There’s a lot at stake in today’s court ruling on Beijing’s controversial nine-dash line and South China Sea claims — not least potential conflict and ASEAN unity.
Major territorial disputes rarely involve as many interested parties as that taking place in the South China Sea. Today the Permanent Court of Arbitration (PCA) at The Hague is expected to hand down its decision on the validity of China’s ‘nine-dash line’ and a number of its other territorial claims in the South China Sea, parts of which are variously disputed by the Philippines, Vietnam, Brunei and Malaysia—all members of the Association of Southeast Asian Nations (ASEAN).
ASEAN is an organisation not inclined to make waves (if you’ll pardon the pun), however the South China Sea has consistently presented the organisation with a challenge to its unity. Hardly surprising when the area in question sees the passage of billions of dollars’ worth of goods every year, not to mention 11 billion barrels of as yet untapped oil and nearly 2 trillion cubic feet of natural gas.
Taking the matter to court
The Philippines unilaterally brought the case to the PCA in 2013 based on the United Nations Convention on the Law of the Sea (UNCLOS). Although China is a party to UNCLOS, it has refused to participate in the arbitration process and has made it clear that it does not recognise the jurisdiction of the PCA in the context of this dispute. Instead, China insists that territorial disputes should be solved bilaterally—an easy position to hold when you are vastly more powerful than your bilateral counterpart. Not to mention the language of ‘indisputable sovereignty‘ is not exactly the language of negotiation.
The PCA is widely expected to rule that China’s ‘historic rights’ to the sea have no legal basis, however should this occur, China has warned it may withdraw from UNCLOS entirely. In practical terms, the Court does not appear to have any enforcement ability should China refuse to comply with the ruling.
A challenge to ASEAN unity
In order to preclude a united-ASEAN front on the South China Sea issue, China has thus far used its leverage over weaker states within the regional bloc to create disunity. Earlier this year, China announced it had reached a ‘four-point consensus’ on the South China Sea with Brunei, Laos and Cambodia—the three ASEAN states most closely aligned with China. Brunei and Laos have not confirmed this consensus and Cambodia has openly denied it; although the Cambodian Prime Minister is notoriously touchy on the subject of Chinese influence in Cambodia’s South China Sea position.
As with the alleged ‘four-point consensus’, Chinese media also tried to legitimise China’s position by exaggerating the number of states supporting its stance, so far claiming that 60 share its views. However, the majority of countries listed by China have either not publicly confirmed or have denied outright that they hold such a position. In fact, of the eight states which have publicly supported China’s position on bilateral resolution of the disputes, seven are in Africa or the Middle East and two of those are land-locked.
China’s show of diplomatic support for its position has been somewhat undermined by its actions on the ground: dredging, building airstrips on the Spratly Islands, and deploying cruise missiles on Woody Island among other moves. After long arguing these constructions are civilian in nature, in April China for the first time admitted that some would serve a military purpose.
Recently, internal disagreement within ASEAN became embarrassingly evident. On 13 June, ASEAN foreign ministers met with their Chinese counterpart in Kunming. China proposed releasing a 10 point consensus it had drafted after the meeting, which reiterated, among other things, a need for bilateral resolution of disputes. Upon disagreeing with much of the language contained in China’s draft, however, ASEAN members announced they would release their own joint statement. In what quickly became farcical, this plan was then also put on hold after China reportedly placed pressure on Cambodia and Laos. Taking matters into its own hands, Malaysia then released the statement independently to the press, only to retract it three hours later on instructions from the ASEAN Secretariat.
The language contained in the report was much the same as in previous such documents, and did not signal a marked shift in ASEAN’s view of the South China Sea as ‘an important issue in the relations and cooperation between ASEAN and China’. Yet, the efforts by China to shut down the release of the statement, and the willingness of Cambodia and Laos to support this position rather than that of their fellow ASEAN members, show just how divisive this ‘important issue’ has become.
Tensions remain high
Furthermore, military altercations between China and ASEAN states in the South China Sea are no longer a remote possibility. Notably, Indonesia has found itself facing off with China in the Natuna Islands on three occasions in 2016. On 17 June, Indonesian war ships fired warning shots at Chinese boats caught fishing within its 200 nautical mile Exclusive Economic Zone around the Natuna Islands before eventually arresting the crew. This followed a skirmish in April, as well as one in March in which Chinese coast guards forcefully intervened to free its crew, who were detained by Indonesian patrol boats for refusing to cease fishing illegally in the Natunas.
Indonesia claims no territory in the South China Sea and China accepts that the Natuna Islands belong to Indonesia, but nonetheless claims that the Indonesian boats were in ‘traditional Chinese fishing waters’. In response to this escalation from China, Indonesia has announced it plans to upgrade its Natuna Islands military base, stationing three frigates and a fighter jet at the base.
With the PCA about to issue its ruling on the dispute, global attention is now focused keenly on the South China Sea. It will be interesting to see how China reacts to the decision; whether it takes legal steps within the current system to argue its position and attempts to resolve the issue by ‘lawfare’ (for which it created a new committee earlier this year), withdraws from UNCLOS entirely, or steps up overt militarisation of its territorial claims.
ASEAN faces a real challenge in managing its members’ competing allegiances in the resolution (or non-resolution) of this dispute. If the body works together, it could prove a major force with which to be reckoned against bigger players like China. If it continues to remain divided and ineffective, however, then its international reputation and indeed its legitimacy will be affected.
Caitlin McCaffrie is the Indo-Pacific Fellow for Young Australians in International Affairs where this article was first published.