and has instead continued its maritime and aerial activities in the region.
ASEAN has struggled to issue a strong and coherent response, largely because half of ASEAN’s members — namely Malaysia, Philippines, Vietnam, Brunei and Indonesia — are involved in overlapping claims in the South China Sea. After the recently concluded 49th ASEAN Foreign Ministers’ Meeting in Laos, ASEAN released a joint communique that was seen as ‘too soft’ on China. The communique failed to explicitly denounce China’s assertive actions in the South China Sea.
Meanwhile the United States continues to push the Southeast Asian states to endorse the PCA decision and issue a more potent response in condemning Chinese actions in the South China Sea. Even the Philippines, which had initiated the PCA case, has provided a muted response so far under its newly elected president, Rodrigo Duterte.
Such differing reactions to the PCA judgements and China’s actions in the South China Sea may appear to be confusing. But China’s more assertive behaviour and ASEAN’s lacklustre response thus far makes sense if we consider the broader strategic background.
ASEAN is unable to cooperate on many common security issues. It was formed to soothe regional competitions and apprehensions among its pioneer members, particularly Indonesia, Malaysia, the Philippines and Singapore. ASEAN originally operated as a platform to discuss cooperation in socio-economic activities and adheres to the principle of non-interference in each other’s internal affairs.
ASEAN has since grown to include all other states in the Southeast Asia region and, with each of these additional members, their respective geopolitical preferences. Some of these states, such as Myanmar, Laos and Cambodia, are strong traditional allies of China that have no strategic interest in the South China Sea. These states also strongly rely on China for both political and economic survival. As for those ASEAN members that have an interest in the South China Sea, they are perpetually locked in rivalry and competition among themselves in overlapping claims. Almost all of the ASEAN members are also entangled in border and territorial disputes among themselves. For example, the Philippines has not yet dropped its claim on Sabah in Malaysian Borneo.
Meanwhile Thailand has a continuing interest in working closely with China to build a canal through the Kra Isthmus in southern Thailand, similar to the Panama Canal. This project is estimated to cost close to US$30 billion and the economic trade-off for Thailand will be extraordinary. If this canal is built it will allow ships to bypass the Strait of Malacca and will result in significant loss of maritime shipping revenue for Malaysia, Singapore and Indonesia.
It would be in the strategic interests for these three states not to agitate China in case it prioritises the financing and building of this canal with Thailand. China sees this planned project as part of its new maritime Silk Road. Thailand, which has deliberated on the building of the canal since the end of the 17th century, continues to weigh up the potential returns of a geopolitical alliance with China.
With so many conflicting interests and rivalries between ASEAN members, it is not surprising that ASEAN has been unable to produce a strong joint statement condemning China’s actions in the South China Sea. China knew about these fractious issues and played its cards well. China’s rejection of the PCA ruling further indicates the impotence of international law in the face of a major power and a permanent member of the UN Security Council.
Although action can be taken unilaterally by certain trade blocs, the willpower to enforce any firm action, such as sanctions, is strongly lacking. Even US attempts to push some of its allies in the region to influence ASEAN continue to be frustrated by both ASEAN’s own internal frictions and by uncertainty over US foreign policy once a new president is elected in November 2016.
The mixed and at times muted response of ASEAN seems set to continue. This will likely result in China continuing to position itself strongly in the region and to unilaterally pursue claims in the South China Sea.
Dr Adam Leong Kok Wey is a senior lecturer in strategic studies at the National Defence University of Malaysia, and a post-doctoral visiting research fellow at the Department of Politics and International Relations, University of Oxford.
Good historic and geo-political analysis by Dr. Wey. It is refreshing to NOT SEEING the past intentional errors that had been widespread in Western media in referring to the South China Sea dispute case by the arbitration panel in Hague. With more than 40 days public discourse after the July 12 “ruling”, even the Western media knows better not to use the knowingly wrong terms such as: UN RULING, UN-BACKED RULING, OR UN-BACKED PERMANENT COURT OF ARBITRATION IN THE HAGUE, or even worse, INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS) RULING.
May be it is still important to point out the FALSE RIGHTS that were disseminated based on the debunked legal basis.
