What do recent diplomatic notes tell us about ASEAN-China tensions?
What do recent diplomatic notes tell us about ASEAN-China tensions?
WRITTEN BY TRANG PHAM
8 September 2020
The Commission of the Limits of Continental Shelf (CLCS) at the United Nations has recently witnessed a series of Note Verbales exchanged between the ASEAN countries, Malaysia, the Philippines and Vietnam, and China regarding the tensions in the South China Sea.
It started in December 2019 when Malaysia submitted their extended continental shelf in the South China Sea to the CLCS. This action provoked an immediate diplomatic response from Beijing. In a Note Verbale, Chinese diplomats at the UN reaffirmed the narrative regarding historic rights in the South China Sea. Alongside this, Beijing also claimed that maritime features in the Paracels and Spratlys archipelagoes (which China refers to as the Nanhai Zhudao), can generate legal sea-zones around them; therefore, Malaysia’s extended continental shelf would overlap.
As a result, Beijing asked the CLCS not to consider the submission of Malaysia. This Note Verbale from China, however, is, for long term observers of the dispute nothing more than old wine; China’s diplomatic note repeated almost all the same claims from its Note Verbal in 2009 against the joint-submission made then by Malaysia and Vietnam.
Enter the Philippines and Vietnam
The story took a new turn when the Philippines, in one of two Note Verbales submitted to the UN on the same issue, debunked Beijing’s position. By doing so, the Philippines invoked the 2016 Award by the Permanent Court of Arbitration (PCA) in its case against Beijing in the South China Sea. This is the first time that Manila under Rodrigo Duterte has officially cited the Award as the legal basis of its arguments against China in a public platform. Accordingly, China’s historic rights in the South China Sea are illegal, and no maritime feature in the Spratly archipelago can lawfully generate entitlement to an exclusive economic zone and continental shelf. Indeed the Philippines went further than Malaysia in repudiating the legality of China’s entire baseline system around the Spratlys.
The arguments made by the Philippines and Vietnam about the legal status of maritime features in the South China Sea are in line with the 2016 PCA Award; on the other hand, China has denied such an analysis and has continued to assert itself in the littorals through sheer force of will.
The Philippines recent diplomatic moves served to antagonise China and manifested in Beijing’s subsequent Note Verbale which was submitted to the United Nations in response. In this document, Beijing’s mission sought to push the Philippines to return to "the right track of settling maritime disputes” through negotiation and consultation. Beijing also flagrantly denied the 2016 PCA award was an international lawsuit in which China was legally bound as a party.
After that, Vietnam entered the fray by issuing a Note Verbale directly challenging the position of China. Hanoi declared that the 1982 Law of the Sea Convention (UNCLOS) is the sole legal basis for a comprehensive determination of maritime entitlements at sea. Particularly, Hanoi reaffirmed that the legal status of high-tide maritime features in the Paracel and Spratly archipelagos should be judged according to article 121(3) of UNCLOS. Vietnam rejected Beijing’s historic rights in the South China Sea and in the same vein, Hanoi opposed the practice of drawing straight baseline systems around archipelagos.
A new phase in the South China Sea?
These recent cables between ASEAN and Chinese diplomatic missions at the UN have indicated a new development in the chronic disputes in the South China Sea. First, it unveils a critical dichotomy between ASEAN capitals and Beijing's’ perceptions regarding the South China Sea disputes. While the Philippines and Vietnam have consistently stressed the application of UNCLOS as the most important mechanism to resolve disputed issues, China has relied on historic rights, the claim whose legality was rejected by the 2016 PCA arbitration ruling. Furthermore, the arguments made by the Philippines and Vietnam about the legal status of maritime features in the South China Sea are in line with the 2016 PCA Award; on the other hand, China has denied such an analysis and has continued to assert itself in the littorals through sheer force of will.
Second, Manila’s Note Verbale marks the first time the Philippines has sought to invoke the South China Sea Arbitration’s Award in public via an international platform, the United Nations. This ruling was neglected by Duterte before, even though Manila was the winner in the lawsuit. This change in behaviour may indicate a new development in this intricate conflict. Since the Award has discharged the legal legitimacy of China’s excessive claims, it may pave the way for international opprobrium on Beijing’s increasingly aggressive actions towards weaker countries in the region. For instance, the United States and the Philippines both issued statements expressing their respective concerns over the sinking of Vietnamese fishing vessels by Chinese coast guard ships.
Finally, Hanoi’s Note Verbale also marks the first time Vietnam has stated in print, direct and detailed legal viewpoints, concerning its entitlement to maritime features in the South China Sea. It may signal an important move on the part of Hanoi towards international litigation of the dispute vis-a-vis Beijing. Under UNCLOS, states are obliged to exchange their views related to a dispute before proceeding to a lawsuit before an international tribunal. Diplomatic communication and exchanges on the disputes could be considered as one of the pieces of evidence of such obligation. After a moratorium in any legal actions amidst continuous calls for an international lawsuit, Hanoi seems to be more open to a third-party judicial mechanism.
The expeditious exchanging of Note Verbales between ASEAN countries and China at the UN may hint towards an interesting turning point in the evolving South China Sea disputes. That said — it could also lead to a maelstrom of more aggression at sea or another intensive legal battle.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biography
Trang Pham is a Lecturer at the Faculty of International Relation at Vietnam National University. Image credit: Jaws300/Flickr.