Potent New Challenge to Beijing’s Nine-Dash Line

As Vietnam takes over (from January 1) the chairmanship of ASEAN, it has received a welcome, surprise present from Malaysia, one that should strengthen solidarity among the maritime-focused members of the organization in challenging China’s imperialist claims to almost the whole South China Sea, stretching almost to the coasts of Borneo, Luzon and Palawan.

The claims are based on wholly fictitious “historic rights” to seas of which China occupies only about 30 percent of the littoral and which were regularly sailed by the peoples of what are now Vietnam, the Philippines, Malaysia and Indonesia long before the Chinese ventured into the seas to its south and west.

The present, clearly a decision made by Prime Minister Mohamad Mahathir himself, lays out the specifics of Malaysia’s claim, submitted to the United Nations Commission on Limits of the Continental Shelf in an area between its Borneo states, Sabah and Sarawak, and the southeast coast of Vietnam. The claim goes beyond the 200-nautical mile to include the continental shelf beyond it.

In 2009, Vietnam and Malaysia agreed to submit a joint claim to this whole area without agreeing on the division between the two of them. However, the claim served its purposes in being a direct challenge to China, which was infuriated and re-emphasized its notorious nine-dash line claim to seas approximately a thousand nautical miles from its own shore (measured from the southern tip of Hainan).

The joint Malaysia/Vietnam area includes some of the Spratly islands held by the two, claimed also by China. However, the claim does not assert that the Spratly islands themselves provide a claim to the continental shelf. This is in line with the ruling of the Permanent Court of Arbitration’s 2016 ruling in the case brought by the Philippines against China that none of the islands and rocks in the South China sea qualify for 200-mile Exclusive Economic Zones, only 12-mile territorial limits. (These islands and rocks are claimed in whole or part by Malaysia, the Philippines and Vietnam as well as China and all occupy one or more of them but most of the sea lies within the abutting Exclusive Economic Zones of Vietnam, the Philippines, Malaysia, Indonesia and Brunei)

The 2016 ruling should have been the cue for all the concerned littoral countries to follow up with joint pressure on China. That did not happen for several reasons. Firstly, the Philippines under its new President Rodrigo Duterte dropped the ball handed to it by the court in favor of cozying up to China in expectation of payoffs in investment and other pecuniary forms. The Vietnamese were visibly upset by Manila’s retreat but did not immediately follow up, preferring to bide their time.

Malaysian officials geared up to respond to the 2016 judgement by pushing ahead with the delineation of their Continental Shelf claim. However, then Prime Minister Najib Razak became so caught up by the US$4.8 billion 1MDB scandal that he had to set aside anything which would upset Beijing. Indeed, he badly needed Chinese purchase of 1MDB assets to bail out this vast and corrupt misadventure. He also had to agree to Chinese terms for major infrastructure investments.

Mahathir had no such impediments. Although talking up relations with China, he pushed to renegotiate major contracts and now has hit the Chinese with the December 12 filing of the seabed claim. So this not merely strengthens Vietnam’s hand as it aims to use its ASEAN position to bolster regional solidarity on the sea issue. It comes before the next effort to develop a Code of Conduct for those countries engaged in the South China Sea.

Malaysia rejects China’s assertion that the interested parties should deal with disputes on a bilateral basis – clearly a divide-and-rule tactic which puts small states at a severe disadvantage.

There is now also a possibility that the Philippines could join in a pact with Malaysia and Vietnam to establish overall claims which, while overlapping, exclude China and enable the three (plus possibly Brunei) and provide a platform for overall sea boundary settlements between them. That will not be easy. Vietnam and Malaysia use different systems for calculating their Continental Shelf claims and the Philippines, which otherwise uses the archipelagic principle for claims, has so far only reserved the right to make a submission. It has been urged to make a submission for an Extended Continental Shelf, notably by now-retired former Justice Antonio Carpio, who was the legal power behind the Philippines' decision to bring its successful case against China to the Court of Arbitration.

If the Philippines could agree on a similar cooperative claim with Malaysia and Vietnam as those two already have done over Extended Continental Shelves, they could effectively shut China out. The Court has ruled that none of Spratly islets justify EEZs. Even if Extended Continental Shelf claims were not approved it would only leave a small area between the three EEZs over which no one had a claim under the UN Law of the Sea.

However, the eagerness of Duterte to continue to kowtow to China despite Beijing’s continued acts of aggression in Philippine EEZs which has so far precluded the level of cooperation with its neighbors that they would like. On its other coast, in 2012 the Philippines succeeded in its claim for the Benham Rise off eastern Luzon to be part of its continental shelf via a neck of land bridging the deep Philippine trench. But Duterte cravenly accepted Beijing’s naming of the features in Chinese and allowed a Chinese exploration vessel to study it for mineral potential.

It remains to be seen whether Vietnam can use its ASEAN position to form a more united front and at least strengthen the wording of a Code of Conduct to be agreed with China – which has a long history of ignoring ASEAN efforts to at least avoid confrontations or upsets to the status quo.

Indonesia has been becoming more active in defense of its fishing interests in particular and rejects out of hand Chinese claims in the vicinity of the Natuna islands. A Chinese coast guard vessel has been accompanying Chinese fishing boats. On Monday, according to a Reuters dispatch, the government announced it would mobilize fishermen to join warships to help defend against Chinese vessels, as the biggest standoff with China for years escalated.

In an usually strong statement, President Joko Widodo told reporters there would be "no negotiation when it comes to our sovereignty."

Indeed, often forgotten is that Indonesia has agreements with both Malaysia (in 1969) and Vietnam (2003) covering the area to the north of the Natuna island, themselves a key point of Indonesia’s archipelagic baseline. As a result, Indonesia has no need to claim an extended continental shelf in this region – though it has done for the region northwest of Sumatra, where it abuts India’s claim derived from the Nicobar islands.

The stand-off since last month in the northern Natuna islands, where a Chinese coastguard vessel has accompanied Chinese fishing vessels, has soured the generally friendly relationship between Jakarta and Beijing.

The littoral states of the South China Sea thus already have a good base on which to build in cooperating for their common good against a vastly larger neighbor with military imperialist ambitions. However, whether ASEAN is much of a forum for them remains open to doubt given China’s overwhelming influence on the mainland states, Cambodia, Laos and to a lesser degree Myanmar.

Thailand and Singapore, though sympathetic to the maritime states and in freedom of navigation, try to avoid displeasing China. As for China’s weight of money, the shine may have gone off the Belt and Road project and China trade and investment in the region is now growing more slowly but it remains a powerful lever, especially given the Trump administration’s antipathy to multilateral trade deals and a US foreign policy which lacking discernible purpose.

Philip Bowring is a co-founder and editor of Asia Sentinel and the author of the prize-winning Empire of the Winds, published in 2019, a history of the seafaring peoples of Southeast Asia