We are trying to do it as fast as we can, but what we are objecting to is we dont want China to be invited in terms of the drafting and decision-making, he said. When asked which countries wanted China to be a part del Rosario replied, I think Cambodia would be one of them.33 Del Rosario also proposed a dispute settlement mechanism. He told the ASEAN foreign ministers, I reiterate that the Philippines adheres to the primacy of international law in resolving the disputes. We believe that a rules-based approach under the dispute settlement mechanism established in UNCLOS is the legitimate solution in addressing conflicting and overlapping claims in the West Philippine Sea.34 According to del Rosario, the disputed areas of the South China Sea must be clarified and segregated from non-disputed areas. Del Rosario concluded, The Philippines hopes that the code of conduct will be a real move forward not merely in terms of form, but more importantly of substance.35 A senior Southeast Asian diplomat revealed that ASEAN members were also divided on whether to include a dispute settlement mechanism in the code. Despite internal disagreements, ASEAN ministers were agreed to adopt a code of conduct in 2012. 20th ASEAN Summit (April 2012) The first day of the 20th ASEAN Summit was a formal plenary meeting that considered a wide range of issues, including the South China Sea. According to a statement issued by the Philippines Department of Foreign Affairs, President Benigno Aquino argued that ASEAN should forge a common position on a proposed code of conduct before talking with China. He said the fundamentals of the proposed code should be internal to ASEANs members.36 President Aquino also stated, It is important we maintain ASEAN centrality After the CoC (code of conduct) has been finalized by ASEAN, then ASEAN member states will meet with China. According to Soeu Rat Chavy, Secretary of State for the Cambodian Ministry of Foreign Affairs, the South China Sea issue was put back on the agenda. At the conclusion of the ASEAN Summits formal plenary session the Chairmans Statement noted the following under the heading South China Sea:
91. We reaffirmed the importance of the Declaration on the Conduct of Parties in the South China

33 34

Martin Abbugao, Philippines urges united ASEAN stand on South China Sea, Agence France-Presse, April 3, 2012. PNA, Phl hopes code of conduct on South China Sea issue to move forward substantially, Zamboanga Times, April 3, 2012.
35

Agence France-Presse, ASEAN struggles with South China Sea code, ABS CBN News, April 2, 2012 and PNA, Phl hopes code of conduct on South China Sea issue to move forward substantially, Zamboanga Times, April 3, 2012.
36

Martin Abbugao, Philippines urges united ASEAN stand on South China Sea, Agence France-Presse, April 3, 2012.

11
Sea (DOC) as a milestone document signed between ASEAN and China embodying the collective commitment to promoting peace, stability, and mutual trust in the South China Sea and to ensuring the peaceful resolution of disputes in this area in accordance with the Charter of the United N ations, and the universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and to move for the eventual realization of a regional code of conduct (COC). 92. We stressed the need to intensify efforts to ensure the effective and full implementation of the DOC based on the Guidelines for the implementation of the DOC. In this regard, we supported the convening of the ASEAN-China Joint Workshop to commemorate the 10th Anniversary of the DOC, in Cambodia, in the fourth quarter of 2012. We also looked forward to the holding of the 5th ASEAN- China Senior Officials on DOC and the 8th Meeting of the ASEAN-China Joint Working Group.

At a post-summit press conference, ASEAN Secretary General Surin admitted there were shades of difference among ASEAN members drawn between those who had claims and those who did not over when to include China in negotiations over a COC.37 According to Indonesias Foreign Minister Marty Natalegawa, This is not necessarily a neat sequential process isnt it. Of course, ASEAN first and foremost, must have a solid consolidated position. But at the same time as we proceed, there will be constant communication through the ASEAN-China framework, so that whatever final position ASEAN comes up with will have benefited from having some kind of communication with China.38 He concluded, The big picture is the one that must not be lost. Namely that in contrast to the recent past, now we have a situation where all are basically rushing and competing to get the Code of Conduct off the ground.39 Quite clearly ASEAN members had reached a compromise. However, a Philippine diplomat involved in the negotiations said his country was frustrated by Indonesias rejection of any conflict resolution mechanism in the code. He added that other countries, including Cambodia, were either lukewarm to the proposal or had ignored it altogether.40 ASEANs Proposed Elements of a Regional Code of Conduct The ASEAN SOM Working Group on the COC held its seventh meeting on June 13, 2012. According to an official statement, The meeting agreed to submit the draft ASEAN proposed key elements of the regional Code of Conduct in the South China Sea to the ASEAN SOM for consideration.41 The ASEAN SOM met in Phnom Penh from July 6-7. A comparison of the Philippines Draft Code of Conduct with ASEANs Proposed Elements of a Regional Code of Conduct in the South China Sea reveals the original Philippine working draft was heavily pruned. Articles III-VI were dropped entirely. The ASEAN key elements were reduced to a preamble and two articles. A comparison of
37 38 39 40 41

