Abstract

The South China Sea, an indispensable part of the Southeast Asian region and China, has become a hot cauldron of maritime claims. China has been pursuing its aggressive claims on the South China Sea on the grounds of its 'nine-dash line map'. The activities of 2017 and 2018, in which China forcibly stopped Vietnam's oil exploration and installed anti-ship cruise missiles along with the artificial renovation of islands of the South China Sea, are encroachments on maritime rights of the affected regional states. ASEAN’s role in maintaining a regional equilibrium by diplomatically pursuing China to abide by the Declaration on the Conduct of Parties in the South China Sea has mixed results. ASEAN's institutional balancing strategy to involve extra-regional powers like the United States and the latter's critical approach towards China regarding South China Sea dispute has encouraged a situation of power projection in the region. Hence, the focus of the paper will be on the origin of the dispute, ASEAN’s role, regional dynamics and international responses.

Keywords: South China Sea dispute, competing claims, ASEAN, institutional balancing strategy, international responses.

Introduction

A dilemma characterises the anarchic international system as no international institutions can venture into making laws binding on the states. It is an ever-evolving/changing environment where with the arrival of a new leader, there can be a change in the existing status quo/relations among states. Due to the uncertainties of war looming overhead and not being self-satisfied regarding resources, a state tends to secure its borders and ensure the undisrupted flow of essential supplies even during a fight. Therefore, they often create buffer zones in areas regarded as Terra Nullius/ Res Nullius. By doing so, a state increases its security which in turn decreases the security of others. It is constantly being considered that negotiation and cooperation are the best way to resolve the dilemmas attached to the functioning of world politics. The product is peace which weighs more than war.

Now looking into the context of the South China Sea (SCS), the anarchic state prevailing due to the disputing claims over the features and adjacent waters made mainly by China and other Southeast Asian nations has created instability in the region. Disproportionate power distribution leads to a situation where the more powerful state tends to overpower the weaker state is evident in the SCS dispute. The notion that sovereignty over land determines sovereignty over adjacent sea can be considered a driving force responsible for fuelling the dispute in SCS. Moreover, the inconclusive nature of historical rights and historical claims and the lack of consensus among these countries regarding the exercise of their maritime rights have led to disagreements and have resulted in an action-reaction dynamic.

The Association of Southeast Asian Nations (ASEAN) have played a significant role in maintaining a regional equilibrium. ASEAN diplomacy to make China abides by the norms and, on the other hand, China's persuasive diplomacy to bind ASEAN's decision according to its favour have raised questions about the ability of ASEAN to bring in regional stability. The inclusion of extra-regional power and their responses in ASEAN's security institutions like the ASEAN Regional Forum (ARF), East Asia Summit (EAS) and ASEAN Defence Ministers Meeting- Plus (ADMM-Plus) have devised a scenario of power projection in the region.

This article aims to highlight in detail the significance of the South China Sea, contesting claims of China and the South China Sea, ASEAN'S diplomacy and the international responses to the ongoing conflict in the South China Sea.

Significance of South China Sea

In contemporary times, the sea and ocean are laden with utmost potential since it drives the economy by carrying 80 per cent of the global trade. The SCS drives the economy of the Southeast Asian countries and that of China, Taiwan, Japan and South Korea. One-third of the international trade passes through the SCS. The waters of SCS are critical because of the Strait of Malacca, which connects SCS with the Pacific and Indian oceans.[1] Sunda strait, Luzon strait and Taiwan strait are other important straits in this region. According to a US Energy Information Administration report, more than 30 per cent of global maritime crude oil passes through Malacca Strait, the shortest link between African and the Persian Gulf suppliers.[2] China, Japan as well as South Korea are regarded as the three major importers of crude oil, with China outstripping the United States as the world's largest crude oil importer in 2017.[3] Besides being a vital sea lane of communication (SLOC), the SCS is estimated to be endowed with 190 trillion cubic feet of natural gas, which makes it highly critical to countries whose economies are dependent on the import of crude oil and natural gas in this region.[4] Due to the economic and security interests as well as dependence on the sea-borne trade of the regional and extra-regional powers, the concerns relating to maintenance of the freedom of navigation and security of the SLOC have enhanced in this area. Several nations like Japan, China, the United States, Australia, India and all the Southeast Asian countries have engaged in joint naval exercises, multilateral security agreements and bilateral naval antiterrorism exercises.[5]

However, without delving into the historical significance of SCS and its links with the rest of the world, it will be difficult to trace the roots and cause of contemporary conflicts entangling this part of the world. Throughout history, the SCS served as a vital source of communication and livelihood for Southeast Asian Nations. Trade links started to develop intra and inter-regionally, which later led to the transfusion of culture and religion from the west of Southeast Asia.[6] The kingdoms of Fun-nan, Champa and Srivijaya, which came up along the coastal areas, flourished from time to time due to their dependence on trade relations with India and China. The first account of China's maritime trade dates to the Eastern Chou period (770-221 BC) and received much more significance after the collapse of the Silk Road in the second millennium AD, which helped in the supply of goods and luxury items from the west of SCS.[7] By the eighth and ninth centuries, the Arabs started to trade with southern China through SCS after establishing their ports in India.

