The ASEAN’s Divided Resistance: Duterte, China, and the ...

DIVIDED RESISTANCE:THE ASEAN’S

DUTERTE, CHINA AND THE QUEST FOR

RULE OF LAWIN THE SOUTH CHINA SEA

OCCASIONAL PAPER PUBLICATIONS

ISSUE 13.1JANUARY 2020

Image Credit:nytismes.com/2016/07/13/opinion/testing-the-rule-of-law-in-the-south-china-sea.html * The views and opinions expressed in this Paper are those of the author and do not necessarily reflect those of the Institute.

The China Challenge

Contemplating on the emerging security architecture in Asia, the late Singaporean Prime Minister Lee Kuan Yew warned, “The size of China’s displacement of the world balance is such that the world must find a new balance. It is not possible to pretend that this is just another big player. This is the biggest player in the history of the world.”1 The implication was clear: given its sheer size and vast potentials, as well as the world-historical breadth of its ambitions, China’s re-emergence as a global power will upend the very international system itself. Thus, business-as-usual tactical ‘balance-of-power’ readjustment2 won’t cut it, since what China portends is a strategic revolution, and it’s in East and Southeast Asia, where this tectonic geopolitical shift is most poignant. Nonetheless, he viewed the necessity for continued American presence in Asia, precisely because of the widely “held consensus that the U.S. presence in the region should be sustained” in order to check China’s worst instincts, and that “military presence does not need to be used to be useful”, since American “presence [alone] makes a difference and makes for peace and stability in the region.” Lee’s theory of America’s indispensability as the ‘onshore balancer’3 par excellence

is most pertinent in the context of the South China Sea, because, as he correctly foresaw, “China will not let an international court arbitrate territorial disputes in the South China Sea”. In fact, this was exactly the case years after the death of the former Singaporean leader when Beijing categorically rejected the Philippine-initiated Arbitral Tribunal award at The Hague, constituted under the aegis of the United Nations Convention on the Law of the Sea (UNCLOS), as a piece of ‘trash paper.’4 China even had the audacity to codify its defiance of international law by unabashedly adopting the ‘three nos’ policy of non-participation, non-recognition, and non-compliance with respect to even a final and binding tribunal ruling.5 As the late Singaporean leader correctly underscored, “the [continued] presence of U.S. firepower in the Asia-Pacific” is crucial so that the “[United Nations] Law of the Sea [will] prevail.” In short, even the fiercely independent-minded Lee, who served as the gateway between China’s top leadership (from Deng Xiaping to Xi Jinping) and the West, saw American military power as essential to peace and prosperity in Asia.

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THE ASEAN'S STANCE

Hamstrung by its de facto unanimity-based decision-making process, the ASEAN has failed to forge robust resistance to aggression of external powers, especially China's in the South China Sea. Moreover, strategic acquiescence of key countries, especially the Philippines under Beijing-friendly President Rodrigo Dutetre, has further weakened the ASEAN's hand, risking the prospect of ASEAN peripherality, rather than centrality, in shaping the security architecture. Nonetheless, resistance by and minilateral cooperation among three key Southeast Asian powers of Indonesia, Malaysia, and Vietnam, the current ASEAN chair, portends increasing resistance to, albiet in a divided fashion, Chinese revanchist ambitions in the South China Sea.

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DUTERTE, CHINA AND THE QUEST FORRULE OF LAW IN THE SOUTH CHINA SEA

THE ASEAN’S DIVIDED RESISTANCE:

His wisdom still echoes across Southeast Asia, as evident in the Association of Southeast Asian Nations’ (ASEAN) inaugural ASEAN-US Maritime Exercise (AUMX)6 last year. During the joint exercises, the US Navy and key regional partners conducted five-day-long drills, stretching from the Sattahip naval base in Chonburi province in Gulf of Tonkin to Cape Cà Mau on the Cà Mau Peninsula in Vietnam. In addition, there were also non-drill activities in archipelagic Southeast Asian nations of Brunei and Singapore, which permanently hosts American Littoral Combat Ships (LTC). Crucially, the geographical pivot of the exercises was the South China Sea, where both sides have a shared interest in keeping Chinese ambitions at stake. Interestingly, however, the AUMX took place not long after the ASEAN conducted its own first-ever joint drills with China. The message was clear: We are open to work with the new major power in Asia, but will continue to engage and welcome external powers such as America. This reflects the ASEAN’s long-standing policy of omni-balancing – namely, preserving maximum strategic autonomy through sustained, non-committal engagement with (competing) major powers.7 This way, the ASEAN aims to constrain a rising power’s (China) aggression through flexible cooperation with the status quo power (America). In short, Southeast Asian nations prefer to outsource ‘hard balancing’ to external powers in order to strengthen their bargaining chip when dealing with China. This is an essential element of the ASEAN’s struggle for autonomy within a competitive security environment.8