AFP, ASEAN paralysed over China sea dispute, say analysts, April 4, 2012 Irwin Loy, ASEAN Still Searching for Consensus on South China Sea Disputes, VOA News, April 4, 2012. Reuters, Southeast Asia fails to tackle sea spat with China head on, April 4, 2012. Reuters, Southeast Asia fails to tackle sea spat with China head on, April 4, 2012. Estrella Torres, Manila tack on China row wins Asean nod, Businses Mirror, July 13, 2012.

12

the Philippine draft preamble with the agreed ASEAN preamble reveals that two items contained in the former were dropped. The first was a reference to the principles and norms of international law applicable to maritime space, in particular the principles on the peaceful uses and cooperative management of the oceans. The second and more sensitive reference that was deleted referred to the need to preserve the region from any form of increased militarization and intimidation. Both preambles began by referring to the 1997 Joint Statement of the meeting of heads of government/state of ASEAN members and China. Next, the Philippines inclusion of the 2003 declaration of the ASEAN-China Strategic Partnership for Peace and Prosperity was replaced with a reference to the more recent 2006 Joint Declaration on Strategic Partnership for Peace and Towards an Enhanced ASEAN-China Strategic Partnership. Both preambles included a reference to the 2002 DOC and its commitment to develop a COC. Both preambles also referred to protection of the environment and biodiversity. The ASEAN draft altered the formulation in the Philippine draft from advance a lasting and durable solution of disputes to read comprehensive and durable solution of disputes.42 The Philippines original proposal for a zone of peace, freedom, friendship and cooperation was modified to read an area of peace, stability, friendship and cooperation. Article I of the ASEAN draft COC contained its operative provisions and called on the parties to respect and adhere to the United Nations Charter, 1982 UNCLOS, Treaty of Amity and Cooperation in Southeast Asia, DOC and the Five Principles of Peaceful Co- existence. However, five of the principles contained in the Philippine draft were deleted in their entirely: respect for freedom on navigation and over flight; the need to define, clarify and segregate disputed areas from the non-disputed areas; full resolution of the territorial and jurisdictional disputes; refrain from undertaking activities that may disrupt the peace and endanger the environment; and build trust and confidence on the basis of equality and mutual respect. The ASEAN draft contained four principles: (1) to develop modalities and arrangements for the promotion of settlement by peaceful means of disputes and prevent their escalation; (2) to respect the provisions of and take actions consistent with the COC; (3) to encourage other countries to respect the purposes and principles contained in the COC; and (4) to establish an effective mechanism to monitor the implementation of the COC. Article II of the ASEAN draft enumerated eight obligations: a ministerial level mechanism to monitor the implementation of the COC; prohibition on reservations to the COC; provisions of entry into force; mechanism for settling disputes; amendment of the COC; provisions for other countries to respect the COC; indefinite duration of the COC; and registration of the COC with the ASEAN Secretary General and Secretariat of the United Nations
42

The expression comprehensive and durable were first used in the 2002 Declaration on Conduct of Parties in the South China Sea, Point 6, which China signed (http://www.aseansec.org/13163.htm).

13

Article III(4) required signatories to establish a mechanism for settling disputes relating to the interpretation and application of the Code of Conduct. The ASEAN draft, following deletion of any mention of the joint cooperation area, also dropped reference to a dispute settlement mechanism in the joint cooperation area. Two dispute settlement mechanisms were included that closely reflected the wording in the Philippine Working Draft on disputes arising from a breach or violation of the COC. The first mechanism is the dispute settlement mechanism included in the ASEAN Treaty of Amity and Cooperation in Southeast Asia.43 The TAC provides for a ministerial-level ASEAN High Council and empowers it to recommend to parties in dispute, subject to their prior agreement, such measures as good offices, mediation, inquiry or conciliation. The High Council also is given the authority to recommend appropriate measures for the prevention of a deterioration of the dispute China acceded to the TAC in 2003 and undertook in writing faithfully to perform and carry out all the stipulations therein contained.44 In the event that parties are unable to resolve their dispute within the ASEAN framework, the ASEAN COC set out a second mechanism: the disputants may resort to dispute settlement mechanism provided under international law, including UNCLOS. This could include taking their case to the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, an Arbitral Tribunal or a Special Arbitral Tribunal. UNCLOS, however, does not contain any provisions for the settlement of sovereignty disputes over islands and rocks. It does provide legal mechanisms to adjudicate disputes over maritime jurisdiction, including ITLOS.45 The ASEAN SOM forwarded the draft Proposed Elements of a Regional Code of Conduct to ASEAN foreign ministers for deliberation at their Ministerial Meeting (AMM) on July 9. 45th ASEAN Ministerial Meeting (July 2012) Cambodia, as the ASEAN Chair for 2012, hosted the 45th AMM and related meetings in Phnom Penh from July 8-13.46 In his opening address Prime Minister Hun Sen stated that realising the ASEAN Community by 2015 is the top priority for ASEAN.47 With respect
43

