SEPTEMBER 2014 Perspectives on the South China Sea Perspectives Perspectives on the South China Sea HIEBERT, NGUYEN, POLING HIEBERT, Diplomatic, Legal, and Security 1616 Rhode Island Avenue NW | Washington, DC 20036 t. 202.887.0200 | f. 202.775.3199 | www.csis.org Dimensions of the Dispute ROWMAN & LITTLEFIELD Lanham • Boulder • New York • Toronto • Plymouth, UK 4501 Forbes Boulevard, Lanham, MD 20706 t. 800.462.6420 | f. 301.429.5749 | www.rowman.com Cover photo: U.S. Navy photo by Mass Communication Specialist 3rd Class Mel Orr/Released. EDITORS ROWMAN & LITTLEFIELD ROWMAN & LITTLEFIELD Murray Hiebert ISBN 978-1-4422-4032-2 Phuong Nguyen Ë|xHSLEOCy240322z v*:+:!:+:! Gregory B. Poling A Report of the CSIS Sumitro Chair for Southeast Asia Studies Blank Perspectives on the South China Sea Diplomatic, Legal, and Security Dimensions of the Dispute EDITORS Murray Hiebert Phuong Nguyen Gregory B. Poling A Report of the CSIS Sumitro Chair for Southeast Asia Studies September 2014 ROWMAN & LITTLEFIELD Lanham • Boulder • New York • Toronto • Plymouth, UK About CSIS For over 50 years, the Center for Strategic and International Studies (CSIS) has worked to develop solutions to the world’s greatest policy challenges. Today, CSIS scholars are providing strategic insights and bipartisan policy solutions to help decisionmakers chart a course toward a better world. CSIS is a nonprofi t or ga ni za tion headquartered in Washington, D.C. The Center’s 220 full-time staff and large network of affi liated scholars conduct research and analysis and develop policy initiatives that look into the future and anticipate change. Founded at the height of the Cold War by David M. Abshire and Admiral Arleigh Burke, CSIS was dedicated to fi nding ways to sustain American prominence and prosperity as a force for good in the world. Since 1962, CSIS has become one of the world’s preeminent international institutions focused on defense and security, regional stability, and transnational challenges ranging from energy and climate to global health and economic integration. Former U.S. senator Sam Nunn has chaired the CSIS Board of Trustees since 1999. Former deputy secretary of defense John J. Hamre became the Center’s president and chief executive offi cer in 2000. CSIS does not take specifi c policy positions; accordingly, all views expressed herein should be understood to be solely those of the author(s). © 2014 by the Center for Strategic and International Studies. All rights reserved. ISBN: 978- 1- 4422- 4032- 2 (pb); 978-1- 4422- 4033- 9 (eBook) Center for Strategic & International Studies Rowman & Littlefi eld 1616 Rhode Island Avenue, NW 4501 Forbes Boulevard Washington, DC 20036 Lanham, MD 20706 202- 887- 0200 | www.csis.org 301- 459- 3366 | www .rowman .com Contents Preface v 1. Managing the South China Sea Disputes: What Can ASEAN Do? 1 Alice Ba 2. China’s View on U.S. Policy in the South China Sea 13 Chu Shulong 3. International Arbitration and Adjudication as South China Sea Confi dence- Building Measures 20 Jerome A. Cohen 4. The Rise of Tailored Coercion in the South China Sea 25 Patrick M. Cronin 5. Disputes between Vietnam and China in the South China Sea: A Legal Analysis 35 Vu Hai Dang 6. Maritime Disputes in the South China Sea: ASEAN’s Dilemma 45 Alan Dupont 7. U.S. Strategy Seeks to Calm the Roiled Waters of the South China Sea 53 Bonnie S. Glaser 8. Confi dence Building without Politi cal Will in the South China Sea Disputes 63 Euan Graham 9. Four Legal Issues in Relation to the South China Sea Arbitration 70 Bing Bing Jia 10. Japan’s Perspectives on U.S. Policy toward the South China Sea 82 Yoji Koda 11. Empathy: The Missing Link between Confi dence and Trust in East Asia 96 James Manicom | III 12. Locating Southeast Asia in Debates on the South China Sea 104 Charmaine G. Misalucha 13. How a “Rules- Based Approach” Could Improve the South China Sea Situation 115 Jonathan G. Odom 14. The Role of the Chinese Military in the South China Sea 127 Phillip C. Saunders 15. Vietnam’s Maritime Forces 136 Carlyle A. Thayer About the Editors and Contributors 149 IV | MURRAY HIEBERT, PHUONG NGUYEN, AND GREGORY B. POLING Preface On July 10–11, 2014, the Center for Strategic and International Studies (CSIS) hosted its fourth annual conference on the South China Sea. The two- day conference, titled “Recent Trends in the South China Sea and U.S. Policy,” featured speeches by Representative Mike Rogers (R-MI), Deputy Assistant Secretary of State for Strategy and Multilateral Affairs Michael Fuchs, and Paul Reicher, attorney and legal adviser on the Philippines’ tribunal case against China. But the bulk of the two days was spent on discussions by an all-star lineup of South China Sea and legal experts, including representatives from Australia, Canada, China, Indonesia, Japan, Malaysia, the Philippines, the United Kingdom, and