Pearls and Irritations

Its illegal actions and attempts at intimidation are fostering resentment among South-East Asian nations — and playing into the hands of the US.

China has been making good progress in its soft power contest with the US for dominance in South-East Asia and the South China Sea. But if it continues with its increasingly belligerent approach in the South China Sea, it could well lose much of the soft power gains it has made.

China has been making good progress in its soft-power contest with the US for dominance in South-East Asia and the South China Sea. Indeed its relationship with ASEAN has now been elevated to a “comprehensive strategic partnership” in which the countries try to align their laws and security. But with its recent aggressive and — in rival claimants’ eyes — illegal actions in the South China Sea, it is in danger of snatching failure from the jaws of success.

China has long been ambiguous about what its historic nine-dash line claim means. But it has now become evident that it includes jurisdiction over resources and activities within it. This is directly contrary to the UN Convention on the Law of the Sea (UNCLOS) to which it is a party, as well as the international arbitration decision discrediting this claim.

Adding to the growing concern are its new laws authorising its coast guard to use force to defend its “sovereignty, sovereign rights, and jurisdiction”, and requiring prior notification for ”submersibles, nuclear vessels, ships carrying radioactive materials, ships carrying bulk oil, chemicals, liquefied gas and other toxic and harmful substances” to enter its territorial waters. Concerning but ambiguous is what it claims as water under its jurisdiction and its territorial waters. Some worry that this may include the waters within its nine-dash line claim. As China shows its hand and bares its teeth, rival claimants are recoiling into aligned opposition. And the US is taking every political advantage of these “own goals”.

What is the evidence? China has formally objected to drilling in Indonesia’s legal exclusive economic zone (EEZ) and continental shelf. According to a member of Indonesia’s parliamentary national security committee, Indonesia’s foreign ministry received a letter from an unnamed Chinese diplomat that told Indonesia to halt the drilling “because it was taking place in Chinese territory”. This official act confirmed China’s intent to enforce its historical nine-dash line claim or, alternatively, its undeclared claims to EEZs from the rocks it claims in the Spratlys. Both have been invalidated by an international arbitration panel. As the source said, it was worrying because “it was the first effort of China’s diplomats to push their nine-dash line agenda against our rights under the Law of the Sea”.

This came on the heels of China preventing the Philippines from resupplying its troops on Second Thomas Shoal. China’s foreign ministry spokesperson Zhao Lijian said its coast guard had performed official duties in accordance with law and upheld China’s “territorial sovereignty”. As retired Philippines Supreme Court judge Antonio Carpio said: “This is really the first time China used its coast guard law against the Philippines.”

After the Philippines vigorously protested, China allowed a second resupply attempt to proceed unmolested. But it then demanded the Philippines remove the purposely beached wreck on the reef harbouring the troops. Moreover, China reportedly imposed two conditions on Philippine resupply missions: no increase in troops stationed there or provision of high-powered weapons; and no transfer of materials for repair of the vessel or for building on the reef. These acts and demands violated UNCLOS because Second Thomas Shoal is a low-tide feature located on the Philippines’ legitimate continental shelf and within its EEZ and not claimable by any nation as sovereign territory.

An alternative explanation for China’s actions is that it claims the entire archipelago including the waters between the features. But according to UNCLOS, a non-archipelagic state cannot claim an entire archipelago — only the high-tide features themselves and their 12 nautical mile territorial seas.

In October, Malaysia protested against the presence of Chinese vessels including a survey vessel in its legitimate EEZ. The vessels were operating in and — according to some — harassing Petronas drilling operations in Malaysia’s Kasawari gas field off Sarawak. There is a possible minor complication: both China and Malaysia claim Luconia Breakers, a legal rock in the area. But unless the Chinese survey vessel was only operating in the 12 nautical mile territorial sea around the rock, it was violating Malaysia’s laws and rights.

There is no such possible excuse for Chinese fishing boats and their coast guard escorts intruding into Indonesia’s EEZ north and east of the Natuna islands or for a Chinese research ship’s intrusion into Indonesia’s oil block D-Alpha. Under UNCLOS, these waters, fish and petroleum are clearly within Indonesia’s jurisdiction, yet China said its vessels were “carrying out normal patrol activities in waters under Chinese jurisdiction”.

Numerous maritime incidents between Vietnam and China have generated headlines. But they have been discounted by other South-East Asian states as a product of the peculiar Vietnam-China love-hate relationship, as well as a clash of legitimate claims to the Paracel Islands and the continental shelf and EEZ extending from them. China’s claims to some parts of Vietnam’s continental shelf and EEZ are not supported by UNCLOS, but the presence of conflicting legitimate claims muddies the waters.

China keeps saying it will not seek dominance over South-East Asia. Indeed, President Xi Jinping recently told his ASEAN counterparts that China would not seek hegemony or bully smaller countries. But to South-East Asian states, that is exactly what it seems to be doing in the South China Sea.

Legal differences are one thing. But a big power like China trying to enforce its views against smaller states smacks of bullying and is reminiscent of the US behaviour that China criticises. As China’s intent to enforce its nine-dash line claim becomes increasingly evident, it is losing its soft-power gains. Some South-East Asian states are very sensitive to any whiff of attitudes similar to those of their previous colonial and post-colonial masters.

China must learn from the mistakes of the colonial powers, otherwise it could result in a negative reaction from many South-East Asian states. In a worst-case scenario for Beijing, some could unite against it as a neo-imperialistic power. This would be a serious blow to China’s soft power in the region – and a great fillip for US soft and hard power there. The European Union is already buying into the US “red herring” that China is a threat to commercial freedom of navigation. China’s recent law requiring even some merchant ships to give prior notification before entering its territorial waters and its blocking of Philippine civilian supply boats give this red herring new life.

China’s continuing violations of UNCLOS despite rival claimants’ objections and pleas play right into the American narrative that China is defying the existing international order and is bent on bullying the region into submission.

Xi Jinping recently told the politburo that China needs “to tell its story better and win the struggle to be more loveable”. He is right. China can salvage relations with rival claimants in the South China Sea and South-East Asia as a whole. It has the advantage of geographic proximity and the aura of inevitability. Although it may try, the West cannot match China’s economic prowess and largesse. Continued ambiguity and less aggression in the South China Sea would help.

But if China continues its increasingly belligerent approach in the South China Sea, it could well lose much of the soft-power progress it has made in South-East Asia.

A shorter version of this piece appeared in the South China Morning Post.

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