Treaty of Amity and Cooperation in Southeast Asia, Indonesia, 24 February 1976, http://www.aseansec.org/1217.htm.
44

Instrument of Accession to the Treaty of Amity and Cooperation in Southeast Asia, October 8, 2003, http://www.aseansec.org/15271.htm.
45

United Nations Commission on Law of the Sea, Annex VI, International Tribunal for the Law of the Sea. See also UNCLOS, Part XI,The Area, Section 5, Settlement of Dispures and Advisory Opinions, Articles 186- 191 and Part XV, Settlement of Disputes, Articles 279-299.
46

The ASEAN-related meetings included: the ASEAN Post-Ministerial Conference with dialogue partners, th nd the 19 ASEAN Regional Forum, ASEAN Plus 3 Foreign Ministers Meeting and the 2 East Asia Summit Foreign Ministers Meeting.
47

Opening Address By Samdech Akka Moha Sena Padei Techo HUN SEN Prime Minister of the Kingdom of Cambodia At the Opening of the 45th ASEAN Foreign Ministers Meeting, Phnom Penh, 9 July 2012.

14

to the ASEAN Political-Security Community, Hun Sen declared, we should give emphasis to the implementation of the DOC [Declaration on Conduct of Parties in the South China Sea], including the eventual conclusion of Code of Conduct (COC) in the South China Sea [emphasis in original].48 The AMM has a busy agenda that extends well beyond South China Sea issues. In 2011, for example, the joint communiqu issued at the end of the 44th AMM listed 120 items and ran to twenty-nine pages. After the formal 45th AMM discussions concluded Kao Kim Hourn, Secretary of State in the Cambodian Ministry of Foreign Affairs, confirmed to reporters that the ASEAN foreign ministers had adopted the key elements of the COC (Proposed Elements of a Regional Code of Conduct in the South China Sea [COC] between ASEAN Member States and the Peoples Republic of China) and agreed to have the ASEAN senior officials meet with the senior official from China to discuss the (code of conduct) from now on.49 Cambodias Foreign Minister, Hor Namhong, assigned responsibility for drafting the joint communiqu summarizing the 45th AMM deliberations to a working party of four foreign ministers: Marty Natalegawa (Indonesia), Anifah Aman (Malaysia), Albert del Rosario (Philippines) and Pham Binh Minh (Vietnam).50 Their draft joint communiqu was presented to a ministerial retreat held after the formal plenary session. ASEAN Ministers Retreat (July 2012) The draft joint communiqu contained a 132-paragraph summary of the wide range of issues taken up by the AMM. It included several paragraphs on the South China Seas that mentioned the stand off at Scarborough Shoal between China and the Philippines and Vietnams concerns about the award of oil exploration leases by the China National Offshore Oil Company (CNOOC) within Vietnams Exclusive Economic Zone (EEZ). The wording of the South China Sea section became such a heated sticking point between Cambodia and the drafters of the joint communiqu that no communiqu was issued. This was unprecedented; since ASEAN was founded in 1967 all forty-four previous AMMs had issued joint communiqus. Indeed, a media advisory released by
http://asean2012.mfa.gov.kh/documents/150SPM_speech_khmer.pdf.
48

Martin Abbugao, Australian Associated Press, ASEAN pushed on South China Sea code, Herald Sun, July 9, 2012 and Agence France-Presse, Hun calls for ASEAN South China Sea code, The Australian, July 10, 2012.
49

Michael Lipin, Cambodia Says ASEAN Ministers Agree to Key Elements of Sea Code, Voice of America, July 9 2012; Michael del Callar, DFA chief: ASEAN agrees on key elements for Code of Conduct in West PHL Sea, GMA News, July 11, 2012; and Associated Press, Asean to take up code of conduct with China, Manila Standard Today, July 10, 2012 quotes Liu Weimin, spokesperson for Chinas Ministry of Foreign Affairs, as stating When conditions are ripe, China would like to discuss with Asean countries the formulation of the COC.
50

Ernest Z. Bower, China Reveals Its Hand on ASEAN in Phnom Penh, Southeast Asia from the Corner of th 18 and K Streets, vol. III, No. 14, July 19, 2012, 2.

