ASEAN’s South China Sea ulcer


July 27, 2016

COMMENT: Why the gloom and doom about ASEAN just because the regional organisation is unable to craft and issue a joint statement on the question of the South China Sea.

That is not unusual. Members can agree to disagree and yet ASEAN can remain a cohesive and purposeful organisation to serve the common interest of its members. The Treaty of Amity and Cooperation in Southeast Asia is a key document that forms the glue that binds members and its partners reinforced by the ASEAN Charter. The ASEAN way operates on consensus, consultation, and dialogue.

ASEAN is, therefore, not structured like the European Union centered on a huge and overpowering bureaucracy in Brussels. One of the reasons for BREXIT is the United Kingdom’s desire to preserve its sovereignty and free itself from mountains of EU rules and regulations. The Jakarta based regional grouping, on the other hand,  is a collection of sovereign and independent nations, each acting in accordance with the dictates of their respective national interest, yet agreeing to come together to pursue their collective interest to preserve regional peace, security and stability, and promote trade and investment for socio-economic development. So far, ASEAN is a success story. Since 2015, it is working towards becoming an economic community.

Cambodia's Prime Minister Hun Sen gestures as he delivers a speech during his presiding over an inauguration ceremony for the official use of a friendship bridge between Cambodia and China at Takhmau, Kandal provincial town south of Phnom Penh, Cambodia, file photo.

Cambodia’s Foreign Policy is one of equidistance and neutrality with ASEAN as one of its pillars. (pic above Samdech Techo Hun Sen, Prime Minister of Cambodia)

South China dispute is a convenient diversion. To label it as ASEAN’s ulcer–academics are prone to using colorful descriptions and cliches–is to me a bit of an exaggeration. To suggest that Cambodia is a surrogate of China is way over the top. It is a sovereign and independent nation and an active member of ASEAN and the United Nations. As such, Cambodia has the right to pursue good relations with China, Russia and United States and other countries. Its foreign policy is one of equidistance and neutrality.

Using labels has never helped to solve problems among nations. One can easily get away by saying that in the case of its dispute with China over the South China Sea, the Philippines is a proxy of the  geo-stategic interest of United States and talking tough because Filipinos think they can rely on US military power to defend their interest. This is to deny that the Philippines may have its rights over the disputed area. What purpose is served if Cambodia, a non claimant state, is seen to be taking sides?  Rightly, Cambodia has been promoting peaceful settlement of disputes and urging China to sign a Code of Conduct on the South China Sea which is an ASEAN initiative. Lest we forget the South China Sea issue simply  put is a complex one, one that will engage our diplomats over a long time. –Din Merican

ASEAN’s South China Sea ulcer?

by Dr Mathew Davies

http://www.newmandala. org

The just concluded meeting of ASEAN Foreign Ministers in Vientiane, Lao PDR, looked like it was going to be a high profile failure.  The fear was that the meeting would repeat the 2012 experience of being unable to produce a final communiqué in the face of Cambodia’s insistence that nothing was said that would criticise China over the South China Sea.

Four years later ASEAN may have avoided such a public display of disunity but the released communiqué, together with a JointStatement between ASEAN and China on the SCS, suggest that nothing has been resolved.

The Joint Statement is an insipid document that does nothing to address the cause of the flaring tensions in the region. It is full of bland endorsements of the international legal principles that many have shown a flagrant disinterest in and calls for handling differences in a ‘constructive manner’. If the word constructive in this context is intended to cover the building of military landing strips, the placing of advanced weapons systems and aggressive military posturing, then even given ASEAN’s ability to obfuscate this is a linguistic feat to marvel at.

The Communiqué certainly contains more words on the South China Sea than does the joint statement, a whole eight paragraphs, but it is just as damning. Paragraph 174 notes that only ‘some ministers’ were concerned about ongoing issues (for which read, not the Cambodians). No mention was made of the recent Permanent Court of Arbitration’s ruling on the South China Sea which had so decisively rejected China’s claims in the region in favour of the Philippines.

Image result for cambodia and south china sea

Instead all states were called upon to work together to both implement the Declaration on the Conduct of Parties in the South China Sea and work towards building a Code of Conduct to better manage affairs. These are laudable in themselves but hardly helpful given the Declaration was agreed in 2002 and has conspicuously failed to curtail regional tensions and any Code of Conduct would seriously curtail China’s freedom of action in the region, which is completely unimaginable at this stage.

