Asean – blowin’ in the wind

02 July, 2016
As appeared in TheStar.com.my

asean

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 Dr 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.