15

Cambodia on July 6, 2002 announcing the 45th AMM, concluded, [a] Joint Communiqu will be adopted at the end of the Meeting.51 During discussions at the AMM Retreat Marty Natalegawa promised, Indonesia will circulate a non paper [on] possible and additional elements of [the] COC. It is meant to be more prescriptive and operational. Indonesias non paper would have to be approved by all ASEAN members and incorporated into the Proposed Elements of a Regional Code of Conduct in the South China Sea prior to discussions with Chinese senior officials. Cambodia argues that the failure of the AMM to adopt a joint communiqu rests squarely with the Philippines and Vietnam and their insistence on including a reference to Scarborough Shoal and EEZs in the final text. According to Cambodia, the actions by the Philippines and Vietnam prevented a consensus from being reached and Cambodia had no recourse but to withhold the joint communiqu.52 Media and other reporting reveal that discussions on the wording of the South China Sea paragraphs continued until the morning of July 13 without breaking the impasse.53 Ernest Bower, who spoke to diplomats in Phnom Penh, wrote that after the four- member ministerial committee came up with a draft communiqu, [r]epeatedly, however, after taking the draft under consideration, Hor Namhong consulted with advisers outside of the meeting room and came back rejecting language referring to Scarborough Shoal and the EEZs, even after multiple attempts to find compromise. He said Cambodias view was that those were bilateral issues and therefore could not be mentioned in the joint statement.54 By one account, the original AMM joint communiqu went through a total of eighteen drafts.55 Over the four days following the AMM Retreat, the Indonesian and Singaporean foreign ministers made a last-ditch effort to broker a compromise. They persuaded Vietnam and the Philippines to agree to a revision of the original wording. But repeated attempts to persuade Cambodias Hor Namhong failed. At their last meeting Foreign Minister Hor Namhong picked up his papers, and stormed out of the room arguing it was a matter of principle for ASEAN not to take sides in bilateral disputes.56 Finally, according to an
51

Cambodia, Ministry of Foreign Affairs, The Forty-fifth ASEAN Foreign Ministers Meeting, Media Advisory, July 6, 2012. http://www.aseansec.org/documents/PRESS%20ADVISORY_45th%20AMM.pdf.
52

For a detailed account of the discussions at the AMM Retreat based on notes taken by a participant, see: Carlyle A. Thayer, "ASEANs Code of Conduct in the South China Sea: A Litmus Test for Community- Building?," The Asia-Pacific Journal, 10(34), No. 4, August 20, 2012, 1-23.
53

Zsosmbor Peter and Kuch Naren, Cambodia Criticized for Asean Meeting Failure, The Cambodian Daily, July 14-15, 2012.
54 55 56

Bower, China Reveals Its Hand on ASEAN in Phnom Penh. Greg Torode, ASEAN Left on a Knife Edge, South China Morning Post, July 21, 2012.

Jane Perlez, Asian Leaders at Regional Meeting Fail to Resolve Disputes Over South China Sea, The New York Times, July 12, 2012.

16

account by a Philippine official who attended the meetings in Phnom Penh, [t]he text of the proposed Joint Communiqus item/subhead on the South China Sea was drafted by the ASEAN foreign ministers and several revisions were made to make the text acceptable to all. However, the Cambodian Chair consistently rejected any proposed text that mentions Scarborough Shoal.57 The failure of ASEAN foreign ministers to issue a joint communiqu led to immediate public recriminations. On the morning of the last day, immediately after a special meeting failed to reach an eleventh hour compromise, the Philippines issued a statement taking strong exception to the decision by the ASEAN Chair not to issue a joint communiqu. Foreign Minister Hor Namhong hit back accusing the Philippines of attempting to hijack the AMM and declaring that the joint communiqu has become hostage to a bilateral issue.58 The Philippine Undersecretary for Foreign Affairs, Erlinda Basilio, penned a personal account entitled, Why There Was No ASEAN Joint Communiqu that provoked a Cambodian diplomatic response.59 Cambodia-China Collusion? Unnamed diplomatic sources leaked information to the press suggesting collusion between China and Cambodia. One senior diplomat was quoted as stating, China bought the chair, simple as that and pointed to comments by Foreign Minister Yang thanking Prime Minister Hun Sen for supporting Chinas core interests.60 A veteran journalist reported that when the first draft of the joint communiqu was submitted to the ASEAN Chair, the Cambodians, in a breach of ASEAN protocol, showed it to the Chinese, who said it was unacceptable unless the South China Sea reference was removed. So the Cambodians sent it back for amendment.61 Analysts are divided on the details of and extent to which China influenced Cambodias decision to block the AMM joint communiqu but few analysts argue that Cambodias acted independently. Kishore Mahbubani, a former senior Singaporean diplomat, wrote the whole world, including most ASEAN countries, perceived Cambodias stance as the result of enormous Chinese pressure.62 Amitav Acharya, who wrote, [t]here is little question that Hun Sens refusal to accommodate Philippines and Vietnam resulted at least partly from Chinese pressure. According to a highly placed source, the Chinese
57