ASEAN’s continued failure to address the South China Sea in anything approaching an effective manner is not only a short term failure – it now represents a significant and ongoing risk to ASEAN’s health. This challenge will not take the form of a heart-attack, a sudden and existential shock to the system. Instead it is an ulcer, a constant pain in the guts that threatens, slowly but inexorably, to flood the system with bile. This challenge takes two forms.

First ASEAN from 1967 has always been about protecting the sovereignty of its members from the encroachment of great powers – as Alice Ba has memorably put it the ‘regional resilience’ of Southeast Asia. ASEAN was founded in the belief of regional self-determination – in the wake of colonialism and amidst the Cold War it was a call to ensure that Southeast Asian states remained in the driving seat of Southeast Asian affairs.

Today, with ASEAN member Cambodia serving as a surrogate for China against the interests of other ASEAN members, it no longer seems to be that the organisation serves the interests of the region.

Failure in the South China Sea to offer even the most tepid of support for member states claims against a rising China, especially the more moderate of those claims, strikes at the heart of what ASEAN was designed to achieve. If ASEAN cannot talk of member states sovereign claims against external great powers, what is the value of ASEAN to those members?

Second ASEAN’s own quest for centrality in Asia-Pacific security is revealed to be a fruitless quest when there is so much reason to question even ASEAN’s relevance to the most pressing of regional security issues. ASEAN has always sought to spread the norms of consensus decision making that it is supposed to follow internally across the Asia-Pacific as a way to exert some sort of pacifying effect on the great powers of the region. Yet if those same norms are now preventing ASEAN’s ability to engage in a meaningful way with China in what way can they be said to be positive and worthy of others following?

The South China Sea issue, then, is not an external threat to ASEAN, but an internal health risk – a sore that if not addressed will continue to leach its poison into the regional organisation and the faith that its members have in it.

The challenge is not a superficial one. It is not about whether ASEAN will unite in the defence of an American designed international order as was the wish of Obama at the Sunnylands Summit or whether it will continue to forge its own path.

The challenge is about whether ASEAN can continue to be valued by its members for the reasons it was created – whether it has the strength of purpose to defend its members from external interference, whether it can continue as a vehicle for regional self-determination rather than a generator of regional discord, and whether it can choose centrality over irrelevance.

As with any health risk, this challenge needs to be confronted sooner rather than later and with a coherent measured response, not a random assortment of lowest common denominator actions. I fear that the prognosis has just deteriorated.

Dr Mathew Davies is head of the Department of International Relations in the ANU Coral Bell School of Asia Pacific Affairs.

 

Let SCS be a turning point in ASEAN-China relations


July 16, 2016

PCoA Decision on South China Sea: Let SCS be a turning point in ASEAN-China relations

by Dr.Chandra Muzaffar

http://www.freemalaysiatoday.com

http://undertheangsanatree.blogspot.com/2016/01/the-nine-dash-line.html

The decision of the Permanent Court of Arbitration (PCoA) in the Hague on the China- Philippines territorial dispute announced on July 12, 2016 may well emerge as a turning-point in the long-standing wrangles over islands in the South China Sea (SCS).

China expectedly has rejected the decision. It has reaffirmed its claim of territorial sovereignty and maritime rights over almost all of the SCS, particularly the contested Spratly Islands. It argues that its claim is rooted in history. Nonetheless, China has once again reiterated that it is committed to a peaceful resolution of all territorial squabbles pertaining to the SCS that involve, apart from the Philippines, three other ASEAN states, namely, Brunei, Malaysia and Vietnam, and Taiwan.

The new Philippines government has lauded the Arbitration Court’s decision as an important contribution to ongoing efforts in addressing disputes in the SCS. Foreign Secretary, Perfecto Yasay, has expressed his government’s determination to “pursue the peaceful resolution and management of disputes with a view to promoting and enhancing peace and stability in the region”. He asserted that the decision upheld international law, particularly the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

This is what is commendable about the Court’s decision. By spelling out clearly that China has violated the Philippines’s Exclusive Economic Zone (EEZ) by interfering with its petroleum exploration in the zone, by constructing artificial islands and by allowing its fishermen to fish in the zone, the Court has emphasised the significance of upholding the UNCLOS. In an increasingly globalised world where trade among nations, the quest for natural resources and the pursuit of economic activities that transcend boundaries will lead inevitably to inter-state disputes and tensions, a law such as the UNCLOS is indispensable. This is why all governments especially in ASEAN should express publicly their support for a decision that has underlined the significance of international law.