The first visit of Marco Polo to China was a significant event in connecting East to West in the year 1271. The Portuguese were the first to start a spice trade with the Sultan of Malacca (1509) and later established their rule in Malacca in 1511 after defeating the Sultan of Malacca.[8] The Treaty of Tordesillas of 1498, signed between the Portuguese and Spain, led to the division of the world into two halves.[9] From the seventeenth century, the Dutch started arriving in Southeast Asia and competed with the Portuguese to control the spice trade. By the eighteenth century, the Dutch were taken over by the Britishers. The colonial powers brought along with them the Westphalian notion of sovereignty. The work of a Dutch jurist, Hugo Grotius, titled Mare Liberum (1609), proposed the doctrine of the freedom of navigation which had a significant impact on the conduct of these colonial powers in fulfilling their interests. With the practice of the freedom of navigation, the colonial powers started to map the SCS. The first chart containing an accurate map of Paracel and Spratly Islands was produced in 1821.[10] This was followed by the publication of a survey of SCS by the Germans in 1885, which was made public. First, the survey and later the publication of the maps helped the colonial powers to know the geographical composition of the SCS. Finally, they led to the proper delimitation of territories among themselves.[11]

Not until the entry of the Japanese in the late nineteenth century the issue of ownership of islands of SCS was a cause of concern among the colonial powers, especially China. After the Japanese started to mine guano in the Pratas Islands in 1909, the fear of the Chinese raise, feeling the threat on their territory from a regional neighbour, China started to assert its claims on the SCS based on maps which were produced in 1760, 1784, 1866 and 1897[12] respectively. China published the New Geographic Atlas of the Republic of China in 1914, which demarcated the Pratas and Paracel Islands as part of mainland China.[13] It is interesting to note how the changes in the external environment, especially the power gamble among the colonial powers, influenced China to become more assertive about its claims on SCS, which were absent in the previous years. The occupation of the Spratly Islands by French led China published another map. The U-shaped line map or the eleven-dash line map of China came up during this period when the geographers started to reassemble the maps of various dynasties of China and traced the expeditions made by them on the islands of SCS. Apart from showing its assertiveness to French rulers on SCS, the Chinese were aware of the approaching Japanese threat, which eventually turned the SCS into a 'Japanese lake' by occupying the area from Taiwan to Singapore by 1945.[14] The looming commination over China from foreign and regional powers forced China to be assertive about SCS, eventually leading to the creation of the 'eleven-dash line' map, which was not omnipresent.

The desperate attempt to dodge the external threats and establish its long-lost glory due to colonialism fueled the production of the eleven-dot or dash line map in 1947 by the Ministry of Internal Affairs of the Kuomintang government, which demarcated the territorial control of China over SCS encompassing all the four major group of islands- Paracel, Spratly, Pratas Islands and Macclesfield Bank. Subsequently, this map was adopted by the People's Republic of China in 1948. In 1953, Premier Zhou Enlai approved the alteration of the eleven-dash line map into a nine-dash line map, which took place with the removal of two dotted line portions around the Gulf of Tonkin.[15] Since then, China asserted its claims based on its ‘nine-dash line’ map.

South China Sea: The Contesting claims of China and Southeast Asian Nations

The world is divided into two ideological camps led by the USA and the Soviet Union and the Southeast Asian nations, which gained independence from the colonial powers, started to get engulfed under a new series of challenges in the form of secessionist movements and ethnic violence. Which is why there was a lack of diplomatic protests from the neighbouring states and the extra-regional powers when the map was first published in China. Until the 1970s, China concentrated on securing its land borders, and due to its weak naval forces, this period did not witness any naval confrontation over the islands of SCS. The Oil Crisis of the 1970s had a significant impact on Southeast Asian countries due to their dependence on crude oil imports from the Organization of Petroleum Exporting Countries (OPEC). The same period was characterized by the possibility of a vast source of hydrocarbon resources offshore of the SCS, which can also be regarded as another factor responsible for arousing the competing claims on the features of the SCS in the latter part of the twentieth century. Vietnam, the Philippines and Malaysia started to occupy insular features, mainly around the Spratly Islands, primarily to secure rights to hydrocarbon exploration.[16]