Erlinda F. Basilio, Why there Was No ASEAN Joint Communiqu, Republic of the Philippines, Department of Foreign Affairs, Public Information Services Unit, July 19, 2012; and Erlinda Basilio, What happened in Phnom Penh?, The Philippine Star, July 19, 2012.
58

Zsosmbor Peter and Kuch Naren, Cambodia Criticized for Asean Meeting Failure, and Prak Chan Thul and Stuart Grudgings, SE Asia meeting in disarray over sea dispute with China, Reuters, July 13, 2012.
59 60

Basilio, What happened in Phnom Penh?.

Jane Perlez, Asian Leaders at Regional Meeting Fail to Resolve Disputes Over South China Sea, The New York Times, July 12, 2012.
61 62

Roger Mitton, ASEAN Struggles for unity, The Phnom Penh Post, July 23, 2012.

Kishore Mahbubani, Is China Losing the Diplomatic Plot? Project Syndicate, July 26, 2012. http://www.project-syndicate.org/commentary/is-china-losing-the-diplomatic-plot.

17

specifically reminded the Cambodians that [Norodom] Sihanouk had accepted the Chinese claims to the South China Sea.63 A Chinese scholar close to the Ministry of State Security revealed, [w]e co-ordinated very well with Cambodia in that case [blocking objectionable wording in the 45th AMM joint communiqu] and prevented an incident which would have been detrimental to China.64 The impasse over the 45th AMM joint communiqu quickly impacted on Chinas willingness to discuss a COC and the hoped for meeting in September was soon put in doubt. According to Japanese sources, on July 11, Chinas attitude suddenly shifted and it refused to begin talks.65 One analyst argued that Vice Foreign Minister Fu Yings agreement with ASEAN to begin talks on a COC in September was overruled by Foreign Minister Yang...66 ASEANs Six Principles on the South China Sea In the midst of the above recriminations, Indonesias Foreign Minister initiated consultations with the nine other members of ASEAN in an effort to restore unity in ASEAN ranks and commit ASEAN to a common position.67 Foreign Minister Marty conducted an intense round of shuttle diplomacy flying to five capitols (Manila, Hanoi, Bangkok, Phnom Penh and Singapore) over a two-day period (July 18-19). Marty and del Rosario agreed to a six-point proposal that Marty put to his other ASEAN counterparts. When he obtained their agreement Marty left it to Cambodias Hor Namhong to complete the diplomatic formalities. On July 20, Hor Namhong, acting in his capacity as ASEAN Chair, officially released ASEANs Six Principles on the South China Sea.68 Under the terms of this statement all ASEAN Foreign Ministers reaffirmed their commitment to: the full implementation of the DOC; Guidelines for the Implementation of the DOC; the early conclusion of a Regional COC in the South China Sea; full respect of the universally recognized principles of international law including the 1982 UNCLOS; continued exercise of self-restraint and non-use of force by all parties; and peaceful resolution of disputes in accordance the universally recognized principles of international law including the 1982 UNCLOS. The ASEAN statement concluded: The ASEAN Foreign Ministers resolve to intensify ASEAN
63 64

Amitav Acharya, The end of ASEAN centrality?, Asia Times Online, August 8, 2012.

Chen Xiangyang, China Institutes of Contemporary International Relations, quoted by Kathirn Halle, Bejing considers stronger foreign ties, The Financial Times, August 15, 2012.
65 66

Divisions serve to weaken ASEAN, The Japan Times, July 21, 2012.
th

China used the expression when conditions are ripe (or mature) well before the 45 AMM. A Chinese spokesperson also used this expression on July 9 two days before Yang spoke. See: Lipin, Cambodia Says ASEAN Ministers Agree to Key Elements of Sea Code.
67

Carlyle A. Thayer, ASEAN Unity Restored by Shuttle Diplomacy? Thayer Consultancy Background Brief, July 24, 2012, http://www.scribd.com/doc/101075293/Thayer-ASEAN-Unity-Restored-by-Shuttle- Diplomacy.
68

Statement of ASEAN Foreign Ministers on ASEAN's Six-Point Principles on the South China Sea, July 20, 2012.

