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Proposals For ASEAN Action On South China Sea Issues Are Rash And Unrealistic – Analysis

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This week leaders of Southeast Asian nations are having their annual summit meetings.   A major topic for discussion will be the South China Sea issues and what if anything it can and should do about them.   Many pundits and players are offering their advice. https://www.crisisgroup.org/asia/south-east-asia/south-china-sea-needs-asean-more-ever; https://opinion.inquirer.net/124824/making-asean-matter; https://globalnation.inquirer.net/181683/asean-asked-to-do-more-to-resolve-scs-dispute Prominent among them is recently retired Philippine Associate Supreme Court Justice Antonio Carpio.  He was a key member of the Philippines legal team that brought an arbitration challenging China’s maritime claims in the South China Sea.  The Philippines won but China has not abided by the ruling.  Now Carpio has proposed specific ways ASEAN claimants could help enforce it. https://www.rappler.com/nation/243570-carpio-ways-asean-counter-chinese-intimidation-south-china-sea But his recommendations and similar ones designed to counter the ‘China threat’ are rash and unrealistic and unlikely to be accepted by ASEAN.

First some background and context.  Under the previous Benigno Aquino administration, the Republic of the Philippines took China to international arbitration https://en.wikipedia.org/wiki/Philippines_v._China for violating the United Nations Convention on the Law of the Sea (UNCLOS) with its claims and actions in the South China Sea.  In July 2016, the arbitration panel ruled that China has “no historical rights” based on its “nine-dash line” claim.  It also declared that no feature in the Spratlys is entitled to a 200 nautical mile (nm) Exclusive Economic Zone (EEZ ) or  continental shelf.  This reaffirmed the Philippine’s claim to its 200 nm EEZ in the South China Sea.  

But China did not officially participate in the arbitration.  It rejected the ruling and has refused to abide by it.  The new and current Philippine President Rodrigo Duterte decided not to immediately enforce the ruling and in the meantime negotiate with China.  This elicited strident objections from prominent Philippines politicians and lawyers. Carpio has become one of Duterte’s fiercest public critics regarding his China –friendly policy on the South China Sea.

Now he is proposing several steps ASEAN leaders might take to implement the arbitration ruling.

One is that the ASEAN claimants should reiterate the ruling by formally agreeing that no Spratly feature can generate a 200 nm EEZ.  According to Carpio, this “would leave China isolated as the only disputant state claiming Exclusive Economic Zones from the Spratly islands.”  But it is not clear that China claims an EEZ “from the Spratly Islands.”  And even if it does, being “isolated” on this issue is unlikely to matter to it.  After all it has already rejected the arbitration ruling despite severe international criticism. 

But that is not the only problem with this proposal.  Although that ruling is not binding on any nation other than China and the Philippines, it is a paradigm changing precedent.  It means that many EEZ and continental shelf claims based on what were assumed to be legal “islands” are now subject to legal challenge. 

Many countries including the U.S. stand to lose to the high seas and thus the “international community” some of what they thought were their undisputed resources in EEZs and continental shelves extending from features similar to those in the Spratlys. 

As in the Spratlys, this could eventually lead to political and even military clashes. Thus many countries would like to see that part of the decision reversed and they would likely lobby heavily against ASEAN claimants reaffirming it.  Not all ASEAN leaders are likely to endorse this significant and unpopular paradigm shift. 

Carpio also suggests that Malaysia, the Philippines and Vietnam delimit their overlapping EEZs and extended continental shelves in the South China Sea– presumably to counter China’s continuing ‘illegal’ claims.  But when Malaysia and Vietnam were preparing their joint submission to the UN Commission on the Limits of the Continental Shelf, the Philippines was asked by Malaysia if it wanted to join.   It declined because part of the Malaysian claim was from the Malaysian state of Sabah and the Philippines still claims part of Sabah as its national territory. https://en.wikipedia.org/wiki/North_Borneo_dispute It told Malaysia that it could make almost the same claim from Sarawak and the Peninsula and that if it dropped Sabah as a base point for an extended continental shelf, it would not object to the submission.   Malaysia did not do so and the Philippines formally objected stating that it was “requesting the Commission to refrain from considering the submissions unless and until the parties had discussed and resolved their disputes.” http://vietnamlawmagazine.vn/claims-to-the-outer-limits-of-the-continental-shelf-in-the-south-china-sea-3601.html   So it is likely that Malaysia would object to such a Philippines claim.  Besides, given the current backlog of cases before the Commission, even if the Commission decides to hear the case despite the Philippines objection, it would likely be several decades before it does so.

Another of Carpio’s suggestions for ASEAN is that its members sign a convention stating that “territorial disputes in the Spratlys shall be settled peacefully through negotiations and special agreements through arbitration in accordance with international law.”  In the meantime, according to Carpio, the status quo should be maintained and the ASEAN states should agree that no force, threat of force or “intimidating gray zone tactics” should be used by any party.

Much of this language is from the agreed 2002  Declaration on Conduct of the Parties in the South China Sea and it has been violated repeatedly by most parties. Also five members of ASEAN are not claimants and would probably be wary of being bound by an agreement on a dispute that does not involve them directly. Moreover, some like Indonesia and Malaysia have had bitter experiences with arbitration and are unlikely to endorse trying it again. Finally—and most important—this convention would not include China—at least not initially.  Moreover it would be unlikely to convince China to agree to arbitration. This proposal is futile.

Carpio recommends that ASEAN or at least the five ASEAN claimants conduct joint patrols beyond the territorial seas of the high-tide Spratly features. ASEAN is not a military alliance and has taken great pains to avoid being seen as one—especially vis a vis China. Moreover, the claimants have their own problems with each other’s alleged illegal fishing and other activities in their own claimed EEZs.   They need to get their own collective house in order before uniting in joint patrols against China’s ‘depredations’.

Besides such joint patrols would be downright dangerous.  They would likely lead to incidents and confrontations between them and China’s coast guard or ‘maritime militia’, and the ASEAN joint patrol may be unable to handle the situation. Moreover, if this is designed to be a way to draw in the US Navy, the U.S. is very unlikely to risk blood and treasure to defend these countries’ claims against China.

Finally, Carpio suggests that the ASEAN members formally declare the “entire Spratlys area an international demilitarized marine protected area.”  This is the most idealistic of his suggestions. However the reality is that this idea has been around for at least 40 years and has had no takers.  https://www.ucpress.edu/op/9780520050051/atlas-for-marine-policy-in-southeast-asian-seas  There is good reason for this. All claimants are developing countries who need resources to support their current and near future generations. Their ephemeral leadership cannot afford to be seen to forego any potential economic benefits that can be derived from their claimed maritime areas.

Moreover militarily they are in a sort of “prisoner’s dilemma”. https://www.google.com/search?q=prisoner%27s+dilemma&rlz=1C1NHXL_enUS733US733&oq=prisoner%27s+dilemma&aqs=chrome..69i57j0l5.6124j1j4&sourceid=chrome&ie=UTF-8  None wants to be the first to ‘demilitarize’ their occupied feature for fear that another will take its place–especially with China waiting in the wings.  This particular situation is likely to continue for the foreseeable future.

The point is that all of Carpio’s suggestions and similar ones have problems and some are downright foolhardy. None are likely to be taken up by ASEAN—at least at these summits.

Mark J. Valencia

Mark J. Valencia

Mark J. Valencia, is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles. He is currently an Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China.

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