China has been at the receiving end of International criticism after more than 200 of its fishing vessels were detected anchored in Whitsun Reef in the South China Sea. The Foreign Ministry spokesperson Hua Chunying defended and clarified that the Chinese boats were seeking shelter due to bad weather. Furthermore, these “boats have been fishing in the waters near the reef all along. Recently, due to maritime situation, some fishing boats have been taking shelter from the wind near [Whitsun Reef], which is quite normal.” However, he Philippines Department of Foreign Affairs labelled the presence of the Chinese boats as “swarming and threatening”, and lodged two protests pressing the Chinese government to withdraw these vessels from the disputed reef.
Vietnam too questioned the presence of Chinese vessels operating at Bai Ba Dau (Whitsun Reef) in Vietnam’s Truong Sa (Spratly) archipelago. The Vietnamese Spokesperson Le Thi Thu Hang called on China to stop infringement of its territory, and urged Beijing to uphold “respect for the sovereignty of Vietnam; goodwill to implement UNCLOS; strictly comply with the DOC, especially the obligation to restrain, not complicate the situation; creating a favorable environment for the COC negotiation process; contribute to maintaining peace, security, stability and legal order at sea in the region”.
Vietnam’s choice of recalling the 1982 UNCLOS and the 2002 DOC to impress upon the Chinese government to withdraw its fishing vessels from Truong Sa merits attention from legal, diplomatic and military angles. From a legal perspective, under Article 279 of Part XV of the 1982 UNCLOS “Settlement of Disputes”, the signatory States have an “obligation to settle disputes by peaceful means” and towards that end, they “shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter”. In this context, China has violated Article 279 of 1982 UNCLOS given that it has misused its military power to coerce other claimants.
As far as diplomatic issues are concerned, ASEAN and China agreed to the adoption of the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC) and also staying committed to it. It is nearly a two-decade old commitment and is the basis for settlement of disputes in the South China Sea among the claimant States. Although the first reading of the Single Draft COC Negotiating Text has been completed, there is hardly any noteworthy progress towards its finalisation. This was also conveyed to the Chinese side in Chairman’s Statement of the 36th ASEAN Summit in 2020 and Vietnamese Prime Minister Nguyen Xuan Phuc “emphasised the need to maintain and promote an environment conducive to the COC negotiations”. He even persuaded Beijing for an efficient COC which should be in line with international law, including the 1982 UNCLOS.
Third, the Whitsun Reef incident is a demonstration of ‘muscle power’ ostensibly to delay the COC negotiations and ensure that COC remains only part of diplomatic exchanges and summit statements between ASEAN and China. It is fair to assume that prolonged negotiations would enable China to further reinforce military infrastructure and also explore new sites such as the Whitsun Reef for artificial island building that would aggravate the pending legal disputes, thus putting COC negotiations to the backburner.
China’s attempt to reassure ASEAN Member States that the situation in the South China Sea is stable has reached an ‘all-time low’. The recent presence of Chinese maritime militia masquerading as fishing vessels (supported by the Chinese Coast Guard) has only added to the suspicions about China on the future of a mutually agreeable COC. China may be tempted to pursue a ‘hard position’ on ‘negotiating a legally binding and implementable CoC’. China is encountering diplomatic as well as military type (support from the US) resistance from the Philippines. This could be the trigger for China to announce suspension of all negotiations.
Such a scenario is quite plausible given that the US has invoked security guarantee to the Philippines under the 1951 Mutual Defense Treaty, and proclaimed that “An armed attack against the Philippines armed forces, public vessels, or aircraft in the Pacific, incl. in the South China Sea, will trigger our obligations under the Mutual Defense Treaty.” It was followed up by Manila dispatching military vessels and aircraft to Whitsun Reef, and Philippines and US troops conducting two-weeks long military exercises. Meanwhile, the US’ carrier and the expeditionary strike groups are lurking around and monitoring the Chinese aircraft carrier operations. It is now reported that Chinese fishing vessels have begun to leave the area; but experts argue they could return, this time escorted by the PLA Navy.
The Chinese actions in Whitsun Reef have generated widespread pessimism and uncertainty over the timely conclusion of COC. While many other nations particularly the US are upping the ante by openly challenging China in the South China Sea through diplomatic speechmaking and operational manoeuvers, ASEAN should continue to pursue its diplomatic skills and accord high priority to COC discussions before Beijing starts distancing itself from the COC and hardens its position.
Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research.
Featured Image Source: VietNam News