On January 19, 1974, China attacked and defeated the Vietnamese forces which were stationed in the Paracel islands, leading to the establishment of Chinese control over the same.[17] Soon after this incident, the Ministry of Foreign Affairs of the Republic of Vietnam issued a white paper in 1975 which stated that the Paracel and Spratly islands are an inalienable part of the territory of Vietnam based on its historical rights and regarded the acts of China as a violation of its sovereign rights.[18] Similarly, the President of the Philippines proclaimed on June 11, 1978, declaring ownership over Spratly islands and renamed it as Kalayaan Group of islands.[19] In the wake of the Third United Nations Convention on the Law of the Sea (UNCLOS) 1982, there was a significant change in how these countries started to perceive their maritime boundaries and associated their rights with their territorial boundary. The creation of the Exclusive Economic Zone (EEZ) by the Third UNCLOS of 1982 led to the Declaration of coastal state sovereignty over waters within 200 nautical miles (nm). The elimination of one-third of high seas, the vast presence of hydrocarbon resources in the EEZ and the possibility of generation of EEZ around small islets have resulted in a generation of interstate conflict, especially in areas of the semi-closed sea like SCS.[20]

Malaysia, one of the other claimant states in the SCS dispute, started officially occupying Swallow Reef in 1983 and Adraiser Reef in 1986, which fell within its EEZ. However, apart from mere diplomatic protest from China, no actions were taken against Malaysia. The second confrontation between China and Vietnam took place in March 1988, when the Chinese naval forces landed in the Johnson Reef, another feature of the Spratly Islands, and clashed with the Vietnamese naval forces, resulting in the killing of approximately 75 Vietnamese forces and destroying of one Vietnamese ship.[21] The conflictual developments in SCS went on escalating following the end of the Cold War, and the withdrawal of the Soviet and US forces from the bases in Cam Ranh Bay in Vietnam and Subic Bay in the Philippines which culminated in the creation of a power vacuum that allowed China to assert its claims on SCS more rigorously. On February 25, 1992, China’s People's Congress enacted the Law of the People's Republic of China on the Territorial Sea and Contiguous Zone, which considered all the four groups of islands in SCS as an integral part of China's land territory.[22] In the same year, China's first oil exploration contract was signed between Chinese National Offshore Oil Cooperation (CNOOC) and Crestone Energy Corporation of the United States in an area near the Vanguard Bank of the Spratly Islands, which overlapped with the already granted Vietnamese oil bloc.[23] In 1995, the Philippines discovered that China had built structures on the Mischief Reef, approximately 113 nautical miles from the coast of Palawan. In 1996, China announced its straight baselines, which are drawn from the outer limits of its territorial sea, consisting of two straight baselines.[24]

As mentioned in Article 7 of UNCLOS 1982, the use of a straight baseline is only applicable when the coastline is highly indented or fringed by islands, and in this case, China's coastline is neither high indented nor surrounded by fringed islands, which has invited much criticism from the international community. On June 26, 1998, the People's Republic of China enacted the law on the Exclusive Economic Zone and the Continental Shelf, which excluded China's historical rights on the SCS islands from the jurisdiction of the law.[25] Looking at the hastening of China’s assertive moves in the SCS, Malaysia in 1999 started to build up structures on the Investigator Shoal, Erica Reef, and Vietnam started to upgrade its structures in the Cornwallis South Reef. Alison Reef in the middle of Spratly islands and Taiwan started to upgrade the military structures on the Itu Aba.[26]

There was a brief period of peace between the claimant states and China following the signing of the non-binding agreement on the "Declaration of the Conduct of Parties in the South China Sea" among the member states ASEAN and China in 2002. However, tensions started to resurface again in 2007 when China protested Vietnam when the latter signed a contract with British Petroleum to exploit natural gas and lay pipelines from the Nam Con Son Basin to the Vietnamese Shore. 2009 was a watershed, primarily characterized by the intensification of claims through the mechanism of threat or legitimization of claims through legal acts. One significant incident occurred on March 8, 2009, when five Chinese vessels surrounded the USNS Impeccable and threatened to leave, which was believed to be conducting a hydrographic survey of China's Yulin ballistic submarine base, 75 miles away from the Hainan Island of China.[27] In the same year itself, the Philippines passed the Philippines Baseline Bill, which established its archipelagic baselines and even included the Kalayaan Group of Islands and Scarborough Shoal; which without any doubt attracted protests from China as this bill was considered a breach of China's sovereignty.[28] The first instance of internationalizing the SCS dispute was when a joint submission was made to the Commission on the Limits of Continental Shelf (CLCS) by Malaysia and Vietnam on May 6, 2009, under article 76 of the UNCLOS, relating to extending their continental shelf beyond 200 nm from their baselines along their mainland coasts into the southern sector of the SCS.[29] The next day, China submitted a Note Verbale attached with its nine-dash line map to the CLCS, claiming indisputable sovereignty over all the major four islands of SCS and its adjacent water.[30] This was the first time China exposed its map at an international level, and the possible hidden reason for doing so was to exert its rights on SCS and maintain the status quo of its influence.