As a new bipartisan consensus against China takes shape,9 the United States has also regularized10 its increasingly daring Freedom of Navigation Operations (FONOPs) against Beijing, frequently deploying multiple warships well into the 12 nautical miles of Chinese-occupied islands in the area.11 Meanwhile, the US Navy has also warned of a “more muscular”12 response to China’s usage of para-military forces in the South China Sea, while reiterating its commitment to aid regional allies, especially the Philippines, in an event of conflict (with China) in the area.13 To top it all, the US Coast Guard (USCG), for the first time

since the end of Cold War, has joined the scramble in the Western Pacific, now participating in the Pentagon’s FONOPs operations against China,14 contributing to maritime defense aid across Southeast Asia,15 and expanding expeditionary deployments and joint drills with East Asian partners.16

Nonetheless, it hasn’t been an all-smooth ride for Southeast Asian nations, which are grappling with diminishing ‘ASEAN centrality’ (AC) in shaping regional security dynamics. In fact, there is also a lingering, if not profound, anxiety among regional states over the Trump administration’s Free and Open Indo-Pacific (FOIP) doctrine, which is often perceived, whether legitimately or not, as a thinly-veiled containment strategy by the US -- along with regional powers of Australia, Japan and India -- against China.17,18 After all, both the National Security Strategy (NSS)19 and National Defense Strategy (NDS) papers20 of the Trump administration have made it clear that ‘great power competition’, especially with China, will be the defining priority of the world’s superpower for the foreseeable future.21 In response, Southeast Asian countries have adopted the ASEAN Outlook on the Indo-Pacific (AOIP),22 which insists, rather proves, the regional body’s commitment to “continue to maintain its central role in the evolving regional architecture in Southeast Asia and its surrounding regions” and remain as “an honest broker within the strategic environment of competing interests”, promoting an “open”, “transparent”, “inclusive”, “rules-based” order based on “respect for international law.”23 And calls on the ASEAN to “lead the shaping of their economic and security architecture and ensure that such dynamics will continue to bring about peace, security, stability and prosperity for the peoples in the Southeast Asia as well as in the wider Asia-Pacific and Indian Ocean regions or the Indo-Pacific.” The document, however, is more defensive, betraying ASEAN insecurity, than providing a proper blueprint for reassertion of ASEANCentrality in shaping the 21st century strategic environment.

The ASEAN’s Peripherality

More fundamentally, the ASEAN itself suffers from what can be termed as “middle institutionalization trap,”24 namely the institutional structure, and corresponding decision-making processes, which allowed the regional body to establish a robust security community in the twentieth century, is now painfully insufficient to address the new challenges of the twenty-first century. This institutional malady has been most acutely observed in terms of the ASEAN’s often perverse operationalization of the principles of consultation (Mushawara) and consensus (Muafakat).25 In practice, consensus has been equated to unanimity, a practice that has been a recipe for disaster when the region needed to stand up to external powers on sensitive geopolitical issues, namely the South China Sea. As the veteran Singaporean diplomat Barry Desker rightly points out, the current decision-making configuration reinforces the “ability of external parties to shape the positions of ASEAN members on regional issues,” especially when “China exerts its influence on ASEAN members to prevent any decisions which could affect its preference…”26 No wonder then, even prominent ASEAN experts such as Amitav Acharya have wondered if “ASEAN centrality is as much a product of external players in Southeast Asia as it is of the ASEAN members themselves,” since “one suspects that its emergence had more to do with the dynamics of Great Power relationships than with any projection of ASEAN’s internal unity or identity.”27

Interestingly, the ASEAN has often employed an alternative operationalization of the consensus principle, namely the majority-based “ASEAN Minus X” decision-making formula,28 which facilitated rapid intra-regional economic integration. Other regional bodies such as the European Union (EU), meanwhile, have relied on weighted qualified majority voting modality,29 where geopolitical heft and population density of member-states are properly taken into consideration, as the expression of consensus-based decision-making


