THE most
significant point about the “now you see it, now you don’t” joint statement by
Asean foreign ministers on the South China Sea issue in Kunming last month is
how China is able to unravel the regional group’s decision ex post facto.
In a
meeting among themselves, the ministers had earlier decided to express their
deep concern over China’s – not named of course – assertiveness, land
reclamation activities and militarisation of the South China Sea, and its
threat to peace and stability.
The
formulaic phrases used in the statement were not far removed from what had been
employed since the 26th Asean summit hosted by Malaysia in April 2015. Then,
for the first time, terms such as “strong concern” over activities which have
“eroded trust and confidence and may undermine peace and stability in the South
China Sea”, were used.
This was
against the background of audacious actions by China in the South China Sea
where it has territorial disputes with four Asean member states: Brunei,
Malaysia, the Philippines and Vietnam. China stepped up these actions in the
past couple of years to back its claims based on the nine-dash line which would
make nearly the entire sea a Chinese lake.
The
artificial islands created through reclamation were being militarised and
China’s statements in support of its activities pointed to a situation where
these artificial islands would be proclaimed to have their own territorial sea.
Under such circumstances, freedom of navigation and overflight over the South
China Sea – not to mention the rights of the other claimant states – would be
compromised and subject to Chinese caprice.
There is
a fear China would declare an Air Defence Identification Zone over the entire
South China Sea, which would put everyone else under Chinese overflight control.
With freedom of navigation also at risk – and with environmental damage caused
to the coral reefs by extensive reclamation – the situation is fraught with
hazard, which certainly could “undermine peace and stability in the South China
Sea.”
Already
Chinese fishing vessels, well-protected by naval gunboats, were fishing in
disputed waters, and those naval coastguards with their fishing flotilla had
been appearing with some regularity in waters well within the exclusive
economic zone (EEZ) of Asean countries.
Since the
Scarborough Shoal standoff in 2012, the Philippines lost control of its claimed
territory just 230km from Luzon. Brunei and Malaysia have latterly seen their
EEZ encroached upon, with missives to stop offshore oil and gas drilling
activities.
Vietnam
has been battered by China the most. When everyone was busy in those last days
of the Vietnam War, the Chinese navy bloodied the Vietnamese (then South
Vietnam) in 1974, resulting in Beijing seizing control of the disputed
Paracels.
There
have been many clashes at sea between the two, often resulting in the sinking
of Vietnamese fishing boats. In 2014 a Chinese drilling platform was placed in
disputed waters close to the Vietnamese coast and carried out its activities
for a period before being tugged out.
Even
Indonesia, which does not consider itself a claimant state, has been drawn in
by China’s assertive activities. The nine-dash line actually cuts into the EEZ
of Indonesia’s Natuna Island. China considers it has traditional fishing rights
there, despite provision in international law that only the littoral state has
right to the resources within the EEZ.
There
have been three high profile incidents off Natuna involving the Indonesian navy
and Chinese fishing boats protected by China’s coastguard vessels. The last
occurred in the middle of last month, just after the ill-fated Kunming summit.
There have been exchanges of stiff notes between, and strong statements by, the
two countries. Indonesia’s President Joko “Jokowi” Widodo held a Cabinet
meeting last week aboard an Indonesian navy ship off Natuna, to underline
Indonesia’s rights and resolve to protect them.
China’s assertive actions
China’s
assertive actions have been stepped up to almost a frenzy to establish facts on
the ground, a fait accompli, before the decision of the Permanent Court of
Arbitration (PCA) on the legality under the United Nations Convention on the
Law of the Sea (UNCLOS, 1982) of China’s actions and claims in the South China
Sea, brought to the PCA by the Philippines in 2013.
The PCA
is not being asked to adjudicate on the actual territorial dispute between the
states, as China disingenuously proclaims, but on the legal veracity under
UNCLOS of China’s conceptual bases in its South China Sea assertions, like the
nine-dash line. In fact Indonesia, and others so affected, could very well go
to the PCA to seek a ruling on whether or not UNCLOS recognises such a thing as
“traditional Chinese fishing grounds.”