The Court’s decision also repudiates China’s 1947 “nine-dash line” argument that since China has historical records to show that its navigators had explored the islands in the SCS for centuries it could exercise proprietary rights over them. As I had pointed out in an article on May 29, 2012, “for hundreds of years before the 13th century the ancestors of present-day Filipinos, Indonesians and Malaysians, known for their superb maritime skills were in fact the masters of the seas in the entire region, including what is now known as the South China Sea.” The Court rightly reminds the Chinese that “there was no evidence that China had historically exercised exclusive control over the waters or their resources.”

In light of the Court’s decision it would be in China’s own interest to put aside the “nine-dash line “argument and begin negotiations with all the other claimants to the SCS. The new Philippines government under President Rodrigo Duterte has expressed its willingness to talk to the Chinese authorities. The governments of Vietnam, Malaysia and Brunei are also positively inclined towards negotiations. Negotiations could be bilateral or multilateral. There is perhaps a basis for multilateral discussions since some of the territorial claims are overlapping. Whatever it is, China’s sweeping claim to the whole of the SCS enshrined in its “nine-dash line” theory was a huge barrier to any quest for a just and equitable solution. Now that it has been unambiguously rejected in international law, the Chinese should move ahead and try to re-energise relations with its neighbours on a stronger foundation.

Illustration: Liu Rui/GT

What that stronger foundation could be has already been hinted by China itself and some of its neighbours in recent remarks. China and ASEAN as a whole could collectively explore the purportedly huge wealth that the SCS offers. It is established that the SCS has abundant fisheries and could be one of the major sources of protein for the world in the decades to come. It is believed that it also contains vast quantities of oil, gas and other minerals.

Agreements could be forged among ASEAN states and China that would enable them to work together on harnessing this wealth for the good of the millions of people who live in this region.

At the same time, if China and ASEAN are prepared to work together they could also protect the freedom of navigation in one of the most important shipping lanes in the world. The SCS is vital to world trade and will become even more important in the future as global economic power shifts from the Atlantic to the Pacific.

To put it in a nutshell, let the Arbitration Court’s decision in The Hague yesterday set the stage for a new era in China-ASEAN cooperation for a better tomorrow.

Dr Chandra Muzaffar is President of the International Movement for a Just World (JUST).

South China Sea: ASEAN remains divided International Arbitration Decision


July 15, 2016

South China Sea: ASEAN remains divided International Arbitration Decision

by Megawati Zulfakar

http://www.thestar.com.my

ASEAN is quick to issue statements on matters in other countries, but cannot agree to address an issue in its own backyard.

Singapore’s Foreign Minister Vivian Balakrishnan and his Chinese Counterpart Wang Yi

AFTER an international arbitration tribunal at the Hague ruled that China has no historical rights claim to resources within the South China Sea on July 12, Laos which is ASEAN chair this year sent out a note to ASEAN members asking whether they should issue an ASEAN statement on the ruling.

That Laos note gave a deadline of noon yesterday (Wednesday, July 13) for ASEAN to decide whether it should come up with a statement.But there was no accompanying  draft statement  to agree on to begin with.

The Philippines, which brought the case against China to an arbitration tribunal under the United Nations Convention on the Law of the Sea (UNCLOS), issued a statement immediately after the issuance of the award.

Malaysia, in the meantime, issued a statement seven hours later, asking claimant countries including China to find constructive ways to develop healthy dialogues, negotiations and consultations.

Back to the Laotian-proposed ASEAN statement, a check with ASEAN officials revealed that they are still working on a statement. This only points to one thing: there may not be an ASEAN statement on the award at all because the grouping could not reach consensus.It is understood Cambodia is not too keen. Some see this as pressure from the China-friendly nation. Others want to study the ruling first.

In the case of Laos, it is also seen by many as pro-Beijing, so it is a half-hearted attempt, really, to pacify other ASEAN countries that they are doing something as  the current ASEAN chair to address the disputed maritime claims.

It is a pity that while ASEAN countries were quick to reach a consensus to issue statements to address the terror attacks in Istanbul and Dhaka recently, they failed miserably to be united on an issue in their own backyard. It is also deja vu following the fiasco over an ASEAN statement to be issued after the China-ASEAN meeting in Kunming last month.

Bumbling Wisma Putra

Najib compromised as China bailed him out on 1MDB

It became global headlines after Wisma Putra issued an ASEAN statement, only to retract it just a few hours later saying urgent amendments had to be made after a wire agency ran a story quoting the statement that ASEAN has “serious concerns” over recent events in the disputed South China Sea.

Wisma Putra came out with a clarification a few days later, insisting that the statement “enjoyed” the consensus of all countries.

