The 2009 claims that changed the dynamics in the South China Sea

Through the 2000s, China's charm offensive towards Asean succeeded. Today, China has tense relations with many of its regional neighbours, causing them to cleave more closely to America. What happened to spark that dramatic turnaround from foreign policy success to failure?

A military recruitment advertisement at a shopping mall in Beijing. Editorials in publications such as the Global Times declare that China "must be prepared for any military confrontation".
A military recruitment advertisement at a shopping mall in Beijing. Editorials in publications such as the Global Times declare that China "must be prepared for any military confrontation". PHOTO: AGENCE FRANCE-PRESSE

For much of this millennium's first decade, Mr George W. Bush was the president of the United States and his administration was preoccupied with 9/11, the "War on Terror", and actual wars in Afghanistan and Iraq.

The US, for the most part, didn't have much time for Asia and, in particular, Asean. Perhaps not much time was needed. After all, Asean was a relatively safe and secure part of the world with most South-east Asian countries being friendly or at least not antithetical to the US. Meanwhile, Japan was mired in economic stagnation.

Who stepped into this breach? China. In what was then called a "charm offensive", China's leaders made historic trips to Asean countries and concluded historic agreements. The "charm offensive" worked.

By 2008, China's official development assistance (ODA) to Asean countries surpassed Japan's ODA. Between 2003 and 2013, China's foreign direct investment (FDI) in Asean increased from just US$581.1 million to US$35.7 billion. In this period, China's FDI in the Philippines increased from US$9 million to US$692 million and the increase in Vietnam was from US$29 million to US$2.2 billion.

The landmark Asean-China Free Trade Agreement (ACFTA) came into effect in 2010. The ACFTA is the world's largest free trade area in terms of population.

The relationship also improved dramatically on the political-security front.

A military recruitment advertisement at a shopping mall in Beijing. Editorials in publications such as the Global Times declare that China "must be prepared for any military confrontation".
A military recruitment advertisement at a shopping mall in Beijing. Editorials in publications such as the Global Times declare that China "must be prepared for any military confrontation". PHOTO: AGENCE FRANCE-PRESSE

In the late 1980s, China's then paramount leader Deng Xiaoping called for the setting aside of the South China Sea disputes in favour of joint development of disputed zones. This precipitated an agreement between China and Vietnam in 2000 on maritime delimitation in the Gulf of Tonkin, which included a provision on joint development. The national oil companies of China, Vietnam and the Philippines embarked on a joint marine seismic undertaking of Reed Bank in 2005.

In 2002, the Declaration on the Conduct of Parties in the South China Sea was adopted by China and Asean, which somewhat relegated the overlapping claims in the South China Sea to the status of a diplomatic irritant rather than a diplomatic row.

During this period, many analysts contrasted Beijing's "sensitive" approach to relations with Asean countries with the US' "heavy-handed" approach.

This was not bad for a country, which, until the 1990s, had been viewed with grave suspicion by most Asean governments for backing communist insurgency movements, sympathising with the overseas Chinese diaspora, and forcibly occupying features in the South China Sea (all of the Paracel Islands in 1974, Johnson South Reef in 1988 and Mischief Reef in 1995).

China's foreign policy and diplomacy in the 2000s was clearly triumphant in remediating past tensions and eroding the influence of the US and Japan.

One could even argue that China was on track to becoming a benevolent hegemon on a par with the US. If there was a goal to eventually displace the US and to create China's version of the Monroe Doctrine in South-east Asia, Beijing seemed to be going about this in a subtle and effective way while comfortably holding on to the features it had already occupied in the South China Sea.


Let's fast forward to 2016.

The Philippines has unilaterally taken an unwilling China to international arbitration over their South China Sea differences. A tribunal of the Permanent Court of Arbitration (PCA), convened under the auspices of the 1982 United Nations Convention on the Law of the Sea (Unclos), is expected to deliver its decision today.

China has refused to participate in the arbitration and, thus far, refused to accept its decision. Despite Beijing's argument that the tribunal does not have jurisdiction and Manila is "abusing" international law, the fact that a permanent member of the United Nations Security Council (UNSC) has so flatly rejected an international process that could help clarify the overlapping South China Sea claims has dented China's reputation with respect to international citizenship. The UNSC, of course, has primary responsibility for the maintenance of international peace and security.

