At the ASEAN–China Special Summit held on 22 November 2021, to commemorate the 30th anniversary of ASEAN–China dialogue relations, Chinese President Xi Jinping said that China is ready to sign the protocol to the Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ) Treaty as early as possible. The SEANWFZ, also known as Bangkok Treaty, was opened for signature on 15 December 1995 and came into force on 28 March 1997. China did not sign the treaty for more than two decades, but the recent statement by Xi Jinping indicates that China has felt the need to sign the treaty now when there is an intense debate going on over nuclear issues in the region. It is therefore interesting to analyse whether China’s bid to sign the treaty is really going to make a difference on the ground or it is committing to accede to the treaty because of the inconsequentiality of the action in a real sense.
By Niranjan Chandrashekhar Oak
China and SEANWFZ
SEANWFZ is one of the nine Nuclear Weapons Free Zones (NWFZ) that covers the “territories” of all ASEAN member states and “their respective continental shelves and Exclusive Economic Zones (EEZ)”3. The inclusion of continental shelves and EEZs in the definition of the NWFZ is one of the two unique clauses of this treaty. The uniqueness of the clause stems from the fact that no other regional NWFZs apply over continental shelves and EEZs of the signatories. The scope is limited to territorial waters. The other distinct clause prohibits state parties to test or use nuclear weapons “anywhere inside or outside the Zone”.4 However, the protocol to the treaty explicitly restricts the use of “nuclear weapons within the SEANWFZ” and not outside it. The inclusion of EEZ in the definition has become a major hindrance for China to accept the treaty.
In the past, China has supported the treaty in principle. The official statement in the late 1990s stated that “the differences between China and ASEAN on the issue of SEANWFZ Treaty [were] not in establishing the NWFZ per se, but about its geographic delimitation”. It further declared that “the amended text of the protocol to the treaty presented by ASEAN in April 1999 almost [emphasis added] meet China’s concerns”. As the text did not meet China’s expectations completely, Beijing did not accede to the treaty in 1999, despite indicating readiness to do the same. Similarly, the Arms Control, Disarmament and Non-Proliferation White Paper of 2005 principally backed the SEANWFZ. However, things did not materialise and ground reality remained the same. Again in 2012, China had announced its intention to sign the treaty but had withdrawn its consent at the last moment. Therefore, the present enthusiasm of China to accede to the treaty must be taken with a pinch of salt.
Implications of China Signing the SEANWFZ Treaty
Even if China signs the SEANWFZ treaty, it is unlikely to alter the regional security scenario in a positive manner. First, China is the only Non-Proliferation Treaty (NPT) recognised Nuclear Weapon State (NWS), which has a policy of no first use of nuclear weapons or not using or threatening to use nuclear weapons against non-nuclear-weapon states or NWFZs unconditionally. Thus, it fulfils the negative security assurance enshrined in SEANWFZ anyway without having to alter its nuclear policy or actions on the ground. Second, there are territorial disputes in the South China Sea (SCS) with overlapping EEZs of the claimant states. Since the treaty is applicable over the EEZs of the state parties, the signatories are expected to respect the international law and resolve any issues according to the international law. China’s record in this respect is not encouraging. China claims the entire SCS. The country had discredited the 2016 Permanent Court of Arbitration, The Hague verdict over SCS maritime claims in favour of imaginary nine-dash line which has no legal sanctity. Since NWFZ does not cover the central sovereign territory of an existing nuclear weapon state, China can station nuclear weapons on the reclaimed artificial islands, which are an integral part of SEANWFZ and claim no non-compliance with the treaty.
Third, the SEANWFZ does not “prejudice the rights or the exercise of these rights by any State under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, in particular with regard to freedom of the high seas, rights of innocent passage, archipelagic sea lanes passage or transit passage of ships and aircraft, and consistent with the Charter of the United Nations.” In other words, the treaty allows passage of nuclear-armed vessels or aircraft in accordance with UNCLOS without any hindrance. Thus, the SEANWFZ won’t impact the Chinese nuclear movement in the region. Fourth, the signing of the protocol by NWS is often accompanied by the interpretive document where the NWS can clearly explain their interpretation of the clauses. China’s consent to adopt the treaty in 1999 was incumbent upon written assurance from the ASEAN that the accession to the treaty wouldn’t affect the territorial boundaries of the states.14 Thus, China has enough scope to put conditions while acceding to the treaty. In light of this, the Chinese posture seems to be a mere instrument to gain from the “international legal order without the need to advocate fundamental changes to the letter of the law”.
Extending an olive branch by showing readiness to sign the SEANWFZ treaty seems to be a low-cost, high-return proposition for Beijing. China seems to have been ruffled by an unexpected announcement of the AUKUS security pact between Australia, the United Kingdom and the United States. Coming close on the heels of the first in-person summit meeting between the Quad members, the AUKUS has invigorated nuclear debate in the region. China sees the Quad and the AUKUS as antithetical to its interests in the Indo-Pacific. Therefore, the Chinese have been trying to create a fear psychosis in the region, sometimes by making factually incorrect statements. Commentaries in the party mouthpiece, Global Times, claim that the AUKUS pact is “threatening the formation of the regional nuclear-weapon-free zone”. Furthermore, Chinese Foreign Minister Wang Yi has contended that the AUKUS would “undercut ASEAN countries’ efforts to build an NWFZ in Southeast Asia”. The NPT does not consider a nuclear-powered submarine a nuclear weapon. Moreover, the passage of nuclear-powered submarines through international waters does not violate NWFZ.
Conclusion
By appearing to be prepared to sign the SEANWFZ treaty, China is trying to portray itself as a Good Samaritan instead of bad boys sabotaging the SEANWFZ. Beijing knows that such a gesture will not put any restriction whatsoever on its nuclear actions in the region. Moreover, Chinese aggressiveness in the SCS against ASEAN members has necessitated Beijing to present a sober face to cool down the tempers. Therefore, President Xi’s assurance to sign the SEANWFZ treaty is likely to be a strategy to appeal to the ASEAN constituency that China is stabilising power in the region as opposed to the US. It is a part of broader psychological operations19 to use such actions to influence regional and international opinion in its favour when various reports predict the Chinese nuclear pile-up in the coming years.20 As the realist school of International Relations argue that international law is just “a tool at the disposal of the most powerful”,21 China has realised that it has acquired enough global heft to employ international law for its benefit. Thus, China’s bid to sign the SEANWFZ treaty is likely to be a calculated symbolic gesture having no bearing on the region’s precarious security situation.
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