Thayer Consultancy Background Briefing:

ABN # 65 648 097 123

South China Sea: The Role of the
International Community
Carlyle A. Thayer
August 5, 2019

We are following the South China Sea issue at the recent ASEAN Foreign Ministers'
Meeting. We request your assessment of the following issues:
Q1. How do U.S. Secretary of State Mike Pompeo’s rermarks at the 52nd ASEAN
Foreign Ministers’ Meeting reflect Trump Administration’s policy on the South China
Sea? What is the U.S. likely to do now?
ANSWER: It is clear that the Trump Administration views China as its main adversary
and strategic rival. The Trump Administration is pursuing a strategy of a rules-based
free and open Indo-Pacific region. The U.S. State Department issued a strong
statement that China was threatening regional energy security and had adopted
bullying. The statement singled out China’s actions in the Vanguard Bank. Reflecting
Administration policy, Secretary Pompeo called out China for “coercion” in the South
China Sea.
The U.S. seeks to create a network of allies and strategic partners to counter China’s
predatory economic policies, intimidation and coercion of regional states, and
militarization of the South China Sea. But the United States will not involve itself in
confrontations between China in the Exclusive Economic Zone (EEZ) of a littoral state
that is not a formal treaty partner.
Q2. This year the ASEAN joint statement was released on the first day of AMM52 [52nd
ASEAN Ministerial Meeting] and used “stronger words” on the South China Sea issue
than previous statements. What does this mean?
ANSWER: If you compare the joint statements issued after the 51st ASEAN Ministerial
Meeting (AMM) in 2018 with the joint statement issued after the 52nd AMM there
are only a few changes.
The joint statements usually contain two paragraphs on the South China Sea. The
first is generally positive about the direction of ASEAN-China relations. The second
paragraph takes note of “some concerns” by ministers. For example, at the 51st
AMM last year the joint statement “took note of some concerns on the land
reclamations and activities in the area…”
This year’s 52nd AMM joint statement was more strongly worded: “We discussed the
situation in the South China Sea, during which concerns were expressed by some
Ministers on the land reclamations, activities and serious incidents in the area
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[emphasis added].” It is clear that one or more foreign ministers joined Vietnam in
raising “serious incidents” caused by China. These concerns should flow through to
the ongoing negotiations on a South China Sea Code of Conduct with China.
Words are not the same as deeds. It remains to be seen if China will moderate its
behavior and cease violating the Exclusive Economic Zones (EEZ) of Vietnam,
Malaysia and the Philippines.
Q3. On this basis, will ASEAN nations contribute to resolve the South China Sea dispute
and if so how? Can Vietnam do anything to push ASEAN nations, even the ones that
do not have claims on the South China Sea, to lend their support in this case?
ANSWER: ASEAN works on the basis of consensus and this means adopting a stronger
stance on the South. China Sea is difficult to do. This year China has antagonized three
members by its actions in the South China Sea.
First, China illegally intruded into Vietnam’s EEZ to conduct seismic surveys. At the
same time, China Coast Guard ships attacked Vietnam Coast Guard vessels with high-
powered water cannons and conducted dangerous maneuvers by crossing the bows
of Vietnamese ships. A China Coast Guard ship harassed service vessels and an oil
exploration rig in a block operated by Russia’s Rosneft Vietnam.
Second, the same China Coast Guard vessel that harassed Vietnamese ships, also
harassed Malaysian service vessels in Malaysia’s EEZ off the coast of Sarawak.
Third, Chinese fishing boats and maritime militia swarmed the waters around the
Philippines’ Thitu (Pag-asa) island to prevent Filipino fishermen from fishing in their
traditional grounds in their territorial sea and EEZ.
The concerns of ASEAN members will be reflected in negotiations on a Code of
Conduct (COC) in the South China Sea. The COC will be a worthless document unless
it restrains China from undertaking illegal actions in the EEZs of littoral states.
Vietnam will have a heavy responsibility as ASEAN Chair in 2020 to forge unity in
ASEAN to take a stronger stance towards China. ASEAN can only deal with China if it
has the support of the major powers and maritime states.
Q4. The first reading of the draft COC has been completed and China keeps pushing
ASEAN countries to finalize the code. Will this be a way to resolve the South China
Sea problem?
ANSWER: When ASEAN members and China adopted the Single Draft South China Sea
Code of Conduct Negotiating Text in August 2018 it was agreed it would go through
three readings before adoption. ASEAN members and China have just completed their
first reading.
The original Single Draft Negotiating Text was a compilation of suggestions from nine
parties, China and eight ASEAN members. Laos and Myanmar made no submissions.
The Single Draft Negotiating Text contained many areas of overlap. Some of the
overlap has now been reduced. The hard work of addressing substantive issues
remains.
In August last year, China said it would take three years to complete the COC. Up to
this point ASEAN and China agreed to conclude negotiations on a mutually agreed
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timeline. China has been effusive in describing the progress made up to now. But in
fact, its officials are still saying it will take three years to complete negotiations.
The present Single Draft Negotiating Text does not define the geographical area of the
South China Sea that it will cover. China wants to exclude the Paracel Islands and only
include the maritime area to the south of Scarborough Shoal. The Single Draft
Negotiating Text includes sections on how disputes are to be resolved but it does not
make dispute resolution compulsory nor does it include any rules for enforcement.
The status of the Single Draft Negotiating Text is unclear. It is to be a legally binding
treaty or merely another political declaration like the 2002 Declaration on Conduct of
Parties in the South China Sea?
Finally, the Single Draft Negotiating Text does not spell out the role of third parties.
China wants to exclude “outside countries” from cooperating in the exploitation of
maritime resources such as oil and gas. China also wants the right to veto military
exercises between ASEAN members and outside states.
Q5. There are reports that Vietnam can sue China for its actions in the South China
Sea in an international court like the Philippines did. What is your comment on this?
Is there a legal option that Vietnam can seek to go against China in their South China
Sea dispute?
ANSWER: Vietnam has kept the option of legal action against China on the table for a
number of years. China’s violations of Vietnam’s sovereign rights since 2016, when the
Arbitral Tribunal ruled on the case against China brought by the Philippines, are likely
to continue unless pressure is brought to bear on China.
Vietnam can follow the Philippines’ model and request compulsory dispute settlement
by an Arbitral Tribunal set up under Annex VII of the United Nations Convention on
the Law of the Sea (UNCLOS). The Arbitral Tribunal can hear Vietnam’s case even if
China refuses to participate. Vietnam can request the Arbitral Tribunal to determine
its entitlements in its EEZ and continental shelf and judge whether China has infringed
on these entitlements. Vietnam has a strong case and is likely to win.
There are drawbacks, however. UNCLOS has no provisions for enforcement. China
could be brazen and refuse to comply with the final Award (rulijng). China could take
punitive actions against Vietnam while the Arbitral Tribunal considers this case.
On the positive side, China’s prestige would suffer. More importantly, a wide coalition
of the international community led by the United States is likely to support Vietnam.
This coalition could include: Australia, Canada, EU, France, Germany, India, Japan,
New Zealand, South Korea and the UK.

Media Identification: The University of New South Wales, Canberra or The University
of New South Wales at the Australian Defence Force Academy, Canberra.
Suggested citation: Carlyle A. Thayer, “South China Sea: The Role of the International
Community,” Thayer Consultancy Background Brief, August 5, 2019. All background
briefs are posted on Scribd.com (search for Thayer). To remove yourself from the
mailing list type, UNSUBSCRIBE in the Subject heading and hit the Reply key.
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.