February 6, 2013
Manila and ASEAN: Upping the ante on the South China Sea
by Dr BA Hamzah@www.nst.com.my
HIGH STAKES: In its zeal to take on China’s claims in the South China Sea, the Philippines has alienated itself
BY initiating an arbitral proceeding against China, the Philippines has upped the ante on the South China Sea. Manila says it is left with no choice but to take Beijing to arbitration after exhausting all remedies. However, many see Manila’s action as a desperate act — a publicity stunt to regain international prestige following the Scarborough Shoal fiasco in April last year.
Manila’s request for an arbitral award opens up a can of worms, especially when its Regime of Islands claim (to the Kalayaan Islands and Scarborough Shoal) under its 2009 Baseline Law is contestable under international law.
Incidentally, its new official map that has renamed the South China Sea as the West Philippines Sea has re-incorporated Sabah, which is sure to reopen old wounds.
People who live in glasshouses should not throw stones, as they will expose not only the throwers’ hypocrisy but also vulnerability.
No one doubts that Manila is fed-up with Beijing’s intransigence. Lately, the Philippines has mounted diplomatic and political offensives in the South China Sea in a hope to get the United States and the international community to sanction China. Unfortunately, following a rebuff by Washington, the offensive failed to undermine China, the Goliath who was close to former president Gloria Arroyo, now under house arrest.
As a domestic political agenda, Manila’s unilateral legal proceeding is likely to be futile again. Its success record in international arbitration has been dismal. For example in 1927, the US, acting on behalf of Manila, failed to convince judge Max Huber that the island of Palmas belonged to the Philippines. The judge awarded the ownership of the island (now known as Miangas) to Indonesia, although the island is within the 1898 Treaty of Paris Limits.
In October 2001, the Philippines sought permission to intervene as a non- party in the case involving the sovereignty of Pulau Ligitan and Pulau Sipadan. the International Court of Justice (ICJ) rejected (14 to 1) the request.
China, the world’s second largest economy and a permanent member of the United Nations Security Council, has said no to arbitration proceedings. Without its consent, it is unlikely for the tribunal to act; furthermore, the tribunal may lack jurisdiction to hear the case.
Manila has insinuated that Beijing can no longer hide behind its declarations under Article 298 of the UN Convention on the Law of the Sea (UNCLOS). In 2006, China declared, “it does not accept any of the procedures provided in Section 2 of Part XV of United Nations Convention on the Law of the Sea with respect of all categories of disputes…”, including sovereignty issues.
Manila says this proceeding against China is not over sovereignty. Yet, the notification statement implies the contrary.
Manila wants the proposed tribunal to determine the legality of China’s nine-dash line of 1948 and to determine the legal status of 10 features that China has occupied in the South China Sea (mainly in the Spratlys) as either “islands or rocks”. These issues are jurisdictional in nature. The nine-dash line relates to jurisdictional and sovereignty issues.
The Philippines brings the case to the tribunal under UNCLOS. Those familiar with jurisdictional claims in the South China Sea are aware of the nine-dash line, published in 1948. This means the line has preceded UNCLOS by thirty-four years; UNCLOS came into force in 1996.
The only way for UNCLOS to have jurisdiction over the case is to give it a retrospective power, which arguably constitutes an abuse of rights and goes against the legal principle of good faith (Article 300 of UNCLOS).
The unfortunate omission of the applicable law under Article 38 of the ICJ Statute in the notification statement has significantly weakened Manila’s position.
I also find it puzzling for Manila to ask the tribunal to “require China to bring its domestic legislation into conformity with its obligations under UNCLOS”.
On the diplomatic front, Manila has garnered zero support from the claimant parties.
Their silence results possibly from disagreement with the manner the Philippines handled a vital matter in the light of Statement on ASEAN’s Six Point Principles on the South China Sea of July 20 last year.
Moreover, Manila’s objection in May 2009 to the Joint submission to the UN Commission on the Limits of the Continental Shelf is still fresh in the minds of Hanoi and Kuala Lumpur.
Is Manila telling the world that it has broken ranks with ASEAN?The way forward is not to break ranks but to mend fences with China.
The official map of the Philippines labels the South China Sea as the West Philippine Sea and includes Sabah.
Din Merican: the Malaysian DJ Blogger 
Yes, you can up the ante so long as the big powers are behind you. The moment Japan cuts a deal to protect its vast markets then you will left high and dry. Asean must learn to punch within its weight and focus on increasing its weight. If you think that you have time think again because by the year 2050 your poululation, growing at the currrent, will double and so will poverty.
And what of the Declaration on the Conduct of Parties in the South China Sea where the member nations including China are signatories?