The arbitration tribunal that many of these experts in the Western media quoted, claimed to be formed based on the UNCLOS Annex VII. It should not be confused with the International Tribunal of the Law of The Sea (ITLOS) that is affiliated with the United Nations. The ruling (or technically better to call them legal opinion) from the 5 member arbitral tribunal that claimed to have been formed under the UNCLOS Annex VII by Mr. Yanai, the then President of ITLOS. IT IS NOT A RULING FROM THE ITLOS THAT HAVE 21 ELECTED MEMBERS. (Please see the many discussions made on this link: http://nationalinterest.org/bl… )
Mr. Kazianis and Mr. Cronin would have given the 5 ARBITRATORS much too much “legal authority” when they have knowingly violated the protocols that they have known since it started 30 years ago.
There are at least two major sections that must be overcome among the two Parts in UNCLOS that relate to “Settlement of Disputes”. PART XI. SECTION 5: SETTLEMENT OF DISPUTES AND ADVISORY OPINIONS and PART XV: SETTLEMENT OF DISPUTES. Even when we get to Annex VII, there are still the Article 1, 2 and 3 in constituting the proper arbitration arbitral tribunal that was not followed when the then President of ITLOS made his one man selections.
(For example, Article 3-e:……. The appointments referred to in this subparagraph shall be made from the list referred to in Article 2 of this Annex within a period of 30 days of the receipt of the request and in consultation with the parties. ) Mr. Yanai, then President of ITLOS decided to ignore and skirt all these protocols and appointed the members of the tribunal by himself with Philippines without consultation with China.
Mr. Yanai, in his three year term, perpetuated THE ONLY TWO one-sided-arbitrations (with the arbitral tribunal formed by one party) between two state parties concerning territorial disputes in the history of UNCLOS: On 22 January 2013, Philippines v. China and On 4 October 2013, Netherland v. Russia. Both cases are in violation of Article 1, 2 and 3 of Annex VII of UNCLOS. The Netherland v Russia was to embarrass Russia on Green Peace activists that no one expected Russia will hold them for any length of time. The case of Philippines v. China is really intriguing and will be an embarrassment for all for many years to come.
ASEAN countries SHOULD NOT BE PUSHED OR COERCED by America and Japan to use “FALSE RIGHTS” to continue the expansion of conflicts. Historic territorial conflicts are facts of life. After all, it is historic and going to have to be resolved over time with patience. May be it will be wise for ASEAN to focus on improving living standards by cooperation and collaboration while “quietly” resolving and may be sharing the benefits that may coming out of “owning” these territories?
Interesting piece but there is a factual error. It was NOT the Permanent Court of Arbitration (PCA) that made the ruling on 12 July 2016.
The PCA is not a court. It only provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes”.
The UN spokesman confirmed that the PCA is only a “tenant” of the Peace Palace in the Hague, “but has nothing to do with the UN.
China had indisputable sovereignty over the Spratly islands, even at the time when all the Asean nations (except Thailand) were colonies of either the British, French, Dutch or American colonial powers.
To claim that China “unilaterally pursue claims in the South China Sea” shows a deficit in historical facts.
This is the Timeline of History:
a) In the 1887 Sino-Franco Convention, France agreed that all the isles, east of the Treaty delimitation line, were assigned to China. That included the Spratly and Paracel Islands.
b) The 1898 Treaty of Paris, signed when Spain handed the Philippines as a colony to the United States, Article III described the western limit of the Philippines as 118 degrees East longitude.
China’s Territories such as the Spratly and Paracel Islands and Scarborough Shoal are all located west of that.
c)In fact, as early as 1933 the Philippines (then a US colony) had wanted to annex the Spratly Island but on 20 August that year, the US Secretary of State, Cordell Hull wrote that, “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”, and “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands”.
d) France invaded and occupied China’s Spratly and Paracel Islands in 1938 and in 1939 Japan colonized these two island groups.
e) After WW2, Formosa (Taiwan) and the Pescadores, as well as the Spratly & Paracel Islands were returned to the Republic of China (ROC) on 28 April 1952, under Article 2 of the Treaty of Peace that Japan signed with the ROC, in accordance with the Potsdam Declaration.
f) British records show there is no dispute regarding the Spratly Islands and that China is the sole titleholder and they made no claims on these islands.
g) In Sept 1958 China made a 12 nm territorial sea declaration on all her territories and that included the Spratlys. Malaysia, which had her independence from the British on 31 August 1957 did not object.
h) When ECAFE announced the discovery of crude oil in the South China Sea in the late 1960s, Malaysia grabbed 6 features in the Spratlys, Vietnam 29, Brunei one. In 1978 President Marcos annexed 8 features.