Manila initiated the arbitration after the Scarborough Shoal stand-off in 2012, when two surveillance vessels from China prevented a Philippines navy ship from arresting Chinese fishermen near the Shoal. The stand-off threatened to escalate into armed conflict, but the US managed to achieve a Philippines withdrawal. China, however, did not reciprocate.

In 2013, in sharp contrast to the "charm offensive" of the previous decade, China was accused of being petty in its response to the Philippines' plight in the wake of a natural disaster. A headline in The Guardian stated, "Typhoon Haiyan: China gives less aid to Philippines than Ikea. World's second largest economy pledges less than $2m to help relief effort, compared to furniture store's $2.7m".

Since 2014, reports have emerged about Beijing's intention to declare an air defence identification zone in the South China Sea as well as China's extensive land reclamation and "militarisation" of features it controls by the building of airstrips and emplacement of missile launchers.

Naturally, this was received with alarm by not just the other claimant states, the Philippines, Vietnam, Malaysia and Brunei, but also by the non-claimant Asean countries Indonesia and Singapore, and regional powers Australia, Japan and the US.

Vietnam had its own stand-off with China in May 2014 when the China National Offshore Oil Corporation deployed an oil drilling platform, the Haiyang Shiyou 981, about 119 nautical miles off Vietnam's central coast and well within its 200 nautical mile Exclusive Economic Zone (EEZ). After ramming and water cannon incidents between Chinese escort vessels and intercepting Vietnamese ships, a series of anti-China protests and riots erupted across Vietnam.

The dispute expedited Vietnam's rapprochement with the US, deepened relations with Japan and prompted cooperation with India.

In March this year, Malaysia's Defence Minister Hishammuddin Hussein intimated a "pushback" against China following reports of China's militarisation of features in the Spratly Islands.

Last month, President Joko Widodo, in what was intended as a "clear signal" to China, conducted a Cabinet meeting on a navy warship in waters off Indonesia's Natuna Islands in the South China Sea.

This followed skirmishes between the Indonesian authorities and Chinese fishermen near the Natuna Islands. China does not claim the Natuna Islands but seemed to advocate in March that the waters off the islands were part of its "traditional fishing grounds".

In 2012, Asean, for the first time, failed to issue a joint statement following a meeting of foreign ministers in Phnom Penh. The statement was stymied by host Cambodia allegedly at the behest of China because it contained language proposed by the Philippines and Vietnam that was critical of Beijing's actions in the South China Sea.

This year, another setback for Asean occurred when Malaysia "issued" a document following the Special Asean-China Foreign Ministers' Meeting in Yunnan which was surprisingly critical of China, only to have the document recalled by the Asean Secretariat soon after.

In any case, a statement by Singapore's Ministry of Foreign Affairs indicated that "Minister (Vivian) Balakrishnan (who co-chaired the meeting with China's Foreign Minister) noted the serious concerns expressed by the Asean foreign ministers over the developments on the ground and called on Asean and China to continue working together to maintain the peace and stability of the South China Sea".

Since 2011, the US, under President Barrack Obama, has famously "pivoted" or "rebalanced" back to Asia after nearly a decade of neglect. The rebalance has involved military as well as diplomatic backing for allies and friends. For instance, in 2014, the US signed an Enhanced Defence Cooperation Agreement with the Philippines.

The US has also nudged old allies Australia and Japan, and new friend, India, to play a more active role in the South China Sea.

Since 2012, a US Marine Rotational Force comprising roughly 1,500 troops has been deployed in Australia's Northern Territory. Last month, a Pentagon-commissioned report proposed the deployment of additional submarines in Guam and an aircraft carrier group in Western Australia.

The US and Australia have also conducted defending "Freedom of Navigation" operations with warships and aircraft in South China Sea zones controlled by China such as at the Fiery Cross Reef, drawing the ire of Beijing and increasing the prospect of an unintended military confrontation.

Having the US, Japan, Australia, the Philippines, Vietnam, Malaysia, Singapore, Indonesia and India arrayed against you over the South China Sea is not a good foreign policy outcome. On the contrary, it is reminiscent of pre-Nixon Cold War dynamics in East Asia.