It is
true that, if it were a matter to determine actual territorial extent in
specific dispute between states, the consent of involved parties is required.
But this is a completely different case. It is a question of whether certain
concepts, precepts and proclamations – and actions based on them – are legally
sustained under UNCLOS.
No less
an authority than Professor Tommy Koh, who chaired the long 10-year
negotiations leading to UNCLOS, has categorically stated the PCA has
jurisdiction over most of the matters brought to it by the Philippines.
This is
why China is livid with the Philippines. The decision of the PCA, expected on
July 12, will have far-reaching implications on what China has been asserting
and doing in the South China Sea. The more supine claimant states will also
benefit.
This is
why China has embarked on a most extensive diplomatic effort to secure support
from outside states against the PCA and its expected ruling – thereby
internationalising the South China Sea dispute, when it suits it, and violating
its repeated intonations against doing so.
This is
why China will not allow Asean to come out with the joint statement that merely
draws attention to reality without even naming or criticising China.
This is
why China is willing to break and enter into an Asean foreign ministers’
decision, and get its cohorts – Laos and Cambodia – to get it withdrawn.
This is
why China is, without apology, using chequebook diplomacy – and not a little
bit of the gunboat kind in the South China Sea – to secure its position through
inducement, threat and bluster.
China –
with the help of Asean member states that are willing to prostrate themselves –
has caused Asean to be fractured and divided.
What
happened in Kunming is very serious for the future of Asean. In the month of
Brexit, Asean showed signs it could break apart over the nature of the
relationship with a great rising power in a situation of regional geopolitical
change.
This
month the Asean foreign ministers will meet again in Vientiane. What will they
do or say about what happened in Kunming?
They
cannot pretend it never happened. They have been avoiding their disunity for
too long.
Now they
have to establish the point that decisions already made consensually cannot be
reversed by one or two member states, and certainly not on the instruction of a
third party.
They also
have to give clear standard operating procedures (SOPs) to their separate
national delegations. The Lao foreign minister had already left but his
minister of state made the decision to accede to the Chinese demand that the
joint statement be retracted. Is there division within the Lao delegation
reflecting the ruling communist party’s own differences over how influential
China should be allowed to be?
Urgent amendments
The
Malaysian delegation, which had issued the joint statement properly made, then
withdrew it, with a spokesperson stating there were “urgent amendments” to be
introduced.
Why
should Malaysia withdraw the statement and on whose instruction? Why not get
whoever insisted on its withdrawal to do so himself, and to give the reasons
for it? If there were “urgent amendments” to be made, when will the joint statement
now be released?
As it is,
it looks like Malaysia got egg on its face.
Given the
serious division in Asean on the South China Sea dispute, discussion on the
matter cannot continue to proceed in the gentle “Asean way” without clear and
strong statements on what’s what and who’s where.
The lack
of clarity which gives a false appearance of unity cannot be sustained when
Asean is palpably divided. Better now to be frank and clear.
With the
ruling by the PCA coming up, there will be another possibility, most likely
probability, of an Asean in disarray. Cambodia’s Prime Minister Hun Sen has
already contradicted himself by saying his country is neutral on the South
China Sea and at the same time will not accept the PCA’s ruling because it is
the biased outcome of a conspiracy. What is Asean going to do?
Asean
foreign ministers are saying they will take a position when the decision is
made. Should they not be preparing on the stand they would take should the
ruling not be favourable to China?
Are they in
informal discussion? Are their foreign ministries in deep preparation on the
stand they would take and the arguments they would adduce?
Asean is
sailing very close to the wind following that Kunming meeting with China in the
middle of last month, which showed a lack of backbone and the most profound
disunity over the South China Sea dispute. Surely Asean must address that
disunity and stop muddling through.
The other
value-at-risk is the so-called Asean centrality. The November 2015 Declaration
on the Asean Political and Security Community referred to this centrality.
But Asean
has to be united, or at least have a consensus on key issues, if it is to be an
influencer of events in the region. It is not and does not.