18

consultations in the advancement of the above principles, consistent with the Treaty of Amity and Cooperation in Southeast Asia (1976) and the ASEAN Charter (2008). The Philippines Seeks Award from Arbitral Tribunal Before Indonesias initiative could gain traction, the Philippines unilaterally took legal action under UNCLOS. UNCLOS Part XV requires states to settle their disputes by peaceful means and to exchange views towards this end. The Philippines argues that it has continually exchanged views with China since 1995 when China occupied Mischief Reef. The Philippines Statement of Claim concluded, over the past 17 years of such exchanges of views, all possibilities of a negotiated settlement have been explored and exhausted. On January 22, 2013 the Chinese Ambassador to the Philippines, Ma Keqing, was summoned to the Department of Foreign Affairs and handed a Note Verbale informing her that the Philippines was initiating a legal challenge to bring China before an Arbitral Tribunal under the terms of the United Nations Convention on Law of the Sea. The Note Verbale contained the official text of the Notification and Statement of Claim submitted to the UN by the Philippines. This document outlined the Philippine challenge to the validity of Chinas nine-dash line claim to the South China Sea. The Philippines also called on China to desist from unlawful activities that violate the sovereign rights and jurisdiction of the Philippines. Under UNCLOS China had thirty days to respond by notifying its nominee to the Arbitral Tribunal. On February 19, Ambassador Ma met with officials at the Department of Foreign Affairs and returned the Philippines Notification and Statement of Claim, thus rejecting it. A Chinese Foreign Ministry spokesman in Beijing stated that the Philippines Statement of Claim was historically and legally incorrect and contained unacceptable accusations against China. Under UNCLOS Article 287, a state is free to choose one or more of four binding arbitration measures: International Tribunal for the Law of the Sea, International Court of Justice, Arbitral Tribunal, and a Special Arbitral Tribunal. In August 2006, China made a declaration of optional exceptions exempting itself from compulsory dispute procedures related to sea boundary delimitation (territorial sea, Exclusive Economic Zone and continental shelf), military and law enforcement activities, and disputes involving the Security Council exercising its functions under the UN Charter. The Philippines was careful in its Notification and Statement of Claim to state it was not seeking arbitration over sovereignty disputes to islands or delimitation of maritime boundaries that China had excluded from arbitral jurisdiction. The Philippines claimed that its maritime disputes with China were about the interpretation and application by States Parties of their obligations under the UNCLOS and therefore could be submitted for resolution. If parties to a dispute failed to issue a formal declaration specifying their choice of arbitration, under UNCLOS Article 287(3) they shall be deemed to have accepted arbitration in accordance with Annex VII. Because neither China nor the Philippines

19

ever issued a formal declaration specifying their choice, their dispute became subject to arbitration by an Arbitral Tribunal. Every state that ratifies UNCLOS is entitled to nominate four arbitrators to a list maintained by the UN Secretary General. An Arbitral Tribunal is generally composed of five persons drawn from this list. Each party to a dispute is entitled to make one nomination and to jointly agree on the other three members including the chairman. Annex VII makes provisions for cases when a state fails to nominate its arbitrator within the thirty-day period. After Chinas rejection the Philippines had two weeks to request the President of ITLOS to make the necessary appointments of arbitrators from the approved list. The President has thirty days to make the necessary appointments. When the Arbitral Tribunal is set up it determines its own procedures. Decisions are made by majority vote. The Arbitral Tribunal may hear the claim made by the Philippines even if China refuses to take part. Under Annex VII, Article 9:
If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

The Arbitral Tribunal is required to confine its award to the subject-matter of the dispute. What awards are the Philippines seeking from the Arbitral Tribunal? First, the Philippines sought an award that declared that the maritime areas claimed by China and the Philippines in the South China Sea are those established by UNCLOS and consisted of territorial sea, contiguous zone, Exclusive Economic Zone (EEZ) and continental shelf. On this basis, the Philippines requested the Arbitral Tribunal declare that Chinas nine-dash line ambit claim to the South China Sea was inconsistent with UNCLOS and invalid. Further, the Philippines requested that the Arbitral Tribunal require China to bring its domestic legislation into conformity with UNCLOS. Second, the Philippines requested the Arbitral Tribunal to determine the legal status of features (islands, low tide elevations and submerged banks) in the South China Sea claimed by China and the Philippines and whether these features were capable of generating an entitlement of a maritime zone greater than twelve nautical miles. The Philippines specifically listed Mischief Reef, McKennan Reef, Gaven Reef, Subi Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef and argued China claimed excessive maritime zones on the basis that these features were islands. The Philippines claimed these features were submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippines continental shelf, or the international seabed. Under UNCLOS islands are entitled to a 200 nautical mile EEZ and rocks to a 12 nm territorial sea. Third, the Philippines argued that China interfered with the lawful exercise of the Philippines rights within and beyond its EEZ and continental shelf in contravention of UNCLOS. The Philippines requested the Arbitral Tribunal require China to desist from (1) its occupation of and activities on the features listed above, (2) interfering with Philippines vessels exploiting the living resources in waters adjacent to Scarborough