The South China Sea issue is a thorn in the flesh among ASEAN countries, of which four ASEAN nations – namely Brunei, Malaysia, the Philippines and Vietnam – are claimant countries.

“It is already a hot issue for us. Next week it will be hotter,” admitted an ASEAN official.

During this annual meeting, ASEAN Foreign Ministers would hold meetings with their dialogue partners, including China and the United States. “You can expect strong statements from many parties on the issue,” said an official.

While all eyes will be on how Laos will conduct itself because as ASEAN chair which is expected to be impartial on the issue, many will also be keen to see what the Philippines would do next.

With a new President in Manila and a new Foreign Minister appointed, any statements or re­­marks from them will be analyzed.Manila already said it will release “a complete and thorough interpretation” in five days.

We shall wait for the Solicitor-General’s interpretation of the ruling,” Presidential Com­munica­tions Secretary Martin Andanar had said.

China has already rejected the ruling, blaming the Philippines for stirring up trouble. Beijing issued a policy paper yesterday calling the islands in the South China Sea its “inherent territory.”

It will be interesting to see how China will conduct itself in the area, especially when ASEAN and China have long been working on a binding code of conduct (CoC) to address numerous issues faced by claimant countries.

So far only a Declaration on the Conduct of Parties in the South China Sea (DoC) was finalised and signed in 2002, which reaffirmed the parties’ commitment to UNCLOS and other international laws on state-to-state relations.

The DoC also states that ASEAN members and China should resolve disputes “by peaceful means, without resorting to threat or use of force, through friendly consultations and negotiations”. So the big question mark is whether China will still be committed to the CoC process.

As the saying goes, it is a slow boat to China. But the stage is set next week in Laos when the Foreign Ministers meet.

Beijing manipulates Malaysia’s foreign policy to its advantage


July 14, 2016

Beijing manipulates Malaysia’s foreign policy to its advantage

by Philip Bowring (June 15, 2016)

http://www.asiasentinel.com/politics/1mdb-behind-malaysia-asean-capitulation-to-china/

Although China claims vast areas of sea within Malaysia’s 200-mile Exclusive Economic Zone and the Spratly Islands, some of which are occupied by Malaysia, China’s purchase of assets from the scandal-ridden 1MDB has enabled it to manipulate Malaysian foreign policy to its advantage. –Philip Bowring, Asia Sentinel

Malaysia is succumbing to China’s efforts to undermine the solidarity of other littoral states in standing up to China’s aggressive claim to almost the whole South China Sea. Just at the point when China seems likely to face a judgment against it in the case brought by the Philippines in the Court of Arbitration in The Hague. Although China claims vast areas of sea within Malaysia’s 200-mile Exclusive Economic Zone and the Spratly Islands, some of which are occupied by Malaysia, China’s purchase of assets from the scandal-ridden 1MDB has enabled it to manipulate Malaysian foreign policy to its advantage.

ASEAN Solidarity is also being eroded by the election process in the United States, which is bringing into question the American trade and strategic commitments to East Asia, without which none of the ASEAN countries will resist Chinese pressure for long.

On the face of things, ASEAN Foreign Ministers took a firm line with China at their just-ended meeting in Kunming. Their statement after the meeting said they “express their serous concern over recent and ongoing developments that have eroded trust and confidence, increased tension and which may have the potential to undermine peace, security and stability in the South China Sea.”

“We stressed the importance of maintaining peace, security, stability, safety and freedom of navigation in and overflight above the South China Sea,” the Ministers said. This, they said, was in accordance with universally recognized principles of international law including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

ASEAN retraction

However, the statement was then retracted by the Ministers in an amazing about turn engineered by Beijing with the help not merely of its usual client states, Cambodia and Laos, but also Malaysia. The retraction was also an astonishing embarrassment for Singapore and its Foreign Minister Vivian Balakrishnan. Singapore is current coordinator of the ASEAN-China dialogue.

The Malaysian move followed a remarkable article in The Star newspaper a day earlier by the Chinese Ambassador to Kuala Lumpur, Huang Huikang.  Huang used this platform for an open attack on the Philippines, supposedly a friend and ally of Malaysia. President Benigno S. Aquino III was described as having “acted as a pawn in an outsider’s political strategy” and described the arbitration case as a “farce.” Aquino’s “political legacy will only be a pile of pills from the tribunal.”

Huang went on to praise Malaysia, describing relations with China “the best in history” and urging the incoming Philippine President to follow its example in dealing with China.