Indonesia, which is mainly considered a non-claimant country in the SCS dispute, faced growing China's assertion when in June 2010, an Indonesian patrol boat captured a Chinese fishing boat which was caught illegally fishing near the Natuna Islands and was later forced to release under the repeated threats from the Chinese ships of the Bureau of Fisheries and Law Enforcement Command (FLEC/CFLE), Yuzheng 311.[31] In the same year, there were more than seven incidents in which the Chinese authorities seized nearly thirty-one Vietnamese fishing boats in the waters around Paracel and Spratly islands.[32] The continuous demonstration of adequate jurisdiction by China led to the pursuance of its claims more vehemently. Vietnam, which shares land and sea boundaries with China, is the worst-hit state amongst all the claimant states. In May 2011, Vietnam accused a Chinese patrol vessel of cutting seismic cables of the Vietnamese ship Binh Minh 02 that was operating in Vietnam's Block 148, about 65 miles off the Vietnamese coast and some 325 miles away from the coast of Hainan Island. Efforts were made between the two countries through the signing of the 'Six-point agreement' on October 11, 2011, to resolve the ongoing maritime dispute in the SCS and enhance ways for cooperative activities in the region.[33] In this sensitive environment of rising dispute and mutual distrust, the formal bilateral agreements started to act as mere paper works and formal obligations to sustain bilateral relations. On June 21, 2012, the Vietnamese National Assembly passed the "Law of the Sea of Vietnam", which provided a legal framework for maintaining the country's internal waters, facilitated maritime development and included both the Paracel and Spratly Islands within the preview of this law.[34] China responded when the CNOOC placed nine blocks for international tenders adjacent to the Vietnamese coast overlapping with the existing Vietnamese blocks.

The Scarborough Shoal standoff, which took place in the year 2012 between China and the Philippines, brought a new twist to the SCS when the latter unilaterally decided to take up China's assertion on Scarborough Shoal and its nine-dash line map to the Permanent Court of Arbitration (PCA) on January 2013. Under Article 298 of the UNCLOS, China decided neither to take part in the proceedings nor abide by its final verdict. Philippine's attempt to internationalize the SCS dispute confined within the region had a reverse impact as China continued to intensify its claims on SCS and even threatened its neighbouring countries. On March 26, 2013, the Indonesian vessel of Hiu Macan 001 of the Ministry of Maritime Affairs encountered a Chinese fishing boat within the Indonesian EEZ near the Natuna Islands and imprisoned the illegal Chinese fishers. The Chinese Yuzheng 310, fully armed, successfully persuaded and threatened the Indonesian vessel and resulted in the release of the Chinese fishers and their boats.[35] Until 2013, no oil rigs were deployed by China in any disputed areas due to the reluctance of the Chinese oil companies to operate in the area of the dispute and the enormous expenses required for laying the subsea pipelines. China's stance got reversed when in May 2014, the CNOOC moved the mobile rig Haiyang Shiyou 981 into the waters just 17 nm away from the Paracel and 120 miles from the coast of Vietnam for exploration and drilling.[36] The artificial alteration, land reclamation and militarization of islands by the Chinese peaked in 2015 when Mischief Reef, Subi Reef and Fiery Cross Reef have transformed with 3,000-metre (m) runway helipad, radar home and surveillance tower and possible satellite communication facilities.[37]