20

Shoal and Johnson Reef, (3) exploiting the living and non-living resources within the Philippines EEZ and continental shelf and (4) interfering in the Philippines freedom of navigation within and beyond the 200 nautical miles of the Philippines baselines. If the Arbitral Tribunal accepts the Philippines Statement of Claim and rules in its favor, this would undermine Chinas claim to indisputable sovereignty over the South China Sea. All the other claimant states - Vietnam, Malaysia and Brunei - would benefit from such an award. There is some risk, however. The Arbitral Tribunal could deliver a mixed award that favored the Philippines in some cases but which entrenched Chinas presence in others. A mixed award would impact on the claims advanced by other littoral states especially related to the legal status of the features that they occupy. According to Philippine officials it could take up to three or four years for the Arbitral Tribunal to reach a decision. During this time China could further consolidate and expand its presence in waters claimed by the Philippines. Under UNCLOS the award [by an Arbitral Tribunal] shall be final and without appeal It shall be complied with by the parties to the dispute. UNCLOS, however, does not contain any provisions for enforcement. As of this writing the Philippines claim is still pending awaiting a decision by the Chairman of ITLOS due around April 4, 2013. The unilateral action by the Philippines has drawn guarded public comments by other members of ASEAN. Singapore has pointedly noted that ASEAN was not consulted. Vietnamese diplomats express dismay in private that all life has been taken out of negotiations with China on a COC

Realpolitik
ASEAN ASEAN as a regional organization is too weak and divided to play an effective role in balancing China to restrain it from assertive action in the South China Sea. ASEAN argues that it should be central to the regions security architecture and that decision-making should be based on ASEAN norms and practices. ASEAN has sought to manage its broader relations with China - and other major powers - through ASEAN-centric multilateral institutions such as the ASEAN Regional Forum, ASEAN Defence Ministers Ministerial Meeting Plus (ADMM Plus) and the East Asia Summit. ASEAN has also sought to structure its relations with China through enmeshment in a web of cooperative activities. ASEAN, for example, invariably prefaces statements to China on the South China Sea with reference to the 1997 ASEAN-China Joint Statement of the meeting of heads of government/state, the 2003 declaration of the ASEAN-China Strategic Partnership for Peace and Prosperity, and the 2006 Joint Declaration on Strategic Partnership for Peace and Towards an Enhanced ASEAN-China Strategic Partnership. Vietnam

21

Because of ASEANs institutional weakness and lack of consensus on the South China Sea, individual claimant states, particularly the Philippines and Vietnam, have had to pursue strategies incorporating realpolitik in addition to promoting norms and legal regimes. For example, Vietnam used its role as ASEAN Chair in 2010 to lobby the United States and other extra-regional powers to make diplomatic interventions at meetings of the ASEAN Regional Forum and ADMM Plus. Additionally, Vietnam has encouraged the major extra regional powers, the United States in particular, to balance China. Vietnam has been quite circumspect, however, in order not to provoke China. Vietnam, for example, conducts non-combat naval activities with the U.S. Navy (as opposed to naval exercises), carries out minor repairs on U.S. Military Sealift Command vessels (as opposed to warships), and permits its officials to fly out to transiting U.S. aircraft carriers to observe their operations. In 2010, Vietnam raised its Defence Policy Dialogue with the United States to deputy minister level. The following year Vietnam and the U.S. signed a Memorandum of Understanding involving cooperation in five priority areas: regular high-level defense dialogues; maritime security; search and rescue; UN peacekeeping; and humanitarian assistance and disaster relief. None of these activities involve Vietnam in hard balancing against China. In the mid-1990s, Vietnam initiated a modest effort to modernize its naval and air forces in response to sovereignty disputes with China in the South China Sea. Vietnams force modernisation program increased in pace over the last half decade. Russia remains the main source for Vietnams arms acquisitions. Since 2008, the Vietnamese navy has taken delivery of two Gepard-class guided missile stealth frigates and four Svetlyak-class fast patrol boats armed with anti-ship missiles. Since 2010, the Vietnamese air force has acquired twenty Su-30MK2V combat aircraft armed with both air-to-air and anti-ship missiles. Vietnam has also strengthened its air and coastal defences with the acquisition of, respectively, two batteries of the highly capable S-300 PMU-1 air defense system and two batteries of the K-300P Bastion coastal defence missiles. More significantly, Vietnam also has placed an order with Russia for six Kilo-class conventional fast attack submarines the first two of which are to be delivered this year. Vietnam also has on order four Dutch Sigma-class corvettes. Additionally, Vietnam is also building up the capacity of its Maritime Police. Vietnam, while pursuing internal and external balancing strategies, also works hard to promote good relations with China through a dense network of party-to-party, state-to- state and military-to-military ties. The Philippines Chinese assertiveness in the West Philippines Sea led President Benigno Aquino to pursue realpolitik by simultaneously modernizing the Armed Forces of the Philippines and revitalizing its alliance with the United States. In 2011, the Aquino Administration earmarked funds to purchase a naval patrol vessel, six helicopters and other military

