How Asean should respond to tribunal ruling on S China Sea

All eyes are on the Permanent Court of Arbitration at The Hague in the Netherlands ahead of its ruling on July 12 on a case filed by Manila in 2013 against Beijing regarding overlapping claims in the South China Sea. The case has raised tensions in the region as China has refused to participate in the proceedings. Beijing insists the tribunal has no jurisdiction and that it will ignore its rulings. The United States and countries in the region are worried that China may respond to what is widely expected to be a negative ruling for Beijing by declaring an air defence identification zone in the South China Sea and by stepping up its building of artificial islands in the disputed waters. Meanwhile, the Association of Southeast Asian Nations (Asean) is divided over the South China Sea issue, especially after the debacle during a Special Asean-China Foreign Ministers’ Meeting in Kunming last month when the group first issued and then hastily retracted a strongly worded statement articulating its position, as several member states came under pressure from Beijing. Here, Mr Termsak Chalermpalanupap, a lead researcher at the Asean Studies Centre in the Iseas-Yusof Ishak Institute, offers his perspectives on the case and what Asean should and should not do following the ruling to ensure the grouping reacts in a united and credible manner.

The landmark case before the Permanent Court of Arbitration on the South China Sea disputes centres on the Philippine government’s argument that China’s claims over much of the strategic waters are illegal under the United Nations Convention on the Law of the Sea (Unclos).

The tribunal will also decide on the size of maritime zones around rocks and reefs in the Spratly Islands off the Philippine coast, as well as rule on whether China has caused environmental damage in constructing an artificial island at Mischief Reef.

What the tribunal is not considering are questions of sovereignty and which country owns what islands, reefs and atolls in the waterway, through which US$5 trillion (S$6.78 trillion) in shipborne trade passes every year.

What is clear, though, is that underwater features such as Scarborough Shoal, Mischief Reef and Subi Reef, that cannot sustain human habitation, cannot be claimed for possession by non-coastal states. These features do not generate any maritime rights under Unclos.

Nonetheless, China has recently built airstrips on Mischief Reef and Subi Reef, practically changing the condition on the ground in direct defiance to the ongoing arbitration. Moreover, on Fiery Cross —which used to be just rocks— China has built a 3km runway, radar and military communication facilities, vegetable greenhouses, pigsties and chicken coops, and even a cement factory in the past three years. United States officials describe the massive and rapid Chinese land reclamation and construction works in the South China Sea as the “Great Wall of Sand”.

The tribunal will not be able to do anything to change what the Chinese have already built, even though these artificial islands are within 200 nautical miles of the exclusive economic zone (EEZ) claimed by the Philippines and were built without consultation with the Philippines. At most, the court can remind China that under Unclos, artificial islands can claim no more than a safety zone of 500m around them, but not 12 nautical miles of territorial water or exclusive economic zones.

The more important part in the case is whether or not China’s use of a “nine-dash line” that stretches deep into the maritime heart of South-east Asia in maps to underline its claims in the South China Sea is consistent with Unclos. The dashes appear in the same colours (red and white) as Chinese land boundary, but without any geographical coordinates.

Observers suggest the arbitral tribunal may play it safe by not directly ruling on the legitimacy of the nine-dash line and may instead ask China to clarify the basis and the meaning of its use. If this turns out to be the case, then China will have more time to re-examine its position and adjust its strategy in the South China Sea. China may take months, if not years, to come up with an official clarification. Whatever happens, a pressing question for Asean now is what it will do after the arbitral tribunal ruling. All eyes will be on the regional grouping after the recent Kunming debacle, and it is critical that Asean respond in a credible, united manner. Member states can look into the following three dos and three do nots.

THREE DOS

First of all, Asean must issue a statement regardless of what the ruling says. Doing so will send a powerful message to the international community that Asean can confront a highly sensitive issue together at this critical juncture, and that the recent embarrassment in Kunming was merely a blip.

Secondly, make the statement a positive one that underlines the importance of the rules-based regional and international order, and full respect for universally recognised principles, legal and diplomatic processes — which include the tribunal. After all, these principles have provided the foundation for countries in the region, regardless of their size, to thrive and prosper.

Asean can reiterate its call for self-restraint by all parties involved in the territorial disputes and for peaceful settlement of differences through dialogue, negotiations, and cooperation.

Most importantly, all parties must be reminded to refrain from the use of force. This is one of the principles in the 1976 Treaty of Amity and Cooperation in South-east Asia, to which China and other countries have acceded in support of regional peace and security.

These three points are general principles that underpin peaceful diplomacy, and there is no reason for any Asean member states to object to them.

Thirdly, Asean can voice support for bilateral negotiations between China and the Philippines in areas where the two countries are the only two claimants, such as Scarborough Shoal. China and the Philippines — which in 2017 will chair Asean — should be encouraged to undertake confidence-building activities such as joint cooperation and development in the conservation of maritime resources, fishing and hydro-carbon exploration. In 2005, China and the Philippines did agree to undertake joint seismic surveys in the South China Sea. Vietnam joined the initiative, but it ended in 2008 because Malaysia did not join and objected.

Of course, Asean needs to reaffirm its collective desire to work closely and constructively with China in improving the implementation of the 2002 Declaration of Conduct of Parties in the South China Sea, including the early realisation of an Asean-China Code of Conduct in the South China Sea. The key is to restore mutual confidence and avoid the escalation of tensions.

THREE DO NOTS

On the other hand, Asean must be mindful of the following pitfalls.

First, do not let differences and disagreements on the South China Sea further divide and weaken Asean. There will be no Asean centrality without unity. When Asean members break ranks, the group is weakened and easily manipulated by external powers.

Asean centrality depends more on community-building and less on external recognition. This requires countries to work harder together in building a more meaningful community that produces concrete and substantive benefits for its people.

Next, do not deny that the South China Sea is a serious security problem for Asean. It is. However, it is correct to say that the South China Sea problem is not a dispute between Asean and China, because Asean as a group does not have any territorial claims.

And finally, do not join or support any other parties in trying to isolate China. China is Asean’s most important neighbour and economic partner.

Both sides are celebrating their 25th anniversary of partnership this year. Going forward, there is so much for Asean and China to gain from working with each other instead of letting relations be strained by the South China Sea issue.