Malaysia, which shares a very cordial relationship with China, also experienced the rising intensity of the tensions in the SCS dispute when the Luconia Shoal incident took place in 2015. It was found that a Chinese coast guard ship was keeping the Malaysian fishers away from the fishing grounds nearby the Luconia Shoal. In 2016, tension seemed to rebuild again between Indonesia and China after a new incident of standoff took place in the close vicinity of the Natuna islands after a patrol boat of the Indonesian Ministry of Fishery and Marine Affairs (KKP), KP Hiu 11, seized a 300-ton Chinese Fishing boat; Kway Fey 10078 and detained the eight Chinese Fishermen.[38] A Chinese maritime law enforcement vessel physically intervened to free the Chinese fishing boat, but the Indonesian authorities detained the Chinese fishers. Another standoff followed on June 17, 2016, when the Indonesian Navy ship KRI Imam Bonjol-368 captured an illegal Chinese fishing trawler, the Han Tan Cou 19038 and detained its seven. China demanded the release of the Chinese boat, but Indonesia did not consider its demand. In the same year, the Malaysian Marine Enforcement Agency (MMEA) discovered about a hundred Chinese vessels sailing close to the Luconia Shoal.[39]

The improvement in China's military ability helped it to project its assertion vehemently on SCS without abiding by the bilateral negotiations or dealings held between China and the concerned claimant countries. China's stance towards its military strategy became distinct after it published the white papers in the year 2015 on 'China's Military Strategy. China is determined to safeguard its maritime rights and interests by enlarging the modern military force structure.[40] The legitimacy backed by China's defence strategy forces regional countries to either increase their defence expenditure or forge defence ties with powerful states like the US and Russia.

ASEAN’S Diplomacy

After the end of the Second World War, the process of independence from the colonial power engulfed the Southeast Asian region. Normalcy was far from reality as the region soon became a battleground of the Cold war ideological blocs of the US and the former Soviet Union. China became a communist regime with the formation of the People's Republic of China in 1948 and started actively supporting the communist forces and guerilla war, especially in Indonesia, Malaysia and Vietnam. The infamous 1965 Gestapu Affair in Indonesia, Konfrontasi (1963-66) between Malaysia and Indonesia, the armed struggle of the Malay Communist Party against west Malaysia in 1968 and the armed rebellion between communist North Vietnam and South Vietnam from 1964, which involved China who laid support to the communist forces unconditionally. In this environment of ongoing turmoil and instability, Thailand, Malaysia, the Philippines and later Indonesia formed the Foundation of the Association of Southeast Asia in 1961 and MAPHILINDO in 1963.[41] Finally, on August 8, 1967, the Association of Southeast Asian Nations (ASEAN) was formed with Thailand's adoption of the Bangkok Declaration. Indonesia, Malaysia, Singapore and the Philippines.[42] The primary aim of this newly formed regional organization was to infuse economic growth in the region and, most importantly, to accelerate cooperation among member states to bring peace and stability. ASEAN's institutional design is based on a political culture of consensus in the decision-making process and on the non-legally binding nature of decisions. ASEAN Treaty of Amity and Cooperation was signed on February 24, 1976, clearly laid out the principles of conflict management under the United Nations Charter.[43]

The initiative to bring collective attention of the Southeast Asian countries towards the escalation of the conflicting claims was first taken by Indonesia by hosting the annual workshop on "Managing Potential Conflicts in the South China Sea" in the 1990s.[44] The dispute in SCS was not a matter of concern in ASEAN until the end of the Cold War and after it opened its membership to Vietnam, Myanmar, Laos and Cambodia. The withdrawal of the Soviet naval forces from Canh Bay in Vietnam and US forces from Subic Bay in the Philippines created a power vacuum in the region, which paved the way for China to fill the empty spaces by asserting itself as a significant regional power. China was first invited as a guest at the ASEAN Ministerial Meeting (AMM) in 1991, the consultative Partner of ARF in 1994, and finally, in 1996, China became a dialogue partner.[45] The concerns relating to the dispute in SCS were first addressed in ASEAN during the 25th AMM held in July 1992 by the ASEAN Foreign Ministers after China passed the 1992 Law on Territorial Sea and Contiguous Zone.[46] The Manila Declaration or ASEAN Declaration on the South China Sea of July 22, 1992, was the first official position of ASEAN on SCS. This Declaration recognized the unpropitious developments and volatility of any conflict about sovereignty in SCS and its adverse impact on the Southeast Asian region, emphasized peaceful means of negotiations through suitable confidence-building measures (CBM), and suggested negotiating a "code of international conduct" for resolution of any disputes.[47]

The legally non-binding nature of the Manila Declaration was not enough to check China's assertive claims and actions on SCS. The Declaration also called all the parties to work for the code of conduct on SCS. China refrained from having any multilateral agreement and insisted on bilateral agreements with the countries in dispute. After the Mischief Reef incident of 1995, there was a change in China's strategy toward ASEAN. China started to exercise its "charm offensive", a form of soft power. Following the Asian Financial Crisis of 1997, China came to the rescue of the affected Southeast Asian nations and led to the building of strong economic relations with these countries. Since the equation of bilateral relations between China and other Southeast Asian countries was not uniform, this soon manifested during the Third Informal ASEAN Summit in November 1999; the Philippines, supported by Vietnam, proposed a more stringent and legally binding COC.