3. The Parties reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;
4. The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;
China, simply put, is reneging on its word and cannot be trusted.
This is why Philippines should never have over-reacted to their relationship with the US because of Marcos. ASEAN was never going to be their best Allies even though they should have emulated ASEAN domestic policies, they should not have emulated ASEAN foreign ones..
Now that India and US are dragged into this foray. how this can be resolved?
Remember that US fought Iraq for its oil as it is now admitted there were no WMD.
The US had no business to be in Iraq but through manipulative foreign policy as world policeman, they used the WMD excuse to get into Iraq and left the country tattered to pieces.
Obama knows better not to repeat Bush’s destructive foreign policy as seen in its staying out of Libya but only supply humanitarian aids.
The US also has no business in the SCSea matters but it has signed a protective pact with Manila same as that with Taipei and with Tel Aviv.
The Philippines first chased US and now wants it back. For what?
If not for sabre rattling with PRC, then what and if horrors happen WHAT THEN?
http://www.businessinsider.com/the-us-is-reopening-massive-philippine-military-bases-not-used-since-the-cold-war-2012-6
Hilary is slated to run in 2016. If Obama avoids confrontation like he did with Libya, hope Hilary will follow through. Having said that, there is no guarantee the Philippines wont be gung-ho not to start a battle with PRC without ASEAN consultation. Would that automatically disqualify Philippines frrom ASEAN.
It is too difficult for Philippines to decide when the disputed island has now colonized a PRC community. Can the Philippines sit around the apron to watch while ASEAN procrastinate?
The question is why all these are blowing up?
If it is just about sea lanes, that maritime matter is not difficult to resolve.
But more pressing is speculative treasure beneath the sea.
The Phillippines has always depended on the United States as its godfather. Most politicians there do not have ‘strong backbones’. Their economy will be in a shamble, if it had been for Clark Airbase and Subic Navalbase – and the ensuing income multiplier effect from essentail but indirect services.
It has never gained indepedence from the stars and stripes. Phillippines is actually drawing United States onto its side, in this case.
And ASEAN, especially Malaysia should be very worried that the Phillippines next target could be Sabah, but this time it will also involve the United States on the Phillippines’ side.
There are no other US base in ASEAN except in Singapore. Of course, Japan’s US base is crucial for controlling the situation in Northeast Asia.
The contention is such that the United States value the bases in the Phillippines in the regional security agenda. And to keep them there, the United States must do something in return for the Phillippines. What could be that thing, if someone ups the ante in this region?
Thanks to Dr Mahathir as we know now, there are many Filipinos there. Who knows if there will be a overwhelming referendum to cede Sabah to the Phillipines because of the Filipinos presence in Sabah? The peace treaty between MNLF and the Phillippines government can very easily imply that there is a new battlefront. If there is, it would be in Sabah, which the treaty would not have covered.
Phillippines can behave like a shark. Once a shark smells blood, it may decide to continue attacking small ASEAN countries that obviously cannot or would not dare stand up to its godfather. Phiillipines can be a gateway for neo-colonization of ASEAN.
Sorry!
“Their economy will be in a shamble, if it had . . . NOT . . . been for Clark Airbase and Subic Navalbase – and the ensuing income multiplier effect from . . . ESSENTIAL . . . but indirect services.
In today’s terms, if the current counterforce in this region becomes weak, who can guarantee that the former colonials or neocolonials will not return or come for a long overbearring stay, knowing that their side of the globe are troubled and they need ‘new green fields’?
Regardless of a nation’s level of maritime traffic, sovereignty territory reigns supreme. PRC wants to claim the sea for its rights of maritime lane as it TEU volume surpassed all in the region. Sovereignty rights is independent of maritime volume and extends by law from a nation’s shore. This provision is firmly stated and no tribunal can debate this charter.
The issue is who owns those islands that previously had no darn interest? It would be best if by some natural forces, those islands varnish. Whoever owns those island then had their territory extended from it. Same dispute issue with the Diaoyu island between PRC and Japan.
Let’s assume that for and by some events, the HUGE masses of illegal MyKads (now surpassed rightful Malaysians) goes for a REFERENDUM on its 1963 constitution to float away to the Philippines. Won’t Philippine’s territory suddenly enlarge and its further validate its claim of SCSea? So they would mightily thank Mahathir for his MyKad vending machine for his treacherous foresight which on hindsight can very possibly shrink Malaysia. To prevent this from happening, illegal MyKads must NOW be invalidated before GE13. There is no stopping a new party to champion 1963 referendum to secure votes from illegal MyKads to vote against BN and Pakatan. Jeff Kitingan wants to remain non-align.This makes his a dangerous element to Sabah sovereignty issue in favor or Philippines.
