By Ian Storey
For more than two decades Beijing has pursued a consistent policy in the South China Sea composed of two main elements: gradually strengthening the country’s territorial and jurisdictional claims while at the same time endeavoring to assure Southeast Asian countries of its peaceful intentions. Recent moves by China to bolster its maritime claims have brought the first element into sharp relief, while reassurances of benign intent have, however, been in short supply.
Indeed, far from assuaging Southeast Asian concerns regarding its assertive behavior, China has fueled them by brazenly exploiting divisions within the Association of Southeast Asian Nations (ASEAN) to further its own national interests.
China hardens its stance
Commentaries in China’s state-run media analyzing the South China Sea issue have become markedly less conciliatory. Opinion pieces highlight several new themes in China’s official line.
One theme is that China’s territory, its sovereignty as well as its maritime rights and interests increasingly are being challenged by Southeast Asian nations and Japan in the South and East China Seas. China’s response, it is argued, should be to uphold its claims more vigorously, increase its military presence in contested waters, and, if necessary, be prepared to implement coercive measures against other countries. One commentary notes: “Cooperation must be in good faith, competition must be strong, and confrontation must be resolute.”
Another theme is that while China has shown restraint, countries such as the Philippines and Vietnam have been pursuing provocative and illegal actions in a bid to “plunder” maritime resources such as hydrocarbons and fisheries that China regards as its own.
A third theme is that Manila and Hanoi continue to encourage US “meddling” in the South China Sea and that the United States uses the dispute as a pretext to “pivot” its military forces toward Asia. To reverse these negative trends, Chinese commentators have urged the government to adopt more resolute measures toward disputed territories and maritime boundaries. Nationalist sentiment, they argue, demands no less.
Recent measures undertaken by the Chinese authorities do indeed suggest a more hardline position. Ominously, some of the initiatives have included a strong military element, presumably as a warning to the other claimants that China is ready to play hardball.
Perhaps the most noteworthy attempt by China to bolster its jurisdictional claims in the South China Sea was the raising of the administrative status of Sansha from county to prefecture level in June.
Sansha originally was established in 2007 as an administrative mechanism to “govern” the Paracel Islands, Macclesfield Bank and the Spratly Islands. Sansha’s elevation was an immediate response to a law passed on June 21 by Vietnam’s National Assembly, which reiterated Hanoi’s sovereignty claims to the Paracels and Spratlys. Both Vietnam and China protested the other’s move as a violation of their sovereignty.
Less than a month later, Sansha’s municipal authorities elected a mayor and three deputy mayors and China’s Central Military Commission authorized the establishment of a garrison for “managing the city’s national defense mobilization, military reserves and carrying out military operations”.
Earlier, in late June, China’s Defense Ministry announced it had begun “combat ready” patrols in the Spratly Islands to “protect national sovereignty and [China’s] security development interests”. Embarrassingly for the Chinese navy, however, on July 13, one of its frigates ran aground on Half Moon Shoal, 70 nautical miles west of the Philippine island of Palawan and within the Philippines 200-mile exclusive economic zone (EEZ). The frigate was re-floated within 24 hours, suggesting that other Chinese naval vessels were nearby when the incident occurred. These developments provide further evidence of the growing militarization of the dispute.
China also has moved to undercut the claims and commercial activities of the Philippines and Vietnam in the South China Sea in other ways.
In June, the state-run China National Offshore Oil Corp (CNOOC) invited foreign energy companies to bid for exploration rights in nine blocks in the South China Sea. The blocks lie completely within Vietnam’s EEZ and overlap with those offered for development to foreign energy corporations by state-owned PetroVietnam. Accordingly, Hanoi vigorously protested CNOOC’s tender.
More important, the blocks are located at the edge of China’s nine-dash line map and seem to support the argument that Beijing interprets the dashes as representing the outermost limits of its “historic rights” in the South China Sea. Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), however, coastal states are not entitled to “historic rights” on the high seas. It is therefore unlikely that any of the major energy giants will bid for CNOOC’s blocks – although smaller companies may do so if only to curry favor with Beijing with a view to landing more lucrative contracts down the road. If, however, exploration does move forward in any of the nine blocks, a clash between Vietnamese and Chinese coast-guard vessels will become a very real possibility.
On the issue of ownership of Scarborough Shoal, scene of a tense standoff between Chinese and Philippine fishery-protection vessels in May and June, China’s position remains uncompromising. At the annual ASEAN Regional Forum (ARF) in Phnom Penh in July, Chinese Foreign Minister Yang Jiechi restated China’s sovereignty claims to the shoal, rejected the notion that it was disputed and accused Manila of “making trouble”.
According to the Philippine Foreign Ministry, Chinese trawlers – protected by Chinese paramilitary vessels – continue to fish in waters close to Scarborough Shoal in contravention of a bilateral accord whereby both sides agreed to withdraw their vessels. 
After the ARF, China kept up the pressure on the Philippines. In mid-July, it dispatched a flotilla of 30 trawlers to the Spratlys escorted by the 3,000-ton fisheries administration vesselYuzheng 310. The trawlers collected coral and fished near Philippine-controlled Pag-asa Island and Chinese-controlled Mischief and Subi Reefs. The Philippine authorities monitored the situation but took no action.
The Phnom Penh debacle
In the past, after China has undertaken assertive actions in the South China Sea it has tried to calm Southeast Asia’s jangled nerves. At the series of ASEAN-led meetings in Phnom Penh in mid-July, however, Chinese officials offered virtually no reassurances to their Southeast Asian counterparts. Worse still, China seems to have utilized its influence with Cambodia to scupper attempts by ASEAN to address the problem, causing a breakdown in ASEAN unity.
