This is an excerpt from Asian Territorial and Maritime Disputes: A Critical Introduction. You can download the book free of charge from E-International Relations.

After the Cold War came to an end, the South China Sea (SCS) gradually rose in importance in terms of international security. Several countries have claimed islands, rocks, and adjacent waters there, and these claims are fiercely disputed even today. The SCS is one of the most important sea lines of communication (SLOCs) in the world, strategically positioned in terms of military and trade flow, and replete with marine natural resources, estimates of which are likely to increase exponentially once the studies regarding oil and gas resources in the region are complete and full extraction operations are underway. Four of the primary claimants (Vietnam, Malaysia, the Philippines, and Brunei) are members of the Association of Southeast Asian Nations (ASEAN). Of the two remaining claimants – the People’s Republic of China (PRC) and the Republic of China (ROC) on Taiwan – Beijing has been the most dangerous to ASEAN members, having been responsible for a series of incidents since 1974. Hence, China’s counterclaims against the ASEAN states, and its behaviour in prosecuting said counter-claims, will be the focus of this chapter, as the specifics of the ROC claims are discussed in separate chapter of this volume.

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This chapter aims to analyse the position of ASEAN toward the SCS maritime disputes. In the first section, we present a brief history of the process known as the ASEAN Way, and the importance of the United Nations Convention on the Law of the Sea (UNCLOS), and how this is connected to the SCS disputes. In the second section, we show how ASEAN has reacted to the disputes, either collectively or individually as member-states, as well as how ASEAN members’ policies on the disputes influence the association’s decision-making process. In this section we aim to answer this specific question: What are the positions of ASEAN members, individually and as a whole, regarding the SCS disputes? In the third part we attempt to explain ASEAN’s behaviour regarding the SCS issue aiming to answer these questions: Why has ASEAN failed to reach a common position, and how will the ASEAN Way affect the association’s future development, in security terms?

The ASEAN Way and the South China Sea Disputes

Using the Bandung Conference of 1955 as inspiration, many Southeast Asian countries began attempting to establish supranational groups for regional solidarity. The Philippines proposed an anti-communist group, and this would be followed by many similar propositions from Manila. Most of these early attempts had an ethnic or religious component, which ended up narrowing the membership and not advancing the regionalisation project as quickly as expected. However, all these movements showed an interest in moving the region toward some sort of integration process (Ba 2009).

In 1961, despite a number of conflicts and rivalries deriving from a post-colonial sense of nationalism, the Association of Southeast Asia (ASA) was created, consisting of Thailand, the Philippines, and Malaya. In 1963, in the same spirit of seeking cooperation and solidarity among the Malay race, the Greater Malayan Confederation, or Maphilindo, was created, consisting of the Philippines, Indonesia, and Malaya (now Malaysia). Neither effort stood the test of time, however. Maphilindo failed to accommodate the rivalry between two of its members, and the ASA was weakened due to the lack of official relations between two of its three members. Once again, rival nationalisms would stand in the way of a Southeast Asian regional association (Ba 2009).

In 1967, an agreement between groups devoted to transnationalism and to forming an alternative type of regionalism enabled the creation of ASEAN. This was aided by the emergence of new ways of thinking about concepts such as nationalism and regionalism (Ba 2009).[1] At the time, regionalism and nationalism were largely mutually exclusive, at least in the eyes of many Southeast Asian leaders. Ideas of self-determination, national interest, and an ethic of non-interventionism – so strong in the immediate post-colonial era – were becoming allied to ideas such as unity, solidarity, and regional cohesion. This meant there was a search to end the conflicts between nations in the region, and led to the conditions necessary for a coalition of Southeast Asian States to arise (Ba 2009).

Because of those conditions, ASEAN was founded under the following principles: non-interference; quiet diplomacy; no use of force; and decision-making through consensus – in other words, the ASEAN Way (Hazmi 2009). These principles have allowed the association, united through a regional proposal, to have a loose enough framework to accommodate countries with old rivalries so as not to threaten their continued sovereignty (Haacke 2002).

Today, the same ASEAN Way that was fundamental to the association’s creation and establishment is responsible for hampering any emphatic action from the group in the face of maritime territorial claims against its members in the SCS. Those claims are directed connected to UNCLOS, created 15 years after ASEAN’s foundation and impacting at least half of its members.

UNCLOS and the ASEAN Way

In 1982, the United Nations Convention on the Law of the Sea resulted in an agreement on the matter of nations’ responsibilities and rights on the world’s waterways. The competing claims in the SCS region began in earnest after World War II, but it received a new boost after the launch of UNCLOS and the promulgation of its rules governing the definition of territorial seas, exclusive economic zones (EEZ), and continental shelves, which would enable countries to expand their coastal territory and open new possibilities for the exploration of natural resources and maritime patrols (Beckman 2014).