President-elect Rodrigo Duterte is wavering in his attitude to China. He clearly wants Chinese money for infrastructure projects that would be forthcoming if he gives ground the sea issue and agrees to bilateral talks, and possible joint resource development. On the other hand, he can hardly walk away from any decision in Philippines’ favor, nor go back on his commitment to the Philippines claim on the Scarborough Shoal, which lies just 120 nautical miles off the coast of Luzon.

Arrogant abuse

The arrogance of Huang in abusing his diplomatic position to attack the President of a neighbor and ASEAN partner should have drawn immediate condemnation from Malaysia. But Huang is accustomed to getting away with this kind of behavior, which suggests he already regards Malaysia as a Beijing tributary and himself as the proconsul. In September 2015, Huang made a highly publicized walk through KL’s Chinatown to indicate that China would look after the interests of its ethnic brethren in Malaysia. Beijing has thereby reversed China’s longstanding commitment not to interfere in other countries internal affairs or use ethnic Chinese minorities for its own political purposes. These are now being used to enhance Chinese interests in claiming a sea whose coastline is only about 25 percent Chinese.

Beijing views Malaysia as the weakest link in the solidarity of maritime states partly by using the position of the Chinese minority as leverage, and partly through the power of money to influence decisions made by the UMNO-led government. The 1MDB case arose at a particularly opportune moment for Beijing, enabling China to come to the rescue of embattled Prime Minister Najib Razak.

Beijing has long focused its military attentions on Vietnam and, more recently with its seizure of Scarborough Shoal, the Philippines. Malaysia has been left alone for now. But Chinese claims are now less of a threat, encompassing as they do waters already exploited by Malaysia as well as others with oil and gas potential, not to forget islands such as Layang-Layang where Malaysia has an airstrip and dive resort. But do not imagine an UMNO government cares about national interests over its own power and money needs.

Hollow Washington

Meanwhile, the US provides little encouragement for a reliable and long-term ally. The emergence of Donald Trump as the Republican presidential nominee is a poor advertisement for western democracy. His anti-Muslim attitudes are offensive to much of Asia, Malaysia included. And his isolationist attitudes suggest that his presidency would see a reduction in the US presence in the region and the withering of the network of cooperation with countries from Japan to Australia and India and including many ASEAN members. President Obama’s “rebalance” Asian rather than Middle East interests would be forgotten.

A US turn away from its traditional promotion of free trade is also a concern. Not merely is Trump critical of free trade agreements but Hillary Clinton too now says she opposes the Trans Pacific Partnership (TPP), one of the cornerstones of the US tilt towards Asia to meet the challenge of China’s rising influence.

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Conflict in the South China Sea


July 14, 2016

Conflict in the South China Sea

Contingency Planning Memorandum Update

Author: Bonnie S. Glaser, Senior Advisor for Asia, Center for Strategic and International Studies

In April 2015, the author wrote an update to this memo to reflect recent developments in the South China SeaRead: http://www.cfr.org/asia-and-pacific/armed-clash-south-china-sea/p27883

Update :http://www.cfr.org/asia-and-pacific/conflict-south-china-sea/p36377

Conflict in the South China Sea - bonnie-s-glaser-conflict-in-the-south-china-sea

Publisher Council on Foreign Relations Press Release Date April 2015

Territorial disputes in the South China Sea continue to be a source of tension and potential conflict between China and other countries in the region. Though the United States takes no position on sovereignty claims in the South China Sea—including those of its ally, the Philippines—it is deeply interested in maintaining maritime security, upholding freedom of navigation, and ensuring that disputes are settled peacefully. For these reasons, a 2012 Council on Foreign Relations (CFR) Contingency Planning Memorandum, “Armed Clash in the South China Sea,” argued that the United States should help lower the risk of conflict in the region, including the potential for dangerous military incidents involving U.S. and Chinese military forces.

New Concerns

Beijing’s intention to exert greater control over the South China Sea appears undiminished. In 2012, China forcibly seized control of the previously unoccupied Scarborough Reef during a standoff with Philippine maritime vessels, despite agreeing to a mutual withdrawal brokered by Washington. China has seemingly been emboldened by this easy, cost-free conquest: it has since begun construction of artificial islands in the Spratly archipelago that will enable it to extend the range of the Chinese navy, air force, coast guard, and fishing fleets in just a few years. Once sufficient capabilities are in place for round-the-clock maritime and air presence over the South China Sea, Beijing is likely to declare an air defense identification zone (ADIZ), similar to the ADIZ it declared over the East China Sea in November 2013. The scale and pace of China’s dredging activity has alarmed rival claimants Vietnam, the Philippines, Malaysia, Brunei, and Taiwan.