Unclos was not even formed until 1982 and came into force in 1994.
i) Despite these illegal annexations, China acted with restraint. So why blame China for being assertive when four Asean nations annexed her territories in the Spratlys?
Asean is an economic grouping and it should get its own house in order and not become “perpetually locked in rivalry and competition among themselves in overlapping claims” over China’s territories they have alienated in the South China Sea.
Asean should abide by the DOC and the China-Asean joint statement in Vientiane on 26 July and solve the South China Sea peacefully through friendly negotiations.
KTTAN, Good summary.
If we at the total combination with addition of the Borneo map at the time between Dutch and British, the basic outline of 9-dash line were defined.
SOUTH CHINA SEA LAND MASSES DEFINED IN COMBINATION OF THE VARIOUS INTERNATIONAL TREATIES:
1. 1887 Sino-Franco Convention defined the longitudinal lines of 105° 43′ for Vietnam demarcation to exclude Paracels, Spratlys and other landmasses to the East.
2. The 1898 Treaty of Paris defined the 118 degrees East longitude for Philippines demarcation to exclude that of Spratly and Scarborough and other land masses to the West.
3. Map of British and Dutch Borneo, 1898 clearly demarcate the Palawan and Borneo (now part of Malaysia) do not include Spratly and defined the southern latitudes and that defines the Spratly away from Malaysia and Brunei.
• 1947 Maps by America and the help from America to reclaim Spratly for the Republic of China, at least based on the Post Second World War territorial demarcation, the land masses in South China Sea and claimed by China are enclosed in good approximation to the 9- or 11-dash lines.
Thank you. Your points are all valid.
1 Also in 1933 the Philippines, a colony of the US, wanted to annex the Spratly Islands.
They got this warning from the then US Secretary of State, Cordell Hull, who wrote: “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”, and “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands”.
2 Professor John Anthony Carty of Tsinghua University said “the British record proves there is no dispute regarding the Nansha Islands and that China is the sole titleholder. This British record is not just the opinion of an individual lawyer – this is the product of an immense amount of research that the foreign ministry did in London. They investigated all of their archives and all of the correspondence they had with other countries for a period of 100 years.”
http://www.chinadaily.com.cn/world/2016-07/18/content_26127217.htm
3 So essentially Spain, France, Britain, the US and Japan did not lay any claim on the Spratly or Paracel or Scarborough after WW2.
Only four of their former colonies did when oil was discovered in the South China Sea by ECAFE in late 1969.
4 The only way to deny China’s historic rights inside the nine-dash line in the Spratlys today is for the Tribunal to undermine Itu Aba or Taiping Island and deny it a 200nm EEZ.
Then only the 200nm EEZ of the Philippines will dominate and cover the Spratlys.
5 This is a flawed ruling. China and Taiwan should invoke Unclos Annex VII, Article 12 (2) and take the Itu Aba controversial ruling to the ICJ for a review because in 2012 the ICJ held that for an island to get a 200nm EEZ it must be able to sustain human habitation or economic life on its own as per Article 121(3) of Unclos.
Itu Aba can do that and has been doing it for over 600 years.
Unclos is an international law of the Sea. It must be applied fairly all over the world.
6 But Japan refuses to accept the ruling and wants a 200nm EEZ for its Okinotori Atoll (about 1044nm from Tokyo) which has no fresh water and therefore cannot sustain human habitation on its own.
And the US wants a 200nm EEZ for Baker and Howland Islands which cannot sustain human habitation on their own too.
7 So there is a double standard applied to an international law of the sea. This is bad news for mankind.
Had China, Philippines, Vietnam and Indonesia been so belligerent and quarrelsome if their population momentum and fertility levels were similar or lower than Japan?
All these rapidly multiplying countries have fertility-rate >1.5 births/female. So there is a competition for fish, shipping lanes, fuels and minerals.
Women’s poor health, pollution, environmental damage are the consequences.
Contraception will end population explosion and usher in an era of lasting peace.