Wednesday, July 13, 2016

ASEAN - Tribunal ruling against China will test ASEAN unity

No matter how Tuesday's verdict by an international tribunal on China's South China Sea claim is viewed, and whatever its immediate consequences, the watershed ruling will bring about a "new normal" in Southeast Asia that portends more regional tensions and potential conflict in the longer term.

This "new normal" means that the status quo before Manila took its case against China to the dispute-settling Arbitral Tribunal under the United Nations Convention on the Law of the Sea in January 2013 will not be restored. China will effectively control the areas it has claimed and in which it has constructed features and facilities, even though the tribunal's damning ruling suggests it has no legal right to do so. It behooves China now as an aspiring global leader to be satisfied with its neighborhood fait accompli and start to compromise with the 10-member Association of Southeast Asian Nations by working toward the group's proposed rules-based Code of Conduct for Parties in the South China Sea (CoC).

For ASEAN, particularly for the Philippines, the favorable ruling may prove a Pyrrhic victory unless the resilient but divided regional organization can close ranks and put up a united and persuasive stand to rein in China's maritime claims.

As in most tit-for-tat spats of this kind, culpability in the Philippines-China conflict is in the beholder's eyes. Beijing has insisted that Manila instigated the legal brouhaha by petitioning the tribunal in violation of the 2002 Declaration on the Conduct of Parties in the South China Sea, an ASEAN-China goodwill document to engender mutual trust and confidence. Manila's move was triggered by China's seizure of Scarborough Shoal near Luzon Island in July 2012. China wanted a negotiated outcome to the dispute on a bilateral basis, while the Philippines internationalized its case at the UNCLOS level and also with the U.S, its longtime treaty ally. In turn, the Obama administration's widening "pivot to Asia" at the time reinforced Beijing's fear of a strategic encirclement by America's allies and partners in the East and South China seas.

China's ensuing construction of a string of artificial islands in the South China Sea quickly raised regional temperatures. Pressed by the Philippines at the tribunal and under diplomatic pressure from maritime ASEAN claimant states like Indonesia, Malaysia and Vietnam, China saw fit to cash in some of its patron-client ties with Cambodia and Laos, two small mainland ASEAN states, for diplomatic backup. It also kept non-claimants Myanmar and Thailand on side as these two larger ASEAN mainland countries have had to rely on China's support more than ASEAN's for domestic reasons. China also enticed tiny Brunei to take its side.

ASEAN pays the price

Beijing's maneuvers have thrown ASEAN into unprecedented diplomatic disarray, unable to take a unified position on the South China Sea over the past several years. Without unity, ASEAN cannot play its traditional central role in Asia's regional architecture-building. Without such architecture to ensure order and stability, Asia will only see more tension and confrontation.

In Tuesday's decision, the tribunal ruled in unmistakable terms on the legal status of all land features in the Philippines' 15 submissions, from submerged reefs that cannot qualify as rocks, and from rocks that cannot be converted into islands, each with its own maritime entitlements. As if to add insult to injury, the ruling also reprimanded China for the environmental damage it has caused through its land build-up in the sea. While the Philippines did not win all that it asked for, China implicitly won none -- even though it took no part in the legal process. The tribunal's landmark decision squarely rejected China's aims to apply its controversial "nine-dash line" map from 1947 based on "historic rights" of owning more than 80% of the South China Sea.

What happens after the ruling is now more important than what preceded it. The ruling will test ASEAN's unity more than ever. Rather than issuing a joint statement, ASEAN member countries are more likely to take individual positions in the immediate aftermath. The key test will come in late July when the ASEAN foreign ministers' meeting will be expected to produce a joint statement and a united front on the tribunal's ruling ahead of ASEAN-related summits in early September. A lot of fudging and muddling will be on display, which will only highlight the glaring absence of a joint communique with clear positioning on the South China Sea. Without such a unified position, ASEAN will be structurally stuck and divided between sea and land, between claimants and non-claimants, sympathetic toward China and those who feel otherwise. Never has ASEAN unity and cohesion been more needed than after the Philippines' legal victory over China.

It is now critical that the Philippines does not overplay its hand by mobilizing international sentiment or tapping its U.S. alliance. Manila - as it has suggested -- would do well for ASEAN-China relations by backing off despite its legal upper hand. Beijing deserves to be given some diplomatic space whereby Singapore as country coordinator for ASEAN-China relations can play a mediating role. Ultimately, the ruling should pose an opportunity for ASEAN and China to mend their rifts by jointly crafting a workable code of conduct in the disputed sea. China should know after the ruling that its actions that violate maritime rights and sovereignty of neighbors come with a high cost. It is not worth China's longer term ambitions for a top place in the global pecking order to be locking horns with a smaller neighbor over reefs and rocks -- and then to ignore an international ruling in the event. It would simply be conduct unbecoming of a respected and respectable global superpower.

Thitinan Pongsudhirak

Thitinan Pongsudhirak teaches international political economy and directs the Institute of Security and International Studies at Chulalongkorn University in Bangkok.

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