So what happened?

Clearly, something has gone very wrong for China's foreign policy and diplomacy vis-a-vis the South China Sea and, by extension, with Asean since the heyday of the 2000s. Why pursue a course of action that alienates you diplomatically and places you on the defensive for creating insecurity?

There is no shortage of academic elucidations on the matter. Much of it revolves around the "rise" or "restoration" of China as a major economic and military power, and the relative decline of the US.

For instance, Professor John Mearsheimer pointed out that "China cannot rise peacefully" because "it will attempt to dominate Asia the way the US dominates the Western Hemisphere".

In a similar vein, Professor Graham Allison posited that China and the US could be headed for war because when a "rising" power threatens to displace a "ruling" power, a "standard crisis that would otherwise be contained could initiate a cascade of reactions that, in turn, produces outcomes none of the parties would otherwise have chosen". This was labelled as the Thucydides Trap after the Greek general who studied the Peloponnesian War between a "rising" Athens and the "ruling" Sparta.

Another line of inquiry focuses on growing "nationalism" in China fuelled by its rapid economic success and its intensifying military prowess. The best-selling book China Can Say No and its sequel Unhappy China, and the proliferation of jingoistic exchanges in social media in China are reflective of this.

A number of scholars have suggested that the Communist Party of China, facing a crisis of legitimacy due to the dearth of Maoist ideology after Deng's reforms, has cultivated nationalism and the remedying of "historical wrongs" as the new validation for continued one-party rule. Perhaps this has contributed to irredentist thinking vis-a-vis the South China Sea.

A third vein of theorising points to Beijing's aspiration to punch a hole through the US' and its allies' geopolitical encirclement of mainland China by establishing a foothold in the South China Sea, which is characterised either as a weak link in the US' containment of China or as the soft underbelly of China's own defences that needs bolstering by the creation of forward positions in the South China Sea.

For example, the "String of Pearls" description suggests that China's assertiveness in the South China Sea is merely a manifestation of Beijing's overall plan to acquire strategic maritime assets ("pearls") on the sea route from Hong Kong to the Middle East, via Myanmar and South Asia, in order to: secure energy and raw material supply to mainland China; control international trade; magnify China's sway in the Indian Ocean region; or all of the above.

The economic potential of the South China Sea, in terms of oil, gas and minerals, as well as fisheries, is another focus of inquiry. This explanation posits that a rapidly developing and overpopulated China that is hungry for energy, raw material and food (seafood) cannot afford to lose out on the copious resources of the South China Sea.

Some of the aforesaid elucidations are more convincing than others.

Yet, one fact is clear. The growing concern in Asia about Beijing's South China Sea strategy, even among non-claimant Asean states that were hitherto dispassionate such as Indonesia and Singapore, and the compelling of a US pivot back to the region are not good foreign policy outcomes for a resurgent China. If anything, these point to a premature halt to China's subtle ascendancy in the Asean region in the 2000s.

Furthermore, having compulsory arbitration thrust upon it by the Philippines is adding insult to injury for an abysmal foreign policy and diplomacy experience for China in the 2010s.


So what explains the demise of the "charm offensive" with a grateful Asean in the 2000s to the present- day situation, when editorials the likes of the Global Times declare that China "must be prepared for any military confrontation"?

In my view, the turning point that extinguished the "charm offensive" of the 2000s and catalysed what analysts have referred to as China's renewed "creeping assertiveness" or "salami slicing" tactics in the South China Sea is a little-known occurrence in 2009.

Under Unclos, coastal states are granted 12 nautical miles of territorial sea and a further 200 nautical miles of an EEZ. In addition, if recognised by the Commission on the Limits of the Continental Shelf (CLCS), coastal states can claim up to 360 nautical miles of continental shelf, which is also measured from the territorial sea. To make the claim, a coastal state must submit its continental shelf information to CLCS within 10 years of the entry into force of Unclos for that state.

With a deadline approaching, Vietnam and Malaysia made a joint submission on May 6, 2009 to the CLCS on the "southern part of the South China Sea". In essence, Vietnam and Malaysia had clarified their hitherto competing claims in the South China Sea and brought it in line with Unclos.

