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In disputed South China Sea, ASEAN claimant states are neither friends nor foes

2020-03-18 14:31:43       source:NISCSS

March 18, 2020

Over the past decade, the Philippines has viewed China as its biggest challenger in the contested South China Sea. But even as it shares a common rival in Beijing with other Southeast Asian claimant states, Manila has also sought to reject bids by its neighbours in the contested waterway.


Earlier this month, the Philippines sent a diplomatic note urging the UN’s Commission on the Limits of the Continental Shelf (CLCS) against considering Malaysia’s submission to partially expand its continental shelf – which refers to the outer 200-nautical-mile area extending from a state’s shoreline – in the South China Sea.


Manila noted that Malaysia’s submission lays claim to areas that overlap with Philippine’s continental shelf, and also pointed that the controversy resulted from the territorial claims on the features within the “Kalayaan Island Group” and North Borneo, over which the Philippines claims sovereignty.


This was not the first time the Philippines has attempted to get the CLCS to reject Malaysia’s submission. In 2009, Manila protested against a joint submission made by Malaysia and Vietnam.


Competing claims over maritime jurisdictions in the South China Sea – a mineral-rich waterway which sees the movement of more than US$3.4 trillion worth of goods every year – have been a source of distrust and tension in the region. Despite many efforts to manage the conflict, the disputes seem to be politically deadlocked.


On the one hand, claimants from the Association of Southeast Asian Nations (Asean) – the Philippines, Vietnam, Malaysia and Indonesia – have banded together to protest against China’s claims in the sea, noting that the Chinese position is inconsistent with international law, including the UN Convention on the Law of the Sea. 


Beijing claims the sovereignty over the four off-shore archipelagoes and different types of maritime jurisdiction within the "nine-dash line" in the South China Sea .However, given the legal and political measures taken by the claimants in the past few years, it’s reasonable to assumed that China will face a mass of difficulties to settle the disputes bilaterally for the direct parties in the future.


On the other hand, the individual claimants have separate issues of sovereignty and territorial rights to the waters and even the seabed underneath. 


In May 2009, Malaysia and Vietnam made a joint submission to the CLCS in the southern part of the sea. Just a day later, Vietnam independently made a partial submission regarding an area in the north of the waterway – a region also contested by the Philippines and China. 


In December 2019, Malaysia made a partial submission to extend its continental shelf in the South China Sea.


The Philippines and China – which do not have any submissions to the extended continental shelf in the South China Sea so far– each protested the joint and individual submissions made by Malaysia and Vietnam.


According to its regulations, the CLCS will not consider any submission made by a state that is a party to a dispute until it is first resolved. Therefore, the CLCS is likely to defer further its consideration of the submissions by coastal states bordering the South China Sea when objections are raised over the territorial and maritime claims.


In its note to the UN, the Philippines also dismissed China’s rejection of Malaysia’s submission, showing explicit support for the 2016 Tribunal Award that qualified all insular features on the Spratly Islands’ archipelago as having only 12 nautical miles of territorial sea, and no claim to generating their own exclusive economic zones and continental shelves.


In July 2016, the Hague tribunal issued an arbitration award which was overwhelmingly in favour of the Philippines. China insisted that both the arbitral procedure and the award were null and void.


While Manila has not pursued the decision in its bilateral meetings with Beijing over the past three years, the Philippines has continued maintaining in the international arena that the award against China is binding. It has cited the ruling as endorsement for its claims and actions in the South China Sea, such as the construction of a new beaching ramp at Thitu Island in the Spratly archipelago.


Other claimant states have also conducted their maritime activities based on The Hague’s award.


In a letter by the Vietnam Society of International Law (VSIL) to the Chinese Society of International Law (CSIL) last October, Hanoi cited the award as a legal reason for its oil- and gas-drilling operations in the adjacent waters of the disputed Vanguard Bank. It also indicated that it would follow in the Philippines' footsteps by submitting the Sino-Vietnamese disputes to an international court or arbitral tribunal to seek a compulsory settlement. 


In January, Jakarta protested vehemently after it identified Chinese fishing and coastguard vessels near Natuna Islands, and invoked The Hague’s decision based on which there would be no disputed waters between China and Indonesia.


The communications on the extended continental shelf submission between the claimants at the UN level seems just like another chapter of lawfare, in the context of continuing maritime disputes in this region.

Although it remains to be seen how China, Malaysia, Vietnam and Indonesia will respond on this issue, the impact of the situation should not be overlooked, given the development of the controversies after the South China Sea arbitration. 


In the short term, it has increased tensions in the South China Sea and created more obstacles for the code of conduct negotiations, while in the long term, it may affect maritime functional cooperation and the improvement of political trust between the littoral states.

Ding Duo is an associate research fellow at the National Institute for South China Sea Studies in Hainan, China.


The NISCSS is authorized to re-publish this article on its website.