Carl Thayer writes:
Michael Wesley's Snapshot, What's at stake in the South China Sea, contains three major assertions and one policy recommendation that I take issue with.
Wesley's first assertion is that China claims the South China Sea as its territorial waters and this would restrict the passage of United States warships. China's 1992 Law on Territorial Sea only claimed 12 nautical miles of territorial waters around the Paracel and Spratly islands. China did not issue a map showing the baselines around individual islands and rocks. Also China did not claim a regime of islands; the inference that China has claimed the entire South China Sea as its territorial waters is one drawn by US Navy legal specialists.
In 2009, China officially tabled a map of the South China Sea containing nine dashes forming a u-shape line embracing over 80% of the South China Sea. China claims historic rights to this area. In recent years China has claimed sovereignty over the islands, rocks and their adjacent waters. This year China's Foreign Ministry stated that no country, presumably including China, claims the entire South China Sea.
Wesley's second assertion, which is closely related to his first, is that China has challenged shipping in the South China Sea. China has not interfered with commercial shipping. In 2011, Chinese civilian ships were involved in three incidents involving oil exploration vessels in waters where China's u-shaped line overlapped with the Exclusive Economic Zones of the Philippines and Vietnam. These incidents did not take place in shipping lanes and have not been repeated.
In 2009, China was also involved in one incident involving a US military ship (USNS Impeccable) conducting close-in surveillance in the Exclusive Economic Zone (EEZ) off Hainan Island. China and the United States fundamentally disagree about the conduct of military activities in a state's EEZ under international law. This incident did not take place in an international shipping lane and has not been repeated.
Wesley's third assertion is that China refuses to discuss the South China Sea in any regional meeting and China will only negotiate if ASEAN abandons the search for a common position. In fact ASEAN has already arrived at a common position and Chinese officials have met with ASEAN counterparts to discuss the modalities of future discussions.
The ASEAN Foreign Ministers unanimously adopted the key elements of a Code of Conduct in the South China Sea at their ministerial meeting in July. China officially stated it is willing to discuss the code of conduct with ASEAN members 'when conditions are ripe'. At the same time, Chinese and ASEAN senior officials informally met twice to discuss the ASEAN draft code of conduct. Formal discussions are tentatively set for September with a goal of completing the talks by November.
Indonesian Foreign Minister Marty Natalegawa's recently conducted an intense round of shuttle diplomacy. As a result of his initiative all ASEAN foreign ministers agreed to support ASEAN's Six Principles on the South China Sea and are now committed to intensifying consultations on the code of conduct.
Wesley concludes his Snapshot by proposing that Australia launch a new initiative to help resolve South China Sea disputes. He supports his proposal by arguing because the United States supports a unified ASEAN position this will make the code of conduct less palatable to Beijing and Australia contributes nothing to resolving the dispute by backing the US and ASEAN.
I would like to suggest three policy proposals. Given that China has played on differences within ASEAN to advance its interests, now more than ever ASEAN needs the backing of its dialogue partners. Wesley's policy proposal is likely to add confusion to the ASEAN diplomatic process at best and weaken ASEAN in its dealing with China at worst.
- Indonesia's recent intervention put ASEAN-China discussions on a code of conduct back on track. Now is the time for Australia to let ASEAN take the lead and for Australia to provide diplomatic support. A preferable option for Australia would be to join the United States and other like-minded ASEAN dialogue partners (Japan, South Korea, New Zealand, Canada, the European Union and India) in giving their full support to ASEAN.
- A second option for an Australian diplomatic role is for Australia and Malaysia, as co-chairs of the Expert Working Group on Maritime Security established under the ASEAN Defence Ministers Meeting Plus, to continue their quiet work of developing practical proposals to enhance maritime security in the South China Sea.
- Finally, a third option for Australia would be for the government to finally make a firm decision on developing and funding a credible conventional submarine force to cooperate with the United States to maintain stability in the South China Sea.
Photo by Flickr user Quang Minh (YILKA).