On the other hand, Malaysia and supported China, which had good bilateral relations with the latter, rejected the plea and proposed a less stringent version of COC. Due to the persistent disagreements among the member states, this Summit ended without adopting COC. In March 2000, ASEAN and China exchanged their respective drafts on COC so that both the drafts would be compiled into one document at the end.[48] The outcome of these talks was the “Declaration on the Conduct of Parties in the South China Sea”, which was signed on November 4, 2002.[49] The cardinal aim of ASEAN’s 2002 COC was to safeguard the present state of affairs regarding the engrossment of atolls and reefs and stimulate a domain for cooperative dialogue and activities for the peaceful settlement of disputes. The lack of enforcement mechanism and sanctions on the violators of the COC and the non-inclusion of the sovereignty issues concerning the specific islands of SCS added to the weakness of the COC. However, despite all the loopholes, ASEAN continued to forge a deeper relationship with China.

The Seventh ASEAN-China Summit held on October 8 2003, in Bali, Indonesia, formulated the Plan of Action, which aimed to serve as a "master plan" to deepen and broaden the ASEAN-China relations and cooperation in a comprehensive and mutually beneficial manner for the next five years (2005-2010).[50] In 2004, CNOOC and the Philippines National Oil Company (PNOC) signed the Agreement for Joint Marine Seismic Undertaking in certain areas in SCS. Again in 2005, the Tripartite Agreement for Joint Marine Seismic Undertaking in SCS was signed between the national oil companies of China, the Philippines and Vietnam.[51] The ASEAN –China Joint Working Group (JWC) was set up in August 2005, which held the vision to translate the provisions of the DOC into tangible cooperative activities. Initially, it was decided that the JWG would meet at least twice a year and submit its report and recommendations to the ASEAN-China Senior Official Meeting (SOM) at the end of each meeting. The disagreements over the presence of a sentence in the original DOC- "ASEAN will continue its current practice of consulting among each other before meeting with China" created obstacles to reaching an early agreement. After the removal of the sentence and six years of negotiations, the DOC agreement was finally adopted in 2011.[52]

The fact that the member states of ASEAN put indispensable efforts into resolving any dispute came to light after the Philippines circulated an informal working draft titled "Philippines Draft Code of Conduct."[53] The ASEAN Senior Officers Meeting (SOM), held on June 13, 2012, agreed to review the ASEAN'S Proposed Element of a Regional Code of Conduct in the SCS. The most striking part of the ASEAN's draft on COC was that it did not consider the principles of the Philippines Draft Code of Conduct and even deleted five principles.[54] The impact of China's economic influence on the Southeast Asian countries, especially Cambodia, one of the most prominent receptors of Chinese funds and investments for its development, harmed the Summit. In July 2012, the 45th ASEAN-Foreign Minister Meeting was held in Cambodia, which ended without a joint statement on DOC due to the insistence of the Philippines and Vietnam to include the incidents of Scarborough Shoal and oil exploration by the Chinese National Offshore Oil Company in Vietnam's EEZ which Cambodia backed by China vehemently objected. The much-hyped news circulated by media regarding the failure of the 45th ASEAN-Foreign Ministers Meeting to produce a joint statement overshadowed the efforts made by Indonesia to rebuild consensus. Finally, Cambodia was made to officially release "ASEAN's Six-Point Principles on the South China Sea."[55] In the same year July, Indonesia produced a "Zero Draft Code of Conduct for the South China Sea", which included provisions for confidence building, conflict resolution and conflict management, which drew from the UNCLOS of 1982, Treaty of Unity and Cooperation, DOC of 2002, five principles of peaceful Co-existence and on the agreed elements of COC in July 2012.[56]

Positive developments occurred during the 15th ASEAN-China Summit, which was held on November 19, 2012, marked the 10th anniversary of the DOC. On this occasion, China proposed to fund $442 million to set up the China-ASEAN Maritime Cooperation to promote cooperation in marine scientific research, connectivity and navigation safety, mainly to implement agreed cooperative activities and projects within the DOC framework.[57] Another instance of efforts by ASEAN member states can be noted when Thailand, a non-claimant country in the SCS dispute, hosted the ASEAN-China Senior Officer's Meeting Retreat in Pattaya on October 29, 2012. In the following year, 2013, it also hosted four crucial meetings, which ultimately resulted in the inauguration of the first official negotiation on COC and the promotion of 2011 guidelines for the implementation of the Doc.[58] In August 2014, on the 47th AMM, China promulgated the dual-track posture of direct bilateral negotiation with the claimant countries and multilateral discussion with ASEAN to promote “peace and stability in the region”.