The dispute between China and the Philippines over the Second Thomas Shoal deserves immediate attention. Since 1999, a small contingent of Philippine marines has been deployed on a vessel that Manila beached on the submerged reef. In 2014, Chinese coast guard ships attempted unsuccessfully to block delivery of food, water, and fresh troops to the military outpost. The condition of the beached ship is rapidly deteriorating and it is expected to slide into the sea in a matter of months unless it is reinforced. This situation could lead to another confrontation between Chinese and Philippine forces should Beijing decide to seize the shoal. The U.S.-Philippines mutual defense treaty could be invoked if, for example, a Philippine naval or coast guard vessel is attacked, a Philippine military aircraft is shot down, or members of the Philippine armed forces are injured.

A military clash between China and Vietnam is also a concern. In May 2014, China deployed a deep-sea oil rig in Vietnam’s two hundred–nautical mile exclusive economic zone (EEZ), leading to a seventy-three-day crisis in which Chinese and Vietnamese ships rammed each other repeatedly before the rig was withdrawn. Although Vietnam’s military capabilities are dwarfed by China’s, Hanoi is nevertheless determined to defend its maritime rights. Worries persist in Hanoi that Beijing could deploy the oil rig to contested waters again, risking military confrontation. Similar clashes could take place in the nine oil blocks along the coast of Vietnam, for which China National Offshore Oil Corporation (CNOOC) invited foreign companies in 2012 to seek oil exploration bids, or near the Vietnamese-occupied Vanguard Bank.

In addition, the risk of a dangerous incident involving U.S. and Chinese forces within China’s EEZ remains a concern given the possibility of military escalation. Following several dangerous near-misses—notably in December 2013 involving a Chinese amphibious dock ship and a U.S. guided-missile cruiser and in August 2014 involving a Chinese fighter aircraft and a U.S. surveillance plane—the U.S. and Chinese militaries struck a groundbreaking deal on rules of behavior for safe military encounters between surface naval ships at sea. Such confidence-building measures may help reduce the potential for accidents in the future. However, individual commanders may still display aggressive behavior that could have dire consequences.

Policy Implications

U.S. interests in the South China Sea include freedom of navigation, unimpeded passage for commercial shipping, and peaceful resolution of territorial disputes according to international law. Failure to respond to Chinese coercion or use of force could damage U.S. credibility, not only in Southeast Asia, but also in Japan, where anxiety about intensified activity by Chinese military and paramilitary forces is growing. Conflict in the South China Sea would put at risk the more than $5 trillion in trade that passes through those strategic waters annually. Also at stake is the U.S. relationship with China, including Washington’s efforts to gain greater cooperation from Beijing on global issues such as combating terrorism, dealing with epidemics, confronting climate change, securing a deal on Iran’s nuclear program, and persuading North Korea to relinquish its nuclear weapons.

Recommendations

Although China may have moderated some of its intimidation tactics for now, it continues to seek greater control over the sea and airspace in the South China Sea. Moreover, various attempts to persuade China, along with the other claimants, to freeze destabilizing behavior such as land reclamation have not succeeded. Beijing continues to drag its feet on negotiating a binding code of conduct (CoC) with the Association of Southeast Asian Nations (ASEAN) and has rejected Manila’s attempt to resolve its territorial dispute through arbitration under the United Nations Convention on the Law of the Sea (UNCLOS). Halting Chinese land reclamation activities may not be possible, but the United States can press China to be transparent about its intentions and urge other nations to do the same. While remaining neutral on sovereignty disputes, the United States should encourage all parties to pursue their claims peacefully and in accordance with international law. The United States should also press China to accept constraints on its behavior in a CoC and dissuade China from taking actions that increase the risk of conflict. Several of the recommendations in CFR’s 2012 analysis of potential conflict in the South China Sea remain to be implemented; in particular, the United States should ratify UNCLOS. In addition, the United States should take the following steps:

  •  In the absence of progress between China and ASEAN on a binding CoC to avert crises in the South China Sea, the United States should encourage ASEAN to develop its own draft CoC containing risk-reduction measures and a dispute-resolution mechanism. The United States should then work with ASEAN to convince Beijing to sign and implement it.
  • The United States should continue to help the Philippines and Vietnam enhance their maritime policing and security capabilities, for example through better surveillance systems, so they can deter and respond to China entering the water and airspace in their EEZs with impunity. Similar assistance should be extended to Malaysia if requested.
  • The United States should be prepared to respond to future Chinese coercive acts including using U.S. naval forces to deter China’s continuing use of “white hulled” paramilitary vessels. Other responses, such as imposing economic sanctions on Chinese energy companies should they drill in contested waters, are also conceivable but should not be specified in advance.
  • The United States should state clearly and publicly that a declaration of an ADIZ by Beijing over the South China Sea would be destabilizing and would not be recognized by Washington.
  • To further reduce the risk of an accident between U.S. and Chinese forces, the two militaries should implement their joint commitment to conclude an agreement on air-to-air encounters by the end of the year.