Vietnam. This report contains papers by 15 of those experts, highlighting the diversity of views presented at the conference. Most of the authors in this report submitted papers that track closely with the panels on which they spoke during the CSIS conference. Patrick Cronin and Alan Dupont discussed recent developments in the South China Sea. Phillip Saunders and Carlyle Thayer explored the role of national maritime forces in the disputes. Jonathan Odom, Vu Hai Dang, and Bing Bing Jia took part in a lively discussion of the legality of claims. Bonnie Glaser, Chu Shulong, Yoji Koda, and Charmaine Misalucha all offered domestic and regional perspectives on the United States’ role in the South China Sea. And James Manicom, Jerome Cohen, Alice Ba, and Euan Graham rounded out the event by exploring possibilities for cooperation and confi dence building. The papers that follow represent the views of the authors and do not refl ect those of CSIS or the Sumitro Chair for Southeast Asia Studies. | V Managing the South China Sea 1 Disputes: What Can ASEAN Do? Alice Ba Introduction The South China Sea disputes are long-standing. However, perhaps at no time have they posed as prominent an issue or as great a concern for China– Association of Southeast Asian Nations (ASEAN) relations as they do today. Not only that, but the disputes are also the most complicated they have ever been. Long challenged by the number of actors and different kinds of claims involved— with ASEAN itself tested by the different preferences of its members— managing these disputes are today additionally complicated by heightened domestic regime legitimacy concerns faced by key states, as well as the intersection of major power politics and the ongoing geopoliti cal negotiations between the United States and China. This paper considers what recent challenges say about ASEAN as an organization—its limitations and how recent politics complicate its role. Any conclusions about ASEAN’s role in managing disputes must be made with consideration of the politi cal, geostrategic, and institutional pa ram e ters of the orga niza tion. In the fi nal analysis, the or ga niza tion remains important as a regional mechanism and confi dence- building framework in the effort to manage this partic ular aspect of China-ASEAN relations. However, ASEAN and ASEAN- driven frameworks can comprise only one category of a number of mechanisms. ASEAN and Southeast Asia For ASEAN states, the South China Sea brings together questions of both capability and intent. Although neither Chinese capability nor Chinese intent is as strong or as certain as sometimes portrayed by pundits and commentary, recent developments have done much to intensify Southeast Asian states’ concerns about both. Provocative actions are not limited to China, but the power dynamics in China-ASEAN relations mean that Southeast Asian interests (economic and security related) may be more vulnerable in both the short term and the long term. As regards the par tic u lar role that ASEAN itself might play, ASEAN states have the greatest stake in developing more effective mechanisms and responses to the South China | 1 Sea confl icts. The concern for ASEAN states is not just about whether or not ASEAN can manage tensions in an effective way; the concern is also the damage this issue has done to the reputation of the orga niza tion. In partic ular, ASEAN, as an expression of the collective, has provided these smaller states a means by which to exercise voice and infl uence that they might not otherwise have had as individual states. However, ASEAN’s unpre ce dented and very public and publicized failure to produce a joint communiqué at their regular foreign ministers’ meeting in Phnom Penh in 2012 dramatically revealed the differences between ASEAN states, as much as between China and some ASEAN claimants. That failure now serves as a dramatic illustration of the diffi culty faced by ASEAN as a collection of states trying to carve out a common approach. As others have given much attention to the differences within ASEAN, there is no need to belabor them at length here. Suffi ce it to say that the intra- ASEAN fault lines are multiple and not always clear-cut. States differ in not just the importance attached to the disputes but also their relations with China and the kinds of regional responses prioritized. Clearly, such differences challenge any collective position. Since the 1980s, when states diverged in how best to respond to Vietnam’s intervention into then Kampuchea, there has been an informal ASEAN rule that members will defer to the “frontline” state in any collective “ASEAN” response. However, in the case of the South China Sea, ASEAN’s four claimant states vary signifi cantly in how they have chosen to approach the South China Sea disputes and manage the recent intensifi cation of tensions.