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SCS Conundrum: Time Has Come For ASEAN Reforms And Unity – OpEd

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Leaders of the Association of Southeast Asian Nations (ASEAN) and East Asia Summit (EAS) will meet in Hanoi virtually in this week for the 37th ASEAN Summit, 15th EAS Summit and related meetings.

The main focus of the 37th ASEAN Summit will be on burning issues like the COVID-19 pandemic, the South China Sea (SCS) conundrum, progress of Code of Conduct (CoC) negotiations, ASEAN integration and many other issues. 

People may wonder why the SCS and CoC negotiations are serious issues for ASEAN countries.

The SCS, a strategic waterway that sees US$5 trillion worth of maritime trade pass it each year, reportedly has huge oil and gas reserves. It is also rich in fishery resources. 

Vietnam, the second biggest claimant, along with the Philippines, Malaysia, Brunei Darussalam and Taiwan have overlapping claims with China over certain parts of the SCS. They also have maritime disputes among themselves. But China claims 90 percent of the 3.5 million square kilometers of the SCS based on the controversial Nine-Dash Line map. 

Fast growing China has been behaving like a hegemon in the SCS. It forcibly occupied the Paracel Islands, which are claimed by Vietnam, and Scarborough Shoal, an area claimed by the Philippines. It also encroached into the exclusive economic zones (EEZs) of other claimants numerous times.

In recent years, China has illegally constructed several artificial islands in the SCS, specifically in the Spratly Islands which are claimed by both Vietnam and China, and transformed them into military facilities, threatening the peace and security of the ASEAN region. ASEAN countries and the international community, including the United States, have strongly condemned China’s illegal activities and coercive behaviour towards small countries in Southeast Asia.

In a clear sign of its aggressionist behaviour, China sent its fishing vessels escorted by coast guard ships to Indonesia’s EEZ in the North Natuna Sea last December to catch fish, claiming it has “historical rights” as the area has been a traditional fishing ground for centuries and is part of the so-called Nine-Dash Line. Indonesia, which is a non-claimant country, strongly protested this act and deployed its own warships and fighter jets to drive the Chinese away from its EEZ.

According to the Department of Auditing in Malaysia, China’s People Liberation Navy and the Chinese Maritime Coast Guard, not including illegal Chinese fishing flotillas, encroached into Malaysia’s EEZ 89 times between 2016 and 2019.

Likewise, Vietnam also became a victim of China’s aggressive behaviour many times. On April 3, 2020, a Chinese coast guard vessel rammed into and sunk a Vietnamese fishing boat off the Paracel Islands. Vietnam strongly protested against China’s irresponsible and dangerous act. 

“As has been stated on various occasions, Vietnam has ample historical evidence and legal basis to affirm its sovereignty over the Hoàng Sa (Paracel) and Trường Sa (Spratly) Islands in accordance with the international law,” the Vietnam’s Ministry of Foreign Affairs said in a statement.

“The above-mentioned Chinese vessel’s act violates Vietnam’s sovereignty over the Paracel Islands, causes property losses and endangers the lives, safety and legitimate interests of the Vietnamese fishermen.”

Unhappy with China’s unilateral and aggressive acts, the U.S. has been conducting Freedom of Navigation Operations (FONOPs) by deploying its warships near Chinese-occupied SCS areas in recent years. As a result, tensions between China and the U.S. in the SCS have increased tremendously.

ASEAN countries are getting significant support and solidarity in the SCS disputes from numerous countries. Besides the U.S., Japan, India, Australia, the United Kingdom, France, Germany, Canada and countries across the globe have expressed their support and solidarity for ASEAN countries.

Bone of contention

The bone of contention between China and ASEAN claimants is China’s ratification of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in 1996. Under the UNCLOS, all countries are entitled to 200 nautical mile EEZs from its shore and 12 nautical miles of territorial sea. SCS claimants and Indonesia have also signed and ratified this treaty (with the exception of Taiwan as it is not a UN member). For example, Scarborough Shoal is located 120 nautical miles from the Philippine island of Luzon. However, China does not want to apply or respect UNCLOS principles in its disputes with other claimants.  

The Philippines won a legal case against China at the Permanent Court of Arbitration (PCA) in 2016 in The Hague over the Scarborough Shoal dispute. The PCA ruling clearly mentioned that China’s Nine-Dash Line and historical fishing rights were not valid under the UNCLOS, which China signed, but China refused to implement or honour the PCA ruling.

In May 2020, Indonesia, the de facto leader of ASEAN, acknowledged the 2016 PCA ruling as the basis to resolve maritime disputes. In September of this year, the Philippines also announced that all SCS disputes must be solved based on the UNCLOS and the 2016 PCA ruling. The United Kingdom, Germany and France also support this ruling. 

Five ASEAN countries have problems with China’s SCS claims. Strangely, ASEAN does not always has a strong and united voice on this issue although all 10 countries have agreed to form an ASEAN community. China has been cleverly using ASEAN loopholes to divide ASEAN. Small countries like Cambodia and Laos have become strong allies of China. Many people allege that these two countries work for the interests of China in ASEAN meetings.

Moreover, ASEAN is a weak organization and its Secretariat is underfunded. Many people have criticized the present ASEAN Secretary-General Dato Lim Jock Hoi from Brunei for being ineffective as his voice is rarely heard during the COVID-19 pandemic and China’s illegal incursions into the EEZs of ASEAN members in the SCS. 

ASEAN needs an overhauling. It has to be a powerful and effective organization to handle the challenges of the 21st century. It should not allow foreign countries to take advantage of its member states to divide ASEAN. The ASEAN Secretary-General must be selected on the basis of merit and leadership qualities rather than a rotating basis. The way ASEAN works needs to be changed.

For this, we need ASEAN unity and solidarity. The present ASEAN chair Vietnam, in cooperation with Indonesia, has been trying to achieve ASEAN unity. The time has come for ASEAN leaders to rethink ASEAN’s future path and reform the grouping. The ASEAN Secretariat must be empowered and strengthened further.

If all 10 ASEAN members are united, China may change its bellicose behaviour in the SCS.

Code of Conduct

In order to avoid conflicts and tensions in the SCS, both China and ASEAN countries have signed the Document on Conduct of Parties in the South China Sea (DOC) in 2002. However, it is weak in nature as it is not a legally binding agreement. Moreover, China has violated the DOC several times.

Since the signing of the DOC, there has been efforts from ASEAN countries to have a legally binding Code of Conduct (CoC) based on the principles of the UNCLOS. After 16 years of efforts, both China and ASEAN agreed to have a single draft of the CoC text in 2018. Tough negotiations have been going on since then. China said recently that it is determined to conclude the CoC in 2021. Vietnam and Indonesia, along with other ASEAN members, have been playing a key role in uniting ASEAN and working for an effective and substantive CoC. 

 During the 53rd ASEAN Foreign Ministers Meeting in Hanoi, ASEAN countries under the chairmanship of Vietnam made it clear that they want all SCS disputes to be resolved based on international laws and through peaceful negotiations. 

“We reaffirmed our shared commitment to maintaining and promoting peace, security, and stability in the region, as well as to the peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with the universally recognised principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS)”, ASEAN foreign ministers said in their final statement after the ministerial meeting.

ASEAN leaders must make serious efforts to reform ASEAN while maintaining ASEAN unity. They should not compromise on the CoC, which must be based on international rules and legally binding.

Veeramalla Anjaiah

Veeramalla Anjaiah

Veeramalla Anjaiah is a Jakarta-based senior journalist and the author of the book “Azerbaijan Seen from Indonesia

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