 

 

 

South China Sea: Vietnam benefits from PCA ruling but China is not without options


July 14, 2016

South China Sea:  Vietnam benfits from PCA ruling but China is not without options

by Zachary Abuza

On  July 12, 2016, the Permanent Court of Arbitration (PCA) issued a definitive ruling on China’s sweeping claims in the South China Sea.

The Philippines filed their arbitration suit in January 2003. China refused to participate in the hearings, arguing that the PCA and the UN Convention on the Law of the Sea do not have the legal authority to rule on sovereignty issues. The Philippines wrote their submission in a way that sovereignty was never the issue at hand, instead focusing on the issues of entitlements of certain features, historical rights, environmental degradation and the meaning of the nine-dash line.

The PCA took China’s consideration into account, and in December 2015, ruled that it had standing to rule on 15 specific points. Their ruling was the strongest affirmation of the rule of law and creates an important legal precedent. The decision is a landmark ruling and a devastating blow to China.

Few legal scholars or international relations specialists were expecting the Court to rule unanimously in the Philippines favor on 14 of 15 counts. Most importantly, the PCA ruled that the nine-dash line has no basis in international law and that the historical rights claimed by China were “extinguished” by the ratification of UNCLOS. The Court ruled that no feature in the Spratly Island is a habitable feature in its natural state, and therefore, no feature is entitled to a 200 nautical mile exclusive economic zone (EEZ).

In short, the PCA ruled that China has no exclusive right to resources in the East Vietnam Sea when it claimed almost 90 per cent of them. No other country stands to gain more from the ruling than Vietnam. “Vietnam welcomes the arbitration court issuing its final ruling,” the Ministry of Foreign Affairs said in a terse statement.

“Vietnam strongly supports the resolution of the disputes in the South China Sea by peaceful means, including diplomatic and legal processes and refraining from the use or threats to use force, in accordance with international law.”

First, the legal invalidation of the nine-dash line is crucial. China’s nine-dash line clearly violated Vietnam’s EEZ and continental shelf rights, garnered from its coastline. China has no legal rights to fish or drill for hydrocarbons. The PCA ruling was unequivocal: China has violated the Philippines’ EEZ and continental shelf rights.

The same holds true for Vietnam. However, while this may make international oil firms think twice about bidding on Chinese exploration blocks on Vietnam’s continental shelf, China will continue to enforce sovereignty via its maritime militia.

Second, the PCA’s invalidation of China’s historical rights is critical. As the court ruled that the Philippines, too, enjoyed historical rights in those waters, it should follow that Vietnam shares the same rights; that is, historical rights are not mutually exclusive.

Third, the sweeping and thorough nature of the ruling means that Vietnam does not have to file an arbitration suit over the Spratly’s. Hanoi has been able to free ride on the courageous leadership of the Philippines. This is critical.

In 2014, at the height of the furore over the HYSY-981 oil rig placed clearly on Vietnam’s continental shelf, then Prime Minister Nguyen Tan Dung made clear that it was a matter of when, not if, it would join the Philippines and also file a suit with the PCA. But following China’s dispatch of State Counselor Yang Jiechi to Hanoi, in June 2014, that position was dropped.

Hanoi did file a brief with the PCA, but only to request the tribunal to take Vietnam’s legal position into consideration. While Beijing was not pleased with Hanoi, it was far short of a separate arbitration. But now Hanoi needs not test those diplomatic waters.

That said, Vietnam could use the PCA findings to lodge a suit against China regarding the Paracels, asking for clarification regarding features, whether they be rocks, reefs of low tide elevations. Likewise, it could use the PCA ruling to challenge China’s drawing of straight baselines around the Paracels. I doubt, however, that Hanoi would be emboldened to go down that path.

The ruling does has several downsides for Vietnam. First, Vietnam, too, has no claim to an EEZ from any of its held features. At best, it will enjoy a 12 nautical mile (NM) Territorial Sea from a few, such as Spratly Island.