Not able to cope
What will
happen to the work plan Asean foreign ministers adopted in New York in
September 2015 on “Maintaining and Enhancing Asean Centrality”? Increasingly it
is being shown Asean is not quite able to cope, and stay together, as major
powers become more assertive and active in the region.
Even
“default centrality” where the major powers allow Asean to play the regional
role, even if they are driven by their own strategic interests, is at risk.
When Asean cannot even put together its policy on the South China Sea, how can
it be trusted to mobilise the views of other parties, regional or
extra-regional?
The
22-year-old Asean Regional Forum (ARF) now has 27 members with divergent
interests. The East Asia Summit, set up in 2005, has 18.
How can
Asean keep these very diverse members in the regional architecture together
when it itself is not together? At most, Asean becomes just a grand event
organiser. How long will these institutions, which Asean had so creatively
developed, remain relevant when its unity and centrality are lost?
It is
critical that Asean foreign ministers are candid with one another, discuss how
Asean is to go forward, and advise their leaders on these existential issues –
in the very first year of the Asean community. Let Asean not proceed limply in
a fashion best captured in the old Malay adage: hidup tak mau, mati segan (not
making a choice whether to live or to die).
A lot of
this has come to pass because of the South China Sea dispute, and China’s
uncompromising attitudes and actions.
This has
nothing to do with being anti-China. The position in the aborted Kunming joint
statement is a principled one, based on what is taking place in the South China
Sea. These are facts on the ground, which do not disappear in the mist of
China’s froth and anger every time it is told so.
China
cannot in response warn small states to beware, as happened at the ARF in Hanoi
in 2010 and again at Kunming last month. As plucky Singapore put it, states,
big or small, have the same right to sovereignty. They have a right to express
their fears and concerns without being steamrolled, or bought, into silence and
acquiescence.
And the
principled stand has nothing to do with the United States either. It should be
remembered the first Asean declaration on the South China Sea was made in 1992
following a clash between China and Vietnam (before Vietnam became a member of
the regional grouping).
And –
most importantly – well before US President Barack Obama’s so-called pivot or
rebalance to the Asia-Pacific about 2010.
The
Declaration of Conduct (DOC) of parties in the South China Sea was signed
between China and Asean – Asean as a whole and recognised by China as such – in
2002, again well before the pivot, when China and Asean undertook to safeguard
peace and stability in the waters and to negotiate a legally binding code of
conduct (COC) in their activities in the disputed sea.
What has
happened to all that? China asserts it has all gone out of the window because
the Philippines eschewed direct negotiations (as provided by the DOC) and went
to the PCA. The Philippines counter that direct negotiations with China had
failed when China had used force (in contravention of the DOC) to occupy
Scarborough Shoal.
Let’s
face it. Going to the PCA is not an act of war and is not like the use of
physical force, especially by a far larger country against a smaller one. Which
then seeks protection from another big power, something any sovereign state
would do when it feels threatened, and complicates the situation.
The most
important thing is to remove that threat. China is already looking to improve
relations with the Philippines following the election of the new President.
This week State Councillor Yang Jiechi visited Vietnam to again find common
ground with their comrades who have been bashed about before.
Relations
with Brunei and Malaysia are supposed to be brilliant. But Malaysia must be
worried that China’s attitude and assertiveness could extend to interference in
domestic affairs, such as treatment of the Chinese populace.
The most
worrying thing which underlies what Beijing is claiming and doing,
increasingly, is the assumption of suzerainty over and above sovereignty, which
would make regional states essentially vassals of China.
China
must go for a reset. There is still a lot of goodwill, especially in the
economic sector, where there is mutual benefit.
Trade is
two-way. Projects bring profit. Asean states gain. So does China.
China
must show it is not blowing hot and cold on the exigencies of the moment. It
must also show that a close economic relationship does not come at cost to
sovereign right, or as a means of entrapment.
Tan Sri Munir Majid, chairman of Bank Muamalat
and visiting senior fellow at LSE Ideas (Centre for International Affairs,
Diplomacy and Strategy), is also chairman of CIMB Asean Research Institute.
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