International Responses to SCS dispute

Interestingly, despite the progress in ASEAN-China relations and the efforts of ASEAN's diplomacy to continue agreements with China related to SCS, the cracks in mutual trust started emerging after China again began to reassert its claims on SCS through various persuasive measures in 2007. The ASEAN member-states, especially Vietnam and the Philippines, were kin to involve the extra-regional powers like US and Russia in meetings of ASEAN because these countries could balance out the power of China. ASEAN adopted an institutional balancing strategy by creating multilateral and security institutions like the ARF, EAS, and ADMM-PLUS to shape a regional order and form rules based on a common consensus.[59]

The 2005 Kuala Lumpur Declaration laid the foundation of the EAS, where the ASEAN member states and other extra-regional powers like Australia, China, India, Japan, South Korea and New Zealand took part primarily to discuss traditional and non-traditional security issues.[60] The 8th East Asia Summit of 2013 officially made Russia and the USA its members, and for the first time, the EAS included maritime security issues.[61] Since 2005, the issue of SCS was neither mentioned nor discussed in the EAS. It was only during the 10th EAS, 2015, that the issue of SCS was discussed, and serious concerns were raised because the recent developments triggered tensions and the mutual distrust among China and ASEAN member states.[62] Subsequently, the ADMM was formed in 2006 to facilitate defence-related norms, rules and cooperation in non-traditional security among the ASEAN states. Previously ADMM was an intra-ASEAN member, but when in 2010, Vietnam chaired ASEAN and talked about the inclusion of extra-regional powers in the ADMM; which began to gain momentum and ultimately led to the establishment of the ADMM-PLUS in 2010 and was comprised of ten ASEAN members states and eight dialogue members namely- Australia, China, New Zealand, India, Japan, South Korea, Russia and USA. This security institution emphasizes defence diplomacy and joint military exercises to facilitate CBM measures. These different institutions of ASEAN cannot exert pressure on China to maintain a regional equilibrium by restricting its disturbing and violative activities in the SCS.

Significant international responses towards this issue were generated after the Philippines unilaterally declared to take the matter of China's assertion on Scarborough Shoal and its claims based on a nine-dash line map to the PCA in January 2013.[63] Although China shielded itself from the proceedings, participating and abiding by the judgement of the Tribunal with the application of Article 298 of UNCLOS, China went ahead with its claims on SCS. On December 7, 2014, China issued a 'Position Paper’ in response to the Philippines arbitration, asserting the former's indisputable sovereignty over the South China Sea islands and the adjacent water, which dates back to 2,000 years and also stated that the sovereignty over land territory is the basis of determination over the maritime rights.[64]

Another international platform where concerns regarding the SCS dispute rose during the 15th Asia Security Summit of the IISS Shangri-La Dialogue, which took place from 3rd –5th June 2016, highlighted the ongoing tensions in SCS and the need for cooperation to maintain peace and stability in this area. However, the dialogue also witnessed the differences in the conception of freedom of navigation between China and the United States. Professor Jia Qingguo of Peking University stated that China does not give other countries the right to sail foreign military ships and aircraft close to other countries' coasts. Dr Ashton Carter, the then US Secretary of Defence, replied that the US abides by the international law of freedom of navigation in the sea and air and solely aims to focus on applying the law. He also further stated that America's efforts to maintain an inclusive security network had been alarmed by the kind of activities that China has engaged in, like the artificial alteration and militarisation of islands which has further destabilized the regional stability.[65]

A month later, on July 12, 2016, the Tribunal gave its verdict, which pointed out that China's claims on SCS based on historical rights are null and void because it failed to provide evidence of prolonged and exclusive Chinese controls over the islands of SCS.[66] The very next day, on July 13, The State Council of the People's Republic of China came out with a white paper reemphasizing its sovereignty over the Spratly Islands, which were established during history and criticized the unilateral move of the Philippines to take it to PCA provoking further complication of the bilateral dispute.[67] ASEAN addressed the escalating developments during the 49th ASEAN Foreign Minister Meeting by reaffirming the importance of maintaining and promoting peace and confidence and emphasized increasing the frequency of ASEAN-China SOM and JWG Meeting on the implementation of DOC.[68]

China's cooperation in abiding by the ruling of the Tribunal lasted for a short period when fresh episodes of contentions started to resurface again when in mid-June 2017, China forcibly stopped Vietnam's oil-drilling operation in Block 136-03, which the Talisman Vietnam carried, an auxiliary of the Spanish energy firm Repsol.[69] In May 2018, China installed anti-ship cruise missiles, surface-to-air missile systems, and electronic jammers in Fiery Cross Reef, Subi Reef and Mischief Reef in the Spratly Islands.[70] The activities of China highlight the fact that the unresolved question of sovereignty, as well as the militarisation of the features of SCS, is hanging like the 'Sword of Damocles' on all the Southeast Asian countries with counterclaims.