In the final stages of the annual meeting of ASEAN foreign ministers (known as the ASEAN Ministerial Meeting or AMM), the Philippines and Vietnam wanted the final communique to reflect their serious concerns regarding the Scarborough Shoal incident and the CNOOC tender. They were supported by Singapore, Indonesia, Malaysia and Thailand, which felt that ASEAN should speak with one voice. Cambodia – which holds the rotating chairmanship of ASEAN and has close political and economic ties with China – objected because, in the words of Foreign Minister Hor Namhong, “ASEAN cannot be used as a tribunal for bilateral disputes.” Attempts by Indonesian Foreign Minister Marty Natalegawa to reach a compromise on the wording were unsuccessful and for the first time in its 45-year history, the AMM did not issue a final communique.
The fallout from the AMM was immediate and ugly. Marty labelled ASEAN’s failure to reach agreement “irresponsible” and said the organization’s centrality in the building of the regional security architecture had been put at risk. Singaporean Foreign Minister K Shanmugam described the fiasco as a “severe dent” in ASEAN’s credibility.
Cambodia and the Philippines blamed the failure on each other.
Cambodia was pilloried by the regional press for its lack of leadership and for putting its bilateral relationship with China before the overall interests of ASEAN. One analyst alleged that Cambodian officials had consulted with their Chinese counterparts during the final stages of talks to reach an agreement on the communique. 
China’s Global Times characterized the outcome of the AMM as a victory for China, which does not think ASEAN is an appropriate venue to discuss the dispute, and a defeat for the Philippines and Vietnam.
A few days after the AMM, Indonesian President Susilo Bambang Yudhoyono dispatched his foreign minister to five Southeast Asian capitals in an effort to restore ASEAN unity. Marty’s shuttle diplomacy resulted in an ASEAN foreign ministers’ statement of July 20 on “ASEAN’s Six-Point Principles on the South China Sea”.  The six points, however, broke no new ground and merely reaffirmed ASEAN’s bottom-line consensus on the South China Sea.
In response to the joint statement, China’s Foreign Ministry said it would work with ASEAN to implement the 2002 Declaration on the Conduct of Parties in the South China Sea (DoC).
One of the six points calls for the early conclusion of a code of conduct (CoC) for the South China Sea, but the Phnom Penh debacle has made that target highly doubtful.
Although China agreed to discuss a CoC with ASEAN in November 2011, Beijing always has been lukewarm about such an agreement, preferring instead to focus on implementing the DoC. Undeterred, this year ASEAN began drawing up guiding principles for a code and in June agreed on a set of “proposed elements”. While much of the document is standard boilerplate, there are two aspects worthy of attention.
The first is that ASEAN calls for a “comprehensive and durable” settlement of the dispute, a phrase that seems to repudiate late Chinese leader Deng Xiaoping’s proposal that the parties should shelve their sovereignty claims and jointly develop maritime resources. Clearly, the four ASEAN claimants have rejected Deng’s formula as it would be tantamount to recognizing China’s “indisputable sovereignty” over the South China Sea atolls.
The second interesting aspect concerns mechanisms for resolving disputes arising from violations or interpretations of the proposed code. The document suggests that disputing parties turn to the 1976 Treaty of Amity and Cooperation (TAC) or dispute resolution mechanisms in UNCLOS. Neither, however, would be of much utility. While the TAC does provide for a dispute-resolution mechanism in the form of an ASEAN High Council, this clause has never been invoked because of the highly politicized nature of the council and the fact that it cannot issue binding rulings. Moreover, although China acceded to the TAC in 2003, Beijing almost certainly would oppose discussion of the South China Sea at the High Council because it would be outnumbered 10-1.
UNCLOS does provide for binding dispute-resolution mechanisms, including the submission of disputes to the International Court of Justice or the International Tribunal on the Law of the Sea. Beijing always has rejected a role for the ICJ in resolving the territorial disputes in the South China Sea and, in 2006, it exercised its right to opt out of ITLOS procedures concerning maritime boundary delimitation and military activities.
On July 9, Vice-Foreign Minister Fu Ying indicated to ASEAN foreign ministers that China was willing to start talks on a CoC in September. Two days later, however, as ASEAN wrangled over their final communique, Foreign Minister Yang seemed to rule this out when he stated discussions could only take place “when the time was ripe”. At present ASEAN and China are not scheduled to hold any meetings on the CoC, though officials currently are discussing joint cooperative projects under the DoC.
If and when the two sides do sit down to discuss the CoC, it is probable that Beijing will demand all reference to dispute resolution be removed on the grounds that the proposed code is designed to manage tensions only and that the dispute can only be resolved between China and each of the other claimants on a one-on-one basis. Taken together, these developments have dimmed seriously the prospect of China and ASEAN reaching agreement on a viable code of conduct for the South China Sea any time soon. As such, the status quo will continue for the foreseeable future.
1. Why There was no ASEAN Joint Communique, Philippine Department of Foreign Affairs, July 19, 2012.
2. Ernest Bower, China reveals its hand on ASEAN in Phnom Penh, Center for Strategic and International Studies, July 20 2012.
3. Statement of ASEAN Foreign Ministers on ASEAN’s Six-Point Principles on the South China Sea, Cambodian Ministry of Foreign Affairs, July 20, 2012.
Ian Storey is a fellow at the Institute of Southeast Asian Studies, Singapore, and the author of Southeast Asia and the Rise of China: The Search for Security (Routledge, May 2011).
(This article first appeared in The Jamestown Foundation. Used with permission.)
(Copyright 2012 The Jamestown Foundation.)