However, this seemingly innocuous act shattered the erstwhile "ambiguity" surrounding the overlapping claims of China, Vietnam, Malaysia, the Philippines and Brunei.

The ambiguity had allowed China, a relative latecomer to the "scramble" for the South China Sea, to occupy features that were nearer to Vietnam, the Philippines and Malaysia but far from its nearest coastline, Hainan Island. In addition, the ambiguity allowed for a measure of deferral of the thorny issue of sovereignty as exemplified by Deng's proposal to set aside disputes in favour of joint development.

However, on May 6, 2009, China found itself facing the stark certainty of Unclos and the prospect that the Philippines would follow the lead of Vietnam and Malaysia and bring its claim in line with Unclos.

With respect to Unclos, China is geographically disadvantaged since the features in the central and southern zones of the South China Sea are too far from Hainan for EEZ and continental shelf provisions to be of much benefit.

In addition, the features it controlled in the central and southern zones are minuscule and possibly not "islands" as defined by Unclos when compared with the larger features controlled by the other claimant states.

In effect, China was being "pushed" out from what might be called the "core" of the South China Sea to the northern periphery by the joint submission.

China, perhaps too hastily, submitted a formal rebuttal to the Malaysia-Vietnam CLCS submission the very next day with these words: "China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map)."

In a move that would have profound consequences, China's rebuttal included the first official publication of its own claim, the now infamous "nine-dash line map", which had been produced by Kuomintang-governed China in the 1940s. The inclusion of the map was probably just intended to bolster China's case vis-a-vis the CLCS. But unfortunately for China, the map and terms such as "adjacent" and "relevant" waters were so out of step with Unclos that almost anyone with an interest in international law and international relations became focused on the South China Sea, with many questioning if China's inclusion of the map was tantamount to the unravelling of Unclos.

Since China's map suggested that it had sovereignty over not just features but also the vast waterbody within the nine-dash line, the dispute morphed into one about the restriction of freedom of navigation, which would be of concern to all major powers and trading nations of the world.

This "internationalisation" of an issue that previously concerned only the five claimant states (and Taiwan) was a foreign policy calamity for Beijing.

However, the die was cast.

There was no turning back from the nine-dash line map especially in view of the rise of nationalist and irredentist sentiment among the Chinese public.

Beijing's strategy, thereafter, has been to enforce an unenforceable map by establishing or augmenting China's presence and activity in the features and waters depicted on the map, short of starting a war with the other claimant states.

This, of course, has resulted in numerous diplomatic protest notes, actual protests and demonstrations in the claimant states, and a series of increasingly risky confrontations at sea.

While China managed to implement large-scale land reclamation and construction on the features it already controlled, the enforcing of the nine-dash line map in zones it didn't previously control, such as Scarborough Shoal, backfired badly when Manila, with the help of savvy international lawyers, managed to justify and initiate the South China Sea arbitration at the PCA.

The arbitral tribunal (and Unclos) does not have authority on disputed sovereignty. However, the tribunal can consider disputes about the interpretation of Unclos itself and so has agreed to look into matters such as what exactly is an "island" that can generate maritime zones such as a territorial sea and an EEZ, and if "historic rights" as exemplified by China's nine-dash line map are justified.

By most accounts, the tribunal's decisions will not be favourable to China's standpoint on the South China Sea as it is expected to use Unclos as a reference. The nine- dash line map, while having some import on China's claim of sovereignty over "islands", has no basis in Unclos for claiming the vast waterbody in the South China Sea which the map envelops.

While the latest phase in South China Sea tensions began in 2009 with the joint submission by Malaysia-Vietnam to the CLCS, an Unclos process, one can only hope that another Unclos process, the compulsory arbitration at the PCA, will provide greater clarity and stability with respect to the overlapping South China Sea claims.

Perhaps a moral victory for the Philippines as well as an internationally mandated justification for China to temper domestic irredentist sentiment will empower the claimant states to move forward by way of bilateral or multilateral negotiations.

•The writer is director, academic affairs, and senior lecturer at Yale-NUS College in Singapore.

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A version of this article appeared in the print edition of The Straits Times on July 12, 2016, with the headline The 2009 claims that changed the dynamics in the South China Sea. Subscribe