Din,
There is few things Nixon has done right. He made friends with Communist China. It’s time to acknowledge the rise of China. The sooner the better
Even the mighty Rome need to kowtow to China for silk
Well said, Dr BA Hamzah.
And in the burning cauldron of the seething seas, in comes Bolehland seeking to protect its maritime interests with its naval paraphernalia.
In 2011, it dispatched the KD Pari, a “fast attack craft” to pursue a China-flagged vessel cruising tantalizingly like a China doll in Bukit Bintang, in Sabah waters. The chase ended as fast, as the Pari in the heat of the moment promptly dislodged her shaft.
“Swift action by the Commanding Officer and the crew succeeded in bringing the vessel closer to the Pulau Layang-Layang jetty where it nearly sank from taking on too much water” saith the RMN PRO. No mention was made however of what happened to the Chinese seductress on the high seas.
Now if only the Scorpene could sink.
Thanks to the Japs choosing LDP leader Shinto Abe, Japan & China has sunk to very low diplomatically…….It’s time for USA to learn from how Nixon handle the situation……
There you are – the future was more or less sketched out when I said that Sabah could be the next battle front. It is now the new battlefront because the Malaysian government was very careless not to stiffen sea and air surveillance following the peace agreement between the Phillippines government and MNLF.
But there is no battle, eventhough there is an invasion. By convention and logic, there should have been a battle to expunge the foreign invaders (with weapons). Of course, th invasion would not have occurred if our navy, marine police, and police, had been more alert or supposedly doing their job protecting Malaysia.
On this point, I was mistaken not because I was wrong, but because the Malaysian MOD, MFA, and MHA, are handling the ‘bull’ by its horns – they are playing clowns in a monkye show to distract the bull, and at the same time to the BN political gallery with their usual ‘tidak apa’ attitude.
What the three ministries are doing defy all logic whilst international sympathy is rising for the more than 100 invaders because the Phillippines government has managed to paint them as sufferring refugees in the clapse of inhuman Malaysia ‘host’, in trying to get more MNLF-like groups on its side, and perhaps including those already in Sabah.
The end can be that the Malaysia can be made to seen as the evil side to this embroglio of long drawned territorial claims, not the mentions to poor political leadership of security forces and international relations we have in this country.
There was more than once the current Minister of Home Affairs waved a keris threatening the Malaysian citizens of the Chinese origin, and now the same minister is not doing anything to address the invasion. What is he tyring to show? This has the same effect form waving the ‘keris’. Let us see, if he is brave enough to wave the ‘keris’ to the invaders.
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Every nation has the right to clarify what belongs to them. Philippine action to raise the SCS and EEZ to the UN tribunal is as simple as that. In fact Philippine action is more honourable and principled as it prepared to settle the issue once and for all.It is more honourable as it gives everyone the opportunity its case in civilised manner. In fact, Malaysia will be one beneficiary of Philippine action, it will the entitlement of China and nearby country adjacent to SCS. What you should advocate is to follow this principled process that everyone is equal in the sight of law. You should advocate it, rather than criticise the Philippine action.
I could understand you guys are afraid of China purely for economic reason, but hey look at what China is doing in one your claimed island in SCS. Stand for what is right and get rid of this free rider mentality. If ASEAN cannot make a common stand on SCS, it might as well be dissolve as it is a useless organization.
With regards to Sabah, literatures and supporting documents are clear who owns Sabah and how it was integrated in Malaysia. It was a daylight robbery by Brits. What goes around comes around, it hunt back Malaysia on Sabah issue.
Also history clear about the hand of Malaysia in arming the MNLF that fought with Marcos, now the guns that you supply to Filipino Muslim brothers will be aimed at you for they know that Sabah belongs to them. Do you want to have bloodshed in Sabah, of course not. But how to settle this issue once and for all.
UN is the best solution to put the Sabah to rest not by Malaysia alone but with Philippine and rightful Royal owners of Sabah.
Review the history from a neutral perspective and then write a convincing article.
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Makabayan,
The Philippine Claim to Sabah Issue was settled long ago. When I was in the Malaysian Foreign Ministry in 1963-1965, I was a young and eager Assistant to Our Permanent Representative to the UN then, Ambassador R Ramani,brilliant lawyer, who put the case to rest at the United Nations.I helped in gathering documents for him to prepare brief for him to present to UNSC. There is no legal basis to your claim. Don’t flog a dead issue. Sabah is part of Malaysia. Period. Blood shed? try us. Threats wont work.
On the SCS, we can deal with the matter through ASEAN and bilaterally and do not need the help of the Philippines, which is acting tough behind the coattails of the United States.–Din Merican