22

equipment.69 In 2011-12, the Philippines took delivery of two former U.S. Coast Guard Hamilton-class Weather Endurance Cutters and expects to procure a third.70 In 2012, the Philippine government began implementation of a five-year modernization program totaling P40 billion to include, inter alia, the procurement of a refurbished frigate, C-130 aircraft, utility and combat helicopters as well as other defence equipment.71 Defence cooperation between the Philippines and the United States involves high-level consultations and an uptick in U.S. naval and air visits. For example, between May and October 2012, four U.S. Navy nuclear submarines (SSNs) made port calls: USS North Carolina (May), USS Louisville (June), USS Hawaii (September) and USS Olympia (October). The Philippines has presented the Pentagon with a wish list of new equipment including: coastal radar, long-range patrol aircraft, strategic sea lift vessels, three off-shore patrol boats, two to five naval helicopters, air defence radar, six jet trainers, surface attack aircraft, anti-ship missiles, and a submarine.72 According to U.S. Deputy Secretary for Defense Ashton Carter, We are focused on building the Philippines maritime security presence and capabilities, and strengthening their maritime domain awareness.73 The Philippines has also reached out to Japan, South Korea, Taiwan, and Italy for defence acquisitions. In September 2011, during President Aquinos visit to Tokyo, he and Prime Minister Noda agreed to strengthen maritime security ties by holding frequent high-level defence discussions and by stepping up cooperation between their Coast Guards and defence-related authorities. Prime Minister Noda agreed to increase the involvement of Japans Coast Guard in training their Filipino counterparts.74 Following a visit by South Koreas President Lee Myung-bak to Manila in November 2011, President Aquino announced that the Philippines would purchase military equipment form Seoul. The Department of National Defense was reported to be drawing up a list including aircraft, helicopters, boats and other military equipment. The Philippines also expects to take delivery of three new Taiwan-manufactured Multi- Purpose Attack Craft. The Philippines has signed an agreement with Italys Defence Ministry to acquire military equipment, possibly including frigates and aircraft.

Conclusion

69 Agence France-Presse, September 7, 2011. 70 Reuters, April 13, 2011 and AFP, September 3, 2011. 71 Manuel Mogato, Philippines Refuses to Budge on South China Sea Row, Reuters, July 23, 2012. 72

The Philippine Star, August 24, 2011. For a discussion of U.S. arms sales and transfers to the Philippines consult: Ronald ORourke, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, CRS Report for Congress (Washington, D.C.: Congressional Research Service, October 22, 2012), 40-42.
73 Remarks by Deputy Secretary for Defense [Ashton] Carter at the Woodrow Wilson Center, October

2, 2012.
74 The Wall Street Journal, September 28, 2011.

23

Since 2007, if not earlier, China has become increasingly assertive in pressing its sovereignty claims over the South China Sea. Chinas actions have provoked concern among claimant states. The Philippines and Vietnam sought to forge consensus within ASEAN in order to secure Chinas adherence to ASEAN norms and legal regimes. This approach has proven to be intractable with little positive results. Not only were ASEAN members divided on how to approach China, but also China played on differences among ASEAN members to prevent a united front from emerging. ASEAN is too weak and internally divided to balance against China. The Philippines and Vietnam, as the two most affected states, have individually pursued realpolitik in order to safeguard their sovereignty. Both have engaged in internal balancing by modernizing their armed forces. Both the Philippines and Vietnam have pursued external balancing. By stepping up their defence ties with the United States. Both the Philippines and Vietnam have sought to draw in other major powers The prospects for securing maritime security in the South China Sea do not appear particularly good at the moment with the loss of momentum in negotiating a binding Code of Conduct between China and ASEAN members. Because ASEAN members have not yet developed a sufficient sense of common identity their national interests still remain an impediment to effective collection action in dealing with external powers. Some ASEAN states hedge and engage in balancing with the major powers while others, such as Cambodia, appear to bandwagon. In summary, ASEANs pursuit of norms and legal regimes are a necessary but not sufficient component for the maintenance of maritime security in the South China Sea.