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with historic success. In simplest terms, unanimity-based decision-making virtually gives veto-power to each and every ASEAN member regardless of their interest, size, and contribution. Under this setup, the ASEAN can be hamstrung and internally sabotaged by its ‘weak links’, namely regional members and leaders most vulnerable to external coercion.30

Often, Cambodia, which heavily relies31 on Chinese largesse, has been blamed for the ASEAN’s lackluster response to Chinese aggression in the South China Sea. After all, the Cambodian Prime Minister Hun Sen, under immense pressure from Beijing, tried to block32 even the discussion of the South China Sea disputes. Amid the columniation of the Philippines’ arbitration case against China, the Cambodian strongman lamented:33 “It is very unjust for Cambodia, using Cambodia to counter China. They use us and curse us…this is not about laws, it is totally about politics…” Yet, one can’t blame Cambodia for taking this stance, when the unanimity-based decision-making tradition makes the China-dependent nation a de facto veto player. In effect, Cambodia is expected to sabotage the ASEAN’s efforts lest it invites Beijing’s wrath.

Moreover, what critics of the ASEAN also often miss is the deleterious role of other regional members, most especially the US’ oldest Asian ally, the Philippines, under President Rodrigo Duterte. The China-friendly president has done significant damage to ASEAN centrality by effectively toeing Beijing’s line on the South China Sea disputes. During his chairmanship of the ASEAN in 2017, he maintained, with often blunt language,34 that the situation in the South China Sea is generally stable, thus external powers such as the US, Australia and Japan should keep out of the disputes, which are “better left untouched.” When external powers called for rule of law in the South China Sea, and pressured China to respect the landmark arbitration award in 2016, the Duterte administration effectively insisted that it’s the Philippines’ sovereign right not to assert its sovereign rights against Beijing.35

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Not only has the Filipino president declared that he will ‘set aside’ the 2016 arbitral tribunal ruling, but his endorsement of joint development agreements (JDA) within China’s nine-dashed-line area of claim could set a dangerous precedence. Duterte’s pro-JDA position potentially violates the Philippines’ own constitution as legitimizing China’s expansive claims in the area, which was ruled as incompatible with modern international law.36 Even worse, the Philippines’ strategic acquiescence has emboldened China, which has controversially demanded37 for de facto veto power over the prerogative of Southeast Asian states to seek resource-development investments as well as conduct joint military exercises with external powers, especially the US under the South China Sea Code of Conduct (COC) negotiations. In effect, Duterte has become the pivot of Chinese dive-and-conquer strategy within the ASEAN, with the Southeast Asian leader shielding the Asian juggernaut against external criticism and counter-measures by concerned powers. The Philippines’ position is even more crucial given its role as the ASEAN-China Country Coordinator from 2019 to 2021. The upshot of the Philippines’ radical policy shift, if not outright strategic subservience, is further heightening fears of ASEAN peripherality, rather than centrality, in shaping regional strategic environment.

The South China Sea, however, is a matter for global concern. And crucially, as the Singaporean diplomat, Bilahari Kausikan, memorably remarked, the South China Sea disputes is “where the parameters of U.S.-China competition and their interests are most clearly defined.”38 In fact, as Harvard University’s Graham Allison put it in starker terms, it’s the locus of the “Thucydides trap”39 of a potential superpower conflict in the 21st century.40 But not all is lost. In contrast to the Philippines and Cambodia, historically non-aligned Muslim nations of Malaysia and Indonesia have begun to step up their resistance to Chinese maritime intrusions like never before.

The Minilateral Pushback

Malaysia’s Legal Warfare

Already boasting the world’s largest naval fleet,41 Chinese President Xi Jinping sought to end the year in style with formally launching the country’s first domestically built aircraft carrier, Shandong, in southern island of Hainan.42 But Malaysia’s bolt from the blue submission of its extended continental shelf claims to the United Nations43 immediately chipped away at the festive mood surrounding Xi’s formal launching of the Chinese-built carrier.44 In a furiously-worded response, Beijing accused its neighbor of “seriously infring[ing] on China’s sovereignty, sovereign rights and jurisdiction in the South China Sea,” where “China has historic rights” beyond dispute.45 The Southeast Asian country’s surprising decision to seek third party assistance to reinforce its claims in the South China Sea portends hardening stance among smaller claimant states, especially Vietnam and the Philippines. Despite its growing naval might, China faces stormy waters ahead as the United States and its regional partners seek to constrain its maritime ambitions in the Western Pacific.