Based on personal interaction with Dr Nguyen Xuan Trung, the Director of Vietnam Institute of Indian and Southwest Asian Studies (VASS) at NIAS-ICWA Dialogue, the past and present Chinese activities near the offshore oil exploration units of Vietnam have created an atmosphere of apprehension in Vietnam.[71] However, according to Dr Nguyen Xuan Trung, Vietnam maintains a robust economic relationship with China and the fact that China is Vietnam's next-door neighbour, the latter is unable to take decisive actions against the former because of security concerns and economic dependence. China's projection of power in the maritime domain has posed challenges to the security and development of Vietnam. Another aspect of this issue is that China is the "trade dragon" in the Asian and Southeast Asian regions, making it further complicated and less feasible for the affected regions in the SCS dispute to take a united and firm stance against China.

Conclusion

The increasing ambition of China, as well as other Southeast Asian nations, to extend strategic space into the maritime periphery is associated with their national security because the borderline between maritime freedom and national security is eroding. The military actions taken by any state to reduce its vulnerability are generally seen as a threat by other states, and this infuses an action-reaction dynamic which eventually leads to a domino effect. The other issue is the lack of consensus among these countries regarding maritime cooperation, as they are more concerned about maritime rights and entitlements than solving the dispute unanimously. The role of ASEAN is significant for the proper implementation of the COC, paving the way for strengthening maritime security governance. Further, the smooth functioning of the COC will depend on its binding nature, the extent of obligations imposed on the countries and the optimism to solve the dispute peacefully. Another aspect is the evolving institutional strategy of ASEAN with the changes in the distribution of power in the region along with the rise of China. Through the creation of EAS and ADMM-PLUS and the inclusion of the USA, it has started to act as a watchdog of China's behaviour in SCS. Apart from ASEAN, it also depends on the strength of the regional conflict prevention strategy.

China's justification for acquiring islands and its military alteration is supported by its much-hyped 'Malacca Dilemma' and protection of SLOC. Only one strait in any region makes it a chokepoint like the strait of Hormuz in the Middle East. However, Southeast Asia comprises more than three straits, making China's argument vague. According to the UNCLOS, the artificial alteration of islands does not make them eligible for the creation of neither EEZ nor airspace. Nevertheless, the fact is that geopolitics is prime can be analysed on how China is sternly pursuing its ambitious maritime rights and keeping a close eye on how the US and its regional allies like the Philippines are operating in SCS. Full-scale escalation of war regarding SCS is too far from reality because China will not likely take steps to ruin its regional dominance and bring a change in the status quo. The extreme asymmetry of power, which has developed in the present times due to the SCS dispute, is not favourable in the long run. The need of the hour is to create capacity among the regional and extra-regional powers to bring an equilibrium for a balance of power.

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63. In brief, the Philippines raised three issues such as the violation and interference of the Philippines's fishing rights around the Scarborough Shoal by China, clarification on whether all the features in the South China Sea are technically qualified to be treated as islands and generating EEZ of its own and the legality of China's Nine-dashed line map. Manoj Joshi, “The South China Sea Disputes: Territorial Claims, Geopolitics and International Law,” Observer Research Foundation Occasional Paper, https://www.orfonline.org/research/the-south-china-sea-disputes-territorial-claims-geopolitics-and-international-law/#_edn29

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66. Even though the Tribunal did not have the jurisdiction to scrutinize the contending claims of sovereignty over SCS, it should be noted that all the features of SCS are not naturally equipped to support human habitation and hence cannot support any economic activity. The artificial alteration of the islands by China does not make the islands eligible to generate an economic zone, neither technically nor legally. The Tribunal also stated that China's assertive actions in the EEZ of the Philippines by interfering in the latter's fishing rights and explorations of natural resources have led to an aggravation of tensions. Permanent Court of Arbitration, PCA Press Release: The South China Sea Arbitration (The Republic of Philippines vs The People's Republic of China), https://pca-cpa.org/.../pca-press-release-the-south-china-sea-arbitration-the-%20republic-of-the-philippines-v-the-peoples-republic-of-china/ (accessed on April 13, 2019).

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