Second, the PCA ruled that “China has inflicted irreparable harm to the marine environment,” through its construction of seven islands and reclamation of others. Vietnam has also engaged in land reclamation, albeit to a much smaller degree, around two per cent of China’s. And the court was highly critical of China’s construction of islands while the court was deliberating, stating that such reclamation was “incompatible with the obligations on a state during dispute resolution proceedings.” Hanoi should take note as it too is constantly upgrading its features. And it should also take note that the PCA ruling was unequivocal: artificial islands give no EEZ, and if they are constructed on low tide elevations, not even 12NM territorial seas.

Third, China may decide to draw straight baselines around its features in the Spratly Islands, just as it has done in the Paracels. The PCA has tried to preempt them from doing so, clearly stating “UNCLOS doesn’t provide for groups of islands to generate maritime zones collectively.” But that is what China will likely do, and those baselines will include Vietnamese held features.

China has said that the PCA’s ruling is “null and void,” that they inexplicably “violate international law,” and thus that it will not be bound by them. The Ministry of Foreign Affairs made this clear in a 12 July statement: “China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards.” UNCLOS articles 288(4) and 296 (1) are clear in this.

So how is China likely to respond to the ruling?

At one extreme, it could increase the militarisation of the islands that it has built. It could deploy anti-aircraft missile batteries already based at the Paracels, as well as more fighter aircraft ahead of declaring an air defense identification zone (ADIZ). It certainly is not going to stop military operations and exercises in the South China Sea.

Short of that, it could lash out on a bilateral basis, meaning China could retaliate against the Philippines by beginning land reclamation at Scarborough Shoal, or at least continue to deny access there to Filipino fishermen. China could, likewise, deny Vietnam access to their features.

China will continue to enforce its claim of sovereignty, not through its navy or even its coast guard, but through its maritime militia; an armed and deputised fishing fleet that remains within the command and control of the security forces. The day before the PCA ruling, two Chinese vessels rammed and sunk a Vietnamese fishing boat. While Beijing has lost the legal fight, no country is pushing back regarding China’s unilateral enforcement of sovereignty through its fishermen.

China may weigh the costs of being overly aggressive. Despite its claims of substantial international support, only 10 countries openly support China’s legal position, and most of them are landlocked, poor, corrupt and dependent on Chinese aid. It wants to be a superpower, but without carrying any of the costs, such as leading by example, taking hits in international courts, or providing collective goods.

The Chinese leadership has painted themselves into a corner, by fanning the flames of nationalism in their state controlled media. The Chinese Communist Party has tried to harness nationalism, but more importantly tried to assert China’s “rights” lost in the two centuries of humiliation to the West and Japan, to legitimise the regime.

China is most likely to act closer to home, and continue to use its influence over Cambodia, Laos, Brunei, and even Myanmar, to prevent a unified response from ASEAN, which meets in a few weeks’ time.

It has not helped that following the PCA ruling there was deafening silence out of Jakarta, and even worse, the conflicting signals that we have seen from the TNI, Ministries of Foreign Affairs, Fisheries, and the President’s office. Without Indonesian leadership, there can be no effective ASEAN response.

So there are three things that Hanoi must do. First, Vietnam must use all the leverage at their disposal, especially over Laos and Cambodia. But it has recently dawned on Hanoi how little of their historical influence they still maintain. Vietnam would be wise to remind Hun Sen how much Cambodia relies on international courts and other countries accepting their ruling regarding its claim to Preah Vihear. ASEAN centrality, seemingly jettisoned at Kunming, must be restored. And then, the group must use the ruling as a new impetus to push for a binding Code of Conduct with China.

Second, Vietnam will have to use their coast guard to counter Chinese fishermen and maritime militia. The rule of law is on Vietnam’s side, but it must be enforced. As long as China can unilaterally deny others access to the South China Sea, it has de facto sovereignty.

Third, it must work with other states to give China a face-saving way out. Until Beijing realises that it’s in its interest to accept the ruling, it will not abide by it. The downside of the ruling is that it is so unequivocal that it doesn’t give China any face-saving way out.

There’s one last thing Hanoi should note: independent courts can produce some wonderful outcomes if free from political interference. It may consider that at home, where its commitment to the rule of law seems a lot less convincing than it did today in support of the PCA ruling.

Dr Zachary Abuza is a Professor at the National War College, in Washington, DC, where he focuses on Southeast Asian politics and security issues, including governance, insurgencies, democratisation and human rights, and maritime security.

Source:

Hanoi’s hopes rise with China’s dashed nine-dash line