UNCLOS established parameters for the exploration of resources, freedom of navigation, territorial rights, and dispute settlement. The treaty addresses issues including coastal states’ sovereignty rights over sea territory and airspace,[2] and provides a conflict resolution mechanism in cases of disputes based on overlapping claims. It entered into force in 1994, by which time the Philippines (1984) and Vietnam (1994) had already ratified the treaty. Few years later, Malaysia and Brunei (1996) ratified it. Other ASEAN members have also ratified the treaty, including Indonesia (1986), Singapore (1994), Myanmar (1996), Laos (1998) and Thailand (2011). Cambodia signed the treaty in 1983 but never ratified it. China, which is not a member of ASEAN but which has extensive relations with members of the bloc and has intense maritime and territorial disputes with them in the SCS, ratified the treaty in 1996.

But UNCLOS is not the only mechanism through which to address ASEAN members’ claims in the SCS. In 2002, ASEAN and China signed the Declaration on the Conduct of Parties in the South China Sea (DOC) that applies the same principles as the 1967 ASEAN Charter to territorial disputes and uses UNCLOS as a basis for dealing with claims and disputes between ASEAN members and China. The DOC is a non-binding document, however, and does not have a dispute resolution mechanism, leaving its signatories to resolve their disagreements on a voluntary basis without taking the disputes to international institutions. The DOC was unable to gather a common position among ASEAN countries on China’s claims against ASEAN members’ territory, due largely to those members having different interests in the matter (Severino 2014).

Thus, without being able to move toward the desired Code of Conduct (COC), which has been under negotiation since 1999, and which would be binding and include dispute resolution mechanisms, the DOC remains an ineffective instrument. China is the main obstacle to the adoption of a COC, since any such code would restrict Beijing’s claims (Thayer 2012). Given the level of tensions in the last few years, principally between the Philippines and China, as well as between Vietnam and China, a new attempt was made in 2017 to reach a basic agreement on the nature and scope of a new COC. In August of that year, the foreign ministers of ASEAN and their Chinese counterpart endorsed a framework for an updated version of a Code of Conduct for the South China Sea largely based on the 2002 DOC. Despite the fact that it specifically addressed conflict prevention and the assurance of freedom of navigation, the draft of the document still indicates that it, like its predecessor, would not be legally binding (Storey 2017).

The various disputes and claims in the SCS involve ASEAN members and actors that have direct relations with ASEAN. Therefore, such disputes and claims need to be analysed on an individual basis, but also on how they influence ASEAN’s decision-making, carried out through consensus.

ASEAN Members’ Individual Strategies

The main claims in the SCS, defined as a semi-enclosed body of water, involve the Paracel and Spratly Islands. While the Paracel archipelago has been controlled by the PRC since 1974 and is claimed by Vietnam and the ROC, the Spratly Islands possess the greatest number of overlapping claims in the region, with China and the ROC making claims against islands held by Vietnam, the Philippines, Malaysia, and Brunei (Emmers 2003). A broad overview of those claims is provided in Table 1.

ASEAN members have different individual positions on the SCS issue. Only some members of the bloc are claimants, and among these there remain some border disputes, even if China is not included. Meanwhile, the Chinese economic and political influence affects every ASEAN country, though this effect is not homogeneous. Some members, especially non-claimants, put more emphasis on the bilateral relationship with China, and are less interested in negotiating with Beijing as a bloc. This effectively prohibits the ASEAN members from unifying their influence in a joint effort to solve territorial disputes collectively.

China’s Position and Claims in the South China Sea

China is the most active claimant in the SCS and has the most territorial demands. The PRC government claims the SCS almost entirely, according to the nine-dash line map that Beijing submitted to the United Nations in 2009 when the Philippines, Vietnam, and Malaysia presented technical information in order to make submissions asking for permission to extend their continental shelf. The PRC government relies on a historical argument to justify its claims over the islands and what the PRC sees as adjacent waters (Beckman 2014).

China’s demands exceed the legal claims established by UNCLOS, even though that treaty was ratified by Beijing. The PRC claims are based in a map named ‘Map of Chinese Islands in the South China Sea,’ originally issued in 1947 and therefore pre-dating the existence of the PRC and based on supposed historical rights dating back to the quasi-legendary Xia dynasty (c. 2070-1600 BC) – the very first dynasty to emerge in ancient China (Baumert and Melchior 2014). The PRC claim based on this ancient inheritance is for the entire area enclosed by the lines to be considered Chinese territorial waters. This runs counter to the 12 nautical miles conferred by UNCLOS rules on overlapping EEZ claims, territorial seas, and areas adjacent to several other countries in the region. It is worth noting that China is not the only actor in the SCS that is a signatory to UNCLOS and whose claims exceed what that document establishes as legal.

ASEAN Members Claims in the South China Sea

The South China Sea is Vietnam’s lifeline. The country has fought several conflicts with neighbouring China over the years over the issue of sovereignty in the SCS. Like the PRC, Vietnam’s claims include the Spratly and Paracel Islands.

Sino-Vietnamese relations have historically been tense. Although land border disputes between the two have been settled (Fravel 2008), the same cannot be said about their maritime disputes. The most contentious issue may be that of the Paracel Islands, which were controlled by Hanoi until China seized them during the Battle of the Paracel Islands. Today, many of the Vietnamese claims overlap those of Malaysia and the Philippines. Vietnam joined ASEAN almost 20 years after its beginning and........

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