Throughout the past year, one leader has emerged as the most vocal critic of China’s rising power. The Malaysian Prime Minister Mahathir Mohamad, who pulled off an electoral tsunami by largely tapping into anti-China sentiments at home,46 has openly criticized47 China’s overseas infrastructure projects.”[If we] borrow huge sums of money, if you cannot pay money, you’ll under the influence or the direction of the lender [China]... If you cannot pay your debt, you [will] find yourself subservient to the lender,” the Malaysian prime minister told this author earlier this year, when asked about the perils of welcoming large-scale Chinese investments.48 “If you have the capacity to borrow, it must be because we can repay. But when you borrow money which we cannot

repay, you are endangering your own freedom,” he added. Following a year of intensive negotiations, he managed to not only secure large discounts and adjustments49 in big-ticket Chinese infrastructure investments in Malaysia, but also compelled China to reexamine its Belt and Road Initiative (BRI) altogether.

Amid a gathering storm of global criticism, partly roused by Mahathir’s complaints, China announced a new approach50 to the BRI, with greater emphasis on environmental and debt sustainability. In response, Mahathir immediately recalibrated his rhetoric on China, reiterating longstanding friendship between the two countries.51 “Malaysia is a friend of China. We believe in being business friendly to all countries in the world,” the Malaysian leader said, adopting a completely different tone during the Belt and Road Forum for International Cooperation (BRF) in Beijing in mid-2019.52 “We are a friendly country, a friend of China, and see a great future for Malaysia-China relations,” he added. As soon as Mahathir secured his objectives on the economic front, however, he has shifted his focus to geopolitics, namely in the South China Sea.

Malaysia’ submission of extended continental shelf claims to the United Nations Commission on the Limits of the Continental Shelf (CLCS) is curiously dated 2017, meaning it was prepared years earlier but not filed for certain reasons by the previous administration.53 It also means that the submission was prepared only months following the Permanent Court of Arbitration (PCA)’s announcement of the Philippines’s compulsory arbitration award against China.54 The final ruling nullified much of China’s expansive claims in adjacent waters, including its doctrine of ‘historic rights.’55 And even more interestingly, the submission proper took place only weeks after Vietnam threatened third party arbitration against China following a month-long naval standoff over the Vanguard Bank in the South China Sea.56


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Thus, Malaysia’s latest submission should be viewed within the context of a more concerted pushback by the US and regional partners against an ascendant China. Legally, it builds on an earlier joint submission57 with Vietnam in 2009 -- a controversial move that provoked China into adopting a tougher stance in the South China Sea,58 starting with the first formal announcement of its ‘nine-dashed-line’ claims in the contested waters.59 While the previous submission sought to reinforce Malaysia’s claims in the southwestern regions of the South China Sea, its latest submission, in turn, pushes the country’s claims northward into the heart of the strategic basin. “When we come against a very powerful [force] we need to find other ways of dealing with the problem rather just open confrontation,”60 Mahathir told me earlier this year, signaling his multi-faceted strategyin dealing with the rise of China. “It is important for China to take notice of other views and perceptions.”

Indonesia Progressive Resistance

Confronting expanding Chinese incursions into its waters, Jakarta has gradually abandoned its ‘quiet diplomacy’ in favor of a more proactive resistance against an assertive Beijing. In particular, the growing presence of Chinese para-military vessels off the coast of Natuna Islands, an area rich in fisheries and energy resources, which overlaps with outer layers of China’s expansive, ‘nine-dashed-line’ claim across the South China Sea basin. Following the recent intrusion of dozens of Chinese boats, including two coast guard vessels, into Indonesia waters, Jakarta filed (late December) a “strong protest” to Beijing and summoned the Chinese ambassador Xiao Qian to express its displeasure. Southeast Asia’s largest nation is also perturbed by Beijing’s claims of traditional rights well into Indonesia’s exclusive economic zone and continental shelf. Indonesia’s foreign ministry has accused China of “violation of [its] sovereignty”61 and openly questioned China’s claims of traditional rights in the area as having “no legal basis” and “never recognized under UNCLOS 1982” as affirmed by the 2016 arbitral tribunal ruling at The Hague initiated by neighboring Philippines.

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Though short of confrontational, Indonesia’s hardening stance will likely strengthen the hands of other regional actors, which have been at the receiving end of China’s maritime aggression in recent years. Building on the Philippines’ 2016 landmark arbitration award at The Hague, which nullified bulk of China’s claims in the area, both Vietnam and Malaysia have recently threatened to take China to international court over the festering maritime disputes.

According to Indonesian authorities, at least 63 Chinese fishing vessels and two coast guard ships unilaterally entered Indonesia’s territorial waters off the Natuna islands through late-December. According to the UNCLOS, foreign vessels, including fishing and armed vessels, can’t enter territorial sea of a coastal state unless exercising innocent passage sans hostile and stationary activities in the area.62 The Natunas island are located about 1,100km (684 miles) south of the Spratly Islands, which are actively contested by the Philippines, Malaysia, Taiwan, Vietnam and China. Instead of de-escalating tensions, however, Beijing doubled down on its claims in the area, defending the continued and growing presence of Chinese vessels within Indonesia waters. According to Chinese Foreign Ministry spokesman Geng Shuang, “[China’s] position and propositions comply with international law, including UNCLOS. So whether the Indonesian side accepts it or not, nothing will change the objective fact that China has rights and interests over the relevant waters….The China Coast Guard were performing their duty by carrying out routine patrols to maintain maritime order and protect our people’s legitimate rights and interests in the relevant waters,” he added.63

The Chinese foreign ministry official was also quick to question the validity of the 2016 arbitral tribunal ruling at The Hague, which rejected Beijing’s claims of ‘historic rights’ to exploit resources across adjacent waters. “The so-called award of the South China Sea arbitration is illegal, null and void and we have long made it clear that China neither accepts nor recognizes it. The Chinese side firmly opposes any

declining fishing stock within years and significant reduction in number of illegal fishing vessels in previous years. by a staggering 14% in 2014,70 with the country’s armed forces exploring the deployment of advanced aircraft to the area as well as stepping up71 joint naval exercises with the US in the waters off the Natuna Islands. Amid altercations72 with Chinese coast guard vessels protecting illegal fishing activities,73 Jakarta even dispatched a warship to apprehend illegal Chinese fishing vessels few years ago.

In 2017, Indonesia renamed the areas as “North Natuna Sea” to assert its claims against Chinese intrusion and claims to “traditional fishing grounds” in the area.74 Though technically ‘neutral’ and a non-claimant state in the South China Sea, as the de facto leader in Southeast Asia Indonesia’s stance carries great implications for broader strategic alignments in the region. Indonesia, under the guidance of legendary diplomats such as Hasjim Djalal, has been acutely sensitive to China’s expansive claims in apparent contradiction of the UNCLOS. Among the key nations, which negotiated the UNCLOS, Indonesia was the first regional state to push for extended continental shelf claims beyond its 200 nautical miles EEZ in the northwest area of Sumatra Island back in 2008.75 The following year, both Vietnam and Malaysia made a joint submission to assert their extended continental shelf in the South China Sea, legally challenging China’s claims at the UN.

Beginning in 2015, Indonesia has pressured China76 to clarify the precise legal basis and parameters of its nine-dashed-line claims, while advocating for respect of international law following the Philippines’ arbitration award victory the following year.77 During the 2018 ASEAN-Australia summit, Indonesia went so far as calling for joint patrols by ASEAN states in the South China Sea to help de-escalate tensions.78 It’s toughening criticism of China will likely embolden Vietnam, the current ASEAN chair, and Malaysia, which recently submitted an additional extended continental shelf claim in the South China Sea at the UN, to also up the ante in the South China Sea this year.

country, organization or individual using the invalid arbitration award to hurt China’s interests.” Only days later, the Indonesian Foreign Ministry issued an uncharacteristically tough language, lambasting China’s claims of traditional rights within Indonesia’s exclusive economic zone.” China’s claims to the exclusive economic zone on the grounds that its fishermen have long been active there...have no legal basis and have never been recognized by the UNCLOS 1982,” the Indonesian foreign ministry said. In recent years, Indonesia has expressly avoided alignment with the United States by advocating for its own vision of a regional security architecture, where China is a major stakeholder. Thus, the Southeast Asian country’s tough diplomatic language represents a significant departure from its longtime policy of avoiding conflict with great powers such as China under what Indonesia expert Evan Laksamana calls the ‘pragmatic equidistance’ approach.64 At the same time, however, China’s unabated maritime expansionism has forced Indonesia’s hand. In response, Jakarta has sought to draw the line in its adjacent waters. According to Indonesian authorities, illegal, unregulated and unreported (IUU) fishing has severely affected the country’s 2.4 million-strong fishing community,65 driving almost half of them (45%) out of their jobs, with the United Nations putting the annual cost at $1 billion.66

In response, Indonesia adopted, under Minister of Maritime Affairs and Fisheries, Susi Pudjiastuti, an aggressive “Sink the Vessels” policy, which led to the impoundment and blowing up of hundreds of illegal fishing vessels, including from China.67 “What they [China] are doing is not fishing, it is transnational organized crime,” the outspoken Indonesian minister said in late-2018 , months ahead of stepping down.68 “We have had several disagreements [with China] on issues of illegal, unregulated and unreported fishing, they still disagree that it classifies as transnational crime. But mostly these are China-origin vessels [with] multinational crews.”

The upshot69 of the tough policy was the more than doubling of


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While Jakarta will likely avoid direct confrontation, it is set to bolster its strategic presence in the contested area while stepping up its diplomatic criticism were China to continue its current course.

Vietnam’s Brave Stand

Ahead of its much-anticipated chairmanship of the Association of Southeast Asian Nations (ASEAN) next year, and amid a months-long naval showdown in the South China Sea, Vietnam has hinted at legal warfare against China. Vietnamese Deputy Foreign Minister Le Hoai Trung openly warned in early-November that diplomacy isn’t the only tool at Hanoi’s disposal. Emphasizing the need for exploring alternative strategies, he cited “fact-finding, mediation, conciliation, negotiation, arbitration and litigation measures” as potential countermeasures against China’s maritime assertiveness. Looking at the Philippines’ precedence, lawfare (‘legal warfare’) seems a risky, yet potentially viable option for Vietnam. After all, the 2016 arbitration award at The Hague proved the viability of compulsory arbitration, under the UNCLOS,79 to address disputes over maritime entitlement claims as well as censure China’s excessive, anachronistic claims and multifarious maritime aggression.

What’s clear is that in the absence of international law, Southeast Asian claimant states are largely at the mercy of China’s behemoth naval capabilities. Thus, lawfare, and the threat of its use, provides unique leverage for smaller states confronting desperate asymmetry of power vis-à-vis Beijing. In recent months, top Vietnamese officials and experts have repeatedly underscored the centrality of the UNCLOS in resolution of South China Sea disputes. Vietnamese Deputy Foreign Minister Le Hoai Trung emphasized how “The UN Charter and UNCLOS have sufficient mechanisms for us to apply those [legal] measures.”80

Meanwhile, an influential Vietnamese think tank held a high-profile public forum in October,81 whereby leading experts advocated for lawfare against China, based on the relevant provisons of the UNCLOS, in order to “identify who is right and who is wrong in this matter.” China, however, has characteristically shot back, warning Vietnam against ‘complicating’ the dispute.82 Geng Shuang, a spokesperson for the Chinese Ministry of Foreign Affairs threatened Vietnam against “actions that may complicate matters or undermine peace and stability in the South China Sea as well as our bilateral relations.” China has reasons to worry, in as much as Vietnam has grounds for optimism. In 2013, the Philippines, against all odds and despite open misgivings by a lot of its own lawyers and officials, successfully advocated for the creation of a special tribunal (under Art. 287, Annex VII, UNCLOS)83 to arbitrate its disputes with China, which heavily relied on a combination of active boycott, systematic smearing, and diplomatic intimidation to forestall a legal setback.84

The Tribunal, however, rejected85 Beijing’s invocation of exemption clauses (see Art. 298, Section 2, Part XV ).86 In its final award, the Tribunal at The Hague87 even defied the Philippines’ own wildest expectation by not only invalidating China’s ‘nine-dash-line’ claim, but also censuring its harassment of Filipino fishermen as well as ecologically-disastrous reclamation activities in disputed areas.88 By ruling out the existence of any fully-fledged ‘island’ (see Art. 121, Par 3, UNCLOS),89 the award also affirmed the Philippines’ sovereign rights within its own Exclusive Economic Zone (EEZ). Adopting the so-called ‘three nos’ policy90 of non-participation, non-recognition, and non-compliance, Beijing dismissed the final award as a ‘piece of trash paper’, while few of its sympathizers also questioned the validity of the tribunal’s jurisdiction and merits of its final ruling. Yet, the award had a major impact on China’s position in the South China Sea.91

Contrary to the rhetoric of China and its sympathizers in the

Philippines,92 the arbitration award had a perceptible effect. While it’s true that China formally rejected the arbitration outcome, as most great powers do, effectively taking exception to international law, there was a major shift in its strategy.93 Crucially, Beijing started to shun the invalidated ‘nine-dashed-line’ claim in its formal statements. China’s scramble for legal cover was evident in its push for the much-ridiculed “four sha”94 (Chinese for sand) doctrine, which effectively accepted the Tribunal’s ruling on the nature of disputed land features – namely, the absence of a full-fledged ‘island’ -- in the Spratlys.

Now, China began arguing that the island groups as a whole constituted a collective land feature entitled to its own EEZ, which would, in turn, extend Beijing’s sovereign rights well into the waters of the Philippines, Malaysia and even Vietnam. This supplementary doctrine, however, is yet to be seriously endorsed by any leading legal export, never mind an international legal body. The following year, China desperately devised an alternative position, claiming to have ‘discovered’ a map, which validates its expansive claims across the South China Sea basin.95 Per international law, the Philippines’ arbitration award remains final and binding (see Article 296 as well as Article 11 of Annex VII of the UNCLOS), especially since the Southeast Asian country has not formally rejected it.96

The implication for Vietnam, which opportunistically refused to join along the Philippines by filing a parallel arbitration case against China earlier this decade, is clear. It has the option of using compulsory arbitration to reaffirm its sovereign rights within its own EEZ and continental shelf, including in the Vanguard Bank, which has been a site of naval showdown with China in recent months. Similar to the 2016 arbitral tribunal ruling, Vietnam can also use compulsory arbitration to censure China’s aggressive action within its own waters and against its fishermen roaming the area. Vietnam’s sovereignty claims over disputed land features, including in both Paracels and Spratlys, however, would


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likely require mutual consent.97 Nonetheless, the UNCLOS also provides the option of conciliation commission98 (Article 298 and Annex V, UNCLOS) to manage overlapping claims in the South China Sea. Either way, the UNCLOS provides sufficient mechanisms for Vietnam to assert and even affirm its sovereign rights.

More fundamentally, Vietnam’s emphasis on lawfare strengthens not only its own position, but also that of the Philippines, where majority of the population (87 percent) wants the Beijing-leaning government to assert The Hague ruling.99 Moreover, it also puts pressure on the Philippines to ensure that its proposed joint exploration agreement100 with China is consistent with the UNCLOS and the Tribunal’s ruling as well as shape the worrying direction of the Code of Conduct (COC) negotiated between the ASEAN and China.101

As a great power-seeking trust and respect of its neighbors, China is well aware that lawfare by smaller countries chip away at its quest for authoritative leadership in Asia. Thus, Vietnam has all the reason to seriously consider legal countermeasures against China. Moving forward, the challenge for Vietnam, as the ASEAN’s current chairman, is to harmonize regional anxieties into a coherent response against China. So far, instead of a multilateral resistance, we have seen minilateral coordination and pushback against an expansionist Beijing. It’s important for key ASEAN members such as Vietnam, Indonesia and Malaysia to prevent a South China Sea COC that undermines the interest of smaller states. They should also ensure that the Philippines, currently the ASEAN-China Country coordinator until 2021, when the COC negotiations are expected to finalize, will responsibly protect interest of smaller claimant states during the ongoing negotiations with China.

Meanwhile, the ASEAN should also seriously consider various proposals by key regional leaders, including Indonesian President

Joko Widodo’s call for joint patrols102 in disputed waters by non-claimant states as well as Malaysian Prime Minister Mahathir Mohamad’s call for demilitarization103 and multilateral rather than bilateral settlement of the disputes with China.104 It should also support calls by Malaysia, Indonesia, and other major ASEAN members for clarification of China’s precise claims105 in the disputed areas to avoid further elastic expansionism. In the years and decades to come, the ASEAN should also revisit its current unanimity-based decision-making process and even consider associate membership arrangements with capable and increasingly like-minded greater Southeast Asia neighbors of Australia and New Zealand.106 Otherwise, the ASEAN fade into irrelevance, and the South China Sea could end up as a Chinese lake.


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endnotes

1 Allison and Blackwill (2013).2 Nexon (2009).3 Lons (2019).4 Torres (2019).5 Heydarian (2016).6 Agence France-Presse (2019a).7 Goh (2008).8 Weatherbee (2010).9 Campbell and Ratner (2018).10 Lubold and Page (2017)11 Panda (2019b).12 Erickson (2018).13 Ranada (2019).14 Lu (2019).15 Agence France-Presse (2019b).16 Doornbos (2019).17 Acharya (2017).18 Amcham (2018).19 Trump (2017a).20 U.S. Department of Defense (2018).21 The International Institute for Strategic Studies (2018b).22 ASEAN.org (2019).23 Hoang (2019)24 Heydarian (2017b)25 Severino (2001).26 Desker (2015).27 Acharya (2017).28 Emmers (2017).29 European Council: Council of the European Union (l.a. 2019).30 Tann (2019).31 Nem (2019).32 AFP, Baliga and Sokheng (2016).33 Agence France Pressee (2016).34 Shi and Liu (2017).35 Mogato (2017b).36 Heydarian (2018c)37 Thayer (2018).38 Bilahari Kausikan, “Pavlovian conditioning and ‘correct thinking’ on the South China Sea”, The StraitsTimes, April 1, 2016, accessed April 4, 2016, wwws.straitstimes.com/opinion/pavlovian-conditioningand-correct-thinking-on-the-south-china-sea

77 Yosephine (2016).78 Jensen (2018).79 Pemmaraju (2016).80 Pearson and Vu (2019).81 RFA (2019).82 Panda (2019a).83 Burke (2013).84 Allen-Ebrahimian (2016).85 Permanent Court of Arbitration (2016).86 United Nations Convention on the Law of the Sea. (l.a. 2020).87 Permanent Court of Arbitration (2016).88 Heaver (2018).89 Gau (2019).90 Heydarian (2016)91 Mollman (2016).92 Lopez (2018).93 Wilkinson (2018).94 Viray (2017).95 Jennings (2018).96 Roderos (2018).97 International Court of Justice (l.a. 2020).98 Permanent Court of Arbitration (2018).99 Tomacruz (2019).100 Heydarian (2018f).101 Nguyen, M (2019).102 Today Online (2017).103 Sukumaran (2019).104 Wong (2019).105 Gomez (2019).106 Dobell (2018).

39 Allison (2017).40 Allison (2017).41 Mizokami (2019).42 Myers (2019).43 United Nations (2017). 44 The author was in Hainan, Sanya at the time. 45 Reuters (2019).46 Bloomberg (2018).47 Venzon (2019).48 Bajo (2019).49 Today (2019).50 Sun (2019).51 Chok (2019).52 Ibid. 53 United Nations (2017).54 Batongbacal (2015).55 Permanent Court of Arbitration (2016).56 Pearson and Vu (2019).57 Oceans & Law of the Sea (2011).58 Heydarian (2015a).59 Rajagobal (2016).60 GMA News (2019).61 Lo (2020).62 See UNCLOS ‘right of innocent passage’ https://www.un.org/Depts/los/con vention_agreements/texts/unclos/part2.htm 63 BenarNews (2020).64 Laksmana (2017).65 Beech and Suhartono (2018).66 Ibid. 67 Ibid. 68 Rose (2018).69 Beech and Suhartono (2018).70 Grevatt and Caffrey (2014).71 Panda (2015).72 Beech and Suhartono (2018).73 Cochrane (2017).74 Ibid.75 Nguyen, H. (2019).76 Tiezzi (2015).


11


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Richard Javad Heydarian

is a non-resident fellow at Stratbase ADR Institute, and a columnist for the Philippine Daily Inquirer, and a resident political analyst at GMA Network. He has authored close to 1000 articles on regional security issues, three authored books on geopolitics, and writes widely for regional and international publications. Parts of this paper were drawn from his earlier works for the US-China Focus and Straits